F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee,

v.

J O S E P H M. A R

P A I O , Sheriff, Defendant-Appellant. No. 17-10448

D.C. No. 2:16-cr-01012-SRB -1

ORDER

F iled April 17, 2018

B e fore: A. W allace Tashima, W illiam A. F letcher,

a nd Richard C. Tallman, Circuit J udg es.

Order; Dissent by

J udg e TallmanU N I T E D S T A T E S V

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SUMMARY *

Crim inal Law

I n an a ppeal from the district c ourt’s d e n ial of f ormer M aricopa County Sheriff J oseph A r p a i o ’ s r e q u e s t

— f o l l o w i n g

a P residential pardon—for v a c atur o f his criminal-contemp t conviction, a mo tions panel issued a n order appointing a special p rosecutor to defend the district court’s decision a fter the United States informed this Court that it does not i ntend to defend it.

The panel held that it h a s authority to appoint counsel under F ed. R. C ri m

. P

. 42(a)(2); and that, independently
, it has inherent authority to appoint a special c ounsel to represent a position a

bandoned by the Un i t e d States on appeal.

Dissenting
, J udg e T allman wrote that it is unwise for this Court to use its authority to appoint a private attorney at this late stag e to “prosecute” the appeal of a case the Government already won, in the face of t he Government’s continued willing ness to participate, and to countenance a surreptitious

use of the vacatur appeal to pursue an u ntimely a ttack on the President’s constitutional authority to pardon.

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co urt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

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P A I O 3

COUNSEL

J ohn W ilenchik and D e nnis I

. Wilenchik, W ilenchik & B artness P.C., Phoenix
, Ariz ona; Mark D

. Go ldman, Goldman & Z willing er PL L C, Scottsdale, Ariz on a ; for Defendant-Appellant.

J ohn D. Keller, D eputy Chief; J ames I

. Pearce, Trial Attorney ; United States Department of J ustice, W ashing ton, D.C.; for Plaintiff-Appellee.

ORDER

This case is on appeal from the district court’s d e n i a l o f D e f e ndant-Appellant’s request for vacatur of his convictio n for cr iminal contempt. The v alidity of the district court’s denial w ill b e addressed by the merits p a nel assig ned to this

case. W e address only the question of w hether to a p p o i nt a special prosecutor to defend the d istrict court’s d eci sion in lig ht of the United States’ letter informing t h i s C ourt that

“ [ t ] he g overnment d oes not intend to defend the distric t court’s order.” F or the reasons discussed below, w e will appoint a special prosecutor to provide briefing and argument to the merits panel.

I . B ackg round

Defendant-Appellant former Maricopa County S h eriff J o s eph M. Arpaio (“Sheriff Arpaio”) was referred for criminal contempt on A ug us t 19, 2016. The United States prosecuted Sheriff Arpaio and obtained a conviction on J uly 31, 2017. On Aug ust 25, 2 017, P r e s i d e nt Donald J

. TrumpU N I T E D S T A T E S V

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p a r doned Sheriff Arpaio, noting that Sheriff Arpaio ’s sentencingwas “set for October 5, 2017.”

On Aug ust 28, 2017, Sheriff Arpaio moved for two f orms of relief. F irst, Sheriff Arpaio moved “to dismiss this matter with prejudice.” Seco n d
, Sheriff Arpaio asked the district
court “to v acate the verdict and all other orders in this matter, as well as the Sentencing

on October 5th.”

The district court g ranted Sheriff Arpaio’s f irs t r equest. On October 4, 2017, the district co u r t d i smissed with prejudice the action for criminal contempt. No timely notice of appeal from the dismissal order w as filed. W e denied a late-filed r e quest for the appointment of counsel to “crossappeal the District Court’s Order dismissing the charg es.”

The district court denied Sheriff Arpaio’s second request. On October 19, 2017, the district court d enied vacatur a nd refused to g rant “relief bey ond dismiss a l with prejudice.” That same day
, Sheriff Arpaio f iled a timely notice of appeal. I n response to a request f or the appo i n t m e nt of counsel to “defend the District Court’s Order deny ing Arpaio’s request for vacatur,” w e ordered the United States to “file a statement indicating whether i t i n tends to enter an appearance and file an answering

brief in this appeal.”

The United States responded t h a t it “does not intend to defend the d istrict court’s order from October 19, 2017 . . . ; instead, the g overnment inten d s t o argue, as it did in the district court, that the mot ion to vacate should have been
g ranted.” The United States took “no position on whether the Court should appoint counsel to make an y additional
arg uments.”U N I T E D S T A T E S V

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I I . Discussion

B e cause the United States has abandoned any d efense o f the district court’s decision with r espect to vacatur, the merits panel of o ur court that will decide this appeal will not receive the benefit of full briefing and argument unless w e appoint a special p rosecutor to defend the decision of the district court. F or the r easons that fol l o w , w e will appoint a special prosecutor.

