Beruflich Dokumente
Kultur Dokumente
No. 15-16440
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Rebecca A. Jacobs
COVINGTON & BURLING LLP
One Front Street
San Francisco, CA 94111
Telephone: (415) 591-7036
Facsimile: (415) 955-6566
rjacobs@cov.com
(counsel continued on next page)
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Priscilla Dodson
COVINGTON & BURLING LLP
One CityCenter
850 Tenth Street NW
Washington, DC 20001-4956
Telephone: (202) 662-5996
Facsimile: (202) 778-5996
pdodson@cov.com
Andre Segura
ACLU FOUNDATION
IMMIGRANTS RIGHTS PROJECT
125 Broad Street, 17th Floor
New York, NY 10004
Telephone: (212) 549-2676
Facsimile: (212) 549-2654
asegura@aclu.org
Dan Pochoda
ACLU FOUNDATION OF ARIZONA
3707 N. 7th St., Ste. 235
Phoenix, AZ 85014
Telephone: (602) 650-1854
Facsimile: (602) 650-1376
dpochoda@acluaz.org
jlyall@acluaz.org
Cecillia D. Wang
ACLU FOUNDATION
IMMIGRANTS RIGHTS PROJECT
39 Drumm Street
San Francisco, CA 94111
Telephone: (415) 343-0775
Facsimile: (415) 395-0950
cwang@aclu.org
Anne Lai
401 E. Peltason Dr.
Law 4800-P
Irvine, CA 92697-8000
Telephone: (949) 824-9894
Facsimile: (949) 824-0066
alai@law.uci.edu
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TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................... ii
STATEMENT OF RELEVANT FACTS ................................................................. 1
1.
2.
3.
4.
5.
ARGUMENT ............................................................................................................ 9
I.
II.
III.
IV.
CONCLUSION ....................................................................................................... 20
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TABLE OF AUTHORITIES
Page(s)
Cases
Arizonans for Official English v. Arizona,
520 U.S. 43 (1997) .............................................................................................. 13
Herrington v. Cnty. of Sonoma,
12 F.3d 901 (9th Cir. 1993) ................................................................................ 15
Hilao v. Estate of Marcos,
393 F.3d 987 (9th Cir. 2004) .............................................................................. 13
Hilton v. Braunskill,
481 U.S. 770 (1987) ............................................................................................ 16
Hollingsworth v. Perry,
133 S. Ct. 2652 (2013) ..................................................................................10, 13
Lair v. Bullock,
697 F.3d 1200 (9th Cir. 2012) ............................................................................ 15
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ............................................................................................ 10
Melendres v. Arpaio,
784 F.3d 1254 (9th Cir. 2015) .............................................................................. 1
Nken v. Holder,
556 U.S. 418 (2009) ............................................................................................ 15
Turner v. Rogers,
131 S.Ct. 2507 (2011) ......................................................................................... 16
United States v. Ensign,
491 F.3d 1109 (9th Cir. 2007) ............................................................................ 16
United States v. Ries,
100 F.3d 1469 (9th Cir. 1996) ............................................................................ 18
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Other Authorities
Fed. R. App. P. 27-1................................................................................................. 23
Fed. R. App. P. 27(d) ............................................................................................... 23
LRCiv. 83.1(b) ......................................................................................................... 16
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This cases lengthy procedural history includes the district courts ruling that
Sheriff Arpaio and the Maricopa County Sheriffs Office (MCSO) violated the
Fourth and Fourteenth Amendment rights of the Plaintiff class, the courts entry of
orders for various associated injunctive relief measures, and the courts
appointment of a Monitor to supervise and assess Defendants implementation of
and compliance with the injunction. See, e.g., No. CV07-2513 (D. Ariz.), Dkt.
1164 (Attached as Ex. 13).
The facts of this case may be found in greater detail in a number of opinions of
this Court and the district court. See, e.g., Melendres v. Arpaio, 784 F.3d 1254 (9th
Cir. 2015). Only the facts relevant to the present motion are set forth herein.
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During the April hearing, the Court and Defendants counsel questioned
Arpaio and Sheridan about an article by Stephen Lemons published in the Phoenix
New Times on June 4, 2014. The Lemons article alleged that MCSO was paying a
confidential informant, (Putative Intervenor/Appellant) Dennis L. Montgomery, to
investigate possible collusion between the district court and the U.S. Department of
Justice. No. CV07-2513, Dkt. 1164 (Attached as Ex. 13) at 7; Dkt. 1166 (Attached
as Ex. 14) at 1, 5-13 (Declaration of Cecillia Wang, attaching a copy of the article
as Exhibit A). The Lemons article also reported that Arpaio was purportedly
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convinced by Montgomery that the Department of Justice and the district court had
conspired to get Arpaio. No. CV07-2513, Dkt. 1166 (Attached as Ex. 14) at 8.
During his testimony at the April hearing, Arpaio confirmed that MCSO was
conducting an investigation, using the Maricopa County Sheriffs Cold Case Posse
and Montgomery, a computer consultant based out of the Seattle, Washington area.
No. CV07-2513, Dkt. 1164 (Attached as Ex. 13) at 7-8 (citing Apr. 23, 2015 Tr.
642:3-647:12 (Attached as Ex. 21)). Arpaio also confirmed that Montgomery was
given the status of confidential informant for MCSO. Id. at 8 (citing Apr. 24, 2015
Tr. 998:12-14, 1006:10-16 (Attached as Ex. 22)).
Because the district court determined that MCSOs investigation of the
district court was relevant to the district courts efforts to ensure Defendants
compliance with its orders, the district court has ordered MCSO to produce,
subject to a protective order, documents and information regarding the MCSO
investigations. The documents produced thus far falsely assert the existence of
telephone calls between the district court and agents of the Department of Justice
and appear to imply that the district court authorized a wiretap on MCSO. No.
CV07-2513, Dkt. 1164 (Attached as Ex. 13) at 9-10; Dkt. 1166 (Attached as Ex.
14) at 27-46. The information Montgomery provided MCSO also included
approximately 50 hard drives of information, which Montgomery represented
contained classified information he obtained while working as a CIA contractor.
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No. CV07-2513, Dkt. 1166 (Attached as Ex. 14) at 17 (email from MCSO
Detective Brian Mackiewicz discussing 50 hard drives of information provided by
Montgomery); No. CV07-2513, Apr. 24, 2015 Tr. 998:3-1008:6 (Attached as Ex.
22).
MCSO reviewed these documents, and apparently concluded by November
2014 that Montgomerys claims about the documents that he provided were
fraudulent. For example, an email from MCSO Detective Brian Mackiewicz stated
that our experts examined the information contained on [Montgomerys] drives
and concluded that they contained data dumps . . . hours of[] video feeds for Al
Jazeera news feed and that Montgomery deliberately [compiled] massive
amounts of data on these drives for the purpose of obfuscating the fact the data
itself contained no evidence to support [his] claims. No. CV07-2513, Dkt. 1166
(Attached as Ex. 14) at 17. Arpaio testified that he became aware that the informer
was giving him junk. No. CV07-2513, Apr. 23, 2015 Tr. 650:20-25 (Attached as
Ex. 21). Yet MCSO continued to press Montgomery for work product until the day
before the April 2015 contempt hearing. No. CV07-2513, Dkt. 1164 (Attached as
Ex. 13) at 10; Dkt. 1166 (Attached as Ex. 14) at 17-26.
3.
On May 8, 2015, Montgomery, through his counsel Mr. Moseley and Mr.
Klayman, filed a motion to intervene in the district court proceedings, as well as a
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motion to disqualify the district court from further involvement with the case. No.
CV07-2513, Dkt. 1057 (Attached as Ex. 2), Dkt. 1067 (Attached as Ex. 4). Neither
Mr. Moseley nor Mr. Klayman are members of the State Bar of Arizona;
accordingly, each attorney (first Mr. Montgomery and then, after his application
was denied, Mr. Klayman) sought to be admitted pro hac vice. See, e.g., No.
CV07-2513, Dkt. 1060 (Attached as Ex. 3), 1093 (Attached as Ex. 6), 1080
(Attached as Ex. 5). Both applications were denied for reasons including the
conflict of interest between the attorneys current representation of Arpaio in
another action and their proposed representation of Montgomery in the district
court. No. CV07-2513, Dkt. 1093 (Attached as Ex. 6) at 2; Aug. 11, 2015 Tr.
11:14-15:13 (Attached as Ex. 26) (oral order denying Klayman application). Mr.
Moseley and Mr. Klaymans firm, Freedom Watch, represents the Sheriff in
another action in the United States Court of Appeals for the District of Columbia
challenging President Obamas executive action on immigration. No. CV07-2513,
Dkt. 1167 (Attached as Ex. 15) at 3-4. Yet in the district court action and pursuant
to the courts discovery orders, Sheriff Arpaio and MCSO have produced certain
materials in which Montgomery claims a property interest, and Sheriff Arpaio and
MCSO witnesses have testified (and are expected to further testify) that
Montgomery defrauded MCSO by providing junk information and that they do not
agree with certain positions taken by Montgomery. Id.; see also No. CV07-2513,
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Dkt. 1145 (Attached as Ex. 10) at 2; Apr. 23, 2015 Tr. 650:20-25 (Attached as Ex.
21).
In addition, one attorney, Mr. Klayman, could be a potential witness in the
district court matter, as the documents produced in the litigation included
nonprivileged correspondence between Klayman and MCSO employees regarding
Montgomerys work and other matters. No. CV07-2513, Dkt. 1166 (Attached as
Ex. 14) at 17-19, 23-26; Dkt. 1198-2 (Attached as Ex. 19) at 2-4. One such email
correspondence included a communication from Sheriff Arpaio to Mr. Klayman
clarifying that Klayman does not represent Sheriff Arpaio in this litigation. No.
CV07-2513, Dkt. 1198-2 (Attached as Ex. 19) at 3.
As a result of the denial of his attorneys pro hac vice motion,
Montgomerys motions to intervene and disqualify were stricken, and not
considered. No. CV07-2513, Dkt. 1093 (Attached as Ex. 6) at 2. Montgomery filed
a motion for reconsideration in the district court. This was also denied. No. CV072513, Dkt. 1167 (Attached as Ex. 15). On May 11, 2015, Montgomery filed a
petition for a writ of mandamus, asking this Court to compel the district courts
recusal, and further demanding that the district courts orders be vacated and that
Montgomerys documents, information, and intellectual property be returned to
him. That petition was summarily denied. In re Dennis L. Montgomery, No. 1571443, Dkt. 2 (9th Cir. May 12, 2015) (Attached as Ex. 23).
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4.
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subject to the district courts order that the documents not be disclosed to anyone,
other than as necessary to conduct the review. Id. See also No. CV07-2513, July
20, 2015 Tr. 42:10-44:18 (Attached as Ex. 24). The government chose to first
inspect one hard drive and two bankers boxes of documents. Aug. 11, 2015 Tr.
35:4-41:14 (Attached as Ex. 26).
Testimony regarding Montgomerys confidential informant work for MCSO,
and the disclosure of documents and information he provided to MCSO, are
Montgomerys only connection to the district court proceedings. He is not a
defendant in the civil case, nor (upon information and belief) is he currently
employed by MCSO in any capacity, nor is he presently accused of committing
criminal violations in connection with the district court proceedings. The district
court has issued no orders regarding Montgomery himself, nor has the Court
ordered any property in Montgomerys possession seized or disclosed, nor has the
district court entered any judgment against Montgomery.
ARGUMENT
I.
standing to intervene in the district court proceedings, and therefore should not be
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heard on his request to stay those proceedings.2 To have standing, a litigant must
seek relief for an injury that affects him in a personal and individual way.
Hollingsworth v. Perry, 133 S. Ct. 2652, 2662 (2013) (quoting Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560 (1992)). He must possess a direct stake in the
outcome of the case, id., and must demonstrate injury in fact, causal connection
between that injury and the challenged action, and a likelihood that the injury will
be redressed by a favorable decision. Lujan, 504 U.S. at 560-61.
Montgomery concedes that he lacks standing to intervene in the matters
being addressed by the district court, and that he has no stake in the outcome of
this case. See Dkt. 5 at 8-9 (Montgomery has nothing to do with immigration,
immigration enforcement or law enforcement. He has had no involvement with,
role in, knowledge of, or experience in those topics. Montgomery has no position
on the proper way to conduct traffic stops, find probable cause, or the like.). He
appeared to concede the same in his motion for reconsideration of the district
courts orders denying his his attorneys pro hac vice motions. No. CV07-2513,
Dkt. 1112 (Attached as Ex. 7) at 3 (In addition, Dennis Montgomery is not
seeking to take any position with regard [to] any other issues remaining in the post-
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(complaining that Arpaios current attorney frankly has not represented the
Sheriff zealously and within the bounds of the law). In light of Montgomerys
lack of standing in the district court and the circumstances of this case, neither
recusal nor a stay is appropriate.
Nor does Montgomery have standing to intervene at the appellate level.
Constitutional standing must be met by persons seeking appellate review, just as it
must be met by persons appearing in courts of first instance, because such
appellants seek to invoke the power of the federal courts. Hollingsworth, 133 S. Ct.
at 2661 (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 64
(1997)). A nonparty has standing to appeal only in exceptional circumstances,
where the nonparty has participated in the district court proceedings and the
equities weigh in favor of hearing the appeal. Hilao v. Estate of Marcos, 393 F.3d
987, 992 (9th Cir. 2004). Montgomery seeks to bring to a halt a years-long effort to
remedy constitutional violations by MCSO and Sheriff Arpaio against an entire
class of plaintiffs simply because he desires to prevent further unflattering
testimony about his work by MCSO witnesses, and to assert property rights over
material he previously provided to MCSO. These are not exceptional
circumstances and the equities do not favor either intervention or stay.
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II.
duplicative of matters already decided by this Court, which constitute the law of
the case with respect to the relief Montgomery now seeks. This is not the first time
Montgomery has called upon this Court to disqualify the district courthe made a
virtually identical request in his May 2015 petition for a writ of mandamus. He
now adds an emergency request for a stay, even though no relevant facts have
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changed since May, and nothing about the ongoing procedures in the case below
warrants reconsideration of this Courts previous rulings. Nor have any facts or
circumstances changed warranting reconsideration of the district courts rulings on
these issues. Montgomerys motion should be dismissed under the law of the
case doctrine. Herrington v. Cnty. of Sonoma, 12 F.3d 901, 904 (9th Cir. 1993)
(A court is generally precluded from reconsidering an issue previously decided by
the same court).
IV.
proceedings, which he does not, his request to stay should be denied because the
factors considered in weighing a request for a stay do not favor a stay in this case.
A stay is not a matter of right.... It is instead an exercise of judicial discretion
. . . [that] is dependent upon the circumstances of the particular case. Lair v.
Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012) (quoting Nken v. Holder, 556 U.S.
418, 433 (2009)). Four factors guide the courts analysis: (1) whether the stay
applicant has made a strong showing that he is likely to succeed on the merits; (2)
whether the applicant will be irreparably injured absent a stay; (3) whether
issuance of the stay will substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies. Nken, 556 U.S. at 434 (citing
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Hilton v. Braunskill, 481 U.S. 770, 776 (1987). Montgomery fails to demonstrate
that any of these factors are present here.
Montgomery is unlikely to succeed on the merits for three reasons.
First, as set forth above, Montgomery has no standing to contest the district
courts orders (other than perhaps the denials of Montgomerys attorneys pro hac
vice motions), nor to seek the courts recusal, either in the district court or on
appeal. Montgomery has not demonstrated that he has any direct interest in these
proceedings, and the district court has not even ruled on the merits of his motion to
intervene, but only on the merits of his attorneys pro hac vice applications.
Second, Montgomery has not shown that he is likely to prevail in
challenging the district courts orders denying his attorneys pro hac vice
applications. Montgomery relies on law relating to the Sixth Amendment right to
counsel for defendants in criminal cases (Dkt. 5 at 6-7), when Montgomery is not a
criminal defendant, and the Sixth Amendment right to counsel does not govern
civil cases such as this one. Turner v. Rogers, 131 S.Ct. 2507, 2516 (2011). In any
event, the district court has discretion to deny pro hac vice motions such as these.
United States v. Ensign, 491 F.3d 1109, 1113 (9th Cir. 2007); LRCiv. 83.1(b). The
district court clearly stated in its written orders regarding Mr. Moseley and in its
oral order regarding Mr. Klayman that these decisions were based on the Courts
concerns that admitting these attorneys would create a conflict of interest and in
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other ways disrupt the conduct of the case. No. CV07-2513, Dkt. 1093 (Attached
as Ex. 6), 1167 (Attached as Ex. 15); Aug. 11, 2015 Tr. 11:14-15:13 (Attached as
Ex. 26). The district court cited, for example, the actual and potential conflicts of
interest resulting from Klaymans representation of Sheriff Arpaio in one matter,
and Montgomery in this matter; Mr. Klaymans failure to address these conflicts in
his reply brief in support of his pro hac vice application; Mr. Klaymans potential
status as a witness in this matter; acts by Mr. Klayman suggesting he will infuse
invective and unrelated issues into the case; and past disciplinary issues of Mr.
Klayman). The district court found that Mr. Moseley also could not represent
Montgomery due to actual and potential conflicts of interest resulting from Mr.
Moseleys representation of Sheriff Arpaio in another matter, and that Mr.
Moseleys representation of Montgomery would impede the orderly administration
of justice. No. CV07-2513, Dkt. 1167 (Attached as Ex. 15) at 4-5 (citing several
examples of Mr. Moseleys misleading disclosures and ethical problems). Mr.
Moseley was also given the opportunity to be heard on the conflicts and other
issues, but he too failed to address the courts concerns, either orally or in his
written submissions, which included a Clarification of his motion and a Motion
for Reconsideration. See No. CV07-2513, Dkt. 1093 (Attached as Ex. 6) at 2; Dkt.
1167 (Attached as Ex. 15) at 2-5. Where an out-of-state attorney strongly suggests
through his behavior that he will neither abide by the courts rules and practices
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filed July 14, 2015, MCSO is in compliance with only 40.3% of the tracked
remedies for the policies and procedures phase of implementation and 24.7% of the
tracked remedies for the operational phase of implementation, and the Monitor
reported that MCSO made no appreciable gains in compliance during the most
recent reporting period. No. CV07-2513, Dkt. 1170 (Attached as Ex. 16) at 3, 7.
Even if phrased narrowly, a stay of the litigation would further delay the
implementation of the Supplemental Permanent Injunction. Sheriff Arpaio applied
this very same delay tactic in the district court: after filing the recusal motion, he
initially took the position that compliance activities were stayed, contrary to the
terms of the Courts far more limited stay order. See No. CV07-2513, Dkt. 1150
(Attached as Ex. 11) at 17 (citing id. Dkt 1150-1, Ex. G (Attached as Ex. 12) and
Dkt. 1120 (Attached as Ex. 9)).
Additionally, a stay would delay the additional relief necessary to address
Defendants contempt of the district court. The public, and specifically the
Plaintiffs class, has an interest in seeing Sheriff Arpaio and MCSOs
constitutional violations remedied immediately, and in seeing that the authority of
the court to monitor and ensure Defendants compliance with its orders is
respected. It will be difficult to locate the numerous contempt victims, and the
more time that passes, the fewer victims are likely to be identified. With the
passage of time, people move, addresses and phone numbers on record become
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stale, and memories fade. For this reason as well, Montgomerys motion should be
denied.
CONCLUSION
For all these reasons, the Emergency Motion should be denied.
Montgomerys request to intervene in or consolidate this matter with No. 15-72240
should also be denied.
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FUND
634 South Spring Street, 11th Floor
Los Angeles, California 90014
Telephone: (213) 629-2512
Facsimile: (213) 629-0266
Attorneys for Plaintiffs-Appellees
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CERTIFICATE OF COMPLIANCE
I certify that pursuant to Fed. R. App. P. 27-1, the attached brief is in
compliance with Fed. R. App. P. 27(d) and does not exceed 20 pages.
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CERTIFICATE OF SERVICE
I hereby certify that on August 20, 2015, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the Ninth
Circuit by using the appellate CM/ECF system.
Participants in the case who are registered CM/ECF users will be served by
the appellate CM/ECF system.
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Date
Description
02/12/2015
05/08/2015
05/08/2015
05/08/2015
05/13/2015
05/14/2015
05/20/2015
05/22/2015
05/22/2015
10
06/03/2015
11
06/12/2015
12
06/12/2015
13
07/10/2015
14
07/10/2015
15
07/10/2015
16
07/14/2015
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Date
17
07/14/2015
18
07/16/2015
19
07/28/2015
20
08/10/2015
21
04/23/2015
22
04/24/2015
23
05/12/2015
24
07/20/2015
25
08/10/2015
26
08/11/2015
Description
No. CV07-2513, Dkt. 1171 - Defendant Joseph M. Arpaio and
Gerard Sheridans Motion to Stay
No. CV07-2513, Dkt. 1175 - Plaintiffs Opposition to Motion to
Stay
No. CV07-2513, Dkt. 1198-2 - Exhibit 2 to Plaintiffs
Opposition to Motion for Admission Pro Hac Vice of Larry
Klayman
No. CV07-2513, Dkt. 1223 - Reply of Larry Klayman to
Opposition of Plaintiffs to Counsels Motion to Appear Pro
Hac Vice
No. CV07-2513, April 23, 2015, Day 3 Evidentiary Hearing
Transcript (Pgs. 635, 642-647, 650)
No. CV07-2513, April 24, 2015, Day 4 Evidentiary Hearing
Transcript (Pgs. 998-1008)
No. 15-71443, Dkt. 2 - Court Order Denying Dennis L.
Montgomery Petition for Writ of Mandamus
No. CV07-2513, July 20, 2015, Status Conference Transcript
(Pgs. 9-15, 42-45, 49-51)
No. 15-72440, Dkt. 4 - Notice of Filing of Emergency Motion
to Stay in No. 15-16440
No. CV07-2513, August 11, 2015, Status Conference
Transcript (Pgs. 11-15, 35-41)
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EXHIBIT 1
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Case
Case:
2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
880 Filed
DktEntry:
02/12/15
7-2, Page
Page4 1ofof494
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4
5
6
8
9
10
11
Plaintiffs,
12
v.
13
14
No. CV-07-02513-PHX-GMS
15
Defendants.
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18
19
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21
22
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25
26
27
28
Pending before the Court is Plaintiffs Request for an Order to Show Cause (Doc.
843) and the opposition thereto by Defendants and those non-parties who have specially
appeared in this action. (Docs. 83842, 844.) For the reasons stated below, Plaintiffs
Request is granted.
BACKGROUND
In December 2007, Latino motorists brought a class action under 42 U.S.C. 1983
against the Maricopa County Sheriffs Office and Sheriff Joseph Arpaio, among others,
alleging that Defendants engaged in a custom, policy, and practice of racially profiling
Latinos, and a policy of unconstitutionally stopping persons without reasonable suspicion
that criminal activity was afoot, in violation of Plaintiffs Fourth and Fourteenth
Amendment rights. (Doc. 1, amended by Doc. 26.) The Plaintiffs sought declaratory and
injunctive relief to prevent Defendants from engaging in racial profiling and exceeding
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the limits of their authority to enforce federal immigration law. (Doc. 1 at 1920.)
After pre-trial discovery was closed, the parties filed competing motions for
summary judgment; Plaintiffs motion included a request for the entry of a preliminary
injunction. (Docs. 413, 421.) This Court granted the Plaintiffs motion in part, and
entered a preliminary injunction on December 23, 2011.1 (Doc. 494.) The injunction
federal immigration law, and from detaining any person based on actual knowledge,
without more, that the person is not a legal resident of the United States. (Id. at 39.) The
injunction further stated that, absent probable cause, officers may only detain individuals
10
based on reasonable suspicion that criminal activity may be afoot. (Id. at 5 (quoting
11
Terry v. Ohio, 392 U.S. 1, 27, 30 (1968).) The Court explained that being present in the
12
country without authorization to remain does not, in and of itself, violate any criminal
13
statute and, therefore, actual knowledge, let alone suspicion, that an alien is illegally
14
present is not sufficient to form a reasonable belief he has violated federal criminal
15
16
English, and proximity to the border do not supply reasonable suspicion that a crime was
17
being committed sufficient to stop a vehicle to investigate the immigration status of the
18
19
Seventeen months later and following a bench trial, the Court issued its Findings
20
of Fact and Conclusions of Law in May 2013 in which it found MCSO liable for a
21
number of constitutional violations in its operations and procedures. (Doc. 579 at 115
22
31.) After allowing the Parties, at their request, to attempt to negotiate the terms of a
23
consent decree, in October 2013 the Court ordered supplemental injunctive relief to
24
remedy the violations it outlined in its Findings and Conclusions and defined
25
enforcement mechanisms for such remedies. (Doc. 606.) This Court has continuing
26
27
28
The Ninth Circuit affirmed the preliminary injunction in September 2012. See
Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012).
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Around this time, Chief Deputy Jerry Sheridan was videotaped during an October
2013 training session for deputies about to engage in a large-scale patrol, where he
referred to this Courts order as ludicrous and crap, and incorrectly stated that this
Court had found only a small number of officers had unconstitutionally used race as a
factor in traffic stops. (See Doc. 662 at 2223.) On the recording, which did not surface
until early the next year, both Chief Deputy Sheridan and Sheriff Arpaio are seen
apparently directing deputies not to take seriously the Courts requirement that they track
the race and ethnicity of individuals whom they stop. (Id. at 23.) This Court has since
10
of its Orders by MCSO officials. (See Docs. 662; 672; 776 at 6168.) For example, at a
11
March 2014 community meeting, Deputy Chief David Trombi told residents that the
12
Court had only found that MCSO deputies detained Latinos fourteen seconds longer than
13
other drivers, which was not in the Courts Findings of Fact. (Doc. 672 at 14.) In April
14
2014, Deputy Chief John MacIntyre made a statement to the press denying that the Court
15
had concluded the Sheriffs Office had engaged in racial profiling. (Doc. 684 at 4.) In lieu
16
of contempt, the Court entered an enforcement order requiring that a corrective statement
17
summarizing the Courts holding and emphasizing that the order was to be followed,
18
19
On May 14, 2014, Defendants informed the Court that a former member of the
20
21
hundreds of personal items, many of which appear to have been appropriated from
22
members of the Plaintiff class. (See Doc. 700 at 1213.) Deputy Armendariz was a
23
regular participant in the HSUs saturation patrols, both large and small scale. He also
24
testified at trial and was personally implicated by the allegations of two representatives of
25
the Plaintiff class regarding his involvement in a 2008 immigration sweep in which two
26
Hispanic American citizens were allegedly profiled and illegally detained on the basis of
27
their suspected undocumented status. (Doc. 576.) After his apparent suicide, in addition
28
to the numerous personal items apparently seized from persons he had stopped, MCSO
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also discovered numerous video recordings of traffic stops Armendariz had conducted,
apparently going back several years. (Doc. 700 at 11.) Some of those videos revealed
during the stops. (Id. at 35, 57.) Other officers, and at least one supervisor of Armendariz
who also testified at the trial in this action, were depicted on these recordings during one
Upon questioning by the Court, Chief Deputy Sheridan acknowledged that many,
if not all, deputies made audio recordings of their traffic stops pursuant to departmental
practice and had done so for some time. (Id. at 2931.) Further, Sheridan stated that there
10
was reason to believe that some deputies videotaped their own traffic stops, that there
11
was no departmental policy that prevented deputies from doing so, and that some video
12
devices had been purchased in earlier years by MCSO or through other government
13
programs for use during traffic stops. (Id. at 21, 2324.) Prior to May 2014, there was
14
apparently no agency-wide policy that governed the collection and catalogue of such
15
16
17
videotapes and the ambiguity surrounding other officers use of video- and audio-
18
recording devices during the time period in which pre-trial discovery in this case was
19
occurring, the Court ordered Defendants to immediately formulate and obtain the
20
Monitors approval of a plan designed to quietly retrieve all recordings made by officers
21
that might still be in existence. (Id. at 2527.) The Court emphasized that the substance of
22
the hearing was not to be shared with those outside the Courtroom. (Id. at 7, 5051, 69.)
23
Within two hours of this hearing, however, Chief Deputy Sheridan met with Sheriff
24
Arpaio and attorneys for MCSO. An e-mail was circulated immediately thereafter by
25
Deputy Chief Trombi (who was not present at the hearing), at the direction of Chief
26
27
who had been present during one of Armendarizs problematic stops. (See Doc. 795,
28
Attach. 1, at 34.) The e-mail advised MCSO commanders that they should simply
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gather all such recordings from their personnel. (Id. at 4.) When, later that afternoon, the
Monitor met with MCSO officials to develop a retrieval strategy, neither the Sheriff nor
Chief Deputy Sheridan informed the Monitor that MCSO had already broadcast its
collection efforts. (Id. at 45.) In the end, MCSO conducted a survey-approach of its
present and past employees to collect any outstanding recordings (Id. at 4), incurring the
additional risk that advertising their collection efforts might prompt officers to destroy
of traffic stops undertaken by the HSU and at the apparent direction of other MCSO
10
departments. They have also unearthed documents apparently requiring officers to make
11
such recordings during the period of time relevant to Plaintiffs claims. In addition,
12
dozens of personal identifications have been found in offices formerly occupied by the
13
HSU. There is evidence that, during the period relevant to this lawsuit, a number of
14
15
license plates, Mexican currency and passports, credit cards, cell phones, purses, and
16
17
18
19
While these materials appear to have been requested by Plaintiffs prior to the trial
20
of this lawsuit, it does not appear that any of them were identified or provided to the
21
Plaintiff class. There is also evidence that at least some recordings made during the
22
period relevant to the Plaintiffs claims are no longer in existence. Moreover, the
23
24
have apparently revealed that Defendants, as a matter of regular practice and operation,
25
26
interdiction operations, and detaining persons after officers concluded that there was no
27
criminal law basis for such detention, for at least seventeen months after this Court issued
28
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about suspected violations of the injunction after MCSO published News Releases
The Court also noted in its May 2013 Findings of Fact and Conclusions of Law that as a
matter of law . . . MCSO has violated the explicit terms of this Courts preliminary
injunction set forth in its December 23, 2011 order because the MCSO continues to
follow the LEAR policy and the LEAR policy violates the injunction. (Doc 579 at 114.)
DISCUSSION
I.
Contempt Power
Federal courts have the authority to enforce their Orders through civil and criminal
10
contempt. Spallone v. United States, 493 U.S. 265, 276 (1990). In addition to the Courts
11
inherent power, Title 18, Section 401 of the United States Code provides:
12
13
14
...
15
16
17
18 U.S.C. 401(3); United States v. Powers, 629 F.2d 619, 624 (9th Cir. 1980) (Section
18
401 applies to both criminal and civil contempt.). Within the enumerated statutory limits
19
of this power, a district court has wide latitude in determining whether there has been a
20
contemptuous defiance of its orders. Stone v. City & Cnty. of San Francisco, 968 F.2d
21
850, 856 (9th Cir. 1992). Because an injunctive decree binds not only party-defendants
22
but also those who are represented by them, are subject to their control, or are
23
in privity with them, contempt charges may be brought against non-parties to the
24
underlying litigation who are also bound by an injunction but fail to comply with its
25
terms.2 For non-party respondents to be held liable in contempt for violating a courts
26
27
28
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order, they must have had notice of the order and either abet the defendant or be legally
identified with him. Peterson v. Highland Music, Inc., 140 F.3d 1313, 1323 (9th Cir.
1998) (quoting N.L.R.B. v. Sequoia Dist. Council of Carpenters, AFL-CIO, 568 F.2d 628,
633 (9th Cir. 1977)). The Ninth Circuits rule regarding contempt has long been whether
defendants have performed all reasonable steps within their power to insure compliance
with the courts orders. Stone, 968 F.2d at 856 (quoting Sekaquaptewa v. MacDonald,
The moving party bears the initial burden of establishing by clear and convincing
evidence that the contemnors violated a specific and definite order of the court. Balla v.
10
Idaho State Bd. of Corrs., 869 F.2d 461, 466 (9th Cir. 1989). The burden then shifts to
11
the contemnors to demonstrate why they were unable to comply. Donovan v. Mazzola,
12
716 F.2d 1226, 1240 (9th Cir. 1983). The contemnors must show that they took every
13
14
alleged contemnor took every reasonable step, a district court may consider a history of
15
16
17
18
that only the least possible power adequate to the end proposed should be used in
19
contempt cases. Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 801 (1987)
20
21
22
prosecutor, notice to the contemnor of the charges against him, and a trial. See Fed. R.
23
24
25
26
27
28
Civ. P. 71 (noting that the procedure for enforcing an order against a non-party is the
same as against a party); United States v. Baker, 641 F.2d 1314 (9th Cir. 1981) (finding
that non-party fishers were bound by and could be criminally prosecuted for contempt for
non-compliance with an injunction issued by a federal court to manage the state salmon
fishing industry, because the evidence was sufficient to prove that the defendants had
notice of the injunction and violated it intentionally).
3
A party cannot disobey a court order and later argue that there were
exceptional circumstances for doing so. This proposed good faith exception to the
requirement of obedience to a court order has no basis in law. In re Crystal Palace
Gambling Hall, Inc., 817 F.2d 1361, 1365 (9th Cir. 1987).
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Crim. P. 42; Powers, 629 F.2d at 625. The Supreme Court has suggested that a trial judge
should first consider the feasibility of prompting compliance through the imposition of
civil contempt, utilizing criminal sanctions only if the civil remedy is deemed inadequate.
See Young, 481 U.S. at 801. The Court does so through these proceedings.
II.
Application
status conference held with the parties and specifically named non-parties on January 15,
2015, Plaintiffs have provided sufficient evidence that Defendants and their specified
agents have committed contempt insofar as their conduct amounted to disobedience of (1)
10
the Courts preliminary injunction; (2) the Federal Rules governing pre-trial discovery;4
11
and (3) the Courts oral directives at the sealed hearing held on May 14, 2014.5
12
13
contempt finding was appropriate, civil contempt alone would be sufficient to vindicate
14
the constitutional substantive rights involved and compensate the Plaintiff class for its
15
injuries resulting from the contemnors behavior, particularly in light of the scope of
16
17
Nevertheless, out of deference to the elected office held by Sheriff Arpaio and because
18
the principle of restraint in contempt counsels caution in this Courts exercise of its
19
20
4
21
22
23
24
25
Plaintiffs Request for an Order to Show Cause outlines two grounds for civil
contempt: the violation of the preliminary injunction and the conduct surrounding the
May 15, 2014 hearing and development of an evidence-retrieval plan with the Monitor.
(Doc. 843 at 5.) After reviewing the briefs, the Court held a telephonic conference with
the parties regarding the possible pre-trial discovery violations and whether or not any
such violations should be included in these contempt proceedings. (See Doc. 858 at 14
18.) At that time, Plaintiffs orally moved for an Order to Show Cause on this basis, and
Defendants consented to resolve any questions involving MCSOs obligation to disclose
and produce audio and video evidence of traffic stops at the hearing in April. (Id.)
5
26
27
28
The Court specifies below the factual basis on which it deems Plaintiffs have set
forth evidence sufficient to present a prima facie case of contempt with respect to the
various parties and non-parties named in this Order. Additional facts and/or persons
subject to contempt may become known during the expedited discovery process that the
Court concurrently authorizes. A failure to include facts in this Order does not prevent
the parties from relying on them at the evidentiary hearing to the extent they relate to the
grounds for which the parties and non-parties have been ordered to show cause.
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powers, the Court noted that it would hold civil contempt hearings first to assess the
adequacy of civil remedies before referring the matter, if appropriate, for criminal
contempt prosecution. Id.; see also United States v. Rylander, 714 F.2d 996, 1001 (9th
Cir. 1983). Accordingly, this Order to Show Cause and the noticed hearings to be held in
April 2015 only contemplate civil contempt charges. If further action proves necessary,
the Court will give separate notice, appoint a prosecutor pursuant to Rule 42, and initiate
A.
A party may be held in civil contempt when, after receiving notice, it fails to take
10
all reasonable steps within its power to comply with a specific and definite injunctive
11
decree. In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th
12
Cir. 1993). The preliminary injunction detailed that MCSO lacked the authority to
13
enforce civil federal immigration law and, concomitantly, lacked the authority to detain
14
persons not suspected of violating any state or criminal law based on the belief, however
15
reasonable, that such persons were present in the country unlawfully. (Doc. 494 at 39
16
40.) The Court orders the following individuals/entities to show cause why they should
17
not be held in contempt for their failure to abide by and apprise MCSO deputies of the
18
19
1.
20
Defendant MCSO does not appear to contest that it received notice of the
21
injunction and that it failed to implement the order. By MCSOs own admission, the
22
preliminary injunction was also not distributed within the HSUthe special operations
23
unit which bore the primary responsibility for enforcing state and federal immigration
24
laws and conducting interdiction patrols. (Doc. 804 at 5 (MCSO has concluded[] that
25
this Courts order was not communicated to the line troops in the HSU.); Doc. 843, Ex.
26
F, at 62 (Dep. of Lt. Joseph Sousa at 178:623, United States v. Maricopa Cnty., No. 2-
27
12-cv-00981-ROS (D. Ariz. filed May 10, 2012) (I dont remember a briefing board
28
because it would be contradictory to the LEAR policy . . . .).) Nor was the preliminary
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injunction communicated to any other MCSO patrol officer. (See Doc. 843 at 8 n.1.) As a
result, MCSO immigration enforcement activities continued apace despite the issuance of
injunction, MCSO also wrongfully believed that it could consider Hispanic ancestry in
violations. In addition to a Fourth Amendment violation, this error in belief would have
ancestry who were detained and investigated by MCSO for immigration violations due to
10
their ethnic heritage, regardless of whether the initial stop resulted in a further detention.
11
There is also evidence that, during the period relevant to this lawsuit, a number of
12
13
credit cards, cell phones, purses, Mexican currency and passports and religious shrines
14
15
who were members of the Plaintiff class. These items were apparently routinely kept by
16
17
of MCSO. The confiscation of these items apparently continued during the period in
18
which MCSO was enjoined from all immigration enforcement and illustrates further
19
damage that was inflicted as a result of MCSOs violation of the preliminary injunction.
20
The MCSO officials who received notification of the injunction when it was
21
issued via an e-mail from then-counsel Timothy Casey6 have conceded that this failure
22
was the result of inaction on their part. (Doc. 804 at 56.) As a result of these
23
shortcomings, the order enjoining Defendant from enforcing federal immigration law,
24
operating under the LEAR policy, and unconstitutionally detaining persons based solely
25
on the belief that they were in the country without authorization was never implemented.