F irst, we concl u de that we have the authority to appoint counsel under F ederal Rule of Criminal Procedure 42, which prescribes procedures for dealin g with criminal c ontempt. Rule 42(a)(2) provides:

Appointing a Prosecutor

. T he court must request that the contempt be prosecuted by an attorney for the g overnment, unless the interest of justice requires the appointment o f another atto rney

. I f the g overnment declines the request, the court must appoi n t another attorney to prosecute the contempt.

I n Rule 42(a)(2)’s most c ommon application, the district
court appoints a s pecial prosecutor to investig ate and try a criminal contempt when the g overnment declines to perform that function. Se e , e. g

. , Hollingsworth v. Perry
, 570 U.S. 693, 725 ( 2013) ( Kennedy
, J
., dissenting ) (“F e deral Rule o f Criminal Procedure 42(a)(2) allows a c o u r t to appoint a private a ttorney to investig ate and prosec u t e potential instances of criminal contempt.”).

B u t the operation of Rule 42(a)(2) is not confined to investig ations and trials in the d istrict court. A priv a t eU N I T E D S T A T E S V

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a t t o rney appointed under the r ule has the authority to act a s

a special p r o s e c utor not only in the district court b ut also in
t h e court of appeals. See
, e.g. , Y oung v. U.S. ex rel. Vuitt o n et F i l s S.A.
, 481 U.S. 787, 8 0 8–09 (1987) (invalidating the appointment of special prosecutor because he w a s a n interested party , not because he prosecuted an appeal); United States v. Cutler
, 58 F .3d 8 25, 827, 831–32 (2d Cir. 1 995) (accepting without comment a special prosecutor’s b r i e fing and a rg ument in an a

ppeal by a contemnor); Matter of Providence Journal Co.
, 8 20 F .2d 1342, 1345 (1st Cir. 1 986) (same). Our a ttention has n o t been directed to, nor have we found, a c ase in which a special prosecutor was appointed b y

a court of appeals after the g overnment declined to oppose the contemnor’s a

rg uments on appeal. However, we see no

reason why such appoin t ment should not take place under Rule 42(a)(2).

Second, independent of any authority under Rule 42(a)(2), we h ave inherent authority t o appoint a special counsel to represent a position abandoned b y th e United States on appeal. “[ I ] t is long sett l e d t hat courts possess inherent authority to initiate contempt proceeding s for disobedience to their orders, authority wh i ch necessarily

e ncompasses the ability to appoint a private attorney t o prosecute the contempt.” Y oung , 481 U.S. at 793. “The fact that we have come to reg ard criminal c ontempt as a crime in the ordinary sense does not mean that any prosecution o f contempt must now be c onsidered a n ex e cu t i o n of the criminal law in which only the Ex ecutive B ranch may eng ag e.” Id. at 799–800 (in t ernal citations and quotation marks omitted).

The long -standing practice of the United States Supreme Court is to use its inherent authority to a ppoint disinterestedU N I T E D S T A T E S V

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counsel to r epresent the position taken b y the United States below when the United States refuses to d efend its prior position. See United S

tates v. Brainer
, 691 F .2d 691, 6 9 3 (4th Cir. 1982) (“W hen the g o vernment c onfesses error in the Supreme Court, and thus abandons a position taken in a lower court, the Court commonly appoints a n amicus to assert the abandoned cause.”) (citing cases); L etter to Anton Metlitsky
, Esq., Lucia v. SEC
, No. 17-130 (U.S. J an. 18, 2018) (inviting

a private a tt o r n ey “to brief and argue this case, as amicus curiae, in support of the jud gm ent below”); B rief for the Respondent a t 9–10, Lucia v

. SEC
, No. 17-130 (U.S. Nov. 29, 2017) ( n o tify ing the Court that the g overnment would no long er d efend the dec i s ion below and urg ing the Court to “appoint an amicus curiae” to do so).

The Supreme Court has relie d on its inherent judicial
power to appoint appellate counsel specifically in the c ontex t of c ontempt. I n United States v

. P rovidence Journal Co.
, 485 U.S. 693 (1988), the Court held that a s p e ci al p rosecutor appointed under Rule 42 n eeds the permission o f the Solicitor General to litig ate a contempt case in the Supreme Court. Id.
at 699 n.5. T he Court n oted that the ind e pendence of the judiciary “mig ht appear to be threa t e n ed ” b y this holding
, especially in cases in which the c ontemnor was c onvicted b y the district c ourt, the Court of A p p e a l s affirmed, and the Solicitor General refused to either defend the judg ment below

o r a u t h o riz e the special prosecutor to do so. Id. at 703–0 4

. However, the Supreme Court ex p lained that “[ t] his threat

. . . is inconsequential” because of the Court’s inherent authority
to a p point an amicus to appear before the Court to defend the judg ment below: “[ I ]t is w ell within this Court’s authority to appoint an amicus curi a e to f ile briefs and present oral
arg ument in support of that judg ment.” Id. at 704.U N I T E D S T A T E S V

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Conclusion

W e will appoint s p ec ial counsel and address a ll other pending motions by

separate order.

SO ORDERED.

TAL L MAN, Circuit J u dg e, dissenting :

Amici ask u s to appoint a p rivate a t torney under F ederal Ru l e of Criminal Procedure (“Rule”) 42(a)(2) to d efend the district court’s Order denying Defendant/Appellant J o seph Arpaio’s r equest f

or vacatur of h is criminal contempt conviction. Rule 42(a)(2) is not applicable here. Arpaio effe c t i v e l y conceded his g u ilt by a c cepting the pardon, a nd there is no need f

or more investig ation, presentati o n o f evidence, or further proceeding s to determine if the equitable relief of vacatur is appropriate. The United States has told us it i s n ot abdicating its responsibility to represent the Government’s interest in this a p p eal. Nor do am i c i a t tempt to hide the true purpose of their request—to chall e n ge t he underlying pardon. B ut the c o n s titutionality of the President’s pardon is not at issue in A rpaio’s current appeal; the denial of Arpaio’s motion for vacatur of his conviction is. The r e q u est is inappropriate. My colleagues’ decision to appoi n t separate counsel now is therefore ill-advised a nd
unnecessary . Irespectfully dissent.

I

F ollowing his pardon on Aug ust 25, 2017, Arpaio moved
to dismiss his criminal c ontempt convic t i o n with prejudiceU N I T E D S T A T E S V

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and for v acatur of the r ecord. On October 4, 2017, an able United States d istrict judg e found that the pardon was valid, dismissed the a ction for criminal contempt, entered that order

o n t h e p ublic docket, a

n d closed the case. The order a l s o d e n i ed amici ’s motion to appoint a Rule 42 a ttorney , b u t reserved r

uling on Arp a io’s additional request for vacatur. After considering further briefing on whether t o v ac a te, the district court d enied the request for vaca t u r o n October 19, 2017, and Arpaio timely

appealed.

Amici initially wanted u s to a p p oint a special p rosecutor to both d efend the October 1 9 vacatur order and file a notice of appeal from the district court’s e arlier October 4 d ismissal order. W e denied amici ’s motion in part, ho w e v e r , because under F ederal Rule of Appellate Procedure 4(b)(1)(B )(ii), the time for filing an appeal to challeng e the constitutionality of the pardon h ad run. Nov. 22 Order, Dkt. 9; see U nited States

v

. W heeler
, 952 F .2d 326, 3 27 (9th Cir. 1991) (“[ A] d i s t r i ct court’s order refusing to vacate a n u nderlying contempt order is nonappealable when the g round on which vacatur is soug ht

ex isted at the time the contempt orde r w a s entered a nd the
contemnor f

ailed to appeal timely from th a t o r d er.”). I n short, the basis for our November 2 2 Order w as that amici

were too late because they missed the deadl i n e to raise a constitutional challeng e to the earlier order.

W e a lso asked the United St a t e s to state its intentions
reg arding Arpaio’s separate vacatur appeal. T he Government responded th at i t h ad entered a n appearance and “intends to represent the g overnment’s i n t er ests in this appeal.” The Government ex plained that, instead of defending the district court’s October 19 order
, it “intends to argue

. . . that the motion to vacate should h av e b een g r a n ted.” That oug ht to have been the end of the matter.U N I T E D S T A T E S V

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B u t because the U nited States has chosen not to d efend
t he vacatur order, amici now assert that the Government i s declining to prosecute Arpaio’s criminal c ontempt conviction

an d t hat we are required to appoint special counsel. Reg rettably
, my colleagu es in the majority ag ree. So und judicial discretion instead counsels that we should deny the request and not appoint a special prosecutor at this late date in the case.

I I

The request to appoint a private lawy er under Rule 42(a)(2), in place of the United St a t e s , is inappropriate n ow because it effectively g ives interested parties an avenue to belatedly appeal the pardon’s e ffect o n successful conviction, despite the Government’s continued participation.