26
27
6
28
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the issuance of the preliminary injunction and even the trial in this matter. (See Doc. 843
at 12.) The MCSO investigations that stemmed at least in part from the Armendariz
conduct immigration interdictions as a part of its regular operations well after the
issuance of the preliminary injunction and at least up to the entry by this Court of its
10
Plaintiffs have also provided evidence that civil immigration laws were being
11
enforced by regular MCSO patrol deputiese.g., including those not in the HSUand
12
that such immigration enforcement was occurring as a matter of MCSO policy and
13
directive. (See Doc. 843, Ex. A, at A3A8 (detailing three other possible violations of the
14
15
five Mexican nationals on the belief that they were clearly recent border crossers and
16
summoned HSU officers to the scene to question them. (Id., Ex. 2, at A3A4 (News
17
Release, MCSO, ICE Refuses to Accept Illegal Aliens from Sheriffs Deputies During
18
Human Smuggling Operation, Sept. 21, 2012).) The MCSO press release regarding the
19
incident details that, after detectives were unable to charge two of the men for any state
20
crimes, they nevertheless continued to detain these individuals and attempted to transfer
21
them to U.S. Immigration and Customs Enforcement, as [had] been the practice during
22
the last six years. (Id. at A5.) In at least two other instances over the next few weeks,
23
individuals stopped by MCSO deputies on the belief that they were in the country without
24
authorization but who could not be charged with any crime were apparently detained
25
pursuant to department policy until they could be transferred to ICE or U.S. Customs and
26
Border Patrol. (See id., Ex. B, at A4 (discussing MCSOs back-up plan); see also id.,
27
28
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in direct contradiction of the terms of the preliminary injunction. This is true regardless
extent that obedience necessitated conduct that violated this Courts Orders. (See id., Ex.
B, at 23.)
2.
Defendant Joseph M. Arpaio is the head of MCSO, its chief policy maker, and has
final authority over all of the agencys decisions. (Doc. 530 at 6.) Moreover, as a
named Defendant, he has been under a duty at all times during this litigation to take such
steps as are necessary to reasonably ensure MCSO is in compliance with this Courts
10
Orders. To this end, Sheriff Arpaio received a Notice of Electronic Filing through his
11
lawyer when the injunction was issued. Sheriff Arpaio has confirmed under oath that he
12
was aware of the order when it came out and discussed it with [his] attorneys. (Doc.
13
843, Ex. B, at 3132 (Dep. of Sheriff Joseph M. Arpaio at 65:1367:20, Maricopa Cnty.,
14
15
December 24, 2011, the day after the injunction was filed, corroborates Arpaios
16
knowledge of the preliminary injunction, noting his intention to appeal it but nevertheless
17
18
Plaintiffs have proffered evidence that Arpaio failed to take reasonable steps to
19
20
406. In a related case brought by the U.S. Department of Justice, Sheriff Arpaio stated
21
that he could not recall giving any instructions to ensure his office complied with the
22
preliminary injunctions terms. (Doc. 843, Ex. B, at 32 (Arpaio Dep. at 67:25, Maricopa
23
Cnty., No. 2-12-cv-00981-ROS).) Plaintiffs have also identified evidence that suggests, to
24
the contrary, Sheriff Arpaio directed operations and promulgated policies that violated
25
the terms of the preliminary injunction. For example the September 21, 2012 press
26
release described above in which MCSO announced ICEs refusal to accept custody over
27
28
See J.J. Hensley, Judge Curbs MCSO Tactics, Ariz. Republic, December 24,
2011, at A1.
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two Mexican nationals against whom MCSO could bring no criminal charges, Sheriff
Arpaio is credited with organizing a back up plan in which suspected illegal aliens not
taken by ICE would be transferred to Border Patrol: as directed by the Sheriff, the
deputies took the two suspects detained near the Mexico border that could not be arrested
to a CBP station. (Doc. 843, Ex. 2 at 7.) The press release further quotes Sheriff Arpaio
enforce all of the illegal immigration laws, (id. at 8), despite the preliminary injunction
10
Sheriff Arpaio personally ordered deputies to transport two persons for whom no criminal
11
charges could be brought to Border Patrol after ICE refused to take custody of them. (Id.,
12
13
Company, September 27, 2012).) An additional MCSO press release dated October 9,
14
2012 again emphasized that it was Sheriff Arpaios personal directive that deputies detain
15
persons believed to be in the country without authorization but who could not be charged
16
with crimes until they could be transported to Border Patrol agents: [m]y back up plan is
17
still in place and we will continue to take these illegal aliens not accepted by ICE to the
18
Border Patrol. (Id., Ex. 2, at 11 (News Release, 2nd Time ICE Refuses to Accept Illegal
19
20
21
that the HSU continued to conduct immigration interdictions as part of its regular law
22
enforcement activities, contextualize his July 12, 2012 trial testimony as reflecting a more
23
problematic enforcement approach than just continuing the LEAR policy on an ad hoc
24
basiswhich itself violated the preliminary injunction. At trial, Arpaio testified that,
25
26
believed his agency still had the authority, pursuant to a legitimate arrest, to determine
27
that person was here illegally. And then if there was no state charge to book that person
28
into the jail, [to] turn that person over to ICE. (Doc. 572 at 502.) In response to
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MCSO continued to retain custody of individuals who could not be lawfully detained on
any criminal charges and attempt to transfer them to federal Border Patrol agents:
4
5
6
7
8
9
Q:
And you have that authority today [July 24, 2012]. In
any of your law enforcement actions can you, if you come
across someone unlawful, detain them?
A:
Yes. . . . I think probably in the last two weeks weve
made over forty arrests of illegal aliens coming into our
county, and a few we did not have the state charge, including
some young children, and ICE did accept those people. . . .
We havent had any problem yet turning those that we cannot
charge in state court over to ICE.
10
(Id. at 50203.) From his testimony and other public statements he has made, a prima
11
facie case has been made that Arpaio directed his deputies to carry out immigration
12
enforcement operations and promulgated a policy within MCSO that individuals who
13
could not lawfully be detained on any criminal charges should still be held solely on
14
suspicion of unlawful presence for months after the Court enjoined such practices.
15
3.
16
Sheridan has held the position of MCSOs Chief Deputy since November 2010.
17
(Doc. 840 at 3.) The position is second-in-command in the department and is responsible
18
for supervising all of MCSOs operations on both the enforcement and detention sides.
19
(Doc. 530 at 6.) Neither MCSO nor Sheridan denies that he was a recipient of the e-mail
20
from Timothy Casey to which the December 23, 2011 order was attached. (Doc. 840 at
21
4.) Nevertheless, in his Memorandum re: Criminal Contempt Sheridan asserts that he was
22
not aware of the preliminary injunction when it was issued and it was not his
23
24
25
26
oath, Sheridan indicated that it was his responsibility to communicate the injunction to
27
inferior MCSO officers but that he assumed Executive Chief Sands would deal with it.
28
(Doc. 843, Ex. D, at 4649 (Dep. of Gerard Sheridan at 122:1125:7, Maricopa Cnty.,
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purported delegation with Sands. (Id.) Neither MCSO nor Sheridan took any steps to
In addition, the Court may evaluate Sheriff Arpaio and Chief Deputy Sheridans
history of non-compliance with respect to other and related orders of this Court in
determining whether contempt is merited in this instance. See Stone, 968 F.2d at 857.
4.
Before his retirement, Chief Sands was the Chief of Enforcement at MCSO and
reported directly to the Chief Deputy. (Doc. 530 at 6.) With respect to the injunctions
10
11
communicate the order to his subordinates, but could not confirm whether or not any
12
directives to this effect had actually been given. (Doc. 843, Ex. C, at 43 (Dep. of Brian
13
14
that Executive Chief Sands may also have failed to take reasonable steps to communicate
15
the injunction to the appropriate individuals within MCSO after receiving notice of it
16
17
5.
18
19
preliminary injunction from Timothy Casey shortly after its issuance. (Doc. 839 at 3.) He
20
further acknowledges that he did nothing to communicate the existence and/or terms of
21
the order to patrol personnel. (Id.) MacIntyre justifies his inaction on the grounds that he
22
23
MCSO. (Id. at 3; Doc. 838 at 2.) However, as Plaintiffs note, there is evidence suggesting
24
that Deputy Chief MacIntyre may bear accountability. In addition to his duties deriving
25
from his rank as a commander, MacIntyre is an attorney who consults with the County
26
Attorneys Office and outside counsel as needed in MCSOs defense. (Doc. 235, Ex. 1, at
27
12.) Furthermore, in 2009 at least MacIntyre appears to have been a principal contact
28
within MCSO for outside counsel relating to matters involving the Melendres litigation.
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(Doc. 235 at 7.) MacIntyre also assumed responsibility for MCSOs disregard of the
document retention notice sent to Casey as outside counsel for Defendants, (see Doc. 235
at 78, Ex. 3, at 3), that resulted in court-imposed sanctions for spoliation of evidence.
(Doc. 261.) Thus, at some points over the course of this litigation, MacIntyre has
apparently been under just such an obligation to ensure Defendants compliance with its
6.
Beginning in 2007, Sousa was the unit commander for the HSU. (Doc. 530 at 7.)
Lieutenant Sousa was noticed by Timothy Casey of the preliminary injunction and, in his
10
role as a supervisor, had the ability to direct and oversee the routine policing of inferior
11
officers including Deputy Armendariz. Based on the evidence Plaintiffs have presented of
12
persistent immigration interdiction patrols being conducted by the HSU after December
13
2011, Plaintiffs have sufficiently demonstrated that Lieutenant Sousa may not have taken
14
all reasonable steps as required to ensure the injunction was being complied with by line
15
16
-------------------------
17
Defendants, joined by the specially appearing non-parties, argue that they had no
18
fault for the deficiencies that resulted in the preliminary injunction not being shared with
19
officers, citing a lack of communication throughout the department. (Doc. 842 at 14,
20
18.) This argument lacks merit. Apart from the evidence in the record that MCSO and
21
22
23
mandatory even if it requires some effort by the party bound; the standard by which a
24
partys efforts to comply are judged is one of reasonableness. See Sekaquaptewa, 544
25
F.2d at 406.
26
Rather than offering evidence that any reasonable steps were undertaken to
27
encourage compliance with the injunction, Defendants insist that their subsequent good
28
faith efforts to disseminate the terms of the May 2013 permanent injunction to MCSO
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personnel should excuse their noncompliance with the previous order. (Doc. 842 at 19.)
As has been previously noted, bad faith is not a prerequisite to a finding of civil
contempt. Stone, 968 F.2d at 856. Further it does little to ameliorate the harms incurred
by the Plaintiff class in the seventeen months after the injunction was issued that in
ensure all deputies received proper training and guidance to ensure compliance with the
Courts Order. (See Doc. 842 at 19.) The history of MCSOs compliance with the
permanent injunction, which incorporated and extended the terms of the preliminary
injunction, does not illustrate good faith on the part of MCSO; rather, it illustrates and
10
11
12
compliance and non-compliance with this Courts previous orders may be considered. In
13
March and April 2014, the Court held several hearings to address misrepresentations of
14
its orders by multiple high-ranking MCSO officials, including Sheriff Arpaio and Chief
15
Deputy Sheridan. (See Docs. 662, 672.) Sheridan, in addition to describing the permanent
16
injunction as ludicrous, averred that attorneys had informed him the Courts May 2013
17
order was unconstitutionala statement that he later repudiated in a hearing before this
18
Court. These hearings also confirmed that other MCSO command staff members, without
19
20
members of the general public. Sheriff Arpaio and Chief Deputy Sheridan both
21
apologized to the Court, and agreed to sign and promulgate a corrective statement within
22
MCSO. After the text of the statement was drafted by both parties and submitted to the
23
Court for approval, however, Sheriff Arpaio rescinded his assent to sign and distribute it.
24
In the end, the Court coerced the statements transmission to and signature by all MCSO
25
law enforcement personnel, other than Sheriff Arpaio or Chief Deputy Sheridan, via court
26
order under the Monitors supervision. (Doc. 680.) The Defendants compelled
27
circulation
28
of
the
memorandum
correcting
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compliance and in no way mitigates the need for the present hearings.
B.
The Federal Rules of Civil Procedure require parties to reasonably and diligently
responsibility for conducting discovery is to continue to rest with the litigants, they must
be obliged to act responsibly and avoid abuse. Fed. R. Civ. P. 26(g) (Advisory
Committee Notes); cf. Qualcomm Inc. v. Broadcom Corp., No. 05CV1958-B, 2010 WL
1336937 (S.D. Cal. Apr. 2, 2010) (discussing the good faith and professional obligations
inuring to litigants and counsel to search for and produce responsive documents). In
10
addition to Rule 37, the Court possesses inherent powers to punish misconduct in
11
discovery proceedings by an order finding the offending person in contempt. Fed. R. Civ.
12
P. 37(d); Shillitani v. United States, 384 U.S. 364, 370 (1966). Individuals who are not
13
parties to a lawsuit may be held in contempt for their noncompliance with a discovery
14
order. U.S. Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 79
15
(1988).
16
17
discovery demands, including requests for admissions, requests for documents, and
18
19
20
21
22
23
24
25
26
27
28
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1
2
3
4
6
7
8
9
(Id. at 9.) The term document was defined broadly by Plaintiffs to include all
matters, instruments or other tangible things, including any
electronically stored information (ESI) contained on
computer diskette or other media, within the scope of Federal
Rules of Civil Procedure 26 and 34, including, without
limitation: any and all correspondence, memoranda,
complaints, grievances, citations, booking papers, arrestee
statements, arrest reports, incident reports, field reports,
departmental reports, disciplinary reports or write-ups, draft
reports, preliminary reports, final reports and underlying
materials, witness statements, witness interview summaries,
field interrogation cards, meeting minutes, meeting agendas,
notes of meetings, bulletins, written briefings, intra- and
interoffice communications, including CAD and MDT
reports, policies, manuals, training materials, books of
account, worksheets, desk diaries, appointment books, daily
logs, end-of-shift logs, expense accounts, and records of
every type and description, all written, recorded and graphic
matter of every type and description, electronic mail,
electronic databases, radio logs, recordings, transcriptions of
recordings,
notes
of
conversations,
telegraphic
communications, pamphlets, schedules, studies, books,
computer printouts, photographs and photographic records,
maps, charts, tapes (including video tapes), transcriptions of
tapes, and any other device or medium on or through which
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
The location, time and duration of the stop; The specific reason(s) or
justification(s) for the stop; any and all details about the vehicle, such as plate number,
make, model and year; The names of driver(s) and passenger(s); The age, gender and race
or ethnicity of the driver(s) and passenger(s); Whether any driver or passenger was
questioned, warned, cited, searched, arrested, detained or investigated and the reason(s)
therefor; The specific questions asked of driver(s) and passenger(s); Any database checks
run on the driver(s), passenger(s) or vehicle; Whether a search was conducted and the
basis therefor; If searched, whether any contraband was found; and Whether any driver or
passenger was referred to, held for, or subsequently transferred to the custody of ICE and
the reason(s) therefor. (Pls. 1st Req. Produc. at 78.)
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1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(E.g., id. at 34.) Despite these requests, Defendants apparently never disclosed to
Plaintiffs that (1) someif not the majorityof MCSO deputies had audio-recording
devices issued to them as a matter of policy; (2) such audio-recording devices were in use
during the relevant discovery periods; (3) at least some MCSO deputies had body- and/or
vehicle-mounted video-recording devices issued to them during the relevant discovery
periods; (4) at least some MCSO deputies recorded their on-duty activities with privately
purchased video equipment during the relevant discovery periods; (5) HSU procedures
apparently required some video recordings of traffic stops to be made; (6) HSU
maintained a catalog of DVDs containing recordings of traffic stops by officers; and (7)
at least some MCSO deputies had video cameras issued to them as a supervisory measure
to monitor their on-duty activities. Defendants apparently never identified nor produced
to Plaintiffs the associated physical copies of these audio and video recordings. In
addition, dozens of personal identifications and items of personal property have been
found in offices previously used by the HSU and elsewhere, along with a number of
boxes of written reports pertaining to HSU operations. There is also no evidence that they
were ever provided to the Plaintiffs as part of Defendants pre-trial discovery obligations
in this matter.
These materials appear to be relevant both to the merits of Plaintiffs civil rights
claims and for impeachment purposes, and their production prior to trial may have led to
the admission at trial of evidence of additional infringements suffered by the Plaintiff
class as a result of MCSOs actions. Such evidence may have resulted in a broader scope
of injunctive relief ultimately entered by this Court. MCSO leadership has acknowledged
that officersboth within the HSU and in other unitswere regularly making audio
recordings of their traffic stops pursuant to departmental practice and that some deputies
even videotaped their traffic stops using devices purchased by MCSO for such purpose.
(Doc. 700 at 21, 2324.) There is also evidence that MCSO officers routinely confiscated
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items of personal property from members of the Plaintiff class during periods that were
either subject to discovery disclosure and/or during the time that the MCSO was violating
the preliminary injunction. Plaintiffs have sufficiently demonstrated the likelihood that
Defendants had at least some of this knowledge at a time in which they had an obligation
under the Federal Rules of discovery to disclose it. For these reasons, Defendants MCSO
and Sheriff Arpaio are ordered to show cause why the non-disclosure of this evidence
obligations.
10
show cause why he should not be held in contempt for abetting Defendants discovery
11
violations. MacIntyre has already once borne responsibility for evidence spoliation at an
12
earlier stage in this litigation: in July 2008, counsel for Plaintiffs wrote a letter to
13
Timothy Casey demanding the preservation of all MCSO records that had to do with
14
immigration patrols since the initial putative class action complaint was filed and any
15
16
also served as Caseys contact within MCSO at this time and admitted that he simply,
17
albeit regrettably, forgot to forward [the demand for documents] to others at the
18
MCSO. . . . (Doc. 235, Ex. 3, at 3.) In an affidavit, MacIntyre explained that his
19
20
21
22
23
24
25
26
27
28
(Id. at 23.) His statements as to the role he played in MCSOs discovery process are
sufficient evidence that he may also have been responsible for Defendants failure to
disclose the evidence at issue now.
C.
The third ground on which Plaintiffs assert that Defendants should be ordered to
show cause relates to Defendants non-compliance with the Courts May 14, 2014
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Orders. In sealing the hearing in which the Armendariz evidence was disclosed, the Court
commanded that the information discussed therein be kept confidential. (Doc. 700 at 7,
5051, 69.) The Court then directed Defendants to quietly develop an evidence
that were in the possession of patrol deputies. (Id. at 2527.) The following persons are
ordered to show cause why their conduct subsequent to this hearing did not constitute
contempt of Court:
1.
The Maricopa County Sheriffs Office is responsible for its leaders apparent
10
11
contravention of this Courts order. At the hearing, both MCSO and the Court
12
acknowledged the need for confidentiality to preserve the efficacy of an ongoing criminal
13
14
MCSO. (Id. at 5, 2223.) In the early afternoon, Deputy Chief Trombi was summoned
15
into a meeting that included Sheriff Arpaio, Chief Deputy Sheridan, and MCSOs
16
attorneys and directed to e-mail division commanders about collecting past video
17
recordings of patrol operations. (Docs. 795, Attach. 1, at 4; Doc. 803 at 59.) Neither
18
19
20
The resulting e-mail from Trombi to division commanders, and the survey-
21
approach strategy of collecting the recordings described in the e-mail and ultimately
22
employed by MCSO, also apparently constituted disobedience to the Court. During the
23
hearing, the Court indicated that what it expected from MCSO with respect to a video-
24
25
26
27
28
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(Doc. 700 at 27.) At numerous points the Court discussed the Monitors involvement in
the development of a retrieval plan,9 and near the end of the hearing the Court concluded,
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
(Id. at 41 (emphasis added).) Tim Casey, representing MCSO, affirmatively stated that
the investigation was within the purview of the Monitors authority: [W]e agree that
Bob Warshaw and his team, because of the Armendariz material, have the need, as an
officer of the Court, to investigate those matters. (Id. at 3940.) In the end, the executive
leaders of MCSO and their legal counsel pursued an independent plan without consulting
the monitoring team, communicated that plan to subordinate personnel, and failed to
inform the Monitor at the first available opportunity that they had done so. Chief Deputy
Sheridan and Christine Stutz, another attorney for MCSO who had been present during
the earlier meeting with Trombi, later met with the monitoring team for several hours
discussing investigative strategies for retrieving outstanding recordings without
mentioning that a contrary decision had already been reached and implemented.
2.
Sheriff Arpaio, a named Defendant in this case, was present at the hearing in
which the Court ordered MCSO to develop a plan to comprehensively collect any
outstanding recordings of traffic stops while minimizing the risk of evidence destruction.
He was also apparently present at the meeting in which Deputy Chief Trombi was
instructed by Chief Deputy Sheridan to e-mail commanders. In clear terms, the Court
ordered Arpaio to take full and complete steps to investigate who may have been aware
26
27
28
(See, e.g., Doc. 700 at 27 (I will have my monitor work with you to develop a
proif you want his assistance.); id. at 29 ([D]o your best, and I mean your level best,
come up with a plan, review it with the monitor if you will, if you need to, to recover all
of that data.).)
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that this activity was going on, no matter how high up the chain it goes, and to be
involved in the supervision and the understanding and the direction of . . . such
investigations. (Id. at 37.) Arpaio assented, and further acknowledged the role the
The Court:
Arpaio:
Yes, I
The Court:
Arpaio:
The Court:
Casey:
No.
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(Id. at 3839.) Despite his statements to the Court, Sheriff Arpaio apparently failed to
take such steps as were necessary to ensure MCSO was in compliance with this Courts
May 14, 2014 orders as they related to evidence collection and administrative oversight.
As MCSOs elected leader, Arpaio may delegate the authority vested in him by the
residents of Maricopa County to his subordinates. Ultimately, however, he must bear
responsibility for any deficiencies on their part that causes MCSO as an agency to violate
this Courts directives.
3.
Chief Deputy Sheridan was also present at the May 14 hearing. Apparently at the
direction of Sheriff Arpaio, Sheridan bore primary responsibility for collecting
outstanding recordings and investigating MCSO personnel implicated by the tapes as
having engaged in problematic police practices. (Id. at 37, 40.) Sheridan has admitted
that, despite the sealed nature of the hearing and his admonition that he would work with
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the Monitor, (see id. at 42), he instructed Deputy Chief Trombi to send the e-mail to
III.
Remedies
compensate injured parties for harm resulting from the defendants contemptuous
behavior, or both. Intl Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821,
82728 (1994). Given the remedial purpose of the sanction, a finding of civil contempt
10
11
United States v. Bright, 596 F.3d 683, 696 (9th Cir. 2010). In contrast, a criminal
12
contempt proceeding punishes intentional disobedience with a judicial order and, thus,
13
vindicates the authority of the court. Bagwell, 512 U.S. at 828. The crime of contempt is
14
completed when the contumacious conduct occurs, regardless of whether the subject later
15
complies with the order he or she violated. The same conduct may give rise to both civil
16
17
It is the Courts expectation that these contempt proceedings will allow for the
18
development of an evidentiary record sufficient for the Court to evaluate whether it can
19
fashion an appropriate judicial response that vindicates the rights of the Plaintiff class,
20
and whether other remedies may be appropriate. To this end, the Parties have proposed a
21
22
Defendants violations of the injunction and/or an award of damages to the Plaintiff class
23
as a whole. (Doc. 843 at 2225.) However, the feasibility of these measures remains to be
24
seen: Defendants have cautioned, for example, that the compensatory purpose of civil
25
contempt could prove impractical under the circumstances. (Doc. 842 at 17; Doc. 858 at
26
30.) The viability of crafting suitable civil relief for each of the grounds on which
27
28
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CONCLUSION
Based upon the foregoing facts, Plaintiffs have set forth sufficient evidence that
MCSO and the aforementioned individuals acted in contempt of this Courts lawful
writs, processes, orders, rules, decrees, or commands by (1) failing to implement and
comply with the preliminary injunction; (2) violating their discovery obligations; and (3)
acting in derogation of this Courts May 14, 2014 Orders. See 18 U.S.C. 401(3).
After an appropriate hearing, the Court will determine whether these individuals
have committed contempt of court and the sanctions for any such violations. In
conjunction with this Order to Show Cause, an order has also been filed granting
10
11
these matters.
12
13
23, and 24, 2015. Proceedings will begin daily at 9:00 a.m. in Courtroom 602 of the
14
15
85003.
16
IT IS FURTHER ORDERED that the following parties are to appear before the
17
Court and show cause, as indicated, why the Court should not impose sanctions on them
18
pursuant to 18 U.S.C. 401 and/or Federal Rule of Civil Procedure 37(d): the Maricopa
19
County Sheriffs Office, Sheriff Joseph Arpaio, Chief Deputy Gerald Sheridan, Executive
20
Chief (ret.) Brian Sands, Deputy Chief John MacIntyre, Lieutenant Joseph Sousa.
21
///
22
///
23
///
24
///
25
///
26
///
27
///
28
///
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submit a copy of this Order to Show Cause to the United States Marshal for service upon
the following: the Maricopa County Sheriffs Office, Joseph Arpaio, Gerald Sheridan,
Brian Sands, John MacIntyre, and Joseph Sousa. A copy of this Order shall also be
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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EXHIBIT 2
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EXHIBIT 3
(75 of 523)
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ORDER
Plaintiffs,
14
v.
15
16
No. CV-07-2513-PHX-GMS
17
Defendants.
18
19
20
Attorney for Admission to Practice Pro Hac Vice Pursuant to LRCiv 83.1(b)(2) from Mr.
21
22
both a two page letter dated May 2, 2015 and a three page document entitled Additional
23
Information.
24
In the two page letter noted as being copied to all counsel Mr. Moseley
25
indicates he is a staff attorney working for the public interest law firm Freedom Watch,
26
Inc. and that he seeks to intervene in this action on behalf of Dennis Montgomery,
27
28
In the letter Mr. Moseley is apparently critical of the testimony of Sheriff Arpaio or Chief
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Mr. Moseley requested that the Additional Information document be filed under
seal, because it concerned previous bar discipline that had been imposed on him for a
obligations. He indicates in that Additional Information that I also ask that the Court
and the parties consider that I, Jonathon Moseley, am not proposing to actually
participate in the conduct of this case, but merely to sponsor the filing of an Amicus
10
Curiae brief for Sheriff Joe Arpaio by attorney Larry Klayman of Freedom Watch.
11
12
letter. As confirmed with Ms. Iafrate at the Status Conference, Mr. Klayman represents
13
Sheriff Arpaio in other litigation. To the extent that his law firm seeks to represent Mr.
14
Montgomery in this litigation it appears that such interests may be adverse to those of
15
Sheriff Arpaio and/or Deputy Chief Sheridan who are jointly defended. Because of the
16
confusion regarding this matter, the Court indicated it would take up this matter in its
17
Status Conference set for May 14, 2015 at 9:30 a.m. and would so advise Mr. Moseley.
18
In the meantime, so that counsel can be fully advised, the Court attaches to this Order Mr.
19
Moseleys application and his two-page letter. Consistent with what appear to be Mr.
20
21
counsel of record only, but not attached to this Order, so that its confidential status may
22
be preserved.
23
IT IS ORDERED directing the Clerk of Court to send a copy of this Order to:
24
Jonathon Alden Moseley
Freedom Watch, Inc.
2020 Pennsylvania, Ave. N.W., Suite 345
Washington, D.C. 20006
25
26
27
///
28
///
-2-
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ORDER
Plaintiffs,
11
12
v.
13
14
No. CV-07-2513-PHX-GMS
Defendants.
15
16
17
18
A status conference in this action was held on May 14, 2015. The Court orders the
following:
19
1. On May 07, 2015, Magistrate Judge John Z. Boyle issued a ruling regarding the
20
21
disclosures made by Thomas Liddy and Karen Clark, on behalf of former defense
22
counsel Timothy Casey. (See Doc. 1053.) Subsequent to this order, Chief Deputy
23
24
and advice in an interview with the Arizona Republic.1 Thus, the matter is referred
25
back to Judge Boyle for re-evaluation on the continued applicability of the opinion
26
1
27
28
See Yvonne Wingett Sanchez, How Mexican Food Drew Couple Into Heart of
Arpaio
Case,
Ariz.
Republic,
May
08,
2015,
available
at
http://www.azcentral.com/story/news/local/phoenix/2015/05/07/mexican-fooddrew%20grissom-couple-heart%20-sheriff%20-joe-arpaio-civil-contempt%20-case/70990098/.
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DISTRICT OF ARIZONA
19
20
21
v.
22
23
24
25
NO. CV 07-02513-PHX-GMS
I.
INTRODUCTION
26
27
serious matter. Under statute, case law, and judicial canons, the perception of judicial bias
28
4272904.1
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and the appearance of impropriety, punctuated by the material witness status of the
presiding judge's spouse, mandate the recusal and disqualification of the Honorable G.
Murray Snow. Accordingly, Defendant Arpaio and Chief Deputy Gerard Sheridan have
Pursuant to 28 U.S.C. 144 and 455, Defendant Arpaio and Chief Deputy
Gerard Sheridan respectfully move for recusal and/or disqualification of the Honorable G.
Murray Snow. (Affidavit of Sheriff Joseph M. Arpaio, attached as Exhibit 1). Defendant
Arpaio Chief Deputy Gerard Sheridan present this Memorandum and file the attached
10
Arpaio and Chief Deputy Gerard Sheridan respectfully request the transfer of this case to
11
12
13
14
By his own official inquiry, statements, and questions in open court on the
15
record, one of the investigations into which Judge Snow unexpectedly inquired during
16
recent contempt proceedings concerns his spouse, Sheri Snow. No reasonable person with
17
knowledge of the facts can deny that Judge Snow is now investigating and presiding over
18
19
disqualification. Furthermore, the fact that Judge Snows wife is now a material witness,
20
while dispositive, is not the only appearance of bias and impropriety requiring recusal.
21
Defendant Arpaio and Chief Deputy Gerard Sheridan therefore move: (1)
22
for Judge Snow to recuse himself based upon the facts and law stated in the Motion for
23
Change of Judge for Cause; or (2) if Judge Snow declines to recuse himself, Defendant
24
Arpaio and Chief Deputy Gerard Sheridan move that this Motion for Change of Judge for
25
26
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II.
1983 against the Maricopa County Sheriffs Office (MCSO) and Sheriff Joseph
Arpaio, in his official capacity only, alleging that Defendants engaged in a custom, policy,
persons without reasonable suspicion that criminal activity was afoot, in violation of
Plaintiffs Fourth and Fourteenth Amendment rights.2 [Doc. 1, amended by Doc. 26.] The
10
Plaintiffs sought declaratory and injunctive relief to prevent Defendants from engaging in
11
racial profiling and exceeding the limits of their authority to enforce federal immigration
12
13
After pre-trial discovery was closed, the parties filed competing motions for
14
summary judgment; Plaintiffs motion included a request for the entry of a preliminary
15
injunction. [Docs. 413, 421.] Judge Snow granted the Plaintiffs motion in part, and
16
entered a preliminary injunction on December 23, 2011. [Doc. 494.] The injunction
17
18
federal immigration law, and from detaining any person based on actual knowledge,
19
without more, that the person is not a legal resident of the United States. [Id. at 39.] The
20
injunction further stated that, absent probable cause, officers may only detain individuals
21
based on reasonable suspicion that criminal activity may be afoot. [Id. at 5.]
22
23
and one week before the recall petition for Sheriff Arpaio was due, Judge Snow issued his
24
Findings of Fact and Conclusions of Law in May 2013, in which he found MCSO liable
25
for a number of constitutional violations in its operations and procedures. [Doc. 579 at
26
11531.] The timing of the decision was curious and problematic, as it resulted in
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immediate marches and protests against Defendant Arpaio at a crucial point in his
political career.
After allowing the Parties, at their request, to attempt to negotiate the terms
of a consent decree, in October 2013 Judge Snow ordered supplemental injunctive relief
to remedy the violations outlined in his Findings and Conclusions and defined
B.
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Snow and Plaintiffs counsel that a former member of the Human Smuggling Unit,
Deputy Charley Armendariz, was found to be in possession of hundreds of personal items,
many of which appeared to have been appropriated from members of the Plaintiff class.
[See Doc. 700 at 1213.] Deputy Armendariz was a regular participant in the HSUs
saturation patrols, both large and small scale. He also testified at trial and was personally
implicated by the allegations of two representatives of the Plaintiff class regarding his
involvement in a 2008 immigration sweep in which two Hispanic American citizens were
allegedly profiled and illegally detained on the basis of their suspected undocumented
status. [Doc. 576.] After his apparent suicide, in addition to the numerous personal items
apparently seized from persons he had stopped, MCSO also discovered numerous video
recordings of traffic stops that Armendariz had conducted, apparently going back several
years. [Doc. 700 at 11.] Some of those videos revealed what MCSO characterized as
problematic activity on the part of Deputy Armendariz during the stops. [Id. at 35, 57.]
Other officers, and at least one supervisor of Armendariz who also testified at the trial in
this action, were depicted on these recordings during one or more problematic stops. [Id.
at 35.]
In light of the inappropriate activity observable on Deputy Armendarizs
videotapes and the questions surrounding other officers use of video and audio recording
devices during the time period in which pre-trial discovery in this case was occurring,
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Judge Snow ordered Defendants to immediately formulate and obtain the Monitors
approval of a plan designed to retrieve all recordings made by officers that might still be
requiring officers to make such recordings during the period of time relevant to Plaintiffs
claims, and that those here-to-fore unknown documents and recordings were never
disclosed.
seventeen months after Judge Snow issued his preliminary injunction, Defendants, as a
10
matter of regular practice and operation, continued to enforce federal immigration law by
11
12
concluded that there was no criminal law basis for such detention,.
13
14
necessary to determine if MCSO, Sheriff Joseph Arpaio, Chief Deputy Gerald Sheridan
15
and other MCSO leadership acted in contempt of this Courts lawful writs, processes,
16
orders, rules, decrees, or commands by (1) failing to implement and comply with the
17
preliminary injunction; (2) violating their discovery obligations; and (3) acting in
18
derogation of this Courts May 14, 2014 Orders. [Doc. 880 at 26.] Moreover, Judge
19
Snow noted that the development of the evidentiary record in the contempt proceedings
20
would permit him to evaluate whether civil remedies can vindicate the rights of the
21
22
C.
23
On March 17, 2015, Defendants Sheriff Arpaio and the MCSO filed an
24
Expedited Motion to Vacate Hearing and Request for Entry of Judgment. [Doc. 948.]
25
The purpose of that Motion was to convey to the Court and to Plaintiffs that Defendants
26
Joseph M. Arpaio and Maricopa County Sheriffs Office, and identified nonparty Chief
27
28
contempt against them and the imposition of remedies designed to address their conduct.
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[Id. at 1.] Defendants expressed their most sincere remorse to the Court and to Plaintiffs
and explicitly acknowledged that they had violated the Courts Preliminary Injunction.
[Id. at 2.] Accordingly, Defendants adopted and stipulated to the facts as stated in the
Courts Order to Show Cause, [Doc. 880] as well as to the entry of an order finding them
Judge Snow demanded, before accepting the proposal, that Arpaio have
skin in the game, specifically that Defendant Arpaio pay a sanction from his personal
funds and not from any defense funds supporting Defendant Arpaio. It is noteworthy that
Defendant Arpaio is only named as a defendant in his official capacity in this lawsuit. To
10
this end, Defendants attached a proposed list of stipulated remedial measures that
11
Defendants had agreed to implement, including the payment of $100,000 from Defendant
12
Arpaios personal funds to a civil rights organization and that a fund would be created to
13
14
injunction.3 In light of these remedial measures, Defendants requested that Judge Snow
15
vacate the evidentiary hearing to determine the existence of the admitted contempt. [Doc.
16
948 at 4.]
17
Despite the admitted violation of this Courts preliminary injunction and the
18
19
Plaintiffs settlement terms that also would have mooted the need for contempt
20
proceedings, Judge Snow refused to vacate the contempt proceedings. [Doc. 1007.] In
21
fact, he requested that the United States Attorney for the District of Arizona attend the
22
23
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26
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criminal contempt proceedings. In essence, Judge Snow requested that the U.S. Attorney
D.
6
7
8
9
10
11
12
13
14
15
16
17
20
21
22
23
24
25
26
27
28
testimony of Sheriff Arpaio. Those inquiries were entirely unrelated to the three grounds
that were the defined and noticed subjects of the contempt proceeding.4 Judge Snow
continued these inquiries when he examined Chief Deputy Sheridan following Sheriff
Arpaios testimony. These lines of questioning were based on Judge Snows reading of,
reference to, and reliance on hearsay statements contained in a Phoenix New Times blog
post by Stephen Lemons. [Phoenix New Times Blog Post, attached as Exhibit 2; see also
4/23/15 Transcript at 648-649, attached as Exhibit 3]. Importantly, this article had never
been disclosed and no advance notice was provided to any of the Defendants or their
counsel in the contempt proceeding that the article would be discussed or relied upon by
Judge Snow.
1.
18
19
questioning, Judge Snow questioned Sheriff Arpaio regarding whether he was aware if
Judge Snow or any of his family members had ever been investigated by anyone. [Id. at
647:8-17]. In response, Sheriff Arpaio testified that he had received a communication in
4
Again, the issues of the contempt proceeding were clearly defined: (1) failing to
implement and comply with the preliminary injunction; (2) violating [ ] discovery
obligations; and (3) acting in derogation of this Courts May 14, 2014 Orders. (Doc. 880
at 26.)
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August 2013 from Karen Grissom regarding comments that Judge Snows spouse had
made to her in a restaurant about Judge Snows hatred for Sheriff Arpaio and his desire to
do anything to get Sheriff Arpaio out of office. [Id. at 654-55; 4/24/15 Transcript at
962:14-16]. It was ultimately revealed that a private investigator hired by the Sheriffs
counsel had interviewed three individuals: Karen Grissom, her husband Dale Grissom,
and their adult son Scott Grissom, regarding the reliability of Mrs. Grissoms report.
8
9
10
11
12
13
14
15
16
17
have been unwavering in their recollection of the comments Judge Snows wife made
18
regarding Judge Snows hatred toward Sheriff Arpaio and his desire to do anything to get
19
him out of office. See 10/26/13 Transcript of Karen Grissom at 12:18-21, 14:18-20, 19,
20
21
22
8].
23
24
they corroborated Judge Snows spouse had made these statements, Sheriff Arpaio never
25
went any further than just verifying that [a] conversation [between Karen Grissom and
26
27
Judge Snow nor Mrs. Snow have denied that Mrs. Snow made the statements attributed to
28
her.
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2.
Sheridan regarding a second investigation, also unrelated to the three clearly defined
subjects of the contempt proceedings. Judge Snow inquired regarding athe unrelated
involving e-mail breaches, including the e-mails of certain attorneys representing the
Sheriff, wiretaps of the Sheriff and judges, and computer hacking of 50,000 bank accounts
1003:9-11; 1006:6-10].
Neither the Grissom investigation nor the Montgomery investigation
10
11
involved any investigation of Judge Snow or his family. [4/23/15 Transcript at 649].
12
E.
13
14
15
16
17
18
19
20
23
24
25
26
27
Judge Snow has also utilized the Melendres Monitor to expand his investigation into these
unrelated issues. In an attempt to justify this expansion of power, Judge Snow is trying to
create a connection between the Grissom and Montgomery investigations and a
speculative pattern of knowing defiance rather than inadvertence of Judge Snows
Orders and necessary remedies for members of the Plaintiff class. [5/14/15 Transcript at
49:15-21, attached as Ex. 9]. In doing so, he has granted the Monitor broad leeway in
determining what matters are pertinent to the current contempt proceedings. [Id. at 51].
21
22
28
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violation of her clients Due Process rights. Judge Snow overruled her objection and
refused to unduly shackle [the Monitor]. [Id. at 56:20]. Thus, the Monitor now has
Accordingly, despite the Ninth Circuits recent Order, Judge Snow has
improperly expanded the authority and investigatory powers of the Monitor into matters
completely immaterial and irrelevant to the contempt proceedings and issues, as framed
by Judge Snows Order to Show Cause (e.g., the Grissom and Montgomery investigations,
and most recently MCSOs long past investigation into the authenticity of President
10
III.
11
12
the Constitution and is an integral part of maintaining the publics confidence in the
13
judicial system. Ward v. City of Monroeville, 409 U.S. 57, 61-62 (1972). Accordingly, in
14
order to preserve the integrity of the judiciary, and to ensure that justice is carried out in
15
each individual case, judges must adhere to high standards of conduct. York v. United
16
17
Cannon 2 of the Code of Conduct for United States Judges provides that
18
[a] judge should avoid impropriety and the appearance of impropriety in all activities.
19
20
21
22
23
24
25
26
27
28
The Ninth Circuit has advised Judge Snow against extending the Monitors
powers into areas not narrowly tailored to address the violations of federal law at issue in
this case. Id. (holding that the injunction improperly requires the Monitor to consider the
disciplinary outcomes for any violations of departmental policy and to assess whether
Deputies are subject to civil suits or criminal charges ... for off-duty conduct.). Judge
Snow now seeks to expand the authority of the Monitor without regard to the Ninth
Circuits Order.
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Comment 2A to Cannon 2.
5
6
...
(c) the judge knows that the judge [has an] interest that
could be affected
substantially by the outcome of the
proceeding;6
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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A.
investigation into the appearance of partiality by a judge. Preston, 923 F.2d at 734 (9th
Cir. 1991) (We need not explore whether an appearance of partiality existed in this case.
The drafters of section 455 have accomplished this task for us.).
any evidence of actual bias. Mangini v. United States, 314 F.3d 1158, 1161 (9th Cir.)
opinion amended on denial of reh'g, 319 F.3d 1079 (9th Cir. 2003); see also Preston, 923
F.2d at 734 (addressing Section 455(b)(2), which requires disqualification when the judge
10
either served as a lawyer or a lawyer with whom he previously practiced law served as a
11
lawyer during such association in the matter in controversy). [I]t is sufficient to state that
12
section 455(b) provides us with a concrete example where the appearance of partiality
13
suffices to establish a ground for recusal under section 455(a) even absent actual bias.
14
15
1.
16
17
18
19
20
21
22
23
24
25
26
27
As a matter of style, most courts look first to Section 455(b), which provides that
a judge is automatically recused upon the existence of certain familial and/or financial
relationships, and then to the more general terms of 455(a).
In re Aetna Cas. & Sur. Co., 919 F.2d 1136, 1143 (6th Cir. 1990). Accordingly,
this Motion is organized in accordance with this principle.
28
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1
2
This requirement is strictly imposed. Preston, 923 F.2d at 734 (9th Cir.
1991). For example, a judge was required to recuse himself when it was learned that his
daughter had participated in certain early depositions in a case, even though the daughter's
role in the depositions was minimal and the firm she was working for was no longer
involved in the case. See In re Aetna Cas. & Sur. Co., 919 F.2d 1136 (6th Cir. 1990).
9
10
11
Covington Burling. Early in this action, Defendant Arpaios former counsel waived this
12
13
conflict is necessary.
14
Second, the interests of Judge Snow and his spouse are substantially
15
affected by the outcome of this proceeding. Judge Snow himself has recognized that the
16
documents involved in the Montgomery investigation appear to allege or suggest that this
17
Court had contact with the Department of Justice about this case before the Court was
18
ever assigned to it. [5/14/15 Transcript at 45:17-19]. Moreover, Judge Snow stated on
19
the record that the Montgomery Investigation appears to allege that the random selection
20
process of this Court was subverted so that the case was deliberately assigned to him and
21
that he had conversations with Eric Holder and Lanny Breuer about this case. [Id. at
22
45:19-25]. Judge Snow, therefore, has an interest that could be substantially affected by
23
the outcome of the proceeding because his reputation is squarely at stake. [Id. at 46:23-
24
47:7 (recognizing the potential of a bogus conspiracy theory to discredit the court)]; see
25
26
[has] any other interest that could be substantially affected by the outcome of the
27
proceeding.).
28
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Finally, and most importantly, the fact that the Judge himself believes that
the Grissom investigation is relevant to the contempt proceeding establishes his spouse as
a material witness.
proceeding (i.e., whether she made the statement at issue and/or what she meant by it and
the context in how it was made). Moreover, regardless of the irrelevance of the Grissom
and Montgomery investigations to the issue of whether the admitted contempt of the
Preliminary Injunction occurred, Judge Snow infused himself and the materiality of his
wife as a witness and her uncontradicted statement into the contempt proceeding.
Whether a sitting judge is admittedly biased toward a defendant in his Court and will do
10
11
grounds for recusal.8 Accordingly, even if at some point there is a denial that Mrs. Snow
12
made the statements at issue, the conflict that is created is unwaivable under 455(b). See
13
28 U.S.C. 455(e) (No justice, judge, or magistrate judge shall accept from the parties to
14
15
(b).). Judge Snow is solely responsible for making his spouse a material witness to this
16
proceeding.9
17
2.
18
19
20
21
22
23
25
27
28
24
26
Implicitly, Judge Snow has complete and unfettered access to a material witness
in this case, his wife.
9
For the same reasons, Judge Snows wife has an interest that could be
substantially affected by the outcome of the proceeding because her reputation is also
squarely at stake under 42 U.S.C. 455(b)(5).
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outside investigations with regard to matters that he thought to be relevant and that he
infused into the proceeding. [Rotunda Declaration 20, attached as Ex. 10]. Whats
more, he apparently took evidence outside of court. [Id.]. Although Judge Snow did not
disclose the identity of the individual with whom he spoke regarding this matter, he
clearly stated that he engaged in an investigation outside the courtroom during a lunch
break. [Id.]. In addition, Judge Snow also asked leading questions on irrelevant matters
argumentative with witness Chief Deputy Sheridan when he was on the stand.
He
10
interrupted Chief Deputy Sheridan and challenged his decision to make an informant,
11
12
contempt proceeding. [Id. at 24]. Judge Snow has also ordered the production of
13
documents that may be protected by the work product doctrine or attorney client privilege.
14
Those documents pertain to an attorney, Larry Klayman, and his client, Dennis
15
Montgomery. Mr. Klayman is not an attorney who has appeared in this case and Mr.
16
17
18
19
minimum, a Court must provide an alleged contemnor with notice and an opportunity to
20
be heard. Intl Union, United Mine Workers of America v. Bagwell, 512 U.S. 821, 827
21
(1994). The concept of notice includes prior disclosure and provision of documents used
22
at trial and prior identification of areas of examination. See generally, Stuart v. United
23
States, 813 F.2d 243, 251 (9th Cir.1987), rev'd on other grounds, 489 U.S. 353 (1989); DP
24
Aviation v. Smiths Indus. Aerospace & Def. Sys. Ltd., 268 F.3d 829, 846-47 (9th Cir.
25
2001). Such advance notice is consistent with an alleged contemnors right to present a
26
defense. See United States v. Powers, 629 F.2d 619, 625 (9th Cir. 1980). Further, the law
27
28
injunctions that necessitate more elaborate and in-depth fact-finding, as in this case. See
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Intl Union, United Mine Workers of America v. Bagwell, 512 U.S. 821 at 833-34. Here,
although Defendant Arpaio testified that he previously read the Phoenix New Times blog
Judge Snow utilized to justify his unauthorized line of questioning (Transcript, 643:23-
24), neither the Court nor any other party previously provided it to Defendants nor gave
notice that Defendant Arpaio or Chief Deputy Sheridan would be questioned about it. It
was not identified as an exhibit. Neither was Defendant Arpaio nor Chief Deputy Sheridan
provided notice that this subject area would be addressed. In contempt proceedings,
procedural protections such as prior notice are crucial in view of the heightened potential
for abuse posed by the contempt power. Taylor v. Hayes, 418 U.S. 488, 498 (1974).
10
Judge Snows failure to abide by these fundamental and basic constitutional requirements,
11
12
Arpaio.
13
14
investigatory powers of the Monitor into matters completely immaterial and irrelevant to
15
the contempt proceedings and issues, as framed by his own Order to Show Cause (e.g., the
16
Grissom and Montgomery investigations, and most recently MCSOs long past
17
investigation into the authenticity of President Obamas birth certificate). Judge Snows
18
19
rights in favor of granting the Monitor unfettered access to further his own
20
21
B.
22
23
24
25
26
27
28
10
Additionally, the procedure outlined by the Court in its Order (Doc. 1032) places
Defendants in an untenable position in which they must immediately provide documents
pursuant to the Courts Order in such a way that sacrifices the attorney-client and work
product privileges. The two Deputy County Attorneys who quickly reviewed documents
on April 23, 2015 made random selections throughout the documents to discern what the
documents were and made a cursory check for any privileged documents. They did not
view any privileged documents; however, time did not allow for a careful or thorough
review. It is probable that privileged documents were given to the monitors.
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section 455(a) occurs even if the judge is unaware of the circumstances that created the
appearance of impropriety. Lifjeberg v. Health Services Acquisition Corp., 486 U.S. 8847
whether a reasonable person with knowledge of all the facts would conclude that the
judge's impartiality might reasonably be questioned. Clemens v. U.S. Dist. Ct. for
Central Dist. of California, 428 F.3d 1175, 1178 (9th Cir. 2005) (citations omitted). The
10
Further, the grounds for disqualification must arise from extrajudicial factors, namely,
11
12
Under Arizona Judicial Canon Rule 2.11, the standard for disqualification is
13
identical to the disqualification standard under 28 U.S.C. 455(a). Rule 2.11 states that
14
the Judge shall disqualify himself in any proceeding in which his impartiality might
15
reasonably be questioned. For instance, a Judge shall disqualify himself if his spouse or a
16
person within the third degree of relationship to either of them is a person who has more
17
18
19
the comments under Rule 2.11 provide guidance. For instance, comment 2 specifically
20
states that: A Judges obligation not to hear or decide matters in which disqualification is
21
22
Comment 5 to Rule 2.11 requires the Judge to disclose on the record information that he
23
believes the parties or their lawyers might reasonably consider relevant to a possible
24
Motion for Disqualification, even if the Judge believes there is no basis for
25
disqualification.
26
27
should decide in favor of recusal. The U.S. Courts of Appeals for the First, Fifth, Tenth,
28
and Eleventh Circuits have said that close questions of judicial impartiality should be
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decided in favor of recusal. See Republic of Pan v. American Tobacco Co., 217 F.3d 343,
347 (5th Cir. 2000) (citing In re Chevron, 121 F.3d 163, 165 5th Cir. 1997)); In re United
States, 158 F.3d 26, 30 (1st Cir. 1998); Nichols v. Alley, 71 F.3d 347, 352 (10th Cir.
1995); United States v. Dandy, 998 F.2d 1344, 1349 (6th Cir. 1993); United States v.
For all of the reasons stated above, Judge Snows recusal is required
because his impartiality might reasonably be questioned. Even presuming this Court does
not find that the aforementioned actions by Judge Snow demonstrate evidence of actual
bias, see supra III(B), a reasonable person with knowledge of all the facts would
10
certainly question Judge Snows impartiality. Recusal is therefore required because of the
11
bedrock notion and importance of public confidence in the judiciary and that confidence
12
13
14
IV.
CONCLUSION
15
For the aforementioned reasons Defendant Arpaio and Chief Deputy Gerard
16
Sheridan respectfully request that (1) Judge Snow recuse himself from these proceedings
17
and (2) if Judge Snow declines to recuse himself, Defendant Arpaio and Chief Deputy
18
Gerard Sheridan move that this Motion for Change of Judge for Cause be assigned to a
19
20
21
22
23
24
By s/ Michele M. Iafrate
Michele M. Iafrate
649 North Second Avenue
Phoenix, Arizona 85003
Attorneys for Defendants Joseph M. Arpaio
25
26
27
28
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1
2
3
4
By s/ A. Melvin McDonald
A. Melvin McDonald
2901 North Central Avenue, Suite 800
Phoenix, Arizona 85012Attorneys for
Defendants Joseph M. Arpaio
5
6
7
8
9
10
By s/ Barry Mitchell
Barry Mitchell
Lee Stein
One Renaissance Square
2 North Central Avenue, Suite 1900
Phoenix, Arizona 85004
Attorneys for Gerard Sheridan
11
12
13
14
15
CERTIFICATE OF SERVICE
16
17
18
19
20
I hereby certify that on this 22nd day of May, 2015, I caused the foregoing
document to be filed electronically with the Clerk of Court through the CM/ECF System
for filing; and served on counsel of record via the Courts CM/ECF system.
s/ Mance Caroll
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ORDER
Plaintiffs,
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v.
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No. CV-07-2513-PHX-GMS
Defendants.
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In light of the Motion for Recusal or Motion to Disqualify (Doc. 1117) filed this
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morning,
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IT IS HEREBY ORDERED vacating the Status Conferences set for May 29,
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June 5 and June 12, 2015. The Court shall issue no further orders until the Motion is
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in June for the continued civil contempt hearings or for discovery, until further notice of
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the Court.
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///
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///
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DISTRICT OF ARIZONA
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NO. CV-07-02513-PHX-GMS
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Sheriff Arpaio and Chief Deputy Sheridan, nor speak for the interests of MCSO in this
Sheriff Arpaio and Chief Deputy Sheridan reject the vitriol and
inflammatory attacks set forth in the putative intervenors supplement. Sheriff Arpaio and
Chief Deputy Sheridan respect the Court and believe such ad hominem attacks have no
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By:
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By:
By:
By:
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CERTIFICATE OF SERVICE
I hereby certify that on June 3, 2015, I electronically transmitted the attached document
using the CM/ECF system for filing, and which will be sent electronically to all registered
participants as identified on the Notice of Electronic Filing, and paper copies will be sent
to those indicated as non-registered participants.
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s:/ D. Weeks
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Daniel J. Pochoda
dpochoda@acluaz.org
Joshua Bendor
jbendor@acluaz.org
ACLU Foundation of Arizona
3707 N. 7th Street, Suite 235
Phoenix, AZ 85014
Telephone: (602) 650-1854
Facsimile: (602) 650-1376
Attorneys for Plaintiffs (Additional attorneys
for Plaintiffs listed on next page)
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Plaintiffs,
v.
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)
)
)
)
)
)
)
)
)
)
)
)
CV-07-2513-PHX-GMS
RESPONSE IN OPPOSITION TO
SHERIFF ARPAIO AND CHIEF
DEPUTY SHERIDANS MOTION
FOR RECUSAL OR
DISQUALIFICATION OF
THE COURT
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1
2
INTRODUCTION
Plaintiffs respectfully submit this Response in Opposition to Sheriff Arpaio and
Chief Deputy Sheridans Motion for Recusal or Disqualification of the Court. The
motion fails to meet the standards for recusal in 28 U.S.C. 144 and 455, and runs afoul
of the long-settled principle that rulings and judicial remarks made during the course of
litigation are almost never a basis for recusal. Liteky v. United States, 510 U.S. 540, 550-
51 (1994). The motion also fails to demonstrate actual bias or an appearance of bias. The
relevant to the ongoing contempt hearing and the question of remedies to ensure
10
compliance with prior orders. The motion is also untimely and appears to be filed for
11
purposes of manipulation and delay. In the words of ethics expert Professor Stephen
12
Gillers, each of the asserted grounds for recusal is baseless. Some are frivolous.
13
14
15
FACTUAL BACKGROUND
The procedural history of this case is centrally relevant under the recusal
16
standard, since the Courts actions and statements must be viewed in light of the evidence
17
18
Evidence of Sheriff Arpaio and Chief Deputy Sheridans Defiance of the Court
19
20
Injunction [Doc. 606] and the beginning of the contempt hearing on April 21, 2015, the
21
Court saw evidence that top commanders of the MCSO, including Sheriff Arpaio and
22
Chief Deputy Sheridan, had repeatedly violated court orders, made statements that
23
mischaracterized and disparaged the Courts orders to MSCO personnel, and expressed
24
defiance towards the Courts orders. Those statements are set forth in Plaintiffs
25
Memorandum of Law and Facts re Contempt Proceedings and Request for Order to Show
26
Cause at 12-16 [Doc. 843], incorporated by reference here. See also Tr. of Status
27
Conference (Oct. 28, 2014) at 68:25-72:20. Among other things, in August 2013, Sheriff
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monitor. [Doc. 843 at 15]. And during the contempt hearing, Plaintiffs introduced a
video recording of a press interview in October 2013, after issuance of the Supplemental
sheriff, and no one is going to take away my authority that I have under the Constitution.
Ex. 193C; Tr. of Apr. 23, 2015 at 581:25-582:17. And in October 2014, Sheriff Arpaio
made another defiant statement, telling a reporter that he would conduct the Guadalupe
operationone of the saturation patrols the Court held to have violated Plaintiffs
constitutional rightsall over again. Tr. of Oct. 28, 2014 at 61:9-77:5; Tr. of Apr. 23,
10
2015 at 583:20-584:6.
11
12
In addition, over a period of months starting in May 2014, the three charged
13
grounds for contempt came to light. In April-May 2014, a former MCSO deputy,
14
Charley Armendariz, who had been a key witness at trial, was arrested and subsequently
15
16
The search ultimately revealed, among other things, that there was a widespread practice
17
among MCSO personnel of recording traffic stops, that MCSO had no policy governing
18
the recording of traffic stops, and that such recordings should have been disclosed to
19
Plaintiffs before trial, but were not. Tr. of of Dec. 4, 2014 at 22:15-22:25. The failure to
20
disclose the recordings before trial is one of three charged grounds for civil contempt.
21
22
The second ground for contempt arose on May 14, 2014. During a status
23
conference on that date, the Court ordered Sheriff Arpaio and Chief Deputy Sheridan to
24
cooperate with the Monitor in formulating a plan to quietly collect the recordings of
25
traffic stops throughout MCSO. [Doc. 880 at 22]; Tr. of May 14, 2014 Status Conference
26
at 61 [Doc. 700]. The movants violated that court order that same day, by putting into
27
action a plan without the Monitors approval, and then agreeing to a different plan in
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consultation with the monitor, while failing to disclose that the initial, unapproved plan
The third ground for contempt came to light during the November 20, 2014 status
conference when Defendants counsel disclosed that one of the traffic stop recordings
recovered by the MCSO during the Armendariz investigations demonstrated that deputies
had violated the Courts preliminary injunction order. Counsel also revealed that the
Courts preliminary injunction order had never been communicated to MCSO deputies.
10
During the same period leading to the contempt hearing, the adequacy of
11
12
learning of the Armendariz investigations in May 2014, Plaintiffs raised concerns about
13
MCSOs internal investigation process. Tr. of May 14, 2014 at 102:6-18. In September
14
15
internal investigations. [Doc. 795-1]. Plaintiffs also raised numerous issues with
16
MCSOs internal investigations and gave notice of their intent to seek remedies to protect
17
the interests of the Plaintiff class. See Plaintiffs Response to the Monitors Report at 7-
18
10 (Oct. 21, 2014) [Doc. 753]; Tr. of Dec. 4, 2014 at 23:1-24:21 [Doc. 812].
19
Prior to the beginning of the contempt hearing on April 21, 2015, the Court
20
indicated that it would not limit the scope of the evidence to liability for civil contempt,
21
but would take evidence on the remedies needed to ensure compliance with the Courts
22
prior orders, with a particular focus on the adequacy of MCSOs internal investigations.
23
See, e.g., Tr. of Mar. 20, 2015 at 11:6-12, 12:21-25, 13:1-21; Tr. of Apr. 21, 2015 at
24
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During the contempt hearing, as during the bench trial, the Court questioned
witnesses after the parties counsel, and gave counsel an opportunity to object to
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questions and to re-examine the witnesses after its examination. On April 23, 2015, the
Court questioned Sheriff Arpaio, beginning with the grounds for civil contempt. The
Court also questioned the Sheriff about the re-assignment of Captain Steven Bailey from
the command of the Special Investigations Division, with oversight of its subunit the
Human Smuggling Unit (which had been primarily responsible for the constitutional
violations found after trial), to the command of the Internal Affairs unit. Tr. of Apr. 23,
2015 at 637:2-642:22. Baileys reassignment occurred during a time when the Human
Smuggling Unit was under investigation by the Internal Affairs department because of
misconduct uncovered after Deputy Armendarizs arrest and death, and the apparent
10
11
The Court then questioned Sheriff Arpaio about an article that had appeared in the
12
Phoenix New Times newspaper on June 4, 2014, reporting that two MCSO detectives,
13
Brian Mackiewicz and Travis Anglin, a member of the MCSOs civilian Cold Case
14
Posse, Mike Zullo, and a paid confidential informant named Dennis Montgomery, were
15
engaged in an investigation of a bizarre conspiracy theory that the Court and the U.S.
16
Department of Justice were conspiring to get Sheriff Arpaio. Wang Decl., Ex. A. The
17
Court questioned the Sheriff about the source of funding for the investigation and
18
whether Captain Bailey was involved in that process. Tr. of Apr. 23, 2014 at 658:4-
19
659:1.
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investigation reported in the Phoenix New Times article, the Sheriff testified that there
22
was a second investigation involving the Court. The Sheriff testified that an outside
23
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Courts spouse had stated to a woman named Grissom that Judge Snow wanted to do
25
everything to make sure Im not elected. Tr. of Apr. 23, 2015 at 654:6-655:12.
26
The next day, on April 24, 2015, Defendants counsel examined Chief Deputy
27
Sheridan about the investigations implicating the Court and the Courts spouse. After
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asking defense counsel if she had any objection and emphasizing that she should interrupt
with any objection, Tr. of Apr. 24, 2015 at 966:4-11, the Court joined in questioning of
Chief Deputy Sheridan on the subject of Karen Grissoms allegations about the Courts
spouse. In response to the Courts questions, Sheridan testified that Defendants counsel
had hired a private investigator who had interviewed Karen Grissom and her family, and
that MCSO did not do anything to follow up on the investigation. Id. at 968:5-9. The
Court then proceeded to question Chief Deputy Sheridan about the grounds for contempt,
MCSOs internal affairs operations, and other matters, and finally asked Chief Deputy
10
Chief Deputy Sheridan testified and stated publicly that MCSO ultimately decided
11
not to pursue the investigation of the Grissom allegations relating to the Courts spouse.
12
Tr. of Apr. 24, 2015 at 968:5-9; Tr. of May 14, 2015 at 10:1-24. Both Arpaio and
13
Sheridan testified that they concluded that confidential informant Dennis Montgomery
14
was not credible. Tr. of Apr. 23, 2015 at 650:18-25, Tr. of Apr. 24, 2015 at 961:1-11,
15
1002:14-15. Arpaio, however, testified that he did not know whether the Montgomery
16
investigation was still ongoing. Tr. of Apr. 23, 2015 at 652:5-6. Documents later
17
18
continued at least up until the eve of the contempt hearing. Wang Decl., Ex. E.
19
The Court directed the Sheriff to preserve all documents relating to both of these
20
21
The Court later directed that copies of the documents be produced and instructed defense
22
counsel to review the material for attorney-client privilege, work product, and
23
confidential information. Tr. of May 8, 2015 at 30:1-4. The Court also sua sponte raised
24
a potential security issue about documents that Dennis Montgomery purportedly had
25
obtained from the U.S. Central Intelligence Agency, and proposed that the Monitor and
26
Defendants review such documents prior to disclosure to the Plaintiffs, and that defense
27
counsel communicate with the CIA. Both Plaintiffs and Defendants counsel agreed to
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the Court did not order the production of documents that may be protected by the
At the close of the four days of evidence, the Plaintiffs had not completed their
case-in-chief. Prior to the evidentiary hearing, on April 7, 2015, the Court had
anticipated that four days of testimony might be insufficient and tentatively set additional
dates for a continuation of the evidentiary hearing, on June 16-19 and 23-26, 2015. Tr. of
ARGUMENT
10
I.
11
The Courts Actions During the Contempt Hearing Do Not Show Actual
Bias and Are Not a Ground for Recusal
12
In moving to disqualify the Court based upon actual bias under 28 U.S.C.
13
455(b)(1), Sheriff Arpaio and Chief Deputy Sheridan point to the Courts actions and
14
statements during the contempt proceeding.1 The motion therefore fails because rulings
15
and conduct during litigation almost never constitute a valid basis for a bias or
16
partiality motion. Liteky, 510 U.S. at 555; see also In re Marshall, 721 F.3d 1032, 1041
17
(9th Cir. 2013); United States v. McTiernan, 695 F.3d 882, 891 (9th Cir. 2012). Judicial
18
actions or remarks in the litigation will be a ground for recusal only if they reveal such a
19
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Although they do not assert it as a basis for recusal, the movants insinuate that the
timing of the Courts trial ruling was curious and problematic because it issued nine
months after the bench trial and purportedly one week before a recall petition against
the Sheriff was due. Defendants imputation of bad intent due to the time it took the
Court to issue its 142-page trial ruling is unwarranted. The movants also fail to
mention that the Sheriff faced a regular election six months earlier, in November 2012
(see http://recorder.maricopa.gov/electionarchives/2012/11-062012%20Final%20Summary%20Report.pdf)a more opportune time for a court, if it
had been biased, to time a ruling for improper purposes.
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510 U.S. at 555; United States v. Wilkerson, 208 F.3d 794, 797 (9th Cir. 2000). The
As evidence of actual bias, the motion cites only rulings and conduct during the
contempt hearingthat the Court asked leading questions on irrelevant matters; offered
his own testimony; was argumentative with Chief Deputy Sheridan on the stand;
interrupted Chief Deputy Sheridan and challenged his decision to use Dennis
non-party Dennis Montgomery and his attorney Larry Klayman that may be protected
by the work product doctrine or attorney client privilege; inquired into matters
10
unrelated to the contempt proceeding and thereby purportedly deprived Sheriff Arpaio
11
of his due process rights; and improperly expanded the Monitors authority into
12
purportedly irrelevant matters. These are matters that should be raised, if at all, through
13
14
The motion also mischaracterizes the record. The Court questioned Sheridan
15
about how the MCSO-Montgomery investigation was conducted in order to elicit the
16
evidence. Tr. of Apr. 24, 2015 at 1000:19-1008:13. Nothing in the course of that
17
examination can fairly be construed as argumentative, as the movants claim. But even
18
if it were true that the Court expressed hostility toward Sheridan, that would not be a
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The judge who presides at a trial may, upon completion of the evidence, be
exceedingly ill disposed toward the defendant, who has been shown to be a
thoroughly reprehensible person. But the judge is not therefore recusable for bias
or prejudice, since his knowledge and the opinion it produced were properly and
necessarily acquired in the course of the proceedings, and are indeed sometimes
(as in a bench trial) necessary to completion of the judge's task.
Liteky, 510 U.S. at 550-51. Thus, a judges expressions of impatience, dissatisfaction,
annoyance, and even anger during litigation are not a ground for recusal. Id. at 555-56.
Moreover, none of the challenged actions by the Court was erroneous, much less
a ground for recusal. It is entirely proper for a court to examine witnesses and to
comment on the evidence (which Sheriff Arpaio and Chief Deputy Sheridan attempt to
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mischaracterize as testifying, see Gillers Decl. 8). Fed. R. Evid. 614(b). A court
should not hesitate to ask questions for the purpose of developing the facts; and it is no
ground of complaint that the facts so developed may hurt or help one side or the other.
Barba-Reyes v. United States, 387 F.2d 91, 93 (9th Cir. 1967); see also United States v.
Larson, 507 F.2d 385, 389 (9th Cir. 1994); United States v. Robinson, 449 F.2d 925, 933
(9th Cir. 1971); Hanson v. Waller, 888 F.2d 806, 810, 813 (11th Cir. 1989) (judges may
ask leading questions even in jury trial); Ruiz v. Estelle, 679 F.2d 1115, 1130 (5th Cir.
1982), amended in part and vacated in part on other grounds, 688 F.2d 266 (5th Cir.
1982).
10
The Courts questions do not indicate any bias. Gillers Decl. 16-20. They
11
were a proper exercise of the Courts inherent power to protect the integrity of the
12
judicial process and ensure compliance with its prior orders, as they were relevant to
13
Sheriff Arpaios attitude toward the Court and compliance with the Courts orders and to
14
the subject of MCSOs internal investigations. The Phoenix New Times article that the
15
16
aimed at developing a conspiracy theory to discredit the Court during that same time
17
period (October 2013 through April 2015) in which the movants had expressed defiance
18
19
instances of noncompliance with the Courts orders, and leading up to the April
20
evidentiary hearing on contempt charges and remedies. Documents later produced by the
21
Defendants support the newspaper account thatcontrary to the testimony of Arpaio and
22
23
F. The documents also reveal that MCSO personnel continued to press Dennis
24
Montgomery for results up until the eve of the contempt hearing, even though they had
25
already concluded that he was not credible. Wang Decl., Ex. C, D, E. The evidence thus
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the Courts authority rather than comply with its lawful orders.2 This was particularly
problematic in light of the Monitors recent finding that MCSO was only 29 percent in
compliance with the Supplemental Injunction despite the passage of one-and-a-half years.
The movants allegation that the Court requested that the U.S. Attorney function
had occurred (Mot. at 7) is false. The Court invited the U.S. Attorneys Office to attend
status conferences in this case so that the government would be apprised of the facts and
10
criminal contempt prosecution, if the Court were to make a referral in the future. Tr. of
11
Dec. 4, 2014 at 29:5-9, 29:24-30:3. Defendants did not object to the presence of a federal
12
prosecutor or even to the Courts suggestion that relevant documents be provided to the
13
14
sought the participation of the United States Attorneys Office in their efforts to settle the
15
contempt issues. Tr. of Feb. 26, 2015 at 32:23-34:1, 34:2-6, 34:8-17. Contrary to the
16
movants assertion, the U.S. Attorneys Office never declined any referral, as none has
17
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2
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Even more troubling, as the Court noted in a post-hearing status conference, the
evidence indicates that Dennis Montgomery informed MCSO personnelwith Chief
Deputy Sheridans knowledgethat he was using a database of information
harvested by the CIA and confiscated by him in his investigation, and also purported
to be tracking telephone calls between the Court, the Attorney General, the Assistant
Attorney General, and the U.S. Attorney for the District of Arizona. Tr. of May 14,
2015 at 44:22-45:2, 45:10-16; Wang Decl., Ex. C, F. This implicates possible
violations of federal criminal laws by MCSO personnel in the course of the MCSOMontgomery investigation. See, e.g., 18 U.S.C. 793(b)-(f) (taking or
communication of documents relating to national defense); 798 (disclosure of
classified information); 1503 (intimidation of federal court and obstruction of justice);
1509 (obstruction of court orders); 1924 (unauthorized removal of classified
information); 2511 (intercepting electronic communications); 2701 (unlawful access to
stored communications).
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investigative operations. Overruling the Defendants objections, the Court stated that it
would not require the Monitor to give Defendants advance notice of topics of interviews,
but that Defendants could contemporaneously raise any objections during any interviews
and that the Court would make itself available to hear such objections. The Court further
stated that the Monitors investigations would be limited to the enforcement of the
Courts prior orders. Tr. of May 14, 2015 at 53:12-56:25. There was nothing improper
in these orders since they were directly relevant to enforcing compliance with the Courts
prior orders.
10
Sheriff Arpaio and Chief Deputy Sheridan also mischaracterize the record when
11
they allege that the Court ordered the disclosure of confidential materials that may be
12
subject to the attorney-client privilege or work product immunity.3 In fact, the Court
13
gave the Defendants an opportunity to review documents for privilege and to produce a
14
15
the Court also proposed procedures to ensure that any confidential or sensitive documents
16
17
Moreover, even if the Court had issued such an order, any objection should be addressed
18
through ordinary litigation, not through a recusal motion. Liteky, 510 U.S. at 555.
19
Finally, Sheriff Arpaio and Chief Deputy Sheridans assertion that the Court
20
violated their due process rights by failing to give notice of its intent to question them
21
about the MCSO-Montgomery investigations is misplaced. The Court stated clearly prior
22
to the beginning of the evidentiary hearing that subjects relating to remedies, and
23
24
25
26
27
The movants also allege that the Court apparently took evidence outside of court.
Mot. at 15. In fact, the Court stated on the record that it had been informed that the
Cold Case Posse has its own funds and asked Sheriff Arpaio whether that was
possible. Tr. of Apr. 23, 2015 at 658:1-2. Defense counsel did not object. The
record reveals that the Court did not take the information at face value, but asked the
Sheriff whether it was true. The Courts actions were proper. Gillers Decl. 15.
28
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particularly relating to MCSO investigations, would be within the scope of the hearing.
See Tr. of Mar. 20, 2015 at 11:6-12, 12:21-25, 13:1-21; [Doc. 880 at 25]; [Doc. 1007 at
2]; Tr. of Apr. 21, 2015 at 15:19-22. Arpaio and Sheridan were not unfairly surprised;
they acknowledged reading the New Times article and were also provided a copy by the
Court. Tr. of Apr. 23, 2015 at 642:17-25, 643:1-24; Tr. of Apr. 24, 2015 at 959:9-10,
959:17-18. Defense counsel made no objection to the Courts questions and indeed
8
9
10
II.
Neither the Court nor the Courts Spouse Has a Disqualifying Interest
Sheriff Arpaio and Chief Deputy Sheridan argue for recusal under 28 U.S.C.
11
455(b)(5)(iv), which provides for recusal when a judge, his or her spouse, or a person
12
within a third degree of relationship to either of them, [i]s to the judges knowledge
13
14
which provides for recusal when a judge has a personal bias or prejudice concerning a
15
16
17
First, the movants argue that recusal is required because the Courts brother-in-law
18
is a partner in the Washington, D.C. office of Covington & Burling (Mot. at 13), but they
19
expressly waived any recusal argument when they learned of this fact in 2012. See [Doc.
20
537 (order setting status conference on issue)]; Tr. of June 29, 2012 at 5:19-7:2 (Courts
21
offer to recuse on request of any party); id. at 16:6-17:2 (Defendants statement that they
22
would be prejudiced by Courts recusal and any order vacating prior orders); [Doc. 541
23
(Defendants written waiver of appeal of any recusal issue)]; [Doc. 542]. Moreover, the
24
Courts previous ruling on the merits was correct. Gillers Decl. 9-10.
25
Sheriff Arpaio and Chief Deputy Sheridan also assert that the Court must recuse
26
because the interests of the Court and the Courts spouse are substantially affected by
27
the outcome of this proceeding. Mot. at 13. The movants now insinuate that the Courts
28
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that the Court conspired with the Attorney General of the United States and others to
subvert the random case assignment processmay actually be true. Mot. at 13. This
assertion fails because both Sheriff Arpaio and Chief Deputy Sheridan testified that they
concluded that the MCSO-Montgomery investigation was not credible and indeed was
junk. Tr. of Apr. 23, 2015 at 650:18-25; see also Tr. of Apr. 24, 2015 at 961:1-11,
Sheriff Arpaio and Chief Deputy Sheridan further assert that recusal is required
10
under 455(b)(5) because the Courts spouse is a material witness. While they do not
11
explain, presumably they assert that she is a witness on the factual issues arising from
12
their investigation of Karen Grissom. This assertion should be rejected because Chief
13
Deputy Sheridan testified that after a private investigator hired by their counsel
14
interviewed Ms. Grissom and her family members in 2013, MCSO chose not to pursue
15
the allegations. Tr. of Apr. 24, 2015 at 968:5-9; Tr. of May 14, 2015 at 10:1-24. And
16
Defendants own counsel, after reviewing the private investigators report, stated that
17
the Grissom information is so fundamentally flawed in its substance that it likely cannot
18
be used in a Rule 60 motion, appeal, or otherwise, without the lawyer who does so
19
violating the federal courts rule of civil procedure and the Arizona Rules of Professional
20
Conduct. [Doc. 1115 at 13-14 (letter from Timothy J. Casey to Joseph M. Arpaio dated
21
Nov. 6, 2013)]. This is likely because of the numerous inconsistencies in the various
22
statements that Karen and Dale Grissom made about their meeting with Mrs. Snow. See
23
24
Notably, in asserting the grounds for recusal for actual bias, Sheriff Arpaio and
25
Chief Deputy Sheridan do not explicitly include Karen Grissoms allegation whichin
26
the strongest version, appearing in her Facebook message to the Sheriff more than a year
27
after her alleged conversation with Mrs. Snowwas that that Mrs. Snow stated that the
28
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Court hates the Sheriff and will do anything to get [him] out of office. See Mot. at
14-16 (grounds for assertion of actual bias based upon Courts statements and actions
during contempt proceedings). But in any event, the Courts spouse is not a material
witness on any issue in this litigation. Whether Mrs. Snow made the alleged statement to
Mrs. Grissom is not admissible evidence of the Courts state of mind. Gillers Decl.
U.S.C. 455(b)(1) to recuse if it has an actual bias, and the Court has not done so here.
9
10
11
III.
Sheriff Arpaio and Chief Deputy Sheridan move for recusal based upon 28
12
U.S.C. 455(a), which requires [a]ny justice, judge, or magistrate judge of the United
13
States [to] disqualify himself in any proceeding in which his impartiality might
14
15
recusal when a reasonable third-party observer would perceive that there is a significant
16
risk that the judge will be influenced by the threat and resolve the case on a basis other
17
than the merits. United States v. Holland, 519 F.3d 909, 914 (9th Cir. 2008). The
18
standard is applied based upon all the relevant facts and an examination of the record
19
and the law. Id. (citing LoCascio v. United States, 473 F.3d 493, 496 (2d Cir. 2007)).
20
As an initial matter, Sheriff Arpaio and Chief Deputy Sheridan do not clearly
21
state the basis for their motion under 455(a), but Plaintiffs presume that it is based upon
22
the same allegations underlying their assertions under 455(b)(1) and (b)(5). The
23
motion therefore should fail because a reasonable observer would understand that in the
24
context of the record, as set forth above, none of the Courts conduct gives rise to any
25
26
suspicion, opinion, and similar non-factual matters are generally not sufficient to
27
warrant recusal under 455(a). Clemens, 428 F.3d at 1178. Nor are baseless personal
28
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attacks on or suits against the judge by a party, or quotes attributed to the judge or
others, but which are in fact false or materially inaccurate or misleading, or attempts to
Moreover, Sheriff Arpaio and Chief Deputy Sheridans argument under 455(a)
should fail because courts have held that a party cannot manufacture a basis for recusal.
In this case, the movants appear to argue that there is an appearance of bias because they
themselves launched investigations to develop proof that the Court is biased, one of those
investigations (the MCSO-Montgomery investigation) was leaked to the press,4 and the
Court inquired about the news report, leading to the Sheriffs testimony about both the
10
11
and Sheridan, the investigations were done by MCSO and MSCOs paid agents and they
12
did attempt to call the Courts impartiality into question. Sheriff Arpaios testimony that
13
14
documents later produced by Defendants. Wang Decl., Ex. F. And when asked whether
15
MCSO had investigated the Courts spouse, Chief Deputy Sheridan equivocated by
16
answering it depends on how you define, investigated your wife. Tr. of Apr. 24, 2015
17
at 967:11-14. But in fact, Chief Deputy Sheridans complete testimony and documents
18
produced under an order by Magistrate Judge Boyle demonstrate that the investigation
19
was aimed at determining whether Mrs. Snow made the statement. [Doc. 1115].