A

The criminal contempt case was successfully prosecuted by the U nited States, which d id not h esitate or decline to prosecute. N o useful purpose would be served by appointing a new prosecutor now.

Rule 42(a)(2) w as developed for a very d ifferent purpose than e mploy ed here. “ F ederal Rule of Criminal Procedure 42(a)(2 ) a llows a court to appoint a private attorney to investigate a nd prosecute potential instances o f criminal contempt.” 1 Hollingsworth v. Perry
, 133 S. Ct. 2652, 2 673

1 Ru le 4 2 (a)(2 ) states in w h o le, “ Appo int i n g a Pro secuto r. T h e

co urt m u st req u est th at th e co ntem pt b e pro secu ted b y an atto rn ey f o r th e g o v ern m en t, u

n l ess th e in t erest o f j u stice r e q u i r e s th e ap p o in tm en t ofU N I T E D S T A T E S V

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(2013) (Kennedy
, J
., dissenti n g) (emphasis added). I n recog niz ing the power o f the judiciary to appoint special prosecutors, the Court stated in Y oung v. U.S. ex rel. V

uitton
et Fils S.A. that “[ t] he prosecutor is appointed solely to pursue the public interest in vindica tion of the court’s authority

. ” 4 8 1 U.S. 7 87, 804 (1987) (emphasis added). According ly
, “[ a] private attorney appointed to pr o s e c u te a criminal contempt therefore certainly should be as d i s i n t erested as a public prosecutor who undertakes such a prosecution.” 2 Id.

The n eed for sp e c i al counsel is over. The United States secured a contempt conviction at trial and a n y a f f ront to the court’s authority was vindicated. W e have observed that a prosecutor, as part of the prosecutorial pow e r to punish a putative c ontemnor, “can g a t her evidence and investig ate matters more thoroug hly than a court can a t a n e videntiary hearing alone. He or she can also serve to shorten the leng th of trial by c ulling throug h evidence and witnesses b eforehand
to determine which are relevant a nd credible.” F.J. Hanshaw Enters., Inc. v. Emerald River Dev., Inc.
, 244 F .3d 1128, 1140 (9th Cir. 2001).

B u t these powers of pro s e cution d o not

 ̄ a nd should
not

 ̄ ex tend to tang ential matters of end-of-case recordan o th er atto rn ey

. If th e g o v ern m en t d eclin es th e req u est, th e co urt m u st ap p o in t an o th er atto rn ey

to p ro secu te th e co n t em

p t.”

2 Amici d o n o t ap pear d isin terested . Giv en th at th e law f

irm serv in g

as th e p rim ary sig n o r f

o r a mici rep resen ted P resi d e n t T ru m p ’ s f o rm er p o litical riv al, Hillary Clinto n , th eir p o ssib le op p o sin g in terests sh o u ld at l e a st p reclu d e th em f

ro m ap p o i n tm en t as sp ecial co un sel, as t he y

r e q u e s t e d

. Yo u ng , 4 8 1 U.S. at 8 1 1 (“ [A ]p po in tm en t o f an in terested
p ro secu to r creates an ap p earan ce o f im p ro priety th at d im in ish es f aith in th e f airn ess o f th e crim in al j u stice sy stem ing en eral.”).U N I T E D S T A T E S V

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keeping or vacatur of the record of a s uccessful conviction following a pardon. This is not why Rule 42(a)(2) ex ists. I t

ex ists t o e nsure the judiciary “ h as a means to vindicate its

own authorit y without complete dependence on other B ranches.” Y

oung , 481 U .S. at 796. I t a lso applies when the
g overnment is inelig ible or otherwise declines to pr osecute. See, e.g.
, F.T.C. v. Am. Nat. Cellular
, 868 F .2d 315, 318–20 (9th Cir. 1989) (analy

zing factors that contribute to a party ’s inelig ibility to prosecute criminal c o n tempt charg es); In re Special Proceedings
, 373 F .3d 37, 4 3 (1st Cir. 2004) (holding that the a ppointment of a special prosecutor was appropriate where the g overnment attorney s were the possib l e source o f the leak of information u n derlying the criminal contempt prosecution).

Here, the district court’s a uthority was vindicated when Arpaio was convicted of criminal contempt. I ts authority will
not be u surped if that conviction is vacated in lig h t o f t he pardon, or if the court of appeals ultimately affirms the district court’s refusal to annul it from the defendant’s record.