20
21
party has made allegations against the Court, for example, the Ninth Circuit has held that
22
recusal is not required. A judge is not disqualified by a litigants suit or threatened suit
23
24
25
26
27
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Studley, 783 F.2d 934, 940 (9th Cir. 1986) (citing Ronwin v. State Bar of Ariz., 686 F.2d
692, 701 (9th Cir. 1981); United States v. Grismore, 564 F.2d 929, 933 (10th Cir. 1977)).
Otherwise, defendants could readily manipulate the system [and] force delays.
Such blatant manipulation would subvert our processes, undermine our notions of fair
play and justice, and damage the publics perception of the judiciary. United States v.
Holland, 519 F.3d 909, 915 (9th Cir. 2008); see also United States v. Spangle, 626 F.3d
488, 496 (9th Cir. 2010) (court properly declined to recuse after police found personal
information about judge and judges family in the defendants car). Numerous cases
have held that a party cannot effect recusal of a trial judge by the partys own actions,
10
such as through statements critical of the judge or accusing the judge of wrongdoing.
11
United States v. Cerrella, 529 F. Supp. 1373, 1380 (S.D. Fla. 1982) (citing United States
12
v. Bray, 546 F.2d 851 (10th Cir. 1976); United States v. Garrison, 340 F. Supp. 952, 957
13
(E.D. La. 1972); United States v. Fujimoto, 101 F. Supp. 293, 296 (D. Haw. 1951)). In
14
Bray, 546 F.2d at 857-58, the Tenth Circuit rejected a recusal motion based upon the
15
moving partys accusation that the judge had committed bribery and conspiracy.
16
Similarly, the First Circuit held that negative statements about the court in a newspaper
17
the moving party owned, well into the proceedings, could not require recusal because
18
otherwise a party might manipulatively create a basis for recusal. In re Union Leader
19
Corp., 292 F.2d 381, 388-89 (1st Cir. 1961). In short, the law does not permit a party to
20
trigger recusal at will, simply by alleging that the Court participated in a conspiracy to
21
get him.
22
23
A reasonable observer with full knowledge the record of this case, and the
caselaw, would not conclude that there is an appearance of bias.
24
25
26
27
IV.
The recusal motion also should be denied because it is untimely. Sheriff Arpaio
and Chief Deputy Sheridan knew of Karen Grissoms allegations in August 2013, and
28
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documents reveal that they had concluded their interviews on that issue by November
2013almost two years before filing this motion. [Doc. 1115]. Defendants knew of the
relationship between the Court and Keith Teel in June 2012three years before filing
their motionand expressly waived any claim to recusal. And to the extent the movants
investigation are true, despite their repudiation, they should be foreclosed as they knew
Montgomery was not credible at least by November 2014 (Wang Decl., Ex. C), seven
months before filing their motion. In light of these extraordinary delays, the recusal
motion should be denied as untimely. Gillers Decl. 9, 11-12. E. & J. Gallo Winery v.
10
Gallo Cattle Co., 967 F.2d 1280, 1295 (9th Cir. 1992) (recusal motion untimely when
11
filed seven months after assignment of case to judge and after adverse ruling); Studley,
12
783 F.2d at 939 (recusal motion filed weeks after conclusion of trial in which court
13
14
These cases are based on the presumption that a party that delays the filing of a
15
recusal motion is presumed to be filing the motion for purposes of manipulation, after
16
suffering adverse rulings. See E. & J. Gallo Winery, 967 F.2d at 1295; United States v.
17
Rogers, 119 F.3d 1377, 1380 (9th Cir. 1997); Bivens Gardens Office Bldg., Inc. v.
18
Barnett Banks of Fla., Inc., 140 F.3d 898, 913 (11th Cir. 1983) (recusal cannot be used
19
20
out to be off and a loss occurs). In this case, there is good reason to believe that the
21
motion was in fact filed for manipulative purposes. Sheriff Arpaio and Chief Deputy
22
23
motions to vacate the hearing.5 It was only after those efforts failed, after the hearing
24
25
26
27
Defendants assert that the Court improperly refused to grant those motions and
rejected proposed remedies that Plaintiffs had agreed to as settlement terms. Mot. at 6.
This assertion on its face violates the confidentiality provision of Federal Rule of
Evidence 408 and also is misleading. Plaintiffs made clear on the record that they
(continued)
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brought forth clear evidence of their willful and systematic violations of the Courts
orders,6 and after the Court indicated in post-hearing status conferences that strong
remedies were in order (Tr. of May 8, 2015 at 19:8-21:4), that they finally moved for
recusal.7 Moreover, after filing the recusal motion, the Defendants initially took the
position that ongoing activities toward compliance with the Supplemental Permanent
Injunction were stayed, contrary to the terms of the Courts far more limited stay order.
Wang Decl., Ex. G; [Doc. 1120]. The timeliness requirement prevents precisely this sort
9
10
V.
11
The Motion Fails To Meet the Requirements for Recusal Under 144
Finally, the recusal motion fails to meet the requirements of 28 U.S.C. 144,
12
which provides for reassignment of a case to another judge upon the filing of a timely
13
and sufficient affidavit that the judge before whom the matter is pending has a personal
14
bias or prejudice either against him or in favor any adverse party. Section 144 provides
15
that a party may only file one such affidavit in any case. See also Adesanya v. West Am.
16
Bank, 1994 WL 56960, at *3 (9th Cir. Feb. 25, 1994) (unpub. op.) (construing recusal
17
motion as filed under 455 because party previously filed affidavit under 144).
18
Defendants Sheriff Arpaio, MCSO, and Maricopa County previously moved for the
19
20
21
22
23
24
25
26
27
never agreed to any settlement. Tr. of Feb. 26, 2015 at 38:7-11, 41:20-42:24.
Plaintiffs opposed Defendants Motion to Vacate because Plaintiffs had not had an
opportunity to take discovery relevant to whether Defendants violations were
deliberate, or on the adequacy of remedies [Doc. 952 at 2-4], and the Court denied
Defendants motions on that ground. [Doc. 1003, 1007].
6
For example, the evidence developed during the contempt hearing on April 21-24,
2015 demonstrated that Chief Deputy Sheridan was not truthful with the Courtappointed Monitor about the events of May 14, 2014 underlying one of the charged
grounds of contempt. Tr. of Apr. 24, 2015 at 840:10-841:15; 846:22-848:5; 850:6-11;
851:22-25; 853:20-859:19; 861:4-11; 868:19-869:6.
7
Tellingly, immediately after the Courts examination of the Sheriff, his specially
appearing counsel (who filed the instant motion) stated publicly that there was no basis
for recusal of the Court. Wang Decl., Ex. H.
28
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recusal of Judge Murguia through the filing of an affidavit under 144. [Doc. 63].
While that affidavit was signed by then-Chief Deputy David Hendershott, it was done on
In any event, 144 does not present any independent basis for recusal. It is
settled that the same substantive and timeliness standards apply whether the statutory
basis asserted is 144 or 455. Liteky, 510 U.S. at 548 (noting that 144 seems to be
properly invocable only when 455(a) can be invoked anyway). The remaining
distinction between 144 and 455 appears to be that under 144, the motion shall be
referred to a different district judge. But that is so only if the judge to whom the motion
10
is directed first determines that the affidavit is timely and sufficient. United States v.
11
Sibla, 624 F.2d 864, 868 (9th Cir. 1980); Gillers Decl. 3. For all the reasons set forth
12
13
14
CONCLUSION
15
Sheriff Arpaio and Chief Deputy Sheridans motion to disqualify the Court
16
17
should be denied.
RESPECTFULLY SUBMITTED this 12th day of June, 2015.
18
19
20
21
22
23
24
25
26
Daniel Pochoda
Joshua Bendor
ACLU Foundation of Arizona
Anne Lai (Pro Hac Vice)
27
28
18
(190 of 523)
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1
2
3
4
9
10
11
12
13
14
15
16
17
18
19
20
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22
23
24
25
26
27
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19
(191 of 523)
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1
2
3
4
5
CERTIFICATE OF SERVICE
I hereby certify that on June 12, 2015, I electronically transmitted the attached
document to the Clerks office using the CM/ECF System for filing. Notice of this
filing will be sent by e-mail to all parties by operation of the Courts electronic filing
system or by mail as indicated on the Notice of Electronic Filing.
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
(192 of 523)
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EXHIBIT 12
(193 of 523)
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2
3
Plaintiffs,
5
6
7
v.
Joseph M. Arpaio, et al.,
Defendants.
9
10
CV-07-2513-PHX-GMS
)
)
)
)
)
)
)
)
)
)
)
)
)
DECLARATION OF CECILLIA
WANG IN SUPPORT OF
PLAINTIFFS RESPONSE IN
OPPOSITION TO SHERIFF
ARPAIO AND CHIEF DEPUTY
SHERIDANS MOTION
FOR RECUSAL OR
DISQUALIFICATION OF
THE COURT
[REDACTED VERSION]
11
12
13
14
York and in numerous federal courts and have been admitted pro hac vice to
15
represent the Plaintiffs in this matter. I am the Director of the American Civil
16
17
18
2.
19
Opposition to Sheriff Arpaio and Chief Deputy Sheridans Motion for Recusal
20
21
3.
22
by the Court as Exhibit 522 during the evidentiary hearing in this matter, on
23
24
25
26
27
28
(194 of 523)
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522.
4.
a.
10
b.
11
12
13
MELC202173-75.
14
c.
15
16
stamped MELC202048.
17
d.
18
19
20
21
MELC202142-45.
e.
22
23
24
35.
25
5.
26
email dated May 27, 2015, from the Court-appointed Monitor, Robert
27
28
(195 of 523)
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letter dated May 22, 2015 from Michelle Iafrate to Robert Warshaw. In the
letter and in the email exchange, Ms. Iafrate took the position that the entire
litigation and all actions by the Monitor were stayed pending a decision on the
5
6
7
8
9
10
11
12
13
14
15
6.
16
17
counsels statement.
18
19
20
I hereby declare that the foregoing is true and correct under penalty of
perjury pursuant to 28 U.S.C. 1746.
Executed at San Francisco, California this 12th day of June, 2015.
21
22
23
24
25
26
27
28
(196 of 523)
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Exhibit A
(197 of 523)
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(198 of 523)
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(199 of 523)
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(200 of 523)
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(201 of 523)
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(202 of 523)
Case
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(203 of 523)
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ID: 9654788,
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(204 of 523)
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ID: 9654788,
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(205 of 523)
Case
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(206 of 523)
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Exhibit B
(207 of 523)
Case
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REDACTED
MELC202132
(208 of 523)
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Exhibit C
(209 of 523)
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ID: 9654788,
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REDACTED
MELC202173
(210 of 523)
Case
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ID: 9654788,
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REDACTED
MELC202174
(211 of 523)
Case
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ID: 9654788,
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of 61
REDACTED
MELC202175
(212 of 523)
Case
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Exhibit D
(213 of 523)
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Case:
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1
2
3
4
5
6
8
9
10
11
Plaintiffs,
12
v.
13
14
No. CV-07-2513-PHX-GMS
Defendants.
15
16
17
Pending before the Court is the Motion for Recusal/Motion for Disqualification
18
filed on May 22, 2015 by Defendant Joseph M. Arpaio and non-party contemnor Gerard
19
Sheridan pursuant to 28 U.S.C. 144 and 455. (Doc. 1117.) Along with their Motion,
20
21
22
In April, the Court began the first phase of civil contempt proceedings against
23
Movants and other members of MCSOs command staff for violating a number of the
24
25
26
27
28
For clarity, the Court will refer to Sheriff Arpaio and Chief Deputy Sheridan as
Movants in relation to their pending Motion, and use Defendants when referencing
the parties named in the underlying action, Sheriff Arpaio and Maricopa County/the
Maricopa County Sheriffs Office. Neither Maricopa County, MCSO, nor the other
named civil contemnors in this actionExecutive Chief (retired) Brian Sands, Deputy
Chief John MacIntyre, and Lieutenant Joseph Sousahave joined the Motion for
Recusal, or otherwise taken a position on its merits. (See Docs. 1129, 1135, 1137.)
(256 of 523)
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Courts orders, entered both before and after trial. Sheriff Arpaio and Chief Deputy
Sheridan have admitted the facts charged in the Order to Show Cause and have consented
to the Courts entering a finding of civil contempt against them, although issues remain
about the appropriate scope of remedies for their violations. The evidentiary hearings on
contempt were slated to resume in June but have been postponed pending the resolution
The proposed bases on which the Motion is predicated are legally insufficient and
untimely. Further, to the extent that Movants, by their own actions, created the
circumstances on which they now seek the Courts recusal, they have improperly
10
attempted to invoke the recusal provisions for strategic purposes. For these reasons, more
11
fully explained below, Sheriff Arpaio and Chief Deputy Sheridans Motion is denied.
BACKGROUND
12
13
This case has a lengthy procedural history; the following limited facts provide
14
context for the grounds on which Sheriff Arpaio and Chief Deputy Sheridan have moved
15
for recusal.
16
Over two years ago, the Court ruled that Sheriff Arpaio and MCSO had violated
17
the Fourth and Fourteenth Amendment rights of the Plaintiff class and entered associated
18
injunctive relief. (Doc. 579.) For the past year and a half, a Monitor has been involved in
19
20
the Court on MCSOs ongoing compliance.2 (See Doc. 649.) Since his appointment, the
21
22
23
24
25
26
27
28
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Court has adjusted the Monitors responsibilities in response to various issues presented
by Defendants actions.
On motion by Plaintiffs, in February the Court ordered the Sheriffs Office, Sheriff
Arpaio, Chief Deputy Sheridan, and others in MCSOs chain of command to show cause
why they should not be held in contempt for violating (1) the December 23, 2011
preliminary injunction; (2) their pre-trial discovery obligations under the Federal Rules of
Civil Procedure; and (3) the Courts orders at a sealed hearing directing Defendants to
traffic stops that were not disclosed during discovery. (Doc. 880.) The Order to Show
10
Cause charged the named contemnors with civil contempt only.3 (Doc. 880 at 79.)
11
Sheriff Arpaio was noticed on all three matters; Chief Deputy Sheridan was implicated in
12
13
The charges in the Order to Show Cause resulted from materials MCSO had
14
15
MCSOs ensuing administrative investigations into Armendariz, his supervisors, and his
16
former patrol division.4 The Monitor was responsible for evaluating the sufficiency of
17
these investigations, which revealed that Defendants had failed to disclose a considerable
18
19
omission, Plaintiffs were precluded from admitting the evidence in support of their case-
20
3
21
22
23
24
25
26
27
28
See United States v. Rylander, 714 F.2d 996, 1001 (9th Cir. 1983) (explaining
that it would usually be wiser to try the civil and criminal charges separately in light of
the additional safeguards applicable only to criminal proceedings). The Court has noted
that if a criminal contempt prosecution proves necessary to vindicate its authority after
the civil contempt hearing, it will refer such proceedings to another judge. (See Tr. of
Mar. 20, 2015 Status Conf. 61:2362:2, Doc. 965.)
4
Some of the evidence, such as the traffic stop recordings, was plainly requested
by Plaintiffs during discovery but was never identified nor produced by Defendants.
Other evidence suggested that members of the Plaintiff class may have been subjected to
additional routine constitutional infringements other than those that were addressed in the
underlying trial. The evidence also revealed that Defendants, as a matter of regular
practice and operation, had actively enforced federal immigration law and detained
persons after officers concluded that there was no legal justification for such detention for
at least seventeen months after the Court prohibited these practices in the preliminary
injunction. (Tr. Nov. 20, 2014 Status Conf. 67:1022, Doc. 804.)
-3-
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in-chief and uncovering the additional constitutional violations likely suffered by the
Plaintiff class before trial. Further, the Court did not have the evidence to consider when
making findings of fact and conclusions of law concerning what defects in MCSOs
operations and procedures had led to the deprivation of Plaintiffs rights, nor when
fashioning supplemental injunctive relief to remedy those defects. (See, e.g., Tr. of Sept.
regarding the inadequacy of MCSOs existing internal investigative practices into the
Supplemental Permanent Injunction due to the lack of evidence presented at trial on that
10
investigative processes that had been noted by the Monitor,5 the Court authorized
11
members of the monitoring team to conduct independent inquiries into the Armendariz
12
13
Standards Bureau (PSB). This authorization was to allow the Monitor to assess whether
14
15
evidence promoted the constitutional and professional treatment of the Plaintiff class by
16
MCSO. (Doc. 795 at 1621, amended by Doc. 825 (following input by the parties).)
17
In the Order to Show Cause, the Court remarked that crafting suitable civil relief
18
for each of the grounds on which contempt is charged [would] be of chief interest to the
19
20
of court. (Doc. 880 at 25.) Prior to and throughout the contempt proceedings, the Court
21
reiterated its expectation that the parties would develop an evidentiary record sufficient
22
for the Court to fashion an appropriate remedy for members of the Plaintiff class whose
23
rights were impaired by the contemnors violations of the Courts orders and rules. (See,
24
e.g., Tr. of Mar. 20, 2015 Status Conf. 2:26, 11:612, 12:2125, 13:121, Doc. 965; Tr.
25
of Apr. 2124, 2015 Evid. Hrgs (Tr.) 44:1425, Docs. 1017, 1021, 1027, 1030, 1041,
26
5
27
28
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1043; Doc. 1007 at 12.) Such a remedy would both compensate those individuals
specifically harmed by Defendants noncompliance and also provide relief for possible
system wide deficiencies, relief to which Plaintiffs may have been entitled after trial but
Approximately one month before the scheduled hearing, Sheriff Arpaio and Chief
Deputy Sheridan filed an Expedited Motion to Vacate the hearing. (Doc. 948.) Movants
admitted to being in civil contempt on the charges in the Order to Show Cause and
suggested possible remedial measures. (Id.) Plaintiffs opposed the Motion because it did
not specify how the admitted violations of the Courts orders had occurred, nor did it
10
resolve all outstanding questions involving the appropriateness and feasibility of the
11
proposed remedies. (See Doc. 952.) At the next status conference, the Court encouraged
12
the parties to pursue settlement while advising that any remedies would need to
13
adequately compel Movants compliance with the Courts orders going forwardin
14
addition to any compensatory elementbefore the Court would approve the terms. (Tr.
15
of Mar. 20, 2015 Status Conf. 38:1242:18, Doc. 965.) In the end, negotiations with
16
Plaintiffs were unsuccessful. (See Doc. 1005 at 1.) A representative of the United States
17
Attorneys Office for the District of Arizona also declined, citing departmental policy, to
18
19
(Doc. 924; Tr. of Feb. 26, 2015 Status Conf. 35:716, Doc. 926.) The Court thus denied
20
the motion without prejudice, as well as Movants renewed Motion to Vacate that was
21
22
Although the Court had ordered expedited discovery in advance of the scheduled
23
hearings on contempt, (Doc. 881), this discovery was inhibited by Defendants delays in
24
25
26
27
28
The Court is required to designate the United States Attorney for the district in
which it sits to prosecute criminal contempt of court. Fed. R. Crim. P. 42. The Court
invited a representative of the Arizona USAO to attend status conferences following the
later Armendariz revelations, some of which had potential criminal implications for
members of MCSO. (Doc. 797 at 2; Tr. of Dec. 4, 2014 Status Conf. 5:48, Doc. 817.)
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search and retrieval protocols. Consequently, Defendants had not disclosed the complete
At the show-cause hearing, the Court noted that it would participate in questioning
witnesses, as it had done at trial. Nevertheless, the Court invited counsel to freely object
during its examination of the witnesses,9 and counsel did, in turn, successfully raise
objections. (See, e.g., Tr. 626:1824 (Ms. Iafrate: Your Honor, may I object just as to
10
the way that question is worded? Could we include civil contempt? The Court:
11
Surely.); see also Tr. 985:1986:19 (objection sustained).) Movants both had civil and
12
13
Sheriff Arpaio testified under oath on the second and third days of the contempt
14
hearing. In framing its examination of Sheriff Arpaio, the Court explained that it was
15
important, from a remedial perspective, whether Sheriff Arpaios admitted contempt was
16
17
Courts directives. (Tr. 635:1218.) Accordingly, the Court questioned Sheriff Arpaio on
18
7
19
20
21
22
For example, Defendants initially indicated that all internal investigations arising
out of the Armendariz matter would be completed by March 13, 2015. (Doc. 864.)
Defendants subsequently postponed the deadline for completing these investigations until
April 13 and, again, until May 18. (Docs. 923, 1052.) The investigations have still not
been completed. As a consequence of these delays, the Monitor was unable to make
outcome assessments and recommendations based on MCSOs handling of the
Armendariz investigations before the April hearings.
8
23
24
25
26
27
28
Im going to have some questions, some of them may be difficult to answer, and
Im going to certainly let your attorneys participate if they have concerns, but Im going
to try and ask you [Sheriff Arpaio] my questions with respect, and I hope youll afford
me the same in response. (Tr. 625:1216; see also Tr. 42:2044:12 (explaining that
specially appearing counsel could object where necessary to protect contemnors criminal
interests, even in the civil proceeding); Tr. 965:411 (In all seriousness, Ms. Iafrate, I
think that if you have objections or if anybody else does, they ought to make
them . . . .).)
-6-
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aspects of MCSOs internal investigations that had previously raised concerns for the
Court and the Monitor about the integrity of those investigations, such as MCSOs
apparent reluctance to mete out punishment for violations of department policy and this
Courts orders. Sheriff Arpaio acknowledged that, although MCSOs failure to comply
with a court order is a pretty big deal, he had taken no action to hold anyone
responsible for the violations of the Preliminary Injunction or the Courts May 14
instructions. (Tr. 628:2029:1, 633:1219, 635:1922.) The Court also inquired about the
reassignment of Captain Steven Bailey from the command of the Special Investigations
Division (SID)which was responsible for the unit to which Deputy Armendariz was
10
assigned and that had been responsible for many of the constitutional violations found at
11
trialto the PSB at the time when the Human Smuggling Unit was under investigation
12
by the PSB because of the Armendariz materials. (Tr. 637:1938:1, 638:2540:12.) The
13
Monitor had previously identified this as a potential conflict of interest, which led to
14
15
16
979:2480:12.)
17
18
Smuggling Unit, the SID was also responsible for investigations that involved
19
confidential informants, and that someone in the SID chain of command would have been
20
21
tenure there. (Tr. 642:314.) The Court then produced an article published in the Phoenix
22
New Times on June 4, 2014, the approximate time of Captain Baileys transfer to PSB.
23
(Tr. 642:1743:3.) The Court invited Sheriff Arpaio and all counsel to take a minute to
24
read the article, which alleged that MCSO was paying a confidential informant from
25
26
between this Court and the United States Department of Justice. (Tr. 643:1417.) Sheriff
27
28
Maricopa County Sheriffs Cold Case Posse, and Mr. Montgomery, but repudiated the
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articles implication that what Montgomery was actually doing was investigating [the
Court]. (Tr. 647:412.) The Court directed Defendants to preserve and immediately
Defense counsel initiated the questioning on this matter when Chief Deputy
Sheridan took the stand the following day, which was supplemented with a handful of
follow-up inquiries by the Court. (Tr. 958:967:10.) At the end of Chief Deputy
Sheriff Arpaio noted an ethical obligation to correct aspects of his testimony from the
10
previous day. They have since made a variety of disclosures in fulfillment of their duty to
11
act with candor toward the tribunal, including the submission of a November 8, 2013
12
13
copied to Chief Deputy Sheridan and others at the MCSO. (Tr. 101934; see also Docs.
14
1040, 1044, 1053.) From Sheriff Arpaio and Chief Deputy Sheridans testimony and the
15
corrective disclosures provided by former defense counsel, it is now apparent that Sheriff
16
Arpaio in fact testified as to two investigations with a possible connection to the Court.
17
The first, the Montgomery matter, was the topic of the New Times article and the
18
19
hired Dennis Montgomery, a computer consultant based out of Seattle, Washington. (Tr.
20
21
22
23
documents he had obtained while employed by the United States Central Intelligence
24
Agency that the CIA had harvested from American citizens. (Tr. 1000:218.) Sheriff
25
26
someone had infiltrated Movants phone lines and the phones and e-mail accounts of
27
various local attorneys and judges connected to Defendants, including this Court. (Tr.
28
649:1450:6, 652:1153:8.) Chief Deputy Sheridan reiterated that Mr. Montgomery had
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made allegations that the CIA hacked into individual bank accounts of county
residents, (Tr. 960:1113, 1004:911), and that he, Sheriff Arpaio, and the two law firms
Department of Justice had been the subject of a secret wiretap by the government. (Tr.
Sheridan was informed that Montgomery had evidence of a communication sent by the
DOJ to the Courts computer. (Tr. 1000:1214). Sheridan testified that he ordered the
MCSO personnel working on the project not to investigate any information involving
Judge Snow, and that [i]f any further information comes up, [he] want[ed] to know
10
immediately. (Tr. 1003:1219.) He further testified that, after he issued this instruction,
11
12
Sheriff Arpaio avowed that nothing gleaned from Montgomery gave him any
13
concern that the Courts judgment or neutrality in this case might be affected, (Tr.
14
652:1618), and Chief Deputy Sheridan similarly confirmed that there was really
15
nothing [in the information from Montgomery] to think that there was any collusion
16
between this Court and the Department of Justice. (Tr. 1003:12.) Movants both declare
17
that MCSO eventually concluded that Montgomery had made false representations
18
regarding his work product, and that they have no confidence in Montgomery or his
19
20
21
disclosed pursuant to this Courts orders, however, call into question the version of
22
events testified to by Movants. Some of these documents have been filed by Plaintiffs in
23
their Response to this Motion. (Doc. 1150, Aff. of Cecilia Wang, Exs. BF (available at
24
Doc. 1153).) Although the body of documents produced has not yet been reviewed in
25
full, and the Monitor has made document requests of the County that remain pending, at
26
least some of the materials dofalselyassert the existence of telephone calls between
27
this Court and agents of the DOJ, including Eric Holder, Lanny Breuer, and one of this
28
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Courts former law clerks, dating back to before this case was assigned to the Court.10
They also appear to imply that this Court authorized a wiretap on MCSO. (See id., Ex. F
(available at Doc. 1153).) These documents and Sheriff Arpaios hearing testimony
further suggest that the same persons in charge of implementing the Courts injunctive
decree within MCSO and supervising MCSOs internal affairs processes were aware of
Mr. Montgomerys attempt to construct a conspiracy between the Court and other agents
least November 2014 that the CIA database of documents from which Montgomery was
supposedly providing this information was fraudulent, (id., Ex. C (available at Doc.
10
1153)), the investigation was still ongoing as of the contempt proceedings (Tr. 651:24
11
52:4) and MCSO continued to press Montgomery for work-product until the day before
12
the hearings began. (Doc. 1150, Aff. of Cecilia Wang, Ex. E (available at Doc. 1153).) It
13
was after the Court noted some of the apparent inconsistencies between the documents
14
from the Montgomery investigation and Movants previous testimony, authorized the
15
Monitor to collect documents and conduct additional interviews on the matter, and
16
invited Movants to address these inconsistencies in the resumed contempt hearings, that
17
18
The second investigation, the Grissom matter, came to light during the Courts
19
questioning of Sheriff Arpaio about the Montgomery investigation; the Court was
20
unaware of the Grissom matter until Sheriff Arpaio testified to its existence. After Sheriff
21
Arpaio denied being aware of any investigation involving the Court, he then testified as
22
follows:
23
Q.
A.
You investigated?
Q.
Yes.
24
25
26
27
10
28
The phone number that is attributed to the Court in these documents is not,
however, accurate.
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1
2
3
4
5
6
7
8
9
A.
No. No.
Q.
Any of my activities?
A.
No.
Q.
A.
Q.
Yes.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
Q.
Yes.
10
11
12
13
14
15
16
17
(Tr. 647:848:3.) The Courts inquiry of Sheriff Arpaio on the Grissom matter lasted
18
only for a few minutes prior to the lunch recess. The next day, the Court asked a few
19
20
Deputy Sheridan. The Court asked no additional questions about a possible investigation
21
22
MCSO apparently initiated the Grissom investigation after a woman named Karen
23
Grissom sent a message through Facebook.com to Sheriff Arpaio in August of 2013. Mrs.
24
Grissoms message to Sheriff Arpaio alleged that she heard this Courts wife make
25
remarks to the effect that [the Court] hates u [Arpaio] and will do anything to get u out
26
of office. (Doc. 1115 at 8; Doc. 1117, Ex. 5.) Mrs. Grissom attributes the statement to a
27
conversation she had with the Courts wife fourteen or fifteen months earlier at a local
28
restaurant. (Doc. 1115 at 6; Tr. 964:19.) Upon receiving the message, Sheriff Arpaio
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consulted with his counsel, Timothy Casey, who initially tried to locate Mrs. Grissom and
evaluate the credibility of her story. (Doc. 1115 at 89.) Although Mrs. Grissom repeated
the supposed memory of her encounter with the Courts wife, her demeanor and general
non-responsiveness led Mr. Casey to conclude that the matter was over and that the
information from Ms. Grissom lacked substance or merit. (Id. at 9.) Mr. Casey shared
this conclusion with Sheriff Arpaio and Chief Deputy Sheridan. (Id.)
Nevertheless, after a subsequent meeting with Sheriff Arpaio and Chief Deputy
Sheridan, Mr. Casey retained Don Vogelthe independent contractor to whom the
10
to further investigate Mrs. Grissoms allegations. (Id. at 10; Tr. 966:23, 2123.) In the
11
interviews Mr. Vogel subsequently conducted with Mrs. Grissom and her family, all
12
corroborated that Mrs. Grissom had met with a woman at this particular restaurant who
13
had implied harboring negative feelings toward Sheriff Arpaio. (Doc. 1115 at 1011; Tr.
14
967:1768:2.) However, they were generally unable to remember the details of the
15
conversation. (Doc. 1115 at 1011.) There were also inconsistencies in the Grissoms
16
recounting of the statement pertaining to Sheriff Arpaio supposedly made by the woman
17
in the restaurant. (Id.) According to counsel, Mr. Vogel found the Grissoms sincere and
18
truthful in their statements about what they believe they heard from Mrs. Snow. (Id. at
19
6.) Nevertheless, at the conclusion of Mr. Vogels investigation, Mr. Casey made the
20
21
fundamentally flawed in its substance that it likely cannot be used in a Rule 60 motion,
22
appeal, or otherwise without the lawyer doing so violating the Federal Rules of Civil
23
Procedure and the Arizona Rules of Professional Conduct. (Id. at 7, 1819.) Mr. Casey
24
recommend[ed] and strongly advise[d] Sheriff Arpaio against any use of the Grissom
25
26
Despite their hearing testimony that the investigator allegedly found the Grissoms
27
stories credible, Chief Deputy Sheridan stated that nothing came of the Grissom
28
allegations. (Tr. 968:59) He has since acknowledged both in interviews with the press
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and on the record that Movants took Mr. Caseys advice, given in November 2013, and
chose not to pursue the matter further (Tr. of May 14, 2015 Status Conf. 911, Doc.
1097.) Consequently, the matter sat in [Chief Deputy Sheridans] desk drawer for a year
and a half, until it came out in court when the Sheriff was on the stand because Movants
had no intention to do anything after they were told it would be unethical for [them] to
make a complaint on third-party hearsay. (Id. (quoting Yvonne Wingett Sanchez, How
Mexican Food Drew Couple Into Heart of Arpaio Case, Ariz. Republic, May 08, 2015).)
Movants counsel also avowed to the Court that the Sheriff and the Chief Deputy
accepted the advice of counsel and let it go. (Id.) Movants continue to maintain, as with
10
the Montgomery matter, that at no time was Judge Snow or his wife the subject of an
11
investigation. (Docs. 1083, Ex. 1; see also Doc. 1117 at 9; Tr. 961:89.)
12
LEGAL STANDARDS
13
The two principal statutes that govern federal judicial recusal are 28 U.S.C. 144,
14
15
Magistrate Judge. Section 144 provides a statutory method for seeking recusal only on
16
the basis of a federal district judges personal bias and is triggered by the filing of a
17
timely and sufficient affidavit setting forth the facts that would convince a reasonable
18
person that the judge has a bias or prejudice. 28 U.S.C. 144. The affidavit must be
19
20
Id. The affidavit and accompanying certificate are strictly construed for form, timeliness,
21
and sufficiency. United States v. Sykes, 7 F.3d 1331, 1339 (7th Cir. 1993). The court has
22
a duty to proceed no further and assign the motion to another judge for a determination
23
of the merits only after it determines the affidavit is legally sufficient. United States v.
24
Sibla, 624 F.2d 864, 868 (9th Cir. 1980). A party may file only one affidavit pursuant to
25
26
Section 455, in contrast, has two recusal provisions. Subsection (a) states that a
27
judge. . . of the United States shall disqualify himself in any proceeding in which his
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person with knowledge of all the facts would conclude the judge's impartiality might
reasonably be questioned. Taylor v. Regents of Univ. of Cal., 993 F.2d 710, 712 (9th Cir.
1993). Subsection (b) enumerates specific situations that require a judge to disqualify
impropriety:
7
8
...
10
11
12
...
13
14
15
...
16
17
18
19
20
21
22
23
24
25
26
28 U.S.C. 455(b)(1)(5). The analysis under section 455(b) is subjective and also selfenforcing on the part of the presiding judge. United States v. Holland, 519 F.3d 909, 915
(9th Cir. 2008).
Recusal for actual bias pursuant to subsection (b)(1) is required only if the moving
party can prove by compelling evidence that a reasonable person would be convinced
the judge was biased in a way that may prevent a fair decision on the merits.11 United
States v. Balistrieri, 779 F.2d 1191, 1201 (7th Cir. 1985); see also Liteky v. United States,
510 U.S. 540, 55356 (1994) (defining bias as animus or malice of a kind that a fair-
27
28
11
The standard is identical under 445(b)(1) and 144. Sibla, 624 F.2d at 867.
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minded person could not entirely set aside when judging certain persons or causes). The
party seeking recusal carries a substantial burden of overcoming the presumption that a
district court is free from bias. United States v. Denton, 434 F.3d at 1104, 1111 (8th Cir.
2006). The other relevant provisions of 455(b) mandate disqualification on the basis of
a judges personal interest in the case or his familial relationship with a material witness
that the degree of relationship that necessitates recusal under 455(b) is calculated
according to the civil law system, which includes spouses and siblings. Id. 455(d)(2).
Motions brought pursuant to either 144 or 455 are subject to the extrajudicial
10
source rule, meaning that the disqualifying bias or prejudice must generally stem from
11
something other than information and beliefs the judge acquired while acting in his or
12
her judicial capacity. United States v. McTiernan, 695 F.3d 882, 891 (9th Cir. 2012)
13
(quoting United States v. Frias-Ramirez, 670 F.2d 849, 853 n.6 (9th Cir. 1982)); accord
14
United States v. Wilkerson, 208 F.3d 794, 799 (9th Cir. 2000) (To disqualify a judge, the
15
alleged bias must constitute animus more active and deep-rooted than an attitude of
16
disapproval toward certain persons because of their known conduct. (internal quotation
17
18
19
proceedings, do not constitute a valid basis for the judges disqualification under 144
20
or 455. See Liteky, 510 U.S. at 555; In re Marshall, 721 F.3d 1032, 1043 (9th Cir. 2013).
21
Recusal motions must also be filed in a timely manner. See 28 U.S.C. 144;
22
Preston v. United States, 923 F.3d 731, 73233 (9th Cir. 1991) (applying same timeliness
23
standard to 455 motion). This requirement avoids wasted judicial time and resources
24
and a heightened risk that litigants would use recusal motions for strategic purposes. Id.
25
(internal citations omitted). Although no per se rule exists regarding the time frame in
26
which recusal motions should be filed, they must be filed with reasonable promptness
27
28
When a case is close, the balance should tip in favor of recusal. Holland, 519 F.3d
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at 912. Nevertheless, the recusal statute is not intended to give litigants a veto power
over sitting judges, or a vehicle for obtaining a judge of their choice. United States v.
Cooley, 1 F.3d 985, 993 (10th Cir. 1993). In considering whether recusal is appropriate
under 455, the judge is free to make credibility determinations, assign to the evidence
what he believes to be its proper weight, and to contradict the evidence with facts drawn
7
8
For the reasons set forth below, Movants have not satisfied the requirements to
bring a motion pursuant to 144. Therefore, the Court need not accept the truth of the
10
allegations in Sheriff Arpaios affidavit nor refer the Motion to another judge for a
11
determination of its merits. See Sibla, 624 F.2d at 868. The Court will instead consider
12
whether the record as a whole demonstrates actual bias against Movants, triggers the
13
14
15
I.
The Courts Actions and Rulings Relating to the Contempt Proceedings Are
16
17
The record of the contempt proceeding belies Movants contention that the Court
18
exhibits antipathy toward Movants; nor would an objective third party perceive a
19
significant risk that the Court would resolve the case on a basis other than the merits.
20
Movants reliance on the Courts rulings and actions as the foundation for their Motion to
21
Recuse also ignores the long-settled principle that, to trigger recusal, any alleged bias
22
must spring from an extrajudicial source, not from information or beliefs the judge gained
23
over the course of litigation, or else the bias must be particularly excessive in degree. See
24
25
26
27
28
12
The Motion also refers to the recusal requirements under the Judicial Code of
Conduct. The standard for disqualification under the judicial canons is substantively
identical to that under the federal statutes. See Liljeberg v. Health Servs. Acquisition
Corp., 486 U.S. 847, 870 (1988) (Rehnquist, J., dissenting) (explaining that 455 was
substantially revised by Congress to bring it in conformity with Canon 3C of the Code of
Conduct for United States Judges). The state canons cited in the Motion are inapplicable
to federal courts.
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Sheriff Arpaio and Chief Deputy Sheridan argue that the Courts conduct during
the civil contempt proceedings establish that it has a personal bias or prejudice against
them, 28 U.S.C. 455(b)(1), or might cause a reasonable person to question the Courts
partiality. Id. 455(a). In particular, Movants challenge the Courts denial of their
Motions to Vacate and its invitation to the United States Attorneys Office to attend
status conferences. (Doc. 1117 at 57.) Movants further assert that the Court engaged in
outside investigations . . . that [it] infused into the proceeding, took evidence outside of
court, asked leading questions, was argumentative with and interrupted Chief
10
Deputy Sheridan, and gave [its] own testimony. (Id. at 15.) Movants attempt to prove
11
12
13
14
15
expert opinion. The law of this and every Circuit is that while an expert may provide an
16
opinion to help the jury or judge understand a particular fact, the expert is not permitted
17
to give an opinion as to his legal conclusion. Hangarter v. Provident Life & Accident Ins.
18
Co., 373 F.3d 998, 1016 (9th Cir. 2004); see also Fed. R. Evid. 702(a) (requiring that
19
expert opinion evidence help the trier of fact to understand the evidence or to determine
20
a fact in issue). The question presented on the recusal motion is whether 28 U.S.C. 455
21
requires this Court to disqualify itself. This decision is solely a question of law. See
22
Jefferson Cnty. v. Acker, 92 F.3d 1561, 1581 (11th Cir. 1996), vacated on other grounds,
23
520 U.S. 1261 (1997) (Whether a judge is disqualified, that is, must not take part in
24
13
25
26
27
28
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deciding a case, is a question of law.); In re City of Houston, 745 F.2d 925, 927 (5th Cir.
1984) (same). Because both declarations only purport to offer interpretations and
analyses of 455 and express the professors opinions on whether the Court must
withdraw from this case, (see Doc. 1117, Decl. of Ronald Rotunda 2930; Doc. 1150,
Decl. of Stephen Gillers 21), they are not appropriate for the Court to consider in
deciding whether its recusal is appropriate. See in re Initial Pub. Offering Sec. Litig., 174
F. Supp. 2d 61, 64 (S.D.N.Y. 2001) (excluding expert opinions of law professors that trial
judge should recuse herself on the grounds that they impermissibly stated conclusions of
law); accord United States v. Eyerman, 660 F. Supp. 775, 781 (S.D.N.Y. 1987).
10
Although the Court disregards both declarations, it is Movants who bear the
11
burden of overcoming the presumption that the Court is impartial. See Denton, 434 F.3d
12
at 1111. Movants failure to cite to anything admissible that might suggest how the
13
Courts course of examination or rulings demonstrate its actual bias against them falls
14
short of the compelling evidence standard that governs motions to recuse under
15
455(b)(1). See Hook, 89 F.3d at 355. Moreover, to the extent that the examples of the
16
Courts bias cited to by Movants are based on the Courts rulings and conduct during the
17
contempt proceedings, the Motion also fails under 455(a) and (b)(1) because judicial
18
rulings and conduct during litigation are not a valid basis for a bias or partiality motion
19
unless they display a deep-seated favoritism or antagonism that would make fair
20
judgment impossible. Liteky, 510 U.S. at 555. If the Court committed error in relation to
21
the contempt proceedings, Movants proper recourse is an appeal to the Ninth Circuit, not
22
a motion for recusal. Id. Under the circumstances, a person apprised of all relevant facts
23
24
First, the proceedings in which the underlying events occurred were civil contempt
25
hearings, the factual basis for which Movants do not contest. (See Docs. 880, 948, 1003.)
26
Even if it were to accept Movants unsupported contention that the Court interrupted
27
Chief Deputy Sheridan or was argumentative, (see Doc. 1117 at 15), these actions
28
would have to be especially severe or pervasive to fairly suggest the kind of deep- 18 -
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seated animus toward Movants that requires the Courts recusal. See Liteky, 510 U.S. at
55556; see also Marshall, 721 F.3d at 1043 (holding that a series of hostile comments
toward litigant did not require the judges recusal because the comments might also be
reasonably seen as the product of [the judges] frustration with [the litigants] behavior
throughout the litigation). The record reflects that the Courts orders were violated from
a very early stage in this litigation, and that Movants continued to resist the Courts
directives after the Court entered its permanent injunction and throughout the compliance
phase. The Court has expressed concern for what it perceives to be, at best, Movants
negligent approach to the timely implementation of its orders and, at worst, a pattern of
10
knowing defiance and subversion of the Courts efforts to administer justice in this
11
action. Movants antagonism has necessitated substantial judicial corrective action; yet,
12
as of the Monitors last report, MCSO was not close to achieving full compliance with
13
the injunctive order entered nearly two years ago. See Robert S. Warshaw, Third
14
Quarterly Report 112 (2015) (Doc. 1010). The Courts comment about Movants having
15
skin in the game in any proposed settlement does not provide a basis for recusal for
16
similar reasons. The Court has previously questioned whether, due to the organization of
17
the Maricopa County governmentwhich requires the County as a whole to bear the
18
19
20
consequences, financial or otherwise, from their admitted contempt. (See, e.g., Tr. of
21
Mar. 20, 2015 Status Conf. 52:1653:7, Doc. 965.) The Court need not ignore these facts
22
in making its rulings. See in re Yagman, 796 F.2d 1165, 118182 (9th Cir. 1986) (When
23
[a judge imposes sanctions], the judge will obviously be dissatisfied with some aspect of
24
the offending . . . conduct[;] . . .[w]ithout more, this natural responsive attitude does not
25
26
does not mean child-like innocence. If the judge did not form judgments of the actors in
27
those court-house dramas called trials, he could never render decisions. Liteky, 510 U.S.
28
at 551 (quoting In re J.P. Linahan, Inc., 138 F.2d 650, 654 (2d Cir. 1943)). In this case,
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the record does not support the conclusion that the Court was critical of or hostile toward
Movants, let alone that its behavior was serious enough to overcome the high standard
Second, the accusation that recusal is required because the Court took evidence
outside of court is misplaced. (See Doc. 1117 at 15.) During the evidentiary hearing,
Sheriff Arpaio testified on the source of funding for the Montgomery investigation,
which involved MCSO deputies as well as a member of the Cold Case Posse. Sheriff
Arpaio stated that Maricopa County had not paid for the Cold Case Posse members trips
to the Seattle area. (Tr. 645:15.) During the ensuing lunch break, the Monitor mentioned
10
to the Court that the Cold Case Posse may have separate finances from MCSO. When the
11
proceedings resumed, the Court confirmed as much with Sheriff Arpaio during
12
13
As an initial matter, only in the rarest of circumstances need the Court recuse
14
itself on the basis of knowledge gained in a judicial capacity. Holland, 519 F.3d at 913
15
14. The Monitor is an agent of the court and, in this role, has communicated with the
16
17
judicial orders on the Courts behalf. See United States v. Yonkers Bd. of Educ., 946 F.2d
18
180, 184 (2d Cir. 1991) (denying motion to recuse based on communications between
19
20
unprompted comment during the recess did not provide the Court with the kind of
21
22
tools of the adversary process. See Edgar v. K.L., 93 F.3d 256, 259 (7th Cir. 1996).
23
Rather, the only evidence on this matter is in the record: Sheriff Arpaios testimony, as
24
developed through the Courts examination. Under the circumstances, then, the Courts
25
26
27
fact. See 28 U.S.C. 455(b)(1). This would also not cause a reasonable and informed
28
observer to question the Courts impartiality. See id. 455(a); Yonkers, 946 F.2d at 184.
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Third, the Courts orders after the first phase of the contempt hearings that
Defendants immediately produce all documents relating to the matters on which Sheriff
Arpaio had testified or pertaining to the Monitors discretion to inquire into matters . . .
pertinent to the current contempt findings are not an adequate basis for the instant
Motion.14 (See Tr. of May 14, 2015 Status Conf. 50:24-51:6, Doc. 1097.) The orders
and timely conduct discovery and produce requested documents. These failures are one
of the grounds for contempt noticed in the Order to Show Cause to which the Movants
have admitted and are largely the reason the evidentiary hearings remain incomplete.
10
Defendants past destruction of responsive documents also has already resulted in the
11
12
compliance with Court orders in a way that risked additional evidence spoliation is yet
13
another ground on which Movants are charged with, and have admitted to being in,
14
15
repeatedly delayed the judicious progression of this litigation; in the context of internal
16
17
investigations has prevented the Monitor from being able to assess the adequacy of a
18
19
ensure the preservation of the Montgomery and Grissom documents and their timely
20
production do not fairly suggest that the tribunal is biased against Movants. See Marshall,
21
721 F.3d at 104243 (considering judges orders in light of litigants history in the case);
22
McTiernan, 695 F.3d at 892 (finding judges negative comments about a defendant did
23
not imply her partiality where they were based on the defendants known past
24
misconduct).
25
14
26
27
28
Movants arguments that the Court ordered the disclosure of materials without
providing an opportunity for counsel to conduct privilege review, or that the Court
provided the Monitor with unbounded investigative power bearing no relation to this
case, mischaracterize the record. (See, e.g., Doc. 1032; Tr. 653:1825; Tr. of May 8, 2015
Status Conf. 30:14, 30:2531:15, Doc. 1086; Tr. of May 14, 2015 Status Conf. 53:12
56:25, Doc. 1097.)
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The Courts specification following the first phase of the contempt hearing that the
investigation is likewise responsive to Movants testimony and does not otherwise imply
an invidious motive on the part of the Court. Under the terms of the Supplemental
Permanent Injunction, the Federal Rules of Civil Procedure, and its inherent power, the
Court has continuing authority to modify the Monitors role in adaption to changed
circumstances. (See Doc. 606); Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 380
81 (1992). Since the permanent injunction was entered, Defendants actions have resulted
10
For instance, in April 2014 the Court, at the parties request, amended the
11
12
outreach programs designed to improve relations with the Plaintiff class from Defendants
13
14
these programs. (Tr. of March 24, 2014 Hrg, Doc. 662; see Doc. 670.) Around this time,
15
the Court became aware that Movants and other members of MCSOs command staff had
16
repeatedly mischaracterized the Courts orders since it issued its Findings of Fact,
17
including during a training organized for MCSO patrol deputies and in other public
18
forums. (See Docs. 656 at 414, 680 at 13, 684 at 4; Tr. of Mar. 24, 2014 Hrg, Doc.
19
662; Tr. of Apr. 3, 2014 Hrg, Doc. 672; Tr. of Oct. 28, 2014 Status Conf., Doc. 776.)
20
21
press coverage caused Sheriff Arpaio to change his mind. (Doc. 680 at 3.) The Court, in
22
23
statement within MCSO and that command staff and patrol personnel take steps to
24
familiarize themselves with the content of the Courts Findings of Fact and Conclusions
25
of Law; the Court assigned to the Monitor the responsibility for verifying Defendants
26
compliance with that order. (Doc. 680 at 4.) The following month, developments brought
27
about by the death of Deputy Armendariz put MCSO in the conflicted position of
28
investigating its own operations and supervisors in matters related to this litigation. When
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Defendants agreed that the Monitors involvement and oversight was appropriate. (See
Tr. of May 14, 2014 Status Conf. 95:696:15, Doc. 700.) In November 2014, concerns
about the adequacy of MCSOs investigations into the Armendariz issues, and the
revelation that MCSO had never complied with this Courts preliminary injunction,
authority. (Doc. 795.) At each stage, the supplements to the Monitors responsibilities
were discussed with the parties and the memorializing orders revised at their suggestion.
Movants do not explain why a detached third party would now infer bias from the
10
Courts specification that the Monitors independent investigative authority allowed him
11
12
13
14
15
Lastly, Movants assertion that the Courts questions denied them of due process
16
is baseless. The Federal Rules of Evidence plainly extend to the Court the right to
17
participate in questioning witnesses. Fed. R. Evid. 614 & advisory committee notes; see
18
also Barba-Reyes v. United States, 387 F.2d 91, 93 (9th Cir. 1967) ([T]he function of a
19
federal trial judge is not that of an umpire or of a moderator at a town meeting. . . . [I]t is
20
his duty to see that a case on trial is presented in such way as to be understood . . . . He
21
should not hesitate to ask questions for the purpose of developing the facts; and it is no
22
ground of complaint that the facts so developed may hurt or help one side or the other.).
23
In addition, in a civil contempt proceeding, it is the offended judge [who is] solely
24
25
conduct. Int'l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 831 (1994).
26
The record further indicates that on the first day of the contempt proceedings the Court
27
informed the parties of its intent to participate in questioning witnesses. (Tr. 140:612.)
28
Movants were each represented by civil and criminal counsel at the show-cause hearings,
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none of which objected to the Courts examination at the time or to the questions posed to
either Movant, despite being invited to do so by the Court. (Tr. 625:1216); cf. Fed. R.
Evid. 614(b)(c); Stillman v. Norfolk & W. Ry. Co., 811 F.2d 834, 839 (4th Cir. 1987)
([T]he failure of . . . counsel to object to any of this questioning at trial precludes our
review of this issue on appeal.). Due process guarantees the right to be fairly heard
before the Court arrives at a decision. See Little v. Kern Cnty. Sup. Ct., 294 F.3d 1075,
1080 (9th Cir. 2002). However, a fact witness in a legal proceeding has no constitutional
topics on which the Court questioned Movants are relevant to the Courts determination
10
of the extent of Defendants resistance to the Courts orders and what measures are
11
necessary to compel Movants ongoing compliance with its orders and provide
12
comprehensive relief to the Plaintiff class for Movants contempt. Moreover, the Courts
13
intervention in witness examination was particularly appropriate in light of the fact that
14
15
withholding discoverable evidence. See United States v. Parodi, 703 F.2d 768, 775 (4th
16
17
18
testimony revealed evidence contrary to Movants interests in the litigation, namely, that
19
MCSO may have hired a confidential informant at least partly in an attempt to discredit
20
this Court by linking it to a speculative conspiracy. Barba-Reyes, 387 F.2d at 93; cf.
21
Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991) (remarking on district courts inherent
22
power to police litigants whose actions show bad faith or the intent to hamper
23
24
Under the principles discussed above, Movants arguments for recusal that relate
25
to the Courts conduct in and around the contempt hearing are foreclosed by the record
26
and the extrajudicial source rule. The examples Movants provide of the Courts alleged
27
bias consist of rulings and conduct all occurred in the course of judicial proceedings and
28
neither reflect a negative opinion of Movants based on facts that the Court acquired
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extrajudicially, nor display a level of antagonism that would impede fair judgment on the
merits. See Liteky, 510 U.S. at 556. Sheriff Arpaio is a frequent litigant before this Court
on a wide variety of civil matters, and is a named defendant in a half-dozen pending cases
assigned to the Court in which he has not sought the Courts recusal. This further
suggests that the impetus for Movants efforts to disqualify the Court in this case is not
concern that the Court harbors any extrajudicial bias against Sheriff Arpaio or Chief
Deputy Sheridan, but, rather, stems from their dissatisfaction with the Courts rulings in
this case, which is not an issue properly resolved through a disqualification motion. See
id. at 55556. Although a court must recuse when the provisions of 455 are implicated,
10
it also has an obligation to hear all cases assigned to it when there is no legitimate reason
11
to recuse. Holland, 519 F.3d at 912. In this case, nothing about the Courts conduct
12
pertaining to the contempt hearing warrants its recusal under 455(a) or (b)(1).
13
II.
The Montgomery and Grissom Investigations Do Not Give the Court or its
14
15
16
Neither the facts underlying the Grissom and Montgomery investigations nor the
17
Courts inquiry into those investigations demonstrate actual bias or reasonably risk an
18
appearance of partiality to an objective third party with knowledge of the matters. See 28
19
20
Court or its wife that stands to be substantially affected by the outcome of this
21
22
A.
23
24
25
doubt in the mind of a fully informed, objective observer; mere speculation or innuendo
26
is not enough. See in re United States, 666 F.2d 690, 695 (1st Cir. 1981). In this case,
27
nobodynot even Movantsasserts that the Court was actually involved in the alleged
28
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Defendants subsequent to Movants testimony. (See Tr. 1003:12) Sheriff Arpaio and
Chief Deputy Sheridan testified that they no longer have confidence in any of the
650:2025)that they had always been very skeptical of Mr. Montgomerys claims,
and that they finally realized that he was stringing [them] along. (Tr. 1002:216.)
Among other problems apparent from the face of the Montgomery materials, the
telephone number attributed to the Court in documents that purported to prove phone
calls with the Department of Justice, (Doc. 1150, Aff. of Cecilia Wang, Ex. B (available
at Doc. 1153)),
is similar to, but has never been, the Courts telephone number.
10
[R]umor, speculation . . . and similar non-factual matters that are advocated by no one
11
do not suffice to establish actual bias. Clemens v. U.S. Dist. Ct. for Cent. Dist. of Cal.,
12
13
Nor do they raise a reasonable question about the Courts impartiality: Sheriff
14
Arpaio testified that nothing about the Montgomery matter affected his perception of the
15
Courts ability to remain neutral in this case. (Tr. 652:1618.) Chief Deputy Sheridan
16
also disclaimed that the Montgomery materials caused him to believe there was collusion
17
between the Court and the Department of Justice. (Tr. 1002:12.) Movants continue to
18
contend under penalty of perjury that the Montgomery investigation never involved any
19
investigation of [the Court]. (Doc. 1117 at 9; Doc. 1083, Ex. 1 (At no time was an
20
investigation initiated against Judge Snow . . . . At no time was Judge Snow or his wife
21
the subject or target of investigation.).) Movants have neither sought to recant those
22
declarations nor assert the truth of the conspiracy apparently outlined in the Montgomery
23
documents. If Movants, knowing the facts of the Montgomery investigation as they did,
24
did not doubt the Courts impartiality it follows that a reasonable person would not either.
25
26
To the extent that the Movants seek to now implicitly assert the truth of the
27
Montgomery materials, they are precluded from doing so because a party must seek to
28
disqualify a judge in a timely fashion after he becomes aware of the basis for
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disqualification. Yet, Movants knew about the content of the Montgomery documents for
some time before they filed the instant Motion. See Preston, 923 F.3d at 73233 (quoting
Molina v. Rison, 886 F.2d 1124, 1131 (9th Cir. 1989)). At the contempt hearing, Chief
Deputy Sheridan testified that, over the course of Mr. Montgomerys investigation, he
was presented with materials suggesting that the Department of Justice had made contact
with the Court; it was at this point that he apparently ordered his subordinates to
regarding the Court materialized after this point in time. Therefore, assuming the
accuracy of Chief Deputy Sheridans testimony, he has long been aware of all of the
10
11
elected not to seek the Courts disqualification until May 2015after the Court invited
12
the parties to address the seeming inconsistencies between the Montgomery documents
13
and Movants testimony and months after Movants apparently lost faith in Mr.
14
15
the moving party suffers adverse rulings has been filed for suspect tactical and strategic
16
reasons. See E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1295 (9th Cir.
17
1992).
18
Furthermore, that the Court inquired into the Montgomery investigation is not a
19
proper basis for the Courts disqualification under 455(b)(1) because there is nothing to
20
suggest the Courts examination was the product of extrajudicial bias. See Liteky, 510
21
U.S. at 555. Aspects of the Montgomery investigation are relevant to this litigation for
22
reasons the Court has already explained on the record. Sheriff Arpaio began a time- and
23
24
25
26
27
28
15
The New Times article that summarizes what the documents subsequently
produced by Defendants tend to show was also published over a year ago, and documents
that have since been produced by Defendants reinforce the timeline testified to by
Movants, that they suspected Mr. Montgomery was stringing MCSO along for at least
several months. (See Doc. 1150, Aff. of Cecilia Wang, Ex. C (compiling e-mails from at
least November 2014 challenging Mr. Montgomerys work product) (available at Doc.
1153).)
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that MCSO may have been trying to use Montgomery to discredit the Court and
undermine the legitimacy of its judgment in the underlying lawsuit, these facts are
relevant to the attitude that Defendants have toward the Court and its orders, and to the
corrective measures that may be necessary to remedy Movants contempt and achieve the
light of the evidence that MCSO apparently continued to press Mr. Montgomery for work
product up until the eve of the show-cause hearings even after his credibility was found
to be lacking. (Doc. 1150, Aff. of Cecilia Wang, Exs. CE (available at Doc. 1153).)
10
The integrity and transparency of MCSOs PSB and SID processes are also
11
12
misconduct within the HSU and the MCSO generally that is relevant to this lawsuit,16
13
14
15
supervisors within the SID. Further, the intentional destruction of the evidence of that
16
misconduct may have been sanctioned by those in charge. The inquiry into these issues
17
when they finally came to lightwas handled internally by PSB at the election of MCSO
18
19
There now appears to have been substantial overlap in the personnel who failed to
20
adequately supervise Deputy Armendariz and the HSU, and those who were responsible
21
for the Montgomery investigation with its speculative ties to this Court. This raises
22
obvious questions about whether those personnel are, in fact, working to implement all of
23
this Courts orders in good faith, especially since the documents that have been produced
24
from the Montgomery investigation tend to suggest that Movants testimony on the
25
matter may have been at least partially inaccurate. Therefore, the Courts questions about
26
16
27
28
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the Montgomery investigation are relevant to this proceeding, and there is nothing to
suggest that the questions were motivated by deep-rooted antagonism against Movants.
In addition, to the extent that Movants are responsible for creating the
circumstances that they now offer as grounds for their Motion, the Montgomery materials
provide no basis for judicial disqualification. The Ninth Circuit is clear that a party
cannot effect recusal of a trial judge by its own actions. [B]aseless personal attacks on or
suits against the judge by a party, quotes attributed to the judge or others, but which are
10
will not suffice to trigger the Courts disqualification. Clemens, 428 F.3d at 1179
11
(quoting Nichols v. Alley, 71 F.3d 347, 351 (10th Cir. 1995)). Movants instigated the
12
Montgomery matter and have controlled the investigation and the limited disclosures to
13
date concerning its subject, scope, outcome, and relevance to this Court and Movants
14
contempt. By bringing the Motion, Movants stalled additional discovery into the
15
Montgomery materials from occurring. This kind of risk of strategic manipulation is what
16
17
18
here. Under 455(b)(4), a judge must recuse himself if he has a financial interest in the
19
subject matter in controversy or any other interest that could be substantially affected
20
by the outcome of the proceeding. 28 U.S.C. 455(b)(4). A judge must also disqualify
21
himself under 455(b)(5)(iii) where he or his spouse is known by the judge to have an
22
interest that could be substantially affected by the outcome of the proceeding. Id.
23
455(b)(5)(iii). A disqualifying interest is one that concerns the subject matter of the
24
litigation or a party to it. See in re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1314
25
(2d Cir. 1988). Courts have generally limited the kinds of interests for which recusal is
26
mandatory to those that are somehow pecuniary or proprietary in nature. See Guardian
27
Pipeline, LLC v. 950.80 Acres of Land, 525 F.3d 554, 557 (7th Cir. 2008); In re N.M.
28
Nat. Gas Antitrust Litig., 620 F.2d 794, 796 (10th Cir. 1980); In re Va. Elec. & Power
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Co., 539 F.2d 357, 367 (4th Cir. 1976); (see also Doc. 138 at 1516.) Even if a courts
concern with its general reputation were sufficient to constitute an interest within the
meaning of 455(b)(4) and (b)(5)(iii), such an interest would not be affected in this case
because no one claims that the conspiracy outlined in the Montgomery documents is true.
See Nachshin v. AOL, LLC, 663 F.3d 1034, 1042 (9th Cir. 2011) ([W]here an interest is
not direct, but is remote, contingent or speculative, it is not the kind of interest which
B.
10
As with the Montgomery matter, the Courts questions and orders relating to the
11
Grissom matter do not warrant its recusal under 455(b)(1) or (a). See Liteky, 510 U.S.
12
at 555. The Courts knowledge of the Grissom investigation was acquired in the course of
13
this judicial proceeding, and the Courts conduct since learning of its existence in no way
14
suggests that the Court is now biased or prejudiced against Movants in a way that
15
threatens its ability to evaluate the case on the merits, let alone evidences the degree of
16
antagonism required to justify recusal where no extrajudicial source is involved. See id.
17
Although the Court had read the New Times article concerning an alleged
18
investigation of the Court by MCSO, the Court had no awareness of the Grissom matter
19
until Sheriff Arpaio testified, in response to the Courts questioning about the reported
20
21
The Court asked a few follow-up questions of Sheriff Arpaio; then, the next day, defense
22
counsel elicited testimony on the matter from Chief Deputy Sheridan, apparently in an
23
24
25
materials on the subject by Sheriff Arpaio and his former attorneys. (See generally Tr.
26
10191035; Doc. 1083, Ex. 1.) As a result, the Grissom matter garnered further attention
27
28
immunity to some of those disclosures. The Courts own examination of Movants on this
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matter has been minimal, and Movants provide no evidence that is reasonably suggestive
of any newly generated bias on the part of the Court since it learned of Mrs. Grissoms
alone, does not suffice to warrant the Courts recusal. Sheriff Arpaios counsel initially
evaluated the statement and Mrs. Grissom and concluded that her allegations lacked
substance or merit. (Doc. 1115 at 9.) Nonetheless, apparently at the request of Sheriff
Arpaio, Mr. Casey took the additional step of retaining Mr. Vogel to investigate the
matter further. (Id. at 10; Tr. 966:23, 2123.) After reviewing the results of that
10
investigation, Mr. Casey concluded that the Grissom information was fundamentally
11
flawed and provided no basis for a Rule 60 motion [or] appeal . . . without the lawyer
12
doing so violating the Federal Rules of Civil Procedure and the Arizona Rules of
13
14
accepted this advice against any use of the Grissom information and let the matter go.
15
Movants stood by this decision even after the first phase of the contempt
16
proceedings. Sheriff Arpaios specially appearing counsel (who filed the instant motion)
17
stated publicly following Sheriff Arpaios testimony that the Grissom matter was not a
18
basis on which the Court should recuse. (See Doc. 1150, Aff. of Cecilia Wang, Ex. H.) In
19
addition, Movants argued before Magistrate Judge Boyle that nothing about the Grissom
20
investigation was relevant to issues at stake in this case in order to preserve attorney-
21
client privilege and work-product immunity over the November 2013 letter disclosed by
22
Mr. Casey in which he had summarized Mr. Vogels findings for Sheriff Arpaio. (See
23
Doc. 1073 at 45; Doc. 1107 at 5.) Movants were successful in preventing disclosure of
24
portions of the letter because Judge Boyle was apparently convinced, as Movants
25
claimed, that the facts underlying the Grissom investigation did not relate to the contempt
26
proceedings. (Doc. 1053 at 6.) The recusal statutes do not allow for the use of
27
disqualifying elements as a sword and a shield any more than the doctrines of attorney-
28
client privilege and work-product immunity do. See Bivens Gardens Office Bldg., Inc. v.
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Barnett Bks. of Fla., Inc., 140 F.3d 898, 913 (11th Cir. 1998) (noting that the
disqualification statute was intended as a shield, not a sword, and that disqualification
litigation risks turns out to be off and a loss occurs). Accordingly, the history amply
demonstrates that Movants themselves have concluded, repeatedly and after thorough
investigation of all of the facts, that the Grissom matter does not warrant the Courts
When a party becomes aware of a basis to seek to disqualify a judge, it must act
with reasonable promptness after the basis for disqualification is ascertained. Preston,
10
923 F.3d at 73233. The Ninth Circuit has cautioned that a party that unduly delays the
11
filing of a recusal motion is presumed to be filing it for manipulative purposes. See E. &
12
J. Gallo, 967 F.2d at 129596. Sheriff Arpaio became aware of the Grissom allegations
13
in August 2013, and, after inquiries by his attorney and an independent investigator,
14
elected not to pursue the Grissom matter further. Now, nineteen months later, Movants
15
have filed the instant Motion for disqualification. In the interim time, the Armendariz
16
17
repeated failures to comply with the orders of this Court and the institution of civil
18
contempt hearings. Movants delay in raising the Grissom allegations until after the
19
contempt proceedings were underway not only raises the specter of attempted
20
21
action.
22
In an apparent attempt to bolster their argument for recusal, Movants now assert
23
that because testimony about the Grissom investigation occurred during the contempt
24
hearing, then Mrs. Snow is undoubtedly a material witness in this proceeding. (Doc.
25
1117 at 14; but see also id. at 14 (noting the irrelevance of the Grissom and
26
27
28
when the judge or his spouse is to the judges knowledge likely to be a material witness
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in the proceeding. 28 U.S.C. 455(b)(5)(iv). A material witness is one who can testify
about matters having some logical connection with the consequential facts of a case.
Williams v. Stewart, 441 F.3d 1030, 1055 (9th Cir. 2006) (quoting Blacks Law
Dictionary (8th ed. 2004)); United States v. Vazquez-Botet, 453 F. Supp. 2d 362, 370
(D.P.R. 2006) (applying definition in context of motion under 455(b)(5)(iv)). The Court
has no reason to think that its spouse will be a material witness in any proceeding
pertaining to either the instant Motion or to the civil contempt proceedings. First, Sheriff
Arpaios former attorney already concluded that Mrs. Grissoms claims were
fundamentally flawed and legally insufficient. Movants accepted that conclusion. Second,
10
all of the facts from the Grissom investigation were known by Movants by the fall of
11
2013, and seeking disqualification on their basis now is untimely, regardless of which
12
provision of the statute Movants claim it triggers. See E. & J. Gallo, 967 F.2d at 1295
13
n.8; Preston, 923 F.2d at 733. Third, Movants do not suggest a single example of
14
admissible testimony that the Courts wife could offer: the Grissom allegation is not of
15
material importance to the show-cause hearing, nor did Movants request a hearing in
16
conjunction with their Motion for disqualification at which such testimonial evidence
17
might be taken. A judge will not be disqualified under 455(b)(5)(iv) based on mere
18
speculation that the judge or his family member will be called as a witness. See United
19
States v. Rivera, 802 F.2d 593, 601 (2d Cir. 1986) (finding judge was not required to
20
recuse himself on the basis of defendants allegations that judge would be material
21
witness at a requested hearing where defendants did not allege sufficient facts
22
23
Movants contention that an alleged statement by a judges spouse that might be used to
24
question the judges impartiality is grounds for disqualification because the spouse is
25
likely to be a material witness. If this was the case, a party could deliberately
26
27
flawed to demonstrate the supposed bias of the presiding judicial officer and attribute
28
them to the judge or a family member and, by forcing their contravening testimony to
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rebut the charge of bias, oblige the judge to recuse under 455(b)(5)(iv). That is exactly
bias. To the extent that anything about the Grissom matter continues to have incidental
have been made on the record, and suggests the existence of yet another potential conflict
outsource the Armendariz investigationsit is not because the Courts wife will be a
material witness.
10
11
prejudice. Holland, 519 F.3d at 913. If a judge were to allow manipulation to deter the
12
normal course of litigation, this would equally risk subvert[ing] [judicial] processes,
13
undermin[ing] our notions of fair play and justice, and damag[ing] the publics
14
perception of the judiciary. Id. at 915. Accordingly, the reasonable person as to whom
15
the Court must evaluate the appropriateness of its recusal in light of a cases
16
17
a well-informed, thoughtful observer. Id. at 913 (quoting In re Mason, 916 F.2d 384,
18
385 (7th Cir. 1990)). After careful consideration of all of the relevant facts, there is no
19
basis to believe the Court or its wife has a disqualifying bias or interest in the litigation
20
based on the Grissom matter. Moreover, Mrs. Grissoms allegations do not raise a
21
reasonable question about the Courts impartiality, because a neutral observer would not
22
infer the existence of actual prejudice against Movants from a single instance of third-
23
party hearsay that Movants own counsel determined to be baseless. See 28 U.S.C.
24
455(a).
25
III.
26
Courts Recusal
27
28
Covington & Burling LLP, the law firm that represents Plaintiffs in this case. That a
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relative of a judge is a law partner of an attorney of record triggers a judges recusal only
if the nature of the familial relationship raises a reasonable question about the judges
impartiality, or if the relative is known by the judge to have an interest in the law firm
that could be substantially affected by the outcome of the proceeding. See 28 U.S.C.
455(a), (b)(5)(iii); Pashaian v. Eccelston Props., Ltd., 88 F.3d 77, 8384 (2d Cir.
1996).
The Court raised the issue of whether its withdrawal was appropriate in light of its
brother-in-laws partnership interest at Covington with the parties three years ago, prior
to trial. The Court entered an order setting forth the nature of its relationship with Mr.
10
Teel, the extent of its past consideration of the matter, and the reasons why its recusal
11
was not compelled by law or the judicial canons.17 (Doc. 537.) The Court also noticed a
12
hearing, (Doc. 539), at which it offered to recuse on the request of any party and to vacate
13
the orders it entered after Covington & Burlings appearance, including the Summary
14
Judgment and Preliminary Injunction order of December 23, 2011. (Tr. of June 29, 2012
15
Status Conf. 5:199:17, Doc. 1149.) At the hearing, Defendants agreed recusal was not
16
mandatory and affirmatively stated that they desired this case to remain on the Courts
17
docket. (Id. 15:1317:2.) Defendants also filed a notice indicating they expressly
18
waiv[ed] any and all appeal issues regarding . . . the Courts potential bias, impartiality,
19
20
21
The Court, in another order, concluded that the Courts brother-in-law had no
22
interest, financial or otherwise, that required the Courts recusal under 455(b)(5)(iii),
23
and that no reasonable and objective observer would question the Courts impartiality
24
25
26
27
28
17
In 2010 when Covington was substituted as counsel for Plaintiffs the Court
reviewed the case law, the Code of Conduct for United States Judges, and the
commentaries to the canons and determined its recusal was not necessary, although the
Court later observed that it may have been preferable to have fully discussed the matter
with the parties at this time. (See Doc. 537.)
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Covington had screened Mr. Teel from participating in the case or receiving any income
that may accrue to the firm, so he had no existing economic stake in the case. Further, no
party had articulated a non-pecuniary interest of Mr. Teels that might be substantially
affected by the outcome of the proceeding, see 28 U.S.C. 455(b)(5)(iii), and the Court
reasoned that any speculative reputational benefits or Mr. Teels general interest in his
firms goodwill and client relationships did not amount to a disqualifying interest under
455(b)(5)(iii) under the facts of this case. In the intervening three years, nothing that
has occurred alters the Courts initial analysis: Movants offer no evidence suggesting that
10
Mr. Teel has acquired an interest in the interim time that could be substantially affected
11
by the outcome of these proceedings nor do they explain why the Courts impartiality
12
would now be questioned by any abstract personal interest of Mr. Teels in this litigation.
13
See Perry v. Schwarzenegger, 630 F.3d 909, 914 (9th Cir. 2011) (explaining that recusal
14
15
In any event, this ground for recusal has long been forfeited. Covington & Burling
16
first entered an appearance in 2010. Sheriff Arpaio was aware of the issue prior to trial
17
three years ago and expressly waived the conflict. (See Doc. 541; see also Doc. 1117 at
18
13 (acknowledging that Movants waived this basis for recusal early in this action).)
19
Although the parties could not remit the Courts disqualification if recusal was required
20
21
appearing impartial can be waived. 28 U.S.C. 455(e); United States v. Conforte, 624
22
23
24
25
26
27
28
18
The primary conflict observed by the Court was between the commentary to the
judicial canons, which notes that [t]he fact that a lawyer in a proceeding is affiliated
with a law firm with which a relative of the judge is affiliated does not of itself disqualify
the judge, Code of Conduct for U.S. Judges, cmt. Canon 3C(1)(d)(ii), and the advice of
the United States Committee on Codes of Conduct, which suggests a categorical rule of
recusal when a relative within the third degree of relationship of a judge has an equity
interest in a law firm in a case before that judge. Code of Conduct for U.S. Judges Canon
3C, Advisory Opinion No. 58. The Court explained at length in its earlier opinions on the
matter why the per se rule of disqualification set forth in Advisory Opinion No. 58 is an
erroneous interpretation of Judicial Canon 3C and the corollary subsection of 455(b).
(See Docs. 537, 542.).
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F.2d 869, 88081 (9th Cir. 1980). Further, even claims for recusal under 455(b) may be
lost by inaction after the facts supporting the claim are known by the party and no motion
is timely made. See E. & J. Gallo, 967 F.2d at 1295 n.8 (The timeliness of a partys
presentation to the court of information it has that comprises a potential ground for
failure to raise this ground for disqualification before now precludes them from
IV.
Section 144 provides for the assignment of a new judge when a party to a
10
proceeding files a timely and legally sufficient affidavit alleging personal bias or
11
prejudice on the part of a judge before whom the matter is pending. 28 U.S.C. 144. All
12
144 motions must also be accompanied by a certificate of good faith from counsel for
13
the party moving for recusal. Id. Because the judge must accept the truth of the facts
14
alleged in the affidavit as demonstrating the purported bias, the affidavit and certificate of
15
counsel are strictly construed for form, timeliness, and sufficiency. United States v.
16
Sykes, 7 F.3d 1331, 1339 (7th Cir. 1993); see also Rademacher v. City of Phoenix, 442 F.
17
Supp. 27, 29 (D. Ariz. 1977) (explaining that affidavits filed in support of 144 motions
18
must be given the utmost of strict construction to safeguard the judiciary from frivolous
19
attacks upon its dignity and integrity and to prevent abuse and to insure orderly
20
functioning of the judicial system. (internal citations omitted)). The judge against whom
21
a 144 affidavit of bias is filed may pass on its legal sufficiency. Sibla, 624 F.2d at 868.
22
For the reasons set forth above, Movants affidavit is legally insufficient. Recusal
23
motions brought pursuant to 144 are subject to the same timeliness requirement and
24
extrajudicial source rule as 455 motions. See 28 U.S.C. 144; United States v. Studley,
25
783 F.2d 934, 939 (9th Cir. 1986). The Courts relationship to its brother-in-law and the
26
facts underlying the Grissom and Montgomery investigations were all known by Movants
27
for years before they filed their Motion. Furthermore, to the extent that any of the bases
28
in Sheriff Arpaios affidavit stem from the Courts conduct, they fail to establish
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recusable bias or prejudice. See Sibla, 624 F.2d at 868 ([A]n affidavit . . . is not legally
sufficient unless it specifically alleges facts that fairly support the contention that the
judge exhibits bias or prejudice directed toward a party that stems from an extrajudicial
source.); United States v. Scholl, 166 F.3d 964, 977 (9th Cir. 1999) (holding that actions
taken by a judge during proceedings are not a legally sufficient ground to include in a
144 affidavit). A litigant may also not compel a judges recusal through his own actions
under 144 any more than he can under 455. See Studley, 783 F.2d at 93940
(rejecting affidavit where intemperate and scurrilous attacks on the judge were the only
10
11
144 and second accompanying affidavit of prejudice. Section 144 explicitly limits a
12
party to filing only one affidavit in support of recusal per case. 28 U.S.C. 144 (A party
13
may file only one such affidavit in any case.). In 2009, Defendants moved to recuse
14
Judge Murgua, then presiding over this case, on the grounds that her relationship with
15
her twin sister raised concerns about her impartiality or at least risked an appearance
16
17
144 and the requisite certification of good faith by counsel. (Id. at 17, Ex. 1.) Judge
18
Murgua granted Defendants motion and withdrew from the case. (Doc. 138.) Having
19
previously filed a Motion and affidavit under 144, in accordance with the express
20
provisions of the statute, Movants are not permitted to file another against this Court.19
21
See United States v. Merkt, 794 F.2d 950, 961 (5th Cir. 1986) ([Movants] affidavit
22
violates the one-affidavit rule of 28 U.S.C. 144 and need not be considered.);
23
Balistrieri, 779 F.2d at 1200 n.6 (same). The limit on successive affidavits is considered
24
necessary to prevent litigants from disqualifying each judge designated to the case and
25
thereby avoid any disposition of its merits. S.E.C. v. Loving Spirit Found. Inc., 392 F.3d
26
19
27
28
If a party discovers new grounds for recusal after submitting an affidavit under
144, it may still obtain the judges recusal through a 455 motion, to which the oneaffidavit rule does not apply. Cf. Sibla, 624 F.2d at 86768 (suggesting that an affidavit is
not required under 455).
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486, 496 (D.C. Cir. 2004). Movants do not address the one-affidavit rule in their Motion
or Reply nor have they credibly argued for its inapplicability even though it was raised to
them by the Court on the filing of their Motion. (See Tr. of May 22, 2015 Status Conf.
Deputy Sheridans Motion also fail to meet the statutory requirements of 144, which
oblige counsel to personally certify that the affidavit of alleged bias as well as the motion
to which it is appended are filed in good faith. See Loving Spirit, 392 F.3d at 496. Like
the ban on successive affidavits, the certification is not simply a pro forma procedural
10
requirement but is key to the integrity of the recusal process. Klayman v. Judicial
11
Watch, Inc., 744 F. Supp. 2d 264, 270 (D.D.C. 2010); see also Loving Spirit, 392 F.3d at
12
496 ([T]he attorneys certificate plays a critical role in the recusal process. . . [by]
13
guard[ing] against the removal of an unbiased judge through the filing of a false
14
15
consider the record in the light most favorable to their clients when certifying a motion
16
for recusal, there is a difference between presenting the facts in a way that highlights the
17
18
reassignment of a case. The Court need not determine whether counsel have acted
19
improperly here, however, because the certificates filed by Movants counsel are legally
20
insufficient on their face. The four attorneys bringing this motion on behalf of Movants
21
have signed an identical certificate stating only that the associated affidavit from Joseph
22
M. Arpaio for the recusal of Judge G. Murray Snow is made in good faith. (Doc. 1117,
23
Exs. 1113.) Counsel has not, however, personally certified that there is a good faith
24
basis for the substantive factual allegations contained therein, nor that the Motion itself
25
has been filed in good faith. Each certificate is therefore in disregard of the statutory
26
mandate. The Court, therefore, denies Sheriff Arpaio and Chief Deputy Sheridans
27
28
///
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CONCLUSION
1
2
3
4
5
Monday, July 20, 2015, at 11:00 a.m. in Courtroom 602, Sandra Day OConnor U.S.
Federal Courthouse, 401 W. Washington St., Phoenix, Arizona 85003. All parties and
specially appearing non-parties are required to attend.20 The parties shall be prepared to
10
discuss: (1) Defendants Motion relating to the definition of the Plaintiff Class (Doc.
11
1103); (2) Plaintiffs Motion to Compel (Doc. 1085); (3) the status of MCSOs remaining
12
internal investigations; (4) the Department of Justices request to see the database of
13
documents given by Montgomery to the MCSO, which he claims to have taken from the
14
CIA; (5) the procedures pertaining to Maricopa Countys independent review of the
15
16
litigation separate from Sheriff Arpaio; and (7) the scheduling of the second phase of the
17
18
19
20
21
22
23
24
25
26
27
28
20
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EXHIBIT 14
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2
3
Plaintiffs,
5
6
7
v.
Joseph M. Arpaio, et al.,
Defendants.
9
10
CV-07-2513-PHX-GMS
)
)
)
)
)
)
)
)
)
)
)
)
)
DECLARATION OF CECILLIA
WANG IN SUPPORT OF
PLAINTIFFS RESPONSE IN
OPPOSITION TO SHERIFF
ARPAIO AND CHIEF DEPUTY
SHERIDANS MOTION
FOR RECUSAL OR
DISQUALIFICATION OF
THE COURT
[UNDER SEAL]
11
12
13
14
York and in numerous federal courts and have been admitted pro hac vice to
15
represent the Plaintiffs in this matter. I am the Director of the American Civil
16
17
18
2.
19
Opposition to Sheriff Arpaio and Chief Deputy Sheridans Motion for Recusal
20
21
3.
22
by the Court as Exhibit 522 during the evidentiary hearing in this matter, on
23
24
25
26
27
28
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522.
4.
a.
10
b.
11
12
13
MELC202173-75.
14
c.
15
16
stamped MELC202048.
17
d.
18
19
20
21
MELC202142-45.
e.
22
23
24
35.
25
5.
26
email dated May 27, 2015, from the Court-appointed Monitor, Robert
27
28
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letter dated May 22, 2015 from Michelle Iafrate to Robert Warshaw. In the
letter and in the email exchange, Ms. Iafrate took the position that the entire
litigation and all actions by the Monitor were stayed pending a decision on the
5
6
7
8
9
10
11
12
13
14
15
6.
16
17
counsels statement.
18
19
20
I hereby declare that the foregoing is true and correct under penalty of
perjury pursuant to 28 U.S.C. 1746.
Executed at San Francisco, California this 12th day of June, 2015.
21
22
23
24
25
26
27
28
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Exhibit A
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(305 of 523)
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(308 of 523)
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Exhibit B
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From:
To:
Subject:
Date:
David Webb
1tick@earthlink.net
PROJECT
Sunday, June 29, 2014 12:11:26 PM
It is obvious that Anglin and his superiors have been trying to shut this project down since
its inception. On one hand Anglin tells not to produce information on Judge SNOW. Then
I am attacked for not producing information on Judge SNOW. Too many mixed signals
from Anglin. This job is tough enough, but Anglin telling me not me not to share
information with others until he gets the information was outrageous. Who was I
supposed to trust?
Brian has to take orders from his superiors. Brian has never stop believing in me or the
work. I can assure you Brian was getting the same mixed messages I was. But he must
follow the orders of his superiors to survive in MCSO. He has taken a lot of time from his
family, and for that I am sorry.
Anglin told by me that Sheridan didnt want to go in front of Judge Snow and be accused of
retaliating against the judge.
ANGLIN told me stop work on the BC day one, He told me never to trust Mike Zullo. I was
told directly by Anglin not to pass information on to Mike Zullo.
I was not allowed to discuss with Mike zullo what I am being told to do or not to do.
I was setup to fail. To ensure I failed, Anglin or his superiors fed false information to the
NEW PHOENIX TIMES. When that failed, I was hit with the SEATTLE WEEKLY news
article. I had a stroke, and was in ICU when they article was released.
Anglin would not talk to Carl Cameron in front of me. He knew that promising to deliver
data to FOX, and then not do it, would hurt me with FOX. He accomplished his goal.
Anglin or his superiors then fed false information again to the New Phoenix Times to
discredit the data, adding more doubt into Carl Camerons mind. Carl Camerons recent
email says it all.
I worked hard to gain credibility with FOXNEWS. Anglins plan to destroy my credibility
with FOXNEWS succeeded. Now there is doubt in FOXNEWS about the validity of my
accusations I filed with the CIA and DOJ. I now have a much higher hurdle to overcome
with them to regain my redibility.
I will bet you the next article in the New Phoenix Times will be on Brian, to hurt him and
kill this project.
I had no chance to succeed. Obviously some people in MCSO wanted for political reasons
to use my work to hurt the sheriff.
I can assure you that I have had only one goal since I began this work, and that was to get
the work done!
MELC202132
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Exhibit C
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From:
To:
Cc:
Subject:
Date:
Brian Mackiewicz
Larry Klayman
Michael Zullo; David Webb; Dina James
Re: DC
Friday, November 07, 2014 7:55:19 AM
Gentleman,
Good morning. Wanted to update everyone on the progress of this investigation. Significant information was learned yesterday concerning
the approximately 50 hard drives Dennis Montgomery provided as evidence to to the Maricopa County Sheriff's Office in April of 2014.
Dennis Montgomery represented the hard drives contained classified and sensitive information that he obtained while working at either
eTreppid, or Blixware on behalf of federal government as a CIA contractor.
When our experts examined the information contained on the drives, not only did the numerous drivesNOT contain any classified or
sensitive information, they were instead contained data dumps of you relevant computer informationhours off video feeds for Al Jazeera
news feed.
After reviewing all the hard drives our experts concluded that Dennis Montgomery deliberately complied massive amounts of data on to
these drives for the purpose ofobfuscating the fact the data itself contained no evidence to support Dennis Montgomery's claims. There
was no sensitive information contained on any of these 50 hard drives.
In addition, our experts brought question in
the validity concerning an number of emails Dennis Montgomery provided in the same hard drives.
Our experts also determined that much of the information that Dennis Montgomery has alleged that was harvested by the federal
government in violation of the fourth amendment protections cannot be sourced for validity based on the information contained in the 50
hard drives Dennis Montgomery provided.
Two days worth of email correspondence and telephone calls to Dennis Montgomery advising him all is required of him is to cooperate
and provide all source information supporting his allegations would remedy his situation immediately. He has refused. I should add he
refuses while at the same time professing to want to cooperate.
At this juncture, after a 13 month investigation,Maricopa County Sheriffs office CANNOT validate the credibility of Dennis Montgomery
and or his work without his full and candid cooperation in supplying the necessary evidence for our experts to substantiate his work and
deem it authentic and creditable.
Dennis Montgomery is leaving us no other alternative but to take this investigation in a completely different course going forward.
It is extremely discouraging to learn most if not all the representations made by Dennis Montgomery to investigators, the State of Arizona
Attorney General, and a Federal Judge have been less then truthful.
Mr. Klayman, if you can represent to me Dennis Montgomery's intentions of cooperating fully, candidly, without obstruction or
obfuscation, perhaps we can bring thisthis investigation to a successful conclusion for all parties concerned. Pleaseadvise me
immediately.
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I guess I will take a minute and respond to some of the issues at hand. Dennis you have no problem defending
the work because you truly believe your the only person on the face of the earth that knows what your
talking about. It is easy to hide behind, "we have a lack of understanding of software development and
programs" but do you really think we would ever take your word as gospel? I will admit we did take your
word as gospel for some time time but that time ended when you grossly misrepresented the work that you
said was completed.
It would have not been such a big deal Dennis but Mike and I represented the fact the work was complete and
it wasn't. Look I am not stupid you have lied to me several times over the past 12 months. I have caught you
in you lies and chosen to move forward and look past the fact you lied. I always kept hope and believed
when it came to your work product and your "STORY" you were always being truthful. The problem now is
were do the lies end and the truth start. I am not even sure you know the answer to that Dennis.
From day one I thought we all had a common goal in mind when it came to this investigation. If your
"STORY" was based on facts and the information you provided was all truthful Mike, I, and the Office was
dedicated do anything in our powers LEGALLY to help bring your story forward and expose the TRUTH. I
truly believe Mike, I, and the Office have lived up to out part of the deal. We have given you approximately
120,000 dollars plus in exchange for information. We brought you before the Arizona State Attorney
General, we found you two different Attorneys, and we opened the door to a Federal Judge to give you as
much protection as possible. Mike and I went to the Administration several times and asked for extensions to
continue this investigation because we believed your "STORY" and the information you provided. When you
had a stroke and you had NO one to turn you I was on a plane to assist you and you family. Not to mention
the personal sacrifices Mike and I have made over the past 12 months to make sure you and you family were
taken care of. Dennis if you don't remember Mike and I even gave you 200.00 dollars a piece out of our own
pockets so you could have a Thanksgiving with you family last year. Just to later find out you worked Tim
for 500.00 dollars also.
And to address one other issue that has seemed to come up more then once. If I remember correctly it was
you choice to get on a plane and fly to Washington DC. Mike, I, or the Office was not aware you were
advised by your Doctor not to travel UNTIL after you flew back to Seattle. I remember Mike and I
specifically told when you after you informed us of that information you would have to provide a doctors
letter before we would let you travel again. I also remember you getting so intoxicated at dinner while in
Washington DC I had to tell the waiter to start serving you cocktails with no alcohol. Mike, I, or the Office
would have never let you flight to Washington DC if we knew it was against your Doctors orders.
You also mention, "I was forced to sacrifice my recovery to adhere to your ridiculous timeframes to further
are agenda". Dennis I want to be clear last time I knew you were an adult. As adults sometimes we have to
make certain choices in life that might effect our future. Mike, I, or the Office did not hold a gun to your
head telling you had to do anything.
Dennis for some reason I think you believe it is Mike, I, and the Offices responsibility to support you and
your family's lifestyle, and to fix all your problems. From the beginning we all agreed we had some obstacles
to overcome based on what other people have said about you. I believe Mike, and I have and will continue to
overcome those obstacles if you are truthful with us.
Dennis your not a stupid person. You know exactly what we need and want to be able to move forward. You
know everything you provide us has to get verified by a third party. If I just believed everything people told
me without verifying it by facts or evidence everyone would be locked up. If you CANT or WONT provide
Mike, and I with what is necessary to prove and verify everything then be honest and tell us. There is more
then one way to skin a cat.
As far is Larry Klayman is concerned his involvement in this investigation is non existent. we understand he
is your attorney and he is representing you. BUT he has no bearing at all on how this case is investigated and
what the outcome maybe. You might be able to play Larry for what you need for a little while but in the end
you and Larry still need someone with CREDIBILITY to verify the information and your "STORY" .
And for my last and final point. Dennis I have been a Deputy Sheriff for almost 18 Years. When I graduated
the Police Academy I took an Oath of Office which I still keep believe in. I know you have heard me say this
more then once but this is one investigation of many in my Career. My job is to find the facts, verify the
facts, and come to a logical conclusion that a reasonable person would believe based on those facts. I have no
agenda is this investigation Dennis. When we decide this investigation is over I will look at all the facts,
statements, and evidence that has been collected over the past year and ask myself what would a reasonable
person would think. Remember that Oath I mention, it means no matter how I feel personally regarding the
outcome of this investigation I am sworn to do the right thing Dennis. I truly hope in the end we all
accomplish the same goal we all had in the beginning, but remember if not I am NOT AFRAID and I can
promise you I will do the right thing.
Dennis it is a great possibility that your future depends on what you do from here. We have days not weeks,
not months. Time is of the essence
Detective Brian Mackiewicz #1227
Sent from my iPad
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If you look at the previous email I sent you, you will find all of the build numbers you have been looking
for.. The website is also up and contains the latest information on the various adobe builds.
You cant expect the technology to find data that Adobe leaves out in some of their formats.
Regarding the issue of money, I will leave that to the sheriff and Brian Mackweitz to address.
Regarding my commitment, at your and Brian Mickiewiczs request, I got on a plane 4 weeks after my
stroke and brain coiling
against medical advice. In addition, I was forced to sacrifice my recovery to adhere to you ridiculous
timeframe and further your agenda.
Once again you are upset at me for not getting on a plane to meet your NSA advisors, when my doctors
have advised against it.
As you well know I have lost the use of my left arm and hand. I have made some progress in moving my
arm, and hand, but it is impossible to program with it.
You told me in previous emails that you wanted this to get back on track. You most recent email convinces
me otherwise.
MELC202175
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Exhibit D
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From:
To:
Subject:
Date:
Mike
detmack@gmail.com
OZ
Tuesday, December 09, 2014 5:28:00 PM
Dennis
To answer the question, where we go from here, really is dependent upon you. A year-long
investigation and tens of thousands of dollars invested, we have absolutely nothing to show for it.
The 50 some odd drives we had in our possession shockingly turned out to contain nothing of any
significance on any level whether Federal or pertaining to the Sheriff's Office. There was absolutely
nothing of use on those drives.
Overwhelming content of meaningless information does absolutely nothing to further your cause
and obviously puts the Sheriff's office in a very precarious situation.
Dennis I think the bottom line is if you have the information this is the time to provide. We have an
extremely short window of opportunity to work in and the choice is yours. All you have to do is
produce what you said you were going to produce in exchange for the dollars you received.
But I have to stress to you the time is of the essence. We have been instructed to write up our final
report and be ready to hand it over to a different agency. I really don't want to see it come to that
but again the choice is yours.
MELC202048
(317 of 523)
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Exhibit E
(318 of 523)
Case
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ID: 9654788,
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From:
To:
Cc:
Subject:
Date:
Larry Klayman
Michael Zullo
David Webb; Dennis
Re: 2nd Request
Monday, April 20, 2015 4:21:11 PM
I would like a response by close of business on Wednesday April 22nd, 2015. If we do not
here from you or your client we will complete final reports, close the matter and make the
appropriate notifications.
Larry we have bent over backwards to help your client and you however, it appears that you
have changed course and are no longer work to our mutual benefit.
Mike
MELC202142
(319 of 523)
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Larry,
Per our phone conversation , I need to know Denniss intentions on moving forward on a
timely basis and honor his agreement with us and set a hard date to complete the paid
work on the BC as he agreed to perform.. This work has nothing to do with the other
issues he is dealing with and as of last month he was one week away from completion.
That week as others came and went. Open ended e mails of promises of continued efforts
simple are no longer reliable given the history. Please let me know of his intentions to
provide a completion date in the very near future.
Mike
From: Mike [mailto:1tick@earthlink.net]
Sent: Thursday, April 9, 2015 2:48 PM
To: 'Dennis '; Larry Klayman (leklayman@gmail.com)
Cc: 'Brian Mackiewicz'
Subject: RE: Home
Dennis
While I understand your situation to some degree, the truth here is you knew for months you
would have to move out. You were in fact contractually obligated and paid a total of 15K
weeks ago just prior to vacating the residence as you formally agreed. To portray this
event as if you were unceremoniously or undeservingly thrown out of that house really is a
stretch.
Looking past that, your condition of not working again until you have a residence is
understandable to some extent however, the idea that once again we are at the mercy of you
or your circumstance is not going to be something we will be able to contend with much
longer. On my end of this you were compensated $10,000 from a charitable organization
for a service and software that I have yet to receive in any worthwhile or usable
configuration. I will not allow this organization to be victimized. This matter is going to
have to be resolved very soon. Additionally, the agreement between you and the Sheriffs
MELC202143
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Office to forgo official notification to our contact in DC is now very long in the tooth and
unproductive for us, as you have again failed to deliver anything as agreed.
You also recall we have 60 hard drives that you created, now in our custody. The Sheriffs
Office painfully drove them back to AZ as purported evidence of classified information
gathered by you. You will recall we had those drives examined and discovered there was
absolutely nothing of value on them. To be clear there was nothing of a classified nature
contained on any of them and as matter of fact there was evidence of fabrication on
numinous levels. Dennis I dont have to tell you what this smells of do I?
With your pending litigation in FL. You are aware that both Brian and I had met with the
defendant that last time we were in DC. He has our business cards. It will only be a matter
of time before we are contacted by his attorney. Also in light of your most recent attempt to
offer testimony as a WB and the fact that we have a videotaped Free Talk agreement you
made with the AZAG and you have breached that agreements as well, this is not
something I am prepared to allow to move forward without the proper notifications made on
our end under these agonizing circumstances.
Sixteen long months of ZERO s and just empty promises and lip service. Enough
We are going to allow you one last attempt to honor your agreement with us and set a hard
date in the very near future to complete the work as agreed. I will wait to hear from you or
Larry . Remember this is going to be a make or break moment.
MELC202144
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I am still trying to find a place to live. My life is in chaos since I have no home As soon as
I can get into a home and my needs are met, I will continue the work to the best of my
ability. You obviously know by now the sheriff enforced an eviction notice on us, and
removed us from the Yarrow property. Our situation is precarious at best.
MELC202145
(322 of 523)
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Exhibit F
(323 of 523)
Case:
Case 15-16440,
2:07-cv-02513-GMS
08/20/2015,Document
ID: 9654788,
1166
DktEntry:
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JOE ARPAIO BRIEF
Timeline
Description
Eric Holder Senior Partner Covington Burling Law Firm
2001 2009
02/12/07
06/15/08
02/01/09
03/15/09
Arizona Attorney General (AG) Issues Search Warrant Deputy Joel Fox
04/20/09
07/07/09
07/15/09
US Federal Judge Mary Murguia recuses herself from the Arpaio case.
US Department of Justice (DOJ) - Calls Federal Judge G. Murray Snow
07/22/09
Time
From
To
Duration
Call
Call
Call
in (Min)
202.514.2000
602.322.7560
10
202.514.2000
602.322.7560
32
602.322.7650
202.514.2000
202.514.2000
602.322.7560
14
EN
07/20/09
IP
Address
TI
AL
Date
2001 - 2008
09/26/09
09/28/09
10/15/09
156.42.184.18
156.42.184.65
156.42.103.166
FI
D
07/23/09
09/01/09
Block 602-920-4000,++
05/28/10
08/15/10
156.42.184.18
156.42.184.65
156.42.103.166
05/24/10
Federal Judge Mary Murguia nominated to the 9th Circuit Court Appeals.
US Department of Justice (DOJ) Calls Federal Judge G. Murray Snow
602-920-4400, 602-920-4000
03/25/10
07/10/10
Covington Burling Law Firm Take Over Melendres Lawsuit Against Arpaio.
09/02/10
09/15/10
John Gray Ends Intern Clerk with Federal Judge G. Murray Snow
10/01/10
10/23/10
216.119.127.142
Service25-us.mimecast.com ; service26-us.mimecast.com
_______________________________
Confidential Information Not to Be Disclosed
Rev 1.3a
MELC199917
(324 of 523)
Case:
Case 15-16440,
2:07-cv-02513-GMS
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ID: 9654788,
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Timeline
Date
Description
US Department of Justice (DOJ) Calls Perkins Coie (John Gray)
IP
Time
From
To
Duration
Address
Call
Call
Call
in (Min)
16:30
202.514.2000
602.351.8092
Perkins Coie Associate (John Gray) makes call to Federal Judge Snow Chambers
16:42
602.351.8092
602.322.7560
10
10/25/10
Perkins Coie Associate (John Gray) makes call to Maricopa County Cell Phone ++
16:55
602.351.8092
602.+++
10
01/04/11
04/23/11
US Federal Judge Mary Murguia approved as 9th Circuit Court of Appeals Judge
Sheriff Arpaio Fires Chief Deputy David Hendershott and Deputy Larry Black
10/21/11
09/01/11
07/19/12
Melendres vs. Sheriff Arpaio Trial Heard by Federal Judge G. Murray Snow
03/01/13
Lanny Breuer Resigns from DOJ and rejoins Covington Burling Law Firm
06/13/13
US Department of Justice (DOJ) Joins Melendres Lawsuit with Covington Law Firm
10/02/13
Judge G. Murray Snow Rules in Class Action Lawsuit Against Joe Arpaio
EN
TI
AL
10/25/10
10/25/10
FI
D
Green - John Gray Interns for Federal Judge G. Murray Snow (2009 - 2010)
Blue - Judge G. Murray Snow Assigned To Arpaio Federal Case
_______________________________
Confidential Information Not to Be Disclosed
Rev 1.3a
MELC199918
(325 of 523)
Case:
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2:07-cv-02513-GMS
08/20/2015,Document
ID: 9654788,
1166
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D
EN
TI
AL
_______________________________
Confidential Information Not to Be Disclosed
Rev 1.3a
MELC199919
(326 of 523)
Case:
Case 15-16440,
2:07-cv-02513-GMS
08/20/2015,Document
ID: 9654788,
1166
DktEntry:
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FI
D
EN
TI
AL
_______________________________
Confidential Information Not to Be Disclosed
Rev 1.3a
MELC199920
(327 of 523)
Case:
Case 15-16440,
2:07-cv-02513-GMS
08/20/2015,Document
ID: 9654788,
1166
DktEntry:
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JOE ARPAIO BRIEF
Timeline
Date
2001 - 2008
Description
Eric Holder Senior Partner Covington Burling Law Firm
2001 2009
02/12/07
06/15/08
02/01/09
03/15/09
Arizona Attorney General (AG) Issues Search Warrant Deputy Joel Fox
04/20/09
07/07/09
07/15/09
US Federal Judge Mary Murguia recuses herself from the Arpaio case.
07/20/09
07/22/09
07/23/09
09/01/09
John Gray Starts Intern Clerk Job with Federal Judge G. Murray Snow
09/16/09
09/25/09
Breach
Time
From
To
Duration
IP Address
Call
Call
Call
in (Min)
202.514.2000
602.322.7560
10
202.514.2000
602.322.7560
32
202.514.2000
602.514.7500
10:43
09/26/09
11:04
602.322.7560
202.514.2000
16
09/28/09
11:44
602.514.7500
602.322.7560
09/28/09
10/15/09
202.514.6225
602.322.7560
14
202.307.0652
602.322.7560
Block 602-920-4000,++
156.42.184.18
156.42.184.65
156.42.103.166
05/24/10
Federal Judge Mary Murguia nominated to the 9th Circuit Court Appeals.
US Department of Justice (DOJ) - Civil Rights Calls Federal Judge G. Murray Snow
05/28/10
08/15/10
03/25/10
602-920-4400, 602-920-4000
156.42.184.18
156.42.184.65
156.42.103.166
07/10/10
Covington Burling Law Firm Take Over Melendres Lawsuit Against Arpaio.
09/02/10
09/15/10
_______________________________
Confidential Information Not to Be Disclosed
Rev 1.4c
MELC199921
(328 of 523)
Case:
Case 15-16440,
2:07-cv-02513-GMS
08/20/2015,Document
ID: 9654788,
1166
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Timeline
Date
09/15/10
Description
John Gray Ends Intern Clerk with Federal Judge G. Murray Snow
10/01/10
10/23/10
Breach
Time
From
To
Duration
IP Address
Call
Call
Call
in (Min)
216.119.127.142
Service25-us.mimecast.com ; service26-us.mimecast.com
10/25/10
10/25/10
16:30
202.514.2000
602.351.8092
Perkins Coie Associate (John Gray) makes call to Federal Judge Snow Chambers
16:42
602.351.8092
602.322.7560
10
10/25/10
Perkins Coie Associate (John Gray) makes call to Maricopa County Cell Phone ++
16:55
602.351.8092
602.+++
01/04/11
04/23/11
US Federal Judge Mary Murguia approved as 9th Circuit Court of Appeals Judge
Sheriff Arpaio Fires Chief Deputy David Hendershott and Deputy Larry Black
08/30/11
10/21/11
09/01/11
07/19/12
Melendres vs. Sheriff Arpaio Trial Heard by Federal Judge G. Murray Snow
03/01/13
Lanny Breuer Resigns from DOJ and rejoins Covington Burling Law Firm
06/13/13
US Department of Justice (DOJ) Joins Melendres Lawsuit with Covington Law Firm
10/02/13
Judge G. Murray Snow Rules in Class Action Lawsuit Against Joe Arpaio
Red - Phone Calls made to or from the Department of Justice
Green - John Gray Interns for Federal Judge G. Murray Snow (2009 - 2010)
Blue - Judge G. Murray Snow Assigned To Arpaio Federal Case
_______________________________
Confidential Information Not to Be Disclosed
Rev 1.4c
MELC199922
(329 of 523)
Case:
Case 15-16440,
2:07-cv-02513-GMS
08/20/2015,Document
ID: 9654788,
1166
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Timeline
_______________________________
Confidential Information Not to Be Disclosed
Rev 1.4c
MELC199923
(330 of 523)
Case:
Case 15-16440,
2:07-cv-02513-GMS
08/20/2015,Document
ID: 9654788,
1166
DktEntry:
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301 of
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Timeline
_______________________________
Confidential Information Not to Be Disclosed
Rev 1.4c
MELC199924
(331 of 523)
Case:
Case 15-16440,
2:07-cv-02513-GMS
08/20/2015,Document
ID: 9654788,
1166
DktEntry:
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302 of
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Timeline
Date
2001 - 2008
Description
Eric Holder Senior Partner Covington Burling Law Firm
2001 2009
02/12/07
06/15/08
02/01/09
03/15/09
Arizona Attorney General (AG) Issues Search Warrant Deputy Joel Fox
04/20/09
07/07/09
07/15/09
US Federal Judge Mary Murguia recuses herself from the Arpaio case.
07/20/09
07/22/09
07/23/09
09/01/09
John Gray Starts Intern Clerk Job with Federal Judge G. Murray Snow
09/16/09
09/25/09
Breach
Time
From
To
Duration
IP Address
Call
Call
Call
in (Min)
202.514.2000
602.322.7560
10
202.514.2000
602.322.7560
32
202.514.2000
602.514.7500
10:43
09/26/09
11:04
602.322.7560
202.514.2000
16
09/28/09
11:44
602.514.7500
602.322.7560
09/28/09
10/15/09
202.514.6225
602.322.7560
14
202.307.0652
602.322.7560
Block 602-920-4000,++
156.42.184.18
156.42.184.65
156.42.103.166
05/24/10
Federal Judge Mary Murguia nominated to the 9th Circuit Court Appeals.
US Department of Justice (DOJ) - Civil Rights Calls Federal Judge G. Murray Snow
05/28/10
08/15/10
03/25/10
602-920-4400, 602-920-4000
156.42.184.18
156.42.184.65
156.42.103.166
07/10/10
Covington Burling Law Firm Take Over Melendres Lawsuit Against Arpaio.
09/02/10
09/15/10
_______________________________
Confidential Information Not to Be Disclosed
Rev 1.5a
MELC199925
(332 of 523)
Case:
Case 15-16440,
2:07-cv-02513-GMS
08/20/2015,Document
ID: 9654788,
1166
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Timeline
Date
09/15/10
Description
John Gray Ends Intern Clerk with Federal Judge G. Murray Snow
10/01/10
Breach
Time
From
To
Duration
IP Address
Call
Call
Call
in (Min)
10/18/10
Covington Burling Law Firm Call Department of Justice (DOJ) - Not In This Case
14:55 650.632.4704
202.514.6225
10
10/22/10
14:21
650.632.4704
602.351.8092
19
10/23/10
216.119.127.142
Service25-us.mimecast.com ; service26-us.mimecast.com
10/25/10
10/25/10
16:30
202.514.2000
602.351.8092
Perkins Coie Associate (John Gray) makes call to Federal Judge Snow Chambers
16:42
602.351.8092
602.322.7560
10
10/25/10
Perkins Coie Associate (John Gray) makes call to Maricopa County Cell Phone ++
16:55
602.351.8092
602.+++
01/04/11
04/23/11
US Federal Judge Mary Murguia approved as 9th Circuit Court of Appeals Judge
Sheriff Arpaio Fires Chief Deputy David Hendershott and Deputy Larry Black
08/30/11
10/21/11
09/01/11
07/19/12
Melendres vs. Sheriff Arpaio Trial Heard by Federal Judge G. Murray Snow
03/01/13
Lanny Breuer Resigns from DOJ and rejoins Covington Burling Law Firm
06/13/13
US Department of Justice (DOJ) Joins Melendres Lawsuit with Covington Law Firm
10/02/13
Judge G. Murray Snow Rules in Class Action Lawsuit Against Joe Arpaio
Red - Phone Calls made to or from the Department of Justice
Green - John Gray Interns for Federal Judge G. Murray Snow (2009 - 2010)
Blue - Judge G. Murray Snow Assigned To Arpaio Federal Case
_______________________________
Confidential Information Not to Be Disclosed
Rev 1.5a
MELC199926
(333 of 523)
Case:
Case 15-16440,
2:07-cv-02513-GMS
08/20/2015,Document
ID: 9654788,
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Timeline
_______________________________
Confidential Information Not to Be Disclosed
Rev 1.5a
MELC199927
(334 of 523)
Case:
Case 15-16440,
2:07-cv-02513-GMS
08/20/2015,Document
ID: 9654788,
1166
DktEntry:
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JOE ARPAIO BRIEF
Timeline
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Confidential Information Not to Be Disclosed
Rev 1.5a
MELC199928
(335 of 523)
Case:
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1166
DktEntry:
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Timeline
Date
2001 - 2008
Description
Eric Holder Senior Partner Covington Burling Law Firm
2001 2009
02/12/07
06/15/08
02/01/09
03/15/09
Arizona Attorney General (AG) Issues Search Warrant Deputy Joel Fox
04/20/09
07/07/09
07/15/09
US Federal Judge Mary Murguia recuses herself from the Arpaio case.
07/20/09
07/22/09
07/23/09
09/01/09
John Gray Starts Intern Clerk Job with Federal Judge G. Murray Snow
09/16/09
09/25/09
Breach
Time
From
To
Duration
IP Address
Call
Call
Call
in (Min)
202.514.2000
602.322.7560
10
202.514.2000
602.322.7560
32
202.514.2000
602.514.7500
10:43
09/26/09
11:04
602.322.7560
202.514.2000
16
09/28/09
11:44
602.514.7500
602.322.7560
09/28/09
10/15/09
10/15/09
156.42.184.65
10/15/09
156.42.103.166
03/25/10
05/24/10
Federal Judge Mary Murguia nominated to the 9th Circuit Court Appeals.
US Department of Justice (DOJ) - Civil Rights Calls Federal Judge G. Murray Snow
202.514.6225
602.322.7560
14
05/28/10
08/15/10
08/15/10
08/15/10
156.42.184.65
156.42.103.166
07/10/10
Covington Burling Law Firm Take Over Melendres Lawsuit Against Arpaio.
09/02/10
_______________________________
Confidential Information Not to Be Disclosed
Block 602-920-4000,++
156.42.184.18
602-920-4400, 602-920-4000
156.42.184.18
Rev 2.0
MELC199929
(336 of 523)
Case:
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Timeline
Date
09/15/10
Description
US Department of Justice (DOJ) Call Federal Judge G. Murray Snow
09/15/10
John Gray Ends Intern Clerk with Federal Judge G. Murray Snow
10/01/10
10/18/10
Covington Burling Law Firm Call Department of Justice (DOJ) - Not In This Case
10/22/10
10/23/10
10/23/10
Service25-us.mimecast.com ; service26-us.mimecast.com
10/25/10
10/25/10
Perkins Coie Associate (John Gray) makes call to Federal Judge Snow Chambers
10/25/10
Perkins Coie Associate (John Gray) makes call to Maricopa County Cell Phone ++
01/04/11
04/23/11
US Federal Judge Mary Murguia approved as 9th Circuit Court of Appeals Judge
Sheriff Arpaio Fires Chief Deputy David Hendershott and Deputy Larry Black
08/30/11
10/21/11
09/01/11
07/18/12
US Rep Jon Kyl office call Department of Justice Office Attorney - Amin Aminfar
07/19/12
Melendres vs. Sheriff Arpaio Trial Heard by Federal Judge G. Murray Snow
Breach
Time
From
To
Duration
IP Address
Call
Call
Call
in (Min)
202.307.0652
602.322.7560
14:55
650.632.4704
202.514.6225
10
14:21
650.632.4704
602.351.8092
19
16:30
202.514.2000
602.351.8092
16:42
602.351.8092
602.322.7560
10
16:55
602.351.8092
602.+++
11:14
202.224.4521
202-307-0652
26
11:58
202.662.6000
202.224.4521
38
216.119.127.142
07/24/12
06/13/13
US Department of Justice (DOJ) Joins Melendres Lawsuit with Covington Law Firm
10/02/13
Judge G. Murray Snow Rules in Class Action Lawsuit Against Joe Arpaio
Red - Phone Calls made to or from the Department of Justice
Green - John Gray Interns for Federal Judge G. Murray Snow (2009 - 2010)
Blue - Judge G. Murray Snow Assigned To Arpaio Federal Case
_______________________________
Confidential Information Not to Be Disclosed
Rev 2.0
MELC199930
(337 of 523)
Case:
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08/20/2015,Document
ID: 9654788,
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DktEntry:
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Timeline
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MELC199931
(338 of 523)
Case:
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2:07-cv-02513-GMS
08/20/2015,Document
ID: 9654788,
1166
DktEntry:
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Timeline
_______________________________
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Rev 2.0
MELC199932
(339 of 523)
Case
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MELC199935
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(350 of 523)
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EXHIBIT 15
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v.
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ORDER
Plaintiffs,
11
14
No. CV-07-2513-PHX-GMS
Defendants.
16
17
In early May 2015, the Court received an Application of Attorney for Admission
18
to Practice Pro Hac Vice from Mr. Jonathan A. Moseley, who practices in Virginia. The
19
application was accompanied by a two page letter dated May 2, 2015 and a three page
20
21
Intervene in this action on behalf of Dennis Montgomery, along with various other
22
motions and memoranda. (See Docs. 1057, 1058, 1067, stricken by Doc. 1093.)
23
Following a status conference at which Mr. Moseley was invited to appear telephonically
24
in support of his request for admission pro hac vice, and at which he did not appear, the
25
Court denied Mr. Moseleys application. (See Doc. 1093.) Mr. Moseley now moves for
26
reconsideration of his application for admission on the grounds that (1) the record does
27
not reflect the existence of any conflict of interest between Mr. Moseleys representation
28
of Sheriff Joseph Arpaio in another action and his intended representation of Mr.
(359 of 523)
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Montgomery in this case; (2) Mr. Montgomerys Sixth Amendment right to counsel
would be violated if Mr. Moseley is unable to represent him pro hac vice; and (3) the
Court should recuse itself. (Doc. 1112.) Mr. Montgomery has since filed three
supplements to this Motion. (Docs. 1140, 1160, 1161.)
Local Rule of Civil Procedure 7.2(g) provides that a party seeking reconsideration
of a ruling shall, in that motion, point out with specificity the matters that the movant
believes were overlooked or misapprehended by the Court, any new matters being
brought to the Courts attention for the first time and the reasons they were not presented
earlier, and any specific modifications being sought in the Courts Order. The movant
may not repeat any argument previously made in support of the motion that resulted in
the challenged order. L.R. Civ. 7.2(g). Motions for reconsiderations are disfavored, and
will ordinarily not be granted absent a showing of manifest error or a showing of new
facts or legal authority that could not have been brought to its attention earlier with
reasonable diligence. Id.; Morgal v. Maricopa Cnty. Bd. of Supervisors, No. CIV-070670-PHX-RCB, 2012 WL 2368478, at *1 (D. Ariz. June 21, 2012) (noting motions for
reconsideration should be granted only in rare circumstances). As with all motions,
failure to comply with the local rules of procedure are grounds for denial of the motion.
L.R. Civ. 7.2(g).
As a preliminary matter, Mr. Moseleys challenge of the Courts articulated
concern that his admission could create a conflict of interest fails to advance any grounds
different from those contained in his Clarification of Motion for Admittance Pro Hac
Vice, filed prior to the Court heard argument on his application for admission. (See Doc.
1080); L.R. Civ. 7.2(g) (No motion for reconsideration of an Order may repeat any . . .
argument made by the movant in support of or in opposition to the motion that resulted in
the Order.). Moreover, his Motion for Reconsideration does not address the issues raised
at the status conference the Court held in these matters on May 14, 2015, at which Mr.
Moseleys application was discussed and, ultimately, denied.1 Under the Arizona Rules
1
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conference, but he gave no indication of his presence during the initial counsel roll call
or, later, when directly addressed by the Court at this time the issues of his application
and the potential conflict of interest it posed were raised. (See Tr. May 14, 2015 Status
Conf. 32, Doc. 1097.)
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issues reflect the truthfulness of testimony offered in this matter, and the MCSOs efforts,
or lack thereof, in implementing this Courts orders at the same time it may have been
devoting resources to funding an investigation to possibly discredit this Court. Therefore,
Mr. Moseleys litigating of Mr. Montgomerys stake in the evidence at issue, the validity
of which has been repudiated by Sheriff Arpaio, will most likely involve credibility
determinations and competing factual testimony. This would seem to necessarily impact
the attorney-client relationships Mr. Moseley has with Mr. Montgomery and Sheriff
Arpaio, and likely violate his duty of loyalty to one or both of them. Further, Sheriff
Arpaio has objected on the record to the positions taken by Mr. Moseley in one of his
supplemental pleadings for admission pro hac vice: Putative intervenors attorneys
Klayman and Mosely [sic] neither represent Sheriff Arpaio and Chief Deputy Sheridan,
nor speak for the interests of the MCSO in this action or in any proceeding related to this
action. (Doc. 1145 at 2.) This is additional evidence that there is sufficient adversity of
interests to deny Mr. Moseleys request for admission. The Court has a recognized
interest in ensuring that the proceedings in this case are conducted within the standards of
the profession. Cf. Wheat v. United States, 486 U.S. 153, 160 (1988).
In addition to the potential conflict posed by Mr. Moseleys application for
admission, there is evidence that Mr. Moseleys representation of Mr. Montgomery
would stand in the way of the orderly administration of justice. Mr. Moseley attached a
letter dated May 02, 2015 to his pro hac vice application. There is a notation on the letter
that counsel of record were sent copies of his application and accompanying materials;
yet, no other attorney in this action has ever received these documents from Mr. Moseley.
In the letter, Mr. Moseley claims that his appearance would be for the purpose of
presenting answers to this Court. However, before his application for admission pro hac
vice was considered, Mr. Moseley filed several substantive motions not previously
referenced in his application or accompanying letter. Mr. Moseley subsequently
acknowledged that portions of the letter relating to his filing of an amicus curiae brief for
Sheriff Arpaio were also inaccurate. Following that, Mr. Moseley attempted to withdraw
-4-
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the letter in its entirety. Then, Mr. Moseley reached out to the Court about appearing
telephonically in support of his Motion for Reconsideration and failed to do so or explain
his absence, although he contacted the Court about obtaining a transcript of the
proceedings following their conclusion. At the hearing, Plaintiffs provided the Court with
information that raises additional concerns about Mr. Moseleys ethical fitness to be
admitted to practice in this district pro hac vice. (Tr. May 14, 2015 Status Conf. 34:22
39:9, Doc. 1097 (referencing Moseley v. Virginia State Bar, ex rel. Seventh Dist. Comm.,
280 Va. 1, 1, 694 S.E.2d 586, 588 (2010)).) Mr. Moseleys engagement in this action to
date demonstrates a substantial likelihood that his conduct would hinder the efficacious
administration of justice if he were to be admitted. Where an out-of-state attorney
strongly suggests through his behavior that he will neither abide by the court's rules and
practices . . . nor be readily answerable to the court, the judge may reject his pro hac
vice application. Ries, 100 F.3d at 1471. Mr. Moseley fails to demonstrate how the
Courts previous denial of his application amounted to manifest error.
The second point in Mr. Moseleys Motion for Reconsideration is also misplaced.
There is no constitutional right to counsel in a civil action, which this is. United States v.
Sardone, 94 F.3d 1233, 1236 (9th Cir. 1996). Further, in any case, a litigants right
to choose his counsel is not unlimited and may give way to serve a compelling purpose
such as the efficient and orderly administration of justice. United States v. Walters, 309
F.3d 589, 59192 (9th Cir. 2002); see also United States v. Ries, 100 F.3d 1469 (9th Cir.
1996) (finding court may impinge on right to have chosen attorney admitted pro hac vice
where the attorneys admission is sought for a dilatory purpose or is otherwise subversive
of the ethical and orderly judicial process). For the reasons stated above, the record
strongly suggests that admission of Mr. Moseley would indeed interfere with the orderly
adjudication of this case. Thus, the interest underlying the Courts denial of Mr.
Moseleys application also provides a sufficiently compelling reason to warrant depriving
Mr. Montgomery of his preferred choice of counsel.
Mr. Moseleys third point is a reiteration of previous arguments made in support
-5-
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of the Motion to Intervene he filed concomitantly with seeking admission pro hac vice,
and does not constitute new facts or legal authority to justify this Courts
reconsideration of his application.2 See L.R. Civ. 7.2(g).
IT
IS
THEREFORE
ORDERED
that
Mr.
Moseleys
Motion
for
7
Honorable G. Murray Snow
United States District Judge
8
9
10
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14
15
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None of the supplements filed by Mr. Moseley and Mr. Klayman address the
apparent conflict of interest between Mr. Montgomery and Sheriff Arpaio or present new
arguments sufficient to cause this Court to reconsider the denial of their application.
-6-
(364 of 523)
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EXHIBIT 16
(365 of 523)
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FOURTH REPORT
Independent Monitor
for the
Maricopa County Sheriffs Office
(366 of 523)
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Section 1: Introduction
This is my fourth report issued in my capacity as the Court-appointed Monitor in the case of
Manuel de Jesus Ortega Melendres, et al., v. Joseph M. Arpaio, et al. (No. CV-07-02513-PHXGMS), and documents activities occurring during the first quarter of 2015.
Subsequent to my appointment, and as a result of further Court proceedings, my duties have been
expanded in the areas of community engagement, oversight of internal investigations, and
independent investigative authority. The Order was amended on April 4, 2014 with respect to
community engagement, and therefore my community engagement activities and those of my
Team are detailed in this report.
The Maricopa Sheriffs Office (MCSO) made no appreciable gains during this reporting period
in its compliance with the provisions of the Supplemental Permanent Injunction/Judgment Order
(Order) issued by the Honorable G. Murray Snow in the above-referenced litigation. Our last
report chronicled the advances made in achieving compliance with the Orders requirements,
primarily as the result of the successful delivery of Fourth and Fourteenth Amendment training,
accompanied by the issuance of several policies during that training process. There were no such
initiatives during this reporting period to significantly bolster the agencys momentum. To the
contrary, the development of the next major block of training required by the Order Supervisor
and Command Level Training has stalled, despite accommodations made by the Plaintiffs and
my Team to deliver the training in two phases in order to speed up the process. This is
particularly troubling in light of our observations chronicled in our last report regarding a lack of
leadership at all levels of the Maricopa County Sheriffs Office, and in particular, in the upper
command ranks of the Office. The agency is devoid of meaningful management and leadership
training, and the successful delivery of the supervisory training required by the Order would only
begin to address this systemic issue. Nonetheless, it must be made a priority.
We are encouraged by the progress made in the implementation of an Early Identification
System (EIS). While work remains to be done in finalizing policies and protocols, MCSOs
Bureau of Internal Oversight (BIO) and its Early Intervention Unit (EIU) continue to do an
adequate job of providing data, conducting audits, and developing an EIS system that
incorporates pieces of information from across the organization. While fine-tuning of their
processes is in order, we note that they have conducted several audits of Office activity and have
identified some of the issues that we are seeing in our own reviews. Having a robust system of
internal audits is necessary to assure sustainability once MCSO puts the Order-required reforms
in place, and we are optimistic about the manner in which these newly created organizational
components have embraced their mission.
Another accountability mechanism for the Office the administrative investigation process
does not engender similar optimism. We are required to review completed investigations as a
result of our obligations to monitor Section XI of the Order (Misconduct and Complaints) and
our expanded authority regarding investigations pursuant to the Courts Order of November 20,
2014. In our review, we found that many of the cases were not thoroughly investigated, findings
were not appropriate, discipline was not justified; and in the majority of cases, MCSOs own
policies were not followed. There is a notable and unacceptable disparity in the quality of
investigations conducted at the district level, as well as a lack of consistency from district to
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Compliance Summary:
This report documents compliance with applicable order requirements, or Paragraphs, in two
phases. For Phase 1, compliance is assessed according to whether requisite policies and
procedures have been developed and approved and agency personnel have received documented
training on their contents. For Phase 2 compliance, generally considered operational
implementation, MCSO must demonstrate that the applicable Order requirements are being
complied with more than 94% of the time, or in more than 94% of the instances being reviewed.
We use four levels of compliance: In compliance; Not in compliance; Deferred; and Not
applicable. In compliance and Not in compliance are self-explanatory. Deferred is used in
circumstances in which we are unable to fully determine the compliance status due to a lack of
data or information, incomplete data, or other reasons which are explained in the narrative of the
report. We will also use Deferred in those situations in which the Office, in practice, is fulfilling
the requirements of a Paragraph but has not yet memorialized the requirements in a formal
policy. Not applicable is only used when describing Phase 1 compliance, and is reserved for
those Paragraphs where a policy is not required.
The table below and subsequent chart summarize the compliance status of Paragraphs tracked in
this report. The percent in compliance estimate of 40.3 percent for Phase 1 is calculated by
dividing the number of Order Paragraphs determined to be in compliance by the total number of
Paragraphs requiring a corresponding policy or procedure. Paragraphs with the status of
Deferred are included in the denominator, while Paragraphs with the status of Not Applicable are
not included. The percent in compliance estimate of 24.7 percent for Phase 2 is calculated in the
same manner. Therefore, the number of paragraphs included in the denominator totals 77 for
Phase 1. This represents an increase from our last report, primarily because the Court
Implementation Division has drafted an Operations Manual that, once approved and distributed
to the personnel assigned there, will allow for Phase 1 compliance with six additional
Paragraphs. The number of Paragraphs included in the denominator for Phase 2 remained at 89.
Phase 1
Phase 2
Not Applicable
Deferred
Not in Compliance
In Compliance
12
3
43
31
12
55
22
40.3%
24.7%
Percent in Compliance
Page 7 of 122
(368 of 523)
Case: 15-16440, 08/20/2015, ID: 9654788, DktEntry: 7-2, Page 339 of 494
EXHIBIT 17
(369 of 523)
Case
Case:2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1171DktEntry:
Filed 07/14/15
7-2, Page
Page
340 1ofof494
5
1
2
3
4
5
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7
10
11
and
12
8
9
13
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15
16
17
18
DISTRICT OF ARIZONA
19
20
Plaintiffs,
21
22
NO. CV 07-02513-PHX-GMS
v.
Joseph M. Arpaio, et al.,
23
Defendants.
24
25
26
27
Sheridan (Movants) respectfully request the Court to stay the district court proceedings
28
4373662.1
7/14/15
(370 of 523)
Case
Case:2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1171DktEntry:
Filed 07/14/15
7-2, Page
Page
341 2ofof494
5
until the Ninth Circuit can consider and rule upon Movants Petition for Writ of
Mandamus, which they expect to file no later than July 24, 2015. Because mandamus
actions are given preference over ordinary civil cases in the Ninth Circuit, see Rule 21,
Movants may seek appellate review of that order only via an interlocutory proceeding.
Movants would not expect the Court to be inclined to certify its order as appealable under
28 U.S.C. 1292(b), and thus Movants believe their only true recourse is to seek
mandamus relief in the Ninth Circuit under 28 U.S.C. 1651 and Rule 21, F.R.A.P.
10
Movants are aware that such petitions must be filed as promptly as possible, and are
11
12
Movants do not seek this stay or mandamus lightly, nor do they make these
13
filings only to delay or to disrespect the Court. Movants sincerely believe the Court has
14
erred in its recusal decision, and Movants have the right and obligation to do that which
15
they feel is necessary to preserve fairness and impartiality in these legal proceedings.
16
Indeed, many circuit courts have granted mandamus to order recusal. See, e.g., In re U.S.,
17
441 F.3d 44, 68 (1st Cir. 2006) (ordering recusal on mandamus; The standard does not
18
19
20
Boston's Children First, 244 F.3d 164, 167-68 (1st Cir. 2001) (granting mandamus; trial
21
court abused discretion by failing to recuse itself because ex parte comments to a reporter
22
could have been construed as creating an appearance of partiality); Ligon v. City of New
23
York, 736 F.3d 118 (2d Cir. 2013), vacated in part on other grounds, 743 F.3d 362 (2d
24
Cir. 2014) (disqualification of district court judge was required in African-American and
25
Latino residents' 1983 actions alleging that city police departments stop and frisk policy
26
violated their constitutional rights); Moody v. Simmons, 858 F.2d 137, 144 (3d Cir. 1988)
27
(Because the judge should have recused after finding that his impartiality could
28
reasonably be questioned, we will grant the writ of mandamus. . . .); In re Fed. Sav. &
4373662.1
7/14/15
(371 of 523)
Case
Case:2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1171DktEntry:
Filed 07/14/15
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Page
342 3ofof494
5
Loan Ins. Corp., 852 F.2d 565 (4th Cir. 1988) (we regretfully conclude that Judge Blatts
participation has created an appearance of impaired impartiality that can only be remedied
through mandamus); SCA Servs., Inc. v. Morgan, 557 F.2d 110, 116 (7th Cir. 1977)
presumably to his brother, to determine in what capacity Donald A. Morgan was involved
in this case. Counsel were not present and were unaware of the inquiry at the time it was
made. While it is understandable why the judge may have felt his brother could present
the most accurate evidence as to his role in the pending litigation, the judges inquiry
creates an impression of private consultation and appearance of partiality which does not
10
11
Because Movants have the right and obligation to ensure that the legal
12
system provides them not only a fair and impartial legal proceeding, but also the
13
appearance of impartiality, Movants respectfully request the Court to stay the district
14
court proceedings until the Ninth Circuit rules on their mandamus proceeding. Movants
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4373662.1
7/14/15
(372 of 523)
Case
Case:2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1171DktEntry:
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Page
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5
1
2
3
4
By s/ John T. Masterson
John T. Masterson
Joseph J. Popolizio
Justin M. Ackerman
2901 North Central Avenue, Suite 800
Phoenix, Arizona 85012
Attorneys for Defendant Joseph M. Arpaio
and the Maricopa County Sheriffs Office
5
6
7
8
9
10
12
By s/ A. Melvin McDonald_______________
A. Melvin McDonald
JONES, SKELTON & HOCHULI, P.L.C.
2901 North Central Avenue, Suite 800
Phoenix, Arizona 85012
13
11
14
By_s/ Michele M. Iafrate________________
Michele M. Iafrate, Bar #015115
649 North Second Avenue
Phoenix, Arizona 85003
15
16
17
18
19
20
21
By s/ Lee Stein_______________________
Barry Mitchell
Lee Stein
One Renaissance Square
2 North Central Avenue, Suite 1900
Phoenix, AZ 85004
Attorneys for Gerard Sheridan
22
23
24
25
26
27
28
4373662.1
7/14/15
(373 of 523)
Case
Case:2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1171DktEntry:
Filed 07/14/15
7-2, Page
Page
344 5ofof494
5
1
2
3
CERTIFICATE OF SERVICE
I hereby certify that on July 14, 2015, I electronically transmitted the attached document
to the Clerks Office using the CM/ECF System for filing.
4
5
6
/s Christine Miller
7
8
9
10
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12
13
14
15
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18
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20
21
22
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24
25
26
27
28
4373662.1
7/14/15
(374 of 523)
Case
Case:
2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1171-1
DktEntry:
Filed 07/14/15
7-2, PagePage
345 of
1 494
of 1
1
2
3
4
5
6
DISTRICT OF ARIZONA
8
9
10
v.
11
12
NO. CV 07-02513-PHX-GMS
13
14
15
16
17
18
19
_____________________________
The Honorable G. Murray Snow
United States District Court
20
21
22
23
24
25
26
27
28
4373666.1
7/14/15
(375 of 523)
Case: 15-16440, 08/20/2015, ID: 9654788, DktEntry: 7-2, Page 346 of 494
EXHIBIT 18
(376 of 523)
Case
Case:2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1175DktEntry:
Filed 07/16/15
7-2, Page
Page
347 1ofof494
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23
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26
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28
Plaintiff(s),
v.
Joseph M. Arpaio, et al.,
Defendant(s).
)
)
)
)
)
)
)
)
)
)
)
)
CV-07-2513-PHX-GMS
PLAINTIFFS OPPOSITION TO
MOTION TO STAY
(377 of 523)
Case
Case:2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1175DktEntry:
Filed 07/16/15
7-2, Page
Page
348 2ofof494
8
1
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8
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21
22
23
24
25
26
27
28
(378 of 523)
Case
Case:2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1175DktEntry:
Filed 07/16/15
7-2, Page
Page
349 3ofof494
8
The Movants1 meritless motion to stay, Doc. 1171, seeks to delay these
proceedings once again, without providing one scintilla of legal argument or relevant
authority. Movants only argument is that they sincerely believe the Court has erred in
its recusal decision. Doc. 1171 at 2. That is not the legal standard.
The factors considered in determining whether a stay pending petition for writ of
mandamus is warranted are the same as a stay pending appeal. Powertech Tech. Inc. v.
Tessera, Inc., No. C 11-6121 CW, 2013 WL 1164966, at *1 (N.D. Cal. Mar. 20, 2013)
(internal citations and quotations omitted); accord Morgan Tire of Sacramento, Inc. v.
10
(E.D. Cal. June 9, 2015). Those factors are: (1) whether the stay applicant has made a
11
strong showing that he is likely to succeed on the merits; (2) whether the applicant will be
12
irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure
13
the other parties interested in the proceeding; and (4) where the public interest lies.2
14
Nken v. Holder, 556 U.S. 418, 434 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770,
15
776 (1987)). The party requesting a stay bears the burden of showing that the
16
17
Movants have not even tried to carry their burden. Their motion does not bother
18
to argue that they are likely to succeed on the merits of the mandamus petition, that they
19
will be irreparably injured absent a stay, that a stay will not substantially injure Plaintiffs,
20
21
22
In fact, Movants cannot meet a single part of their four-part burden. For the
reasons stated in the Courts July 10, 2015 Order Denying Motion For Recusal Or
23
24
1
25
26
27
28
The Movants are Defendant Joseph M. Arpaio and non-party contemnor Gerard
Sheridan.
2
As Nken noted, [t]here is substantial overlap between these and the factors governing
preliminary injunctions, not because the two are one and the same, but because similar
concerns arise whenever a court order may allow or disallow anticipated action before the
legality of that action has been conclusively determined. Nken, 556 U.S. at 434 (internal
citation omitted).
1
(379 of 523)
Case
Case:2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1175DktEntry:
Filed 07/16/15
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Page
350 4ofof494
8
Disqualification, Doc. 1164, they are not likely to succeed on their petition for a writ of
(W.D. Wash. Apr. 27, 2010) (The likelihood of success in this case [of a motion to stay]
is the likelihood of Plaintiff succeeding in having the Courts order to compel (Dkt. 60)
reversed by the Ninth Circuit.). The Ninth Circuit has repeatedly emphasized that the
Anonymous Online Speakers, 661 F.3d 1168, 1173 (9th Cir. 2011) (internal citations and
quotations omitted). The Ninth Circuit uses the Bauman factors to evaluate mandamus
petitions:
10
(1) whether the petitioner has no other means, such as a direct appeal, to
obtain the desired relief; (2) whether the petitioner will be damaged or
prejudiced in any way not correctable on appeal; (3) whether the district
courts order is clearly erroneous as a matter of law; (4) whether the district
courts order is an oft repeated error or manifests a persistent disregard of
the federal rules; and (5) whether the district courts order raises new and
important problems or issues of first impression.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Id. at 1174 (quoting Perry v. Schwarzenegger, 591 F.3d 1147, 1156 (9th Cir. 2010) and
citing Bauman v. U.S. Dist. Court, 557 F.2d 650, 65455 (9th Cir. 1977)). [T]he
absence of the third factor, clear error, is dispositive. Id. (quoting Burlington N. &
Santa Fe Ry. Co. v. U.S. Dist. Court, 408 F.3d 1142, 1146 (9th Cir. 2005)). The clear
error standard is highly deferential and is only met when the reviewing court is left with
a definite and firm conviction that a mistake has been committed. Id. at 1177 (quoting
Cohen v. U.S. Dist. Court, 586 F.3d 703, 708 (9th Cir. 2009)). If the district courts
findings are plausible in light of the entire record, we may not reverse, even if we would
have weighed the evidence differently. Lewis v. Ayers, 681 F.3d 992, 998 (9th Cir.
2012).
Movants have not explained how this Court committed clear error in its thorough
order denying the motion for recusal or the manner in which the Courts findings were
implausible in light of the entire record. Rather, as this Court noted, Movants recusal
motion ignore[d] the long-settled principle that, to trigger recusal, any alleged bias must
2
(380 of 523)
Case
Case:2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1175DktEntry:
Filed 07/16/15
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Page
351 5ofof494
8
spring from an extrajudicial source, not from information or beliefs the judge gained over
the course of litigation, or else the bias must be particularly excessive in degree. Doc.
1164 at 16 (citing Liteky v. United States, 510 U.S. 540, 550-51 (1994)). The Court also
righty held that the recusal motion was devoid of merit because, among other things, its
reliance on the Montgomery and Grissom investigations was untimely, belied by the
Movants own testimony and their counsels public statements, and risked strategic
manipulation. Id. at 26-27, 29, 31-32. Movants have not explained how these or any
other of the Courts bases for denying the recusal motion were clearly erroneous. They
have therefore failed to show that they are likely to succeed on their petition for a writ of
10
11
12
13
these proceedings they seek to stay. See Doc. 1171 at 1 (requesting only that the Court
14
stay the district court proceedings). The Ninth Circuit has already upheld the vast
15
majority of the Supplemental Permanent Injunction, Melendres v. Arpaio, 784 F.3d 1254
16
(9th Cir. 2015), and Movants have twice admitted that they committed contempt of court,
17
Doc. 948, 1003, so it is not clear how the continuation of these proceedings would
18
19
20
class by further delaying the additional injunctive relief necessary to protect them. The
21
contempt proceedings have revealed that Sheriff Arpaio and his subordinates paid no
22
heed to numerous orders of this Court; that MCSO has shown little interest in
23
24
Plaintiffs constitutional rights in ways beyond those shown at trial. Such disregard for
25
the law by an agency charged with its enforcement poses a continued danger to the
26
residents of Maricopa County and especially to the Plaintiff class. Allowing the Movants
27
to further delay the imposition of injunctive relief would endanger the Plaintiff class.
28
Additionally, delay will injure Plaintiffs by making it harder to compensate the victims of
3
(381 of 523)
Case
Case:2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1175DktEntry:
Filed 07/16/15
7-2, Page
Page
352 6ofof494
8
Defendants contempt. As this Court has repeatedly noted, and in part because of
locate the numerous contempt victims, and the more time that passes, the fewer victims
are likely to be identified. With the passage of time, people move, addresses and phone
numbers on record become stale, and memories fade. The request for a stay should be
denied on these bases alone. See Order Denying Motion to Stay, Doc. 154 at 4 ([I]f
there is even a fair possibility that the stay for which [a party] prays will work damage to
some one else, then the suppliant for a stay must make out a clear case of hardship or
inequity to justify staying the case) (quoting Landis v. N. Am. Co., 299 U.S. 248, 255
10
11
(1936)).
Finally, as to the public interest, as this Court noted in denying Maricopa Countys
12
motion to stay in 2009, the public has a strong interest not only in the resolution of
13
litigation, but also in making sure that such resolution is expeditious. A stay of the kind
14
proposed here would compromise these interests. Thus, this factor weighs against the
15
granting of a stay. Id. at 8; see also Nken, 556 U.S. at 427 (A stay is an intrusion into
16
the ordinary processes of administration and judicial review, and accordingly is not a
17
matter of right, even if irreparable injury might otherwise result to the appellant.)
18
19
20
Movants have not and cannot carry their burden to merit a stay of these
proceedings. Their motion should be denied.
21
22
23
24
25
26
27
Daniel J. Pochoda
Joshua D. Bendor
28
4
(382 of 523)
Case
Case:2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1175DktEntry:
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Page
353 7ofof494
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4
5
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7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
(383 of 523)
Case
Case:2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1175DktEntry:
Filed 07/16/15
7-2, Page
Page
354 8ofof494
8
1
2
3
4
5
CERTIFICATE OF SERVICE
I hereby certify that on July 16, 2015, I electronically transmitted the attached
document to the Clerks Office using the CM/ECF System for filing. Notice of this filing
will be sent by e-mail to all parties by operation of the Courts electronic filing system or
by mail as indicated on the Notice of Electronic Filing.
6
7
9
10
11
12
13
14
15
16
17
18
19
20
21
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23
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25
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27
28
6
(384 of 523)
Case: 15-16440, 08/20/2015, ID: 9654788, DktEntry: 7-2, Page 355 of 494
EXHIBIT 19
(385 of 523)
Case
Case:
2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1198-2
DktEntry:
Filed 07/28/15
7-2, PagePage
356 of
1 494
of 4
Exhibit 2
(386 of 523)
Case
Case:
2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1198-2
DktEntry:
Filed 07/28/15
7-2, PagePage
357 of
2 494
of 4
MELC198703
(387 of 523)
Case
Case:
2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1198-2
DktEntry:
Filed 07/28/15
7-2, PagePage
358 of
3 494
of 4
MELC198704
(388 of 523)
Case
Case:
2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1198-2
DktEntry:
Filed 07/28/15
7-2, PagePage
359 of
4 494
of 4
MELC198705
(389 of 523)
Case: 15-16440, 08/20/2015, ID: 9654788, DktEntry: 7-2, Page 360 of 494
EXHIBIT 20
(390 of 523)
Case
Case:2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1223 DktEntry:
Filed 08/10/15
7-2, Page
Page
3611ofof494
39
(391 of 523)
Case
Case:2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1223 DktEntry:
Filed 08/10/15
7-2, Page
Page
3622ofof494
39
(392 of 523)
Case
Case:2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1223 DktEntry:
Filed 08/10/15
7-2, Page
Page
3633ofof494
39
(393 of 523)
Case
Case:2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1223 DktEntry:
Filed 08/10/15
7-2, Page
Page
3644ofof494
39
(394 of 523)
Case
Case:2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1223 DktEntry:
Filed 08/10/15
7-2, Page
Page
3655ofof494
39
(395 of 523)
Case
Case:2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1223 DktEntry:
Filed 08/10/15
7-2, Page
Page
3666ofof494
39
(396 of 523)
Case
Case:2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1223 DktEntry:
Filed 08/10/15
7-2, Page
Page
3677ofof494
39
(397 of 523)
Case
Case:2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1223 DktEntry:
Filed 08/10/15
7-2, Page
Page
3688ofof494
39
(398 of 523)
Case
Case:2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1223 DktEntry:
Filed 08/10/15
7-2, Page
Page
3699ofof494
39
(399 of 523)
Case
Case:
2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1223 DktEntry:
Filed 08/10/15
7-2, Page
Page
37010ofof494
39
(400 of 523)
Case
Case:
2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1223 DktEntry:
Filed 08/10/15
7-2, Page
Page
37111ofof494
39
(401 of 523)
Case
Case:
2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1223 DktEntry:
Filed 08/10/15
7-2, Page
Page
37212ofof494
39
(402 of 523)
Case
Case:
2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1223 DktEntry:
Filed 08/10/15
7-2, Page
Page
37313ofof494
39
(403 of 523)
Case
Case:
2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1223 DktEntry:
Filed 08/10/15
7-2, Page
Page
37414ofof494
39
(404 of 523)
Case
Case:
2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1223 DktEntry:
Filed 08/10/15
7-2, Page
Page
37515ofof494
39
(405 of 523)
Case
Case:
2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1223 DktEntry:
Filed 08/10/15
7-2, Page
Page
37616ofof494
39
(406 of 523)
Case
Case:
2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1223 DktEntry:
Filed 08/10/15
7-2, Page
Page
37717ofof494
39
(407 of 523)
Case
Case:
2:07-cv-02513-GMS
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15-16440, 08/20/2015,
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EXHIBIT 21
(430 of 523)
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CV 07-2513-PHX-GMS
Phoenix, Arizona
April 23, 2015
8:34 a.m.
10
11
12
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15
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Court Reporter:
Gary Moll
401 W. Washington Street, SPC #38
Phoenix, Arizona 85003
(602) 322-7263
(431 of 523)
Case: 15-16440, 08/20/2015, ID: 9654788, DktEntry: 7-2, Page 402 of 494
Arpaio - Exam by Court, Melendres v. Arpaio, 4/23/15
635
A.
Q.
All right.
11:44:06
10
11
12
11:44:25
13
14
15
16
17
subvert the orders of this Court, so I'm going to ask you some
18
19
11:44:48
Did you
20
21
22
A.
No, sir.
23
Q.
24
25
11:45:11
I know
11:45:24
(432 of 523)
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Arpaio - Exam by Court, Melendres v. Arpaio, 4/23/15
642
Q.
A.
Q.
confidential informants?
A.
Yes.
Q.
A.
Your Honor, I don't know how far down it goes for that
10
11
chief.
12
Q.
13
14
A.
Yes.
15
Q.
16
A.
17
Q.
18
19
20
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A.
24
Q.
25
A.
Okay.
11:53:17
11:53:30
11:53:50
11:54:08
(433 of 523)
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Arpaio - Exam by Court, Melendres v. Arpaio, 4/23/15
643
Q.
had sources were telling him your office was doing out of
A.
Q.
Let me
10
clerk.)
11:54:57
11
THE COURT:
12
THE WITNESS:
13
BY THE COURT:
14
Q.
15
16
17
it.
18
11:54:26
11:55:44
19
20
21
11:56:01
(Pause in proceedings.)
22
BY THE COURT:
23
Q.
24
A.
25
Q.
And I just want to ask you some questions about the article
11:56:53
(434 of 523)
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Arpaio - Exam by Court, Melendres v. Arpaio, 4/23/15
644
that the article says, it's just what he's had some sources
tell him.
11:57:10
article is accurate.
you'll tell me the truth, and you understand you're under oath,
10
correct?
11
11:57:24
12
13
14
A.
15
there, yes.
16
Q.
17
A.
18
Q.
And Mackiewicz is --
19
A.
A detective.
20
Q.
21
risk detail?
22
A.
23
Q.
I understand that.
24
25
A.
Yes.
11:57:40
11:57:52
11:58:09
(435 of 523)
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Arpaio - Exam by Court, Melendres v. Arpaio, 4/23/15
645
Q.
And so you were aware when he was gone to the Seattle area?
A.
Yes.
Q.
the article.
Seattle as well?
A.
Q.
member?
A.
Yes.
10
Q.
And did you pay funds from Maricopa County for Mr. Zullo to
11
12
A.
Yes.
13
Q.
14
travel costs?
15
A.
16
Q.
17
A.
Yes.
18
Q.
19
20
21
A.
22
Q.
23
24
A.
Yes.
25
Q.
Zullo.
Is he a posse
11:58:33
11:58:47
11:59:02
May have.
11:59:12
(436 of 523)
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Arpaio - Exam by Court, Melendres v. Arpaio, 4/23/15
646
Is that the
confidential informant?
A.
Yes.
Q.
A.
Yes.
Q.
10
Captain Bailey, his fees would have had to have been approved
11
12
13
A.
14
Q.
15
16
11:59:38
11:59:57
12:00:14
Were you?
17
A.
18
Q.
19
A.
20
Q.
Okay.
21
22
ever tell you -- or, well, did you ever use Mr. Montgomery to
23
24
A.
25
certificate.
12:00:25
12:00:46
(437 of 523)
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Arpaio - Exam by Court, Melendres v. Arpaio, 4/23/15
647
Q.
A.
type of thing.
Q.
Did you ever -- you see that the article says that what
A.
Q.
All right.
by anyone?
12:01:12
10
A.
You investigated?
11
Q.
Yes.
12
A.
No.
13
Q.
Any of my activities?
14
A.
No.
15
Q.
16
A.
17
Q.
Yes.
18
A.
19
Q.
20
21
A.
22
office.
23
Q.
24
A.
25
Q.
12:01:24
No.
12:01:31
Or anybody.
12:01:52
12:02:12
(438 of 523)
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Arpaio - Exam by Court, Melendres v. Arpaio, 4/23/15
Q.
650
A.
Yes.
Q.
12:05:33
A.
No.
Q.
10
A.
11
Q.
12
A.
He's a detective.
13
Q.
14
A.
15
Q.
16
A.
17
Q.
18
A.
19
20
Q.
21
22
23
A.
Yes.
24
Q.
25
A.
Yes.
12:05:40
12:05:52
12:06:11
12:06:24
(439 of 523)
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CV07-2513, Melendres v. Arpaio, 4/23/15 Evidentiary Hrg 817
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C E R T I F I C A T E
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s/Gary Moll
(440 of 523)
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EXHIBIT 22
(441 of 523)
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818
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CV 07-2513-PHX-GMS
Phoenix, Arizona
April 24, 2015
8:41 a.m.
10
11
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20
21
22
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24
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Court Reporter:
Gary Moll
401 W. Washington Street, SPC #38
Phoenix, Arizona 85003
(602) 322-7263
(442 of 523)
Case: 15-16440, 08/20/2015, ID: 9654788, DktEntry: 7-2, Page 413 of 494
Sheridan - Exam by Court, Melendres v. Arpaio, 4/24/15
A.
Okay.
Q.
998
A.
Yes, sir.
Q.
MR. WALKER:
THE COURT:
MR. WALKER:
Is that true?
10
11
Dennis Montgomery?
12
13
THE COURT:
17:06:55
Yes.
17:07:18
It's
14
THE WITNESS:
Yes, sir.
15
BY THE COURT:
16
Q.
17
18
A.
Yes, sir.
19
Q.
20
A.
Well, I'm only hesitant because when you said that I'm in
21
22
23
Q.
All right.
24
A.
Correct.
25
Q.
He's a sergeant?
17:07:29
17:07:41
17:08:05
(443 of 523)
Case: 15-16440, 08/20/2015, ID: 9654788, DktEntry: 7-2, Page 414 of 494
Sheridan - Exam by Court, Melendres v. Arpaio, 4/24/15
A.
Yes, sir.
Q.
A.
Yes, sir.
Q.
A.
Yes, sir.
Q.
A.
Yes, sir.
Q.
doing?
999
17:08:18
10
A.
Yes, sir.
11
Q.
How often did you report to Sheriff Arpaio about what they
12
were doing?
13
A.
14
Q.
15
A.
16
Q.
You heard him yesterday say that the DOJ was wiretapping me
17
and other judges, and that that was part of that investigation.
18
17:08:26
17:08:41
19
A.
Yes, sir.
20
Q.
21
of the investigation?
22
A.
23
24
that were from my phone and the sheriff's phone in about 2008.
25
17:08:58
17:09:30
(444 of 523)
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Sheridan - Exam by Court, Melendres v. Arpaio, 4/24/15 1000
were breached.
representing us.
Q.
A.
Q.
Okay.
10
A.
11
Q.
Okay.
12
A.
And also there was some information that your e-mail from
13
the court was possibly there -- there might have been an e-mail
14
15
17:10:19
16
17
18
19
17:10:45
20
21
Q.
22
23
17:10:06
17:11:14
I don't want to hear it, but I will let you tell it later
24
So why would
25
17:11:28
(445 of 523)
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Sheridan - Exam by Court, Melendres v. Arpaio, 4/24/15 1001
A.
Mr. Montgomery.
don't remember the years, but it was '07 to '10 for a few
Q.
understand that.
A.
because this has been a few years, and I've had other things on
10
Okay.
And I
17:11:58
When you say '7 to '10 for a few years, I don't -- I didn't
11
17:12:15
12
13
about this a few years ago; it was very much in the media.
14
15
doing that, and he knew that was incorrect, it was wrong, and
16
17
18
19
Q.
20
communication to my computer?
21
A.
22
Q.
23
24
A.
No, sir.
25
Q.
And
17:12:38
And he was
17:13:17
(446 of 523)
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Sheridan - Exam by Court, Melendres v. Arpaio, 4/24/15 1002
A.
us.
credible.
10
11
12
17:13:42
17:14:16
13
14
producing information.
15
16
Q.
17
18
Department of Justice.
You know, with all due respect, we did hear the sheriff say
19
Maybe I misremember.
20
21
22
23
24
A.
25
Q.
Yeah.
17:15:19
17:15:33
(447 of 523)
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Sheridan - Exam by Court, Melendres v. Arpaio, 4/24/15 1003
A.
Q.
A.
He was.
Q.
A.
No, sir.
10
Q.
11
12
A.
13
14
15
came forward that they were not, it was -- and I don't normally
16
17
18
19
20
materialize.
21
Q.
22
A.
Initial.
23
would do, because -- I'll try and give you the two-second
24
version.
25
No, sir.
17:15:48
17:16:04
17:16:29
This is a
17:17:13
(448 of 523)
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Sheridan - Exam by Court, Melendres v. Arpaio, 4/24/15 1004
have one.
information.
He doesn't
17:17:36
Our primary focus, Your Honor, was the fraud, the bank
10
fraud, the -- excuse me, the computer fraud of him hacking into
11
12
Q.
13
investigation was?
14
A.
15
16
Q.
17
Department of Justice.
18
A.
19
Q.
Oh.
20
investigations?
21
A.
I don't --
22
Q.
23
24
25
17:17:57
Some of them
17:18:14
Do
(449 of 523)
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Sheridan - Exam by Court, Melendres v. Arpaio, 4/24/15 1005
A.
I -- I don't remember.
Q.
A.
doing with him, it was really the bank fraud, it was the DOJ
also.
10
So, you know, the DOJ was on our radar screen because,
11
12
13
Q.
I would, too.
14
A.
15
17:19:26
So
16
when you say sign off on it, now, we were working with the
17
18
19
conclusion.
20
17:19:01
21
22
23
24
25
17:19:52
17:20:16
17:20:41
(450 of 523)
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Sheridan - Exam by Court, Melendres v. Arpaio, 4/24/15 1006
Q.
isn't he?
A.
been verified, and you can google his name and find all kinds
So like many
10
Q.
11
12
13
A.
14
Q.
15
A.
16
handled him.
17
Q.
18
19
20
A.
Yes, sir.
21
Q.
22
A.
That's correct.
23
Q.
24
25
17:21:24
17:21:41
17:21:54
17:22:06
(451 of 523)
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A.
Q.
confidential for?
A.
Q.
A.
17:22:26
10
11
Q.
12
13
manual?
14
A.
15
Q.
16
qualifies?
17
A.
I believe so.
18
Q.
19
20
A.
21
Q.
22
detectives to go to Seattle?
23
A.
Yes, sir.
24
Q.
25
A.
17:22:52
17:23:02
17:23:17
17:23:35
(452 of 523)
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Sheridan - Exam by Court, Melendres v. Arpaio, 4/24/15 1008
Q.
A.
Q.
A.
harder when our detectives were there than when they weren't.
Q.
expenses?
A.
Was it worth paying their overtime and travel and all those
10
probably not.
11
Q.
12
13
A.
17:24:07
14
THE COURT:
We
15
16
THE WITNESS:
18
MS. WANG:
THE COURT:
How long is it?
22
23
24
25
Do you
20
21
17:24:27
Thank you.
17
19
17:23:48
MS. WANG:
17:24:40
I'm sorry.
Honor.
THE COURT:
late in the day.
(453 of 523)
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CV07-2513, Melendres v. Arpaio, 4/24/15 Evidentiary Hrg 1018
C E R T I F I C A T E
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s/Gary Moll
(454 of 523)
Case: 15-16440, 08/20/2015, ID: 9654788, DktEntry: 7-2, Page 425 of 494
EXHIBIT 23
(455 of 523)
Case:
Case:
15-16440,
15-71433,
08/20/2015,
05/12/2015,
ID: 9654788,
ID: 9534421,
DktEntry:
DktEntry:
7-2,2,Page
Page426
1 ofof1494
FILED
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAY 12 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
No. 15-71433
DENNIS L. MONTGOMERY,
Petitioner,
v.
ORDER
(456 of 523)
Case: 15-16440, 08/20/2015, ID: 9654788, DktEntry: 7-2, Page 427 of 494
EXHIBIT 24
(457 of 523)
Case: 15-16440, 08/20/2015, ID: 9654788, DktEntry: 7-2, Page 428 of 494
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CV 07-2513-PHX-GMS
Phoenix, Arizona
July 20, 2015
11:03 a.m.
10
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(Status Conference)
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Court Reporter:
Gary Moll
401 W. Washington Street, SPC #38
Phoenix, Arizona 85003
(602) 322-7263
(458 of 523)
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CV07-2513, Melendres v. Arpaio, 7/20/15 Status Conference
THE COURT:
All right.
MR. GOMEZ:
Yes.
THE COURT:
Anyone else?
All right.
MS. WANG:
Thank you.
10
All right.
MS. KIMMINS:
Good morning.
Anyone else?
Lynnette
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MR. CASTILLO:
14
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Cecillia Wang of
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THE COURT:
Anyone else?
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All right.
11:07:24
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witness box.
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fully briefed.
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therefor.
11:07:44
I've reviewed
11:08:06
(459 of 523)
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CV07-2513, Melendres v. Arpaio, 7/20/15 Status Conference 10
first.
Basically, last week the movants -Now, Mr. Popolizio, are you and Mr. Masterson on
MR. POPOLIZIO:
THE COURT:
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MR. POPOLIZIO:
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THE COURT:
I know.
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MR. POPOLIZIO:
11:08:41
Jerry
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11:08:53
All right.
20
last week a motion for stay, which basically said you disagreed
21
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and that you asked that I enter a stay based upon that
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didn't cite any legal authority, and you didn't say why this
25
11:09:08
You
11:09:29
(460 of 523)
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CV07-2513, Melendres v. Arpaio, 7/20/15 Status Conference 11
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detail why I think the motion does not have any merit, let
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Your clients
Sheriff
11:10:53
(461 of 523)
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CV07-2513, Melendres v. Arpaio, 7/20/15 Status Conference 12
judge.
course, the whole story hasn't been told, and I'm not assuming
11:11:07
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parties in the litigation, Mr. Young has set forth that these
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your client will be more difficult the longer this goes on.
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facts which would suggest that your own client and the MCSO
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thereto.
11:11:45
11:12:02
11:12:22
(462 of 523)
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CV07-2513, Melendres v. Arpaio, 7/20/15 Status Conference 13
litigation.
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13
filed yet.
14
evaluation, but based on the matters you put in your reply I've
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MR. POPOLIZIO:
I know
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THE COURT:
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MR. POPOLIZIO:
11:13:27
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argument.
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over the weekend, and that case's name is Fiore versus Apollo
11:13:42
(463 of 523)
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CV07-2513, Melendres v. Arpaio, 7/20/15 Status Conference 14
Education Group.
Friday when we filed the reply, that's why I'm bringing this to
regard to the Advisory Opinion No. 58, and the Committee came
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THE COURT:
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cuts out the Advisory Committee Note, although I did note that
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Back when we
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14
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11:14:04
11:15:14
(464 of 523)
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CV07-2513, Melendres v. Arpaio, 7/20/15 Status Conference 15
authority.
I will tell you in advance that the advisory opinion and what
ago.
If you want to
But
MR. POPOLIZIO:
THE COURT:
10
All right.
Thank you.
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already been made, those clear back in February that have not
15
yet been complied with, those made in May that have not yet
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monitor.
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11:15:30
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11:16:01
That was
11:16:18
(465 of 523)
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CV07-2513, Melendres v. Arpaio, 7/20/15 Status Conference 42
1
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THE COURT:
All right.
MS. IAFRATE:
THE COURT:
MS. IAFRATE:
THE COURT:
Correct.
11:47:47
status conference?
MS. IAFRATE:
THE COURT:
10
Yes.
Thank you.
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MR. GOMEZ:
11:47:59
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defendants' counsel, and with the purpose of, since there had
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classified or sensitive.
11:48:25
At that
11:48:46
11:49:15
(466 of 523)
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CV07-2513, Melendres v. Arpaio, 7/20/15 Status Conference 43
The United States does not know whether there are any
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200-some megabytes.
11:50:24
We would take and copy them at the FBI office and then
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11:50:45
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11:51:04
(467 of 523)
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CV07-2513, Melendres v. Arpaio, 7/20/15 Status Conference 44
THE COURT:
MR. GOMEZ:
We would be
prepared to do that.
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beginning.
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THE COURT:
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11:51:45
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11:51:25
MR. GOMEZ:
11:52:05
19
THE COURT:
All right.
20
MS. IAFRATE:
21
THE COURT:
You may.
22
MR. GOMEZ:
11:52:19
If we are
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11:52:33
(468 of 523)
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CV07-2513, Melendres v. Arpaio, 7/20/15 Status Conference 45
Thank you.
THE COURT:
All right.
MS. IAFRATE:
that said that they were the United States and they were
permission of the CIA and they said no, but they were the
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11:53:06
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documents, then the CIA needs to be the one to say whether they
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told, You may look at, but please don't do anything with them
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11:53:47
And
11:54:03
(469 of 523)
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CV07-2513, Melendres v. Arpaio, 7/20/15 Status Conference 49
1
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MR. KLAYMAN:
have a conflict.
3
4
THE COURT:
All right.
that.
MR. KLAYMAN:
THE COURT:
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All right.
11:57:30
pro hac vice to the other -- all the other -MR. KLAYMAN:
We e-mailed it to
All right.
11:57:43
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you not release documents until such time as you make a ruling
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THE COURT:
11:57:53
11:58:10
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Sheridan used, but those are documents that he took from the
25
It
11:58:27
(470 of 523)
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CV07-2513, Melendres v. Arpaio, 7/20/15 Status Conference 50
documents.
documents taken from the CIA; that possibility has been raised
by the evidence.
What property
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MR. KLAYMAN:
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Mr. Montgomery.
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THE COURT:
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MR. KLAYMAN:
21
THE COURT:
11:59:13
11:59:26
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11:58:42
11:59:44
(471 of 523)
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CV07-2513, Melendres v. Arpaio, 7/20/15 Status Conference 51
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MR. KLAYMAN:
3
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THE COURT:
now.
MR. KLAYMAN:
Honor.
issue.
THE COURT:
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MR. KLAYMAN:
16
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ordinary course.
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12:00:28
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THE COURT:
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21
THE COURT:
22
MR. KLAYMAN:
23
THE COURT:
We --
12:00:37
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12:00:46
(472 of 523)
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CV07-2513, Melendres v. Arpaio, 7/20/15 Status Conference 74
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C E R T I F I C A T E
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s/Gary Moll
(473 of 523)
Case: 15-16440, 08/20/2015, ID: 9654788, DktEntry: 7-2, Page 444 of 494
EXHIBIT 25
(474 of 523)
Case:
Case:
15-16440,
15-72440,
08/20/2015,
08/10/2015,
ID:ID:
9654788,
9641648,
DktEntry:
DktEntry:
7-2,4,Page
Page445
1 ofof35494
(475 of 523)
Case:
Case:
15-16440,
15-72440,
08/20/2015,
08/10/2015,
ID:ID:
9654788,
9641648,
DktEntry:
DktEntry:
7-2,4,Page
Page446
2 ofof35494
NOTICE OF FILING
Putative Intervenor Dennis Montgomery hereby gives notice of filing of the
Emergency Motion to Stay filed in Melendres v. Arpaio, No. 15-16440 (9th Cir.) as
the two appeals are related and intertwined. See Exhibit 1 Emergency Motion for
Stay.
Putative Intervenor Dennis Montgomery has no objection should the Court
wish to consolidate these two appellate actions and respectfully requests oral
argument with regard to the Emergency Motion for Stay and with regard to the
Petition for Writ of Mandamus filed by Petitioner Sheriff Joseph M. Arpaio and
the other petitioners in the related appeal.
(476 of 523)
Case:
Case:
15-16440,
15-72440,
08/20/2015,
08/10/2015,
ID:ID:
9654788,
9641648,
DktEntry:
DktEntry:
7-2,4,Page
Page447
3 ofof35494
Jonathon Moseley
Virginia State Bar No. 41058
Freedom Watch, Inc.
2020 Pennsylvania Avenue N.W., Suite 345
Washington, D.C. 20006
(310) 595-0800
leklayman@gmail.com
Attorney for Plaintiff
Of Counsel
(477 of 523)
Case:
Case:
15-16440,
15-72440,
08/20/2015,
08/10/2015,
ID:ID:
9654788,
9641648,
DktEntry:
DktEntry:
7-2,4,Page
Page448
4 ofof35494
CERTIFICATE OF SERVICE
I hereby certify that on August 10, 2015, I electronically filed and served by
email the foregoing document with the Clerk of the Court and the parties counsel
by using the CM/ECF system, I hereby certify that I have served the following by
email:
(478 of 523)
Case:
Case:
15-16440,
15-72440,
08/20/2015,
08/10/2015,
ID:ID:
9654788,
9641648,
DktEntry:
DktEntry:
7-2,4,Page
Page449
5 ofof35494
(479 of 523)
Case:
Case:
15-16440,
15-72440,
08/20/2015,
08/10/2015,
ID:ID:
9654788,
9641648,
DktEntry:
DktEntry:
7-2,4,Page
Page450
6 ofof35494
212-549-2676
Attorney for Plaintiffs
Anne Lai
UCI School of Law
401 E. Peltason Drive. Suite 3500
Irvine, CA 92616
alai@law.uci.edu
949-824-9894
Jorge M. Castillo
MALDEF
634 S. Spring Street, 11th Fl.
Los Angeles, CA 90014
jcastillo@maldef.org
213-629-2512
Attorney for Plaintiffs
Richard K. Walker
WALKER & PESKIND, PLLC
16100 N. 71st Street, Suite 140
Scottsdale, AZ 85254-2236
rkw@azlawpartner.com
480-483-6336
Attorney for Defendant Maricopa County
/s/ Larry Klayman
Larry Klayman, Esq.
(480 of 523)
Case:
Case:
15-16440,
15-72440,
08/20/2015,
08/10/2015,
ID:ID:
9654788,
9641648,
DktEntry:
DktEntry:
7-2,4,Page
Page451
7 ofof35494
Exhibit 1
(481 of 523)
Case:
Case:
15-16440,
15-16440,
15-72440,
08/20/2015,
08/10/2015,
ID:ID:
9654788,
9641638,
9641648,
DktEntry:
DktEntry:
7-2,4,
5,Page
Page452
1 ofof35
8
28494
(482 of 523)
Case:
Case:
15-16440,
15-16440,
15-72440,
08/20/2015,
08/10/2015,
ID:ID:
9654788,
9641638,
9641648,
DktEntry:
DktEntry:
7-2,4,
5,Page
Page453
2 ofof35
9
28494
(483 of 523)
Case:
Case:
Case:
15-16440,
15-72440,
15-16440,
08/20/2015,
08/10/2015,
08/10/2015,
ID:ID:
ID:
9654788,
9641648,
9641638,
DktEntry:
DktEntry:
DktEntry:
7-2,
4,
5,Page
Page
Page454
10
3 of
ofof28
35
494
39 Drumm Street
San Francisco, CA 94111
cwang@aclu.org
415-343-0775
Attorney for Plaintiff Melendres
Thomas P. Liddy, Esq.
CIVIL SERVICES DIVISION
MARICOPA COUNTY ATTORNEYS OFFICE
222 North Central Avenue, Suite 1100
Phoenix, AZ 85005
liddyt@mcao.maricopa.gov
602-506-8541
Attorney for Defendant Joseph Arpaio and Maricopa County Sheriffs Office
Michele M. Iafrate, Esq.
IAFRATE & ASSOCIATES
649 North Second Avenue
Phoenix, AZ 85003
miafrate@iafratelaw.com
602-234-9775
Attorney for Defendant Joseph Arpaio and Maricopa County Sheriffs Office
Deborah L. Garner, Esq.
IAFRATE & ASSOCIATES
649 North Second Avenue
Phoenix, AZ 85003
dgarner@iafratelaw.com
602-234-9775
Attorney for Defendant Joseph Arpaio and Maricopa County Sheriffs Office
Melvin McDonald
JONES SKELTON & HOCHULI, PLC
2901 N. Central Avenue, Suite 800
Phoenix, AZ 85012-2728
mmcdonald@jshfirm.com
602-263-1700
Attorney for Defendant Sheriff Joseph Arpaio
iii
(484 of 523)
Case:
Case:
Case:
15-16440,
15-72440,
15-16440,
08/20/2015,
08/10/2015,
08/10/2015,
ID:ID:
ID:
9654788,
9641648,
9641638,
DktEntry:
DktEntry:
DktEntry:
7-2,
4,
5,Page
Page
Page455
11
4 of
ofof28
35
494
iv
(485 of 523)
Case:
Case:
Case:
15-16440,
15-72440,
15-16440,
08/20/2015,
08/10/2015,
08/10/2015,
ID:ID:
ID:
9654788,
9641648,
9641638,
DktEntry:
DktEntry:
DktEntry:
7-2,
4,
5,Page
Page
Page456
12
5 of
ofof28
35
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a result, Montgomerys rights have been violated and are continuing to be violated
on a weekly and even daily basis in the case below. The underlying case was
concluded by final judgment on October 2, 2013. (Docs. No. 606, 670.)
As one important example, on July 20, 2015, the presiding judge, the
Honorable G. Murray Snow of the U.S. District Court for the District of Arizona
(District Court) granted a civil motion by the U.S. Department of Justice (DoJ)
to turn over to the U.S. Government the very same documents, data, and things that
the U.S. District Court for the District of Nevada had already ordered DoJ to return
to Montgomery once before. See, Transcript, July 20, 2015, Status Conference,
Melendres v. Arpaio, Page 42-53, primarily Page 53 (Emphases added); Order,
July 24, 2015. (Docket No. 1190.) Montgomerys intellectual property, medical
records protected by the Health Insurance Portability and Accountability Act,
proprietary trade secrets, work product, and personal property have been taken.
The U.S. District Court for the District of Nevada has already ruled that (1)
the data, documents, intellectual property, tangible objects, and personal property
at issue in this case belong to Dennis Montgomery, (2) none of it is classified, (3)
the U.S. Government was required to return it all to Montgomery, and (4) the U.S.
Government had deceived that court. See Dennis Montgomery and the
Montgomery Family Trust v. eTreppid Technologies, LLC, Warren Trepp and the
U.S. Department of Defense, Case Nos. 3:06-CV-00056-PMP-VPC and 3:06-CV-
(486 of 523)
Case:
Case:
Case:
15-16440,
15-72440,
15-16440,
08/20/2015,
08/10/2015,
08/10/2015,
ID:ID:
ID:
9654788,
9641648,
9641638,
DktEntry:
DktEntry:
DktEntry:
7-2,
4,
5,Page
Page
Page457
13
6 of
ofof28
35
494
00145-PMP-VPC, Order, Judge Philip M. Pro, March 19,2007, and In the Mater of
the Search of: The Residence Located at 12720 Buckthorne Lane, Reno, Nevada,
and Storage Units 136, 140, 141, 142 and 143, Double R Storage, 888 Madestro
Drive, Reno, Nevada, Case Nos. 3:06-CV-0263-PMP-VPC and 3:06-MJ-00023VPC, Order, Magistrate Judge Valerie P. Cooke, November 28, 2006 (Nevada
Orders).
Judge Snow did not order seizure documents and things relevant to the
Melendres v. Arpaio case. Judge Snow ordered that all documents relating to
Montgomery be indiscriminately seized and distributed to Plaintiffs counsel, nonparty counsel, and to the DoJ, explicitly acknowledging they might be irrelevant.
Evidentiary hearings (Order, January 16, 2015, Page 2, Doc. No. 856) will
reconvene September 22nd through 25th and September 29th through October 2nd,
2015. Minute Order, July 20, 2015 (Doc. No. 1179). Judge Snow has also
scheduled regular interim hearings at which he typically issues orders, often
without providing notice or due process, and often affecting Montgomery.
As a result, emergency treatment of Montgomerys motion to stay pending
appeal is required.
(iii) When and how counsel for the other parties were notified and whether
they have been served with the motion; or, if not notified and served, why that
was not done.
Counsel for the other parties were notified via email on July 24, 2015,
vi
(487 of 523)
Case:
Case:
Case:
15-16440,
15-72440,
15-16440,
08/20/2015,
08/10/2015,
08/10/2015,
ID:ID:
ID:
9654788,
9641648,
9641638,
DktEntry:
DktEntry:
DktEntry:
7-2,
4,
5,Page
Page
Page458
14
7 of
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494
vii
(488 of 523)
Case:
Case:
Case:
15-16440,
15-72440,
15-16440,
08/20/2015,
08/10/2015,
08/10/2015,
ID:ID:
ID:
9654788,
9641648,
9641638,
DktEntry:
DktEntry:
DktEntry:
7-2,
4,
5,Page
Page
Page459
15
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INTRODUCTION
Montgomery respectfully moves this U.S. Court of Appeals for the Ninth
Circuit (Ninth Circuit) to stay the proceedings. Judge Snow admitted on July 20,
2015, that orders he has issued and continues to issue could be vacated if he later is
recused. It will be impossible to put the genie back in the bottle if the case is not
stayed.
Montgomery seeks to intervene solely to protect his legal and property
rights, which are being run roughshod on by Judge Snow without an opportunity
for him to protect his rights, assert his interests, receive due process, or be heard.
On July 15, 2015, Montgomery filed his Notice of Appeal (Docket No.
1173) appealing from the trial courts -a) Order of May 14, 2015 (Docket No. 1093) denying Pro Hac
Vice Admission of Jonathon Moseley Striking Putative
Intervenor's Motion to Intervene and Striking Putative
Intervenor's Motion to Disqualify. (Moseley being
Montgomerys attorney as an associate to Larry Klayman.)
b) Order of June 10, 2015 (Docket No.1164) Denying Motion for
Disqualification
(489 of 523)
Case:
Case:
Case:
15-16440,
15-72440,
15-16440,
08/20/2015,
08/10/2015,
08/10/2015,
ID:ID:
ID:
9654788,
9641648,
9641638,
DktEntry:
DktEntry:
DktEntry:
7-2,
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5,Page
Page
Page460
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c) Order of July 10, 2014 (Docket No. 1167) Denying Motion For
Reconsideration.
d) All other orders and rulings adverse to and/or which refer or
relate to Putative Intervenor Dennis L. Montgomery.
This Court previously vacated Judge Snows over-use of Justice Department
monitors for matters that have
no bearing on the constitutional rights at stake here. We
therefore vacate these particular provisions and order the
district court to tailor them so as to address only the
constitutional violations at issue. See Milliken, 433 U.S.
at 282.
Melendres v. Arpaio, Record No. 13-16285, U.S. Court of Appeals for the Ninth
Circuit, Opinion April 15, 2015, page 23.
Yet many of the abuses against Montgomerys tangible property and
intellectual property and rights are occurring through Judge Snows orders to his
monitors to seize Montgomerys property and take various actions without notice,
due process, or an opportunity to be heard, such as on April 23, 2015, in the
hearing and by Order, April 27, 2015, (Docket No. 1033). Judge Snow ruled that
his monitors would not be shackled by Defendants constitutional rights. (Doc.
No. 1117-1, Ex. 9., 5/14/15; Transcript at 49:15-21, 51, 56).
It would be impractical for Montgomery to also file a motion for a stay in
the trial court because Judge Snow refused to allow his counsel to enter the case
pro hac vice and for him to intervene in the case.
(490 of 523)
Case:
Case:
15-16440,
15-16440,
15-72440,
08/20/2015,
08/10/2015,
ID:ID:
9654788,
9641638,
9641648,
DktEntry:
DktEntry:
7-2,
5, Page
4,
Page 461
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17
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However, a motion to stay in the trial court below awaiting appeal (Docket
No. 1171) was filed by Defendant Sheriff Joe Arpaio (Arpaio) and Chief Deputy
Gerard Sheridan (Sheridan) (specially appearing) of Arizonas MCSO. On July
20, 2015, by a Minute Order at (Docket No. 1179), Judge Snow denied the motion.
III.
party Sheridan filed a petition for writ of mandamus on August 6, 2015, requiring
Judge Snows recusal. The petition was filed in Joseph Arpaio and Gerard
Sheridan v. U.S. District Court for the District of Arizona and Manuel de Jesus
Ortega Melendres, Case No. 15-72440. As this appeal is related, Montgomerys
motion to stay is also being filed in Case. No. 15-72440 as the Court may consider
consolidating the two appellate actions as related.
Montgomery concurs in and agrees with Arpaios and Sheridans petition,
joins in their petition for the recusal of Judge Snow, and incorporates Arpaios and
Sheridans petition in all respects as if set forth herein in support of his motion for
a stay of this case, and also in support of his appeal directly.
Montgomerys motion for recusal of Judge Snow is virtually identical with
Arpaios and Sheridans petition for writ of mandamus except in only two respects:
(1) Montgomery also explicitly moves that the Ninth Circuit vacate the
orders issued by Judge Snow subsequent to the conflict of interest.
3
(491 of 523)
Case:
Case:
15-16440,
15-16440,
15-72440,
08/20/2015,
08/10/2015,
ID:ID:
9654788,
9641638,
9641648,
DktEntry:
DktEntry:
7-2,
5, Page
4,
Page 462
11 ofof35
18
28
494
mentioned in the case below. Yet in the evidentiary hearing April 21-24, Judge
Snow expanded the case, and sua sponte started attacking Montgomery. See,
Transcript, April 23, 2015, attached.
Judge Snow then denied Montgomerys motions seeking to receive due
process, notice, and an opportunity to be heard guaranteed by the Fifth
Amendment to the U.S. Constitution concerning his property and the due process
clause of the Fourteenth Amendment to the U.S. Constitution.
The lawsuit filed in 2007 terminated on October 2, 2013, in the
Supplemental Permanent Injunction / Judgment Order. (Docs. No. 606, 670.)
Implementation was set for a hearing in April 2015. (See, Order, January 16,
2015, Page 2, Doc. No. 856).
(492 of 523)
Case:
Case:
15-16440,
15-16440,
15-72440,
08/20/2015,
08/10/2015,
ID:ID:
9654788,
9641638,
9641648,
DktEntry:
DktEntry:
7-2,
5, Page
4,
Page 463
12 ofof35
19
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494
V.
STANDARD OF REVIEW
Putative Intervenor requests a stay pending appeal pursuant to Federal Rules
ARGUMENT
A. STANDING OF MONTGOMERY
It has already been decided that the intellectual property, documents, data,
(493 of 523)
Case:
Case:
15-16440,
15-16440,
15-72440,
08/20/2015,
08/10/2015,
ID:ID:
9654788,
9641638,
9641648,
DktEntry:
DktEntry:
7-2,
5, Page
4,
Page 464
13 ofof35
20
28
494
(494 of 523)
Case:
Case:
15-16440,
15-16440,
15-72440,
08/20/2015,
08/10/2015,
ID:ID:
9654788,
9641638,
9641648,
DktEntry:
DktEntry:
7-2,
5, Page
4,
Page 465
14 ofof35
21
28
494
to retain counsel of choice stems from ones right to decide what kind of case he
wishes to present. U.S. v. Nichols, 841 F.2d 1485, 1502 (10th Cir.1988).
Attorneys are not fungible and often the most important decision a
defendant makes in shaping his defense is his selection of an attorney. U.S. v.
Laura, 607 F.2d 52, 56 (3d Cir.1979); Nichols, 841 F.2d at 1502; Glasser v. U.S.,
315 U.S. 60, 75, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942).
Judge Snow denied Moseleys application to be admitted Pro Hac Vice on
unsupported speculation that there could be a conflict of interest. But the record
does not contain any basis for disqualification. Moseley filed a Clarification of
Motion for Admittance Pro Hac Vice of Jonathon A. Moseley, dated May 13,
2015, (Docs. No. 1080, 1081) stating that (emphasis added):
Neither Dennis L. Montgomery nor his counsel are
adverse to Sheriff Arpaio, his deputies, the Cold Case
Posse, or MCSO in any respect, particularly since this
case involves a contempt proceeding over allegations
of profiling illegal immigrants.
No party has moved for disqualification of Moseley as counsel for
Montgomery. No facts have been entered in the record to establish any conflict.
Simply reciting that Moseley represents Arpaio in an unrelated matter does
not establish any conflict of interest.
conflict exists. See Dunton v. County of Suffolk, 729 F.2d 903, 909 (2d Cir.1984),
amended 748 F.2d 69 (2d Cir.1984).
(495 of 523)
Case:
Case:
15-16440,
15-16440,
15-72440,
08/20/2015,
08/10/2015,
ID:ID:
9654788,
9641638,
9641648,
DktEntry:
DktEntry:
7-2,
5, Page
4,
Page 466
15 ofof35
22
28
494
(496 of 523)
Case:
Case:
15-16440,
15-16440,
15-72440,
08/20/2015,
08/10/2015,
ID:ID:
9654788,
9641638,
9641648,
DktEntry:
DktEntry:
7-2,
5, Page
4,
Page 467
16 ofof35
23
28
494
proper way to conduct traffic stops, find probable cause, or the like.
2) Motion to Intervene
Montgomery has a substantial likelihood of prevailing on his appeal on his
motion to intervene. The U.S. Government admits that they do not claim to own
the documents, items, or things claimed and owned by Montgomery. The attorney
representing the DoJ, Raphael Gomez, admitted in open Court on July 20, 2015:
The United States does not know whether there are any
documents in the Montgomery files that are in fact
classified or sensitive, but there is a representation that
there were documents that were of the United States.
Transcript, July 20, 2015, Status Conference, Melendres v. Arpaio, Page 43
(Emphases added) (argument by Raphel Gomez for the DoJ).
MR. GOMEZ: Yes, Your Honor. I believe on May 8th
the Court had issued an order to the defendants'
counsel instructing the defendants' counsel to contact
the United States; actually, the CIA general counsel's
office. At that point, we -- I'm an attorney in the Civil
Division of the Department of Justice in Washington,
D.C., and we were contacted, and pursuant to that
instruction we had spoken to defendants' counsel, and
with the purpose of, since there had been a
representation made that documents contained in what
I'll refer to as the Montgomery documents were either
documents of the United States or documents that -implied were classified or sensitive.
Transcript, July 20, 2015, Status Conference, Melendres v. Arpaio, Page 42
(Emphases added).
That is, Judge Snow ordered Montgomerys property to be handed over to
Raphael Gomez of the DoJ based on the off-chance and mere possibility that there
9
(497 of 523)
Case:
Case:
15-16440,
15-16440,
15-72440,
08/20/2015,
08/10/2015,
ID:ID:
9654788,
9641638,
9641648,
DktEntry:
DktEntry:
7-2,
5, Page
4,
Page 468
17 ofof35
24
28
494
10
(498 of 523)
Case:
Case:
15-16440,
15-16440,
15-72440,
08/20/2015,
08/10/2015,
ID:ID:
9654788,
9641638,
9641648,
DktEntry:
DktEntry:
7-2,
5, Page
4,
Page 469
18 ofof35
25
28
494
recusal, as does Arpaio and Sheridan in their related petition for writ of mandamus
also requesting recusal. Montgomery filed his affidavit under 28 U.S.C. 144 on
May 7, 2015 (Docket No. 1067), and in that pleading also further claimed
essentially the same additional grounds requiring recusal of Judge Snow under 28
U.S.C. 455 as raised by Arpaio and Sheridan.
Accordingly, Montgomery joins in and agrees with the petition by Arpaio
and Sheridan in their arguments for recusal of Judge Snow, and incorporates their
petition by reference herein for the purposes of this motion for a stay.
Montgomery is in agreement with the Defendants Arpaio and Sheridan, but
adds an additional demand for recusal under 28 U.S.C. 144 and also moves this
Court to vacate Judge Snows orders issued while a conflict of interest exists,
particularly as they relate to Dennis Montgomery.
The demands for recusal are timely. Most of the circumstances requiring
recusal were created by Judge Snow himself starting only on April 23, 2015.
The courts strive to eliminate even the appearance of bias. Thus even if
there is no bias in fact, an appearance of bias or prejudice requires recusal if it is
sufficient to raise a question in the mind of 'the average citizen' about a judge's
impartiality. York v. United States, 785 A.2d 651, 655 (D.C. 2001).
Judge Snow decided to make himself, his wife, and Montgomery major
topics. Arpaios lawyers filed an objection to procedures and on the last page also
11
(499 of 523)
Case:
Case:
15-16440,
15-16440,
15-72440,
08/20/2015,
08/10/2015,
ID:ID:
9654788,
9641638,
9641648,
DktEntry:
DktEntry:
7-2,
5, Page
4,
Page 470
19 ofof35
26
28
494
12
(500 of 523)
Case:
Case:
15-16440,
15-16440,
15-72440,
08/20/2015,
08/10/2015,
ID:ID:
9654788,
9641638,
9641648,
DktEntry:
DktEntry:
7-2,
5, Page
4,
Page 471
20 ofof35
27
28
494
Karen Grissom, her husband Dale, and their son Scott encountered Judge
Snows wife, Cheri Snow, in a Someburros restaurant in Tempe, Arizona. Cheri
Snow and Karen Morris (now Grissom) had known each other from childhood and
caught up on news. Dale and Scott report passively listening. Cheri Snow boasted
that her husband was presiding over the trial of Sheriff Joe Arpaio, that Judge
Snow hated Arpaio and will do whatever it takes to get Arpaio out of office. An
investigator confirmed that Judge Snows wife was in the restaurant on that day
and time. See, Transcripts of interviews with Karen Grissom, Dale Grissom, and
Scott Grissom, attached to the motion for recusal of Arpaio and Montgomery.
Neither Judge Snow nor his wife have denied that Cheri Snow volunteered
that Judge Snow hates Arpaio and will do anything to get him out of office, denied
that Judge Snow in fact hates Arpaio or denied that Judge Snow is using the
litigation to embarrass Arpaio in his re-election to remove him from office. Judge
Snow invited the U.S. Attorney to send a prosecutor to monitor this civil case.
The Grissoms have never wavered in their account. The Grissoms are by
their own report and from the investigation non-political, uninterested witnesses
who have never had any relationship with or support for Sheriff Joe Arpaio. Karen
Grissoms recollection in the transcript is the most detailed and specific because, as
Dale Grissom and Scott Grissom report in the transcript, the women were primarily
13
(501 of 523)
Case:
Case:
15-16440,
15-16440,
15-72440,
08/20/2015,
08/10/2015,
ID:ID:
9654788,
9641638,
9641648,
DktEntry:
DktEntry:
7-2,
5, Page
4,
Page 472
21 ofof35
28
28
494
talking to each other catching up on their lives since their childhood acquaintance.
See, Interview Transcripts, id.
Judge Snow has personal knowledge of disputed evidentiary facts
concerning the proceeding. Judge Snow will have or already does have a private
explanation from his own wife of these disputed facts and events.
Judge Snow has made clear that he insists on pursuing the Karen Grissom /
Cheri Snow and the Montgomery investigation as proving some allegations (not
yet identified) against the Defendants in the case below. Judge Snow over-ruled
the Defendants objections to exclude the topics. (Docket No. 1046.)
Therefore, any defense attorney must call Judge Snow and Judge Snows
wife as witnesses in order to present a thorough defense to whatever charges Judge
Snow plans to bring. Judge Snow is likely to preside over the testimony and crossexamination of his own wife, (Docket No. 1117), who will be testifying about him.
Judge Snow simultaneously refuses to exclude the topics, yet claims that his
wife would not offer admissible testimony. These are inextricably linked. Judge
Snows insistence, over objection, that the proceedings below must include the
investigation into what his wife said about Judge Snow being biased necessarily
causes his wifes testimony to become relevant. Without Cheri Snows testimony,
charges or allegations against the Defendants for investigating Karen Grissoms tip
about what Cheri Snow said could not be sustained as relevant issues in the case.
14
(502 of 523)
Case:
Case:
15-16440,
15-16440,
15-72440,
08/20/2015,
08/10/2015,
ID:ID:
9654788,
9641638,
9641648,
DktEntry:
DktEntry:
7-2,
5, Page
4,
Page 473
22 ofof35
29
28
494
15
(503 of 523)
Case:
Case:
15-16440,
15-16440,
15-72440,
08/20/2015,
08/10/2015,
ID:ID:
9654788,
9641638,
9641648,
DktEntry:
DktEntry:
7-2,
5, Page
4,
Page 474
23 ofof35
30
28
494
(504 of 523)
Case:
Case:
15-16440,
15-16440,
15-72440,
08/20/2015,
08/10/2015,
ID:ID:
9654788,
9641638,
9641648,
DktEntry:
DktEntry:
7-2,
5, Page
4,
Page 475
24 ofof35
31
28
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Respectfully submitted,
/s/ Larry Klayman
Larry Klayman, Esq.
General Counsel
Freedom Watch, Inc.
D.C. Bar No. 334581
2020 Pennsylvania Avenue NW, Suite 345
Washington, DC 20006
Telephone: (310) 595-0800
Email: leklayman@gmail.com
Jonathon Moseley
Virginia State Bar No. 41058
Freedom Watch, Inc.
2020 Pennsylvania Avenue N.W., Suite 345
Washington, D.C. 20006
(310) 595-0800
leklayman@gmail.com
Attorney for Plaintiff
Of Counsel
17
(505 of 523)
Case:
Case:
15-16440,
15-16440,
15-72440,
08/20/2015,
08/10/2015,
ID:ID:
9654788,
9641638,
9641648,
DktEntry:
DktEntry:
7-2,
5, Page
4,
Page 476
25 ofof35
32
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494
CERTIFICATE OF COMPLIANCE
I certify that this petition complies with the page limitations of Fed. R. App.
27(d), and that this motion complies with the typeface requirements of Fed. R.
App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6)
because it has been prepared in a proportionally spaced typeface using Microsoft
Word in 14-point Times New Roman style.
CERTIFICATE OF SERVICE
I hereby certify that on August 10, 2015, I electronically filed and served by
email the foregoing document with the Clerk of the Court and the parties counsel
by using the CM/ECF system, I hereby certify that I have served the following in
the manner indicated:
(506 of 523)
Case:
Case:
15-16440,
15-16440,
15-72440,
08/20/2015,
08/10/2015,
ID:ID:
9654788,
9641638,
9641648,
DktEntry:
DktEntry:
7-2,
5, Page
4,
Page 477
26 ofof35
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Phoenix, AZ 85014
dpochoda@acluaz.org
602-650-1854
Attorney for Plaintiffs
Cecilia D. Wang
ACLU FOUNDATION
IMMIGRANTS RIGHTS PROJECT
39 Drumm Street
San Francisco, CA 94111
cwang@aclu.org
415-343-0775
Attorney for Plaintiff Melendres
(507 of 523)
Case:
Case:
15-16440,
15-16440,
15-72440,
08/20/2015,
08/10/2015,
ID:ID:
9654788,
9641638,
9641648,
DktEntry:
DktEntry:
7-2,
5, Page
4,
Page 478
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Attorney for Defendant Joseph Arpaio and Maricopa County Sheriffs Office
Melvin McDonald
JONES SKELTON & HOCHULI, PLC
2901 N. Central Avenue, Suite 800
Phoenix, AZ 85012-2728
mmcdonald@jshfirm.com
602-263-1700
Attorney for Defendant Sheriff Joseph Arpaio
Anne Lai
UCI School of Law
401 E. Peltason Drive. Suite 3500
Irvine, CA 92616
alai@law.uci.edu
949-824-9894
Jorge M. Castillo
MALDEF
634 S. Spring Street, 11th Fl.
Los Angeles, CA 90014
jcastillo@maldef.org
213-629-2512
Attorney for Plaintiffs
Richard K. Walker
20
(508 of 523)
Case:
Case:
15-16440,
15-16440,
15-72440,
08/20/2015,
08/10/2015,
ID:ID:
9654788,
9641638,
9641648,
DktEntry:
DktEntry:
7-2,
5, Page
4,
Page 479
28 ofof35
35
28
494
21
(509 of 523)
Case: 15-16440, 08/20/2015, ID: 9654788, DktEntry: 7-2, Page 480 of 494
EXHIBIT 26
(510 of 523)
Case: 15-16440, 08/20/2015, ID: 9654788, DktEntry: 7-2, Page 481 of 494
3
4
5
6
7
8
9
)
)
)
)
)
)
)
)
)
)
)
No. CV 07-2513-PHX-GMS
Phoenix, Arizona
August 11, 2015
9:04 a.m.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Court Reporter:
Gary Moll
401 W. Washington Street, SPC #38
Phoenix, Arizona 85003
(602) 322-7263
(511 of 523)
Case: 15-16440, 08/20/2015, ID: 9654788, DktEntry: 7-2, Page 482 of 494
CV07-2513, Melendres v. Arpaio, 8/11/15 Status Conference 11
anybody, that the ACLU and Covington and the law firms before
that have borne the brunt of this litigation, along with the
plaintiffs.
4
5
MS. WANG:
THE COURT:
09:12:01
that motion.
10
11
12
13
context.
14
09:12:13
15
16
here.
17
18
09:12:32
19
that intervention.
20
21
22
09:13:00
23
I'm going to take it into account, and I'm not sure that I need
24
to.
25
(512 of 523)
Case: 15-16440, 08/20/2015, ID: 9654788, DktEntry: 7-2, Page 483 of 494
CV07-2513, Melendres v. Arpaio, 8/11/15 Status Conference 12
previous briefs.
that.
09:13:55
10
11
12
13
14
15
16
17
18
19
20
21
from the CIA, and that both Chief Deputy Sheridan -- and by
22
23
Mr. Montgomery made to the MCSO -- and that both the sheriff
24
and the chief deputy have indicated that that material appears
25
09:14:19
09:14:45
09:15:07
09:15:29
(513 of 523)
Case: 15-16440, 08/20/2015, ID: 9654788, DktEntry: 7-2, Page 484 of 494
CV07-2513, Melendres v. Arpaio, 8/11/15 Status Conference 13
and yet I asked him how anything about this action has to do
The only
10
this Court, and I asked him how that in any way impaired
11
12
13
14
09:15:50
09:16:10
15
16
17
18
19
20
21
officials, and phone taps that may have taken place as against
22
23
24
25
09:16:28
09:16:44
09:17:07
(514 of 523)
Case: 15-16440, 08/20/2015, ID: 9654788, DktEntry: 7-2, Page 485 of 494
CV07-2513, Melendres v. Arpaio, 8/11/15 Status Conference 14
materials, you could get anything from 2009 and 2010 on them,
that question and does not answer that question in his reply.
09:17:27
10
11
12
witness and I'm not even saying he has relevant testimony, but
13
14
I think suggest strongly that Mr. Klayman himself may have even
15
16
17
09:17:52
09:18:10
18
19
20
21
counsel.
22
his law firm, for reasons I've stated, including the fact that
23
24
25
09:18:35
09:18:58
(515 of 523)
Case: 15-16440, 08/20/2015, ID: 9654788, DktEntry: 7-2, Page 486 of 494
CV07-2513, Melendres v. Arpaio, 8/11/15 Status Conference 15
10
11
12
13
this point.
14
15
MS. WANG:
16
MR. MASTERSON:
17
MR. WALKER:
18
19
09:19:36
09:19:55
Honor.
THE COURT:
All right.
20
21
22
23
that respect.
24
25
09:19:18
09:20:09
We
09:20:26
(516 of 523)
Case: 15-16440, 08/20/2015, ID: 9654788, DktEntry: 7-2, Page 487 of 494
CV07-2513, Melendres v. Arpaio, 8/11/15 Status Conference 35
1
2
THE COURT:
All right.
MR. GOMEZ:
THE COURT:
10
11
12
material.
13
15
16
are those hard drives, but it appears that that, at least for
17
We don't have
18
19
because Ms. Iafrate contacted you and said that MCSO had this
20
21
22
hard drive that you now have, it may also be true with respect
23
25
09:47:45
14
24
09:47:22
09:48:01
09:48:22
09:48:40
(517 of 523)
Case: 15-16440, 08/20/2015, ID: 9654788, DktEntry: 7-2, Page 488 of 494
CV07-2513, Melendres v. Arpaio, 8/11/15 Status Conference 36
don't.
10
11
12
13
hard drive.
14
09:49:17
15
16
17
18
19
20
21
22
contained.
23
09:49:04
09:49:31
09:49:51
24
25
09:50:08
(518 of 523)
Case: 15-16440, 08/20/2015, ID: 9654788, DktEntry: 7-2, Page 489 of 494
CV