B

The Government has also never declined to prosecute this

c a s e. See F ed. R. Crim. P. 42(a)(2) (“I f the g overnment declines the request [ to prosecu t e a contempt charg e]
, the
court must appoint another attorney to prosecut e t h e contempt.”). I t maintains that it c ontinues to repr e sent the public (and the Ex e c utive) interest in the vacatur proceeding s. Amici
, h owever, w o u ld have u s believe that because the United States supports the vacatur, such action is tantamount to the Government declining to prosecute a criminal contempt conviction. B ut they c ite no c a ses f o r the proposition that Rule 4 2 requires a

p point i n g a special prosecutor where, a sU N I T E D S T A T E S V

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here, the Government h a s a lready successfully obtained a conviction, but the President has pardoned the contemnor.

Nor does “the interest of justic e ” m a ndate that the Government be precluded from continuing to act a s a prosecutor s o the record of Arpaio’s conviction may be mai n t ained. F ed. R. Crim. P. 42(a)(2). And because the pardon does not erase Arpaio’s g uilt or ex pung e the fact o f the judg ment, there is no underlying affront to the court’s authority stemming from criminal contempt left to vindicate. See In re North
, 62 F

. 3d 14 3 4
, 1437 (D.C. Cir. 1 994) (“B ecau s e a p a rdon does not blot out g uilt or ex pung e a judg ment of conviction, one can conclude that a p ardon does
not blot out p r o b a ble cause o f g uilt or ex p ung e an indictment.”).

Even if some future merits panel s u bsequently reversed the district court’s vacatur order denying Arpaio’s r equest, the special prosecutor would still need the Solicitor G eneral’s approval t o fi l e a p e tition for w rit of certiorari to the United States Supreme Court. United States v. Providence Journal Co.
, 485 U.S. 693, 706–07 (1988). This seem s h i ghly unlikely g iven the Governme n t ’s current litig ating position. Arpaio was convicted, pardoned, and all tha t r e mains is a matter of record-keeping a s to the fact of his conviction.

Given the Government’s continued participation in t h i s case, our a

ppointment now of a special prosecutor to advance

a litig ating position different from that pursued by the United States Department of J ustice makes it appear as t h o u g h we

are appointing another prosecutor because we have prejudg ed
t h e case a

nd disag ree with the Government’s positio n

. I n lig ht of this appearance of judicial bias, w e should respect the G overnment’s position a

nd remain impartial on the mat t e r.U N I T E D S T A T E S V

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See Com m onwealth Coatings Corp. v. Cont’l Cas. Co.
, 393 U.S. 145, 150 (1968) (“[ A ] ny tribunal permitted by law to try

c a s e s a nd controversies not only must b e unbiased b ut a l s o must avoid even the appearance of bias.”); Code of Conduct for United States J udg es, 175 F .R.D. 363, 364–66 (1998).

C

More worrisome still is that amici seeming ly w a n t a special prosecutor appointed j u st to take another stab at attacking the pardon on c onsti t u t ional g rounds after they failed to timely appeal. S ee Amici Curiae ’s Reply to Statement of the United States, Dkt. 13, at 1 (“[ T] he need for a Rule 42 attorney

is particularly acute in this case g iven the unprecedented natur e of the Pardon and the novel a nd important cons t itutional issues it raises.”); B rief for A m ici Curiae
, Dkt. 5
, at 1 (“[ P] ropose d amici have a profound interest in ensuring that the constitutionality of P r esident Trump’s ex traordinary pardon of Arpaio i s reviewed by this Court.”); Motion for L eave for Erwin Chemerinsky
, Michael E. Tig ar, and J ane B

. Tig ar to Parti c ipate as Amici Curiae
, Dkt. 18, at 3–23 (proposed amici s p e nd three pag e s addressing v acatur, and nin e t e e n s u b s e q uent pag es addressing the validity

of the pardon).

The Supreme Court h as already ruled that the President has the power to pardon crimina l contempt convictions. Ex parte Grossman
, 267 U.S. 87, 1 2 2 (1925). And we have already ruled that amici missed the deadline for arguing t he merits of such an appeal. I t’s time amici let g o of that issue.U N I T E D S T A T E S V

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I I I

I t is a n unwise use of our authority to appoint a private attorney at t h i s l a te stag e to (1) “prosecute” the appeal of a

case the G overnment already w o n , (2) in the face of the Government’s continued willing ness to participate, and (3) to

cou n t e n ance a surreptitious use of the vacatur appeal to pursue an untimely attack on the President’s constitutional authority to pardon. I fear the majo r i t y ’s decision will be viewed as judicial imprimatur o f the special pro s ecutor to make inappropri a te, unrelated, a nd undoubtedly political
atta c k s on Presidential authority

. W e should n ot be wading into that thicket.

According ly , Irespectfully dissent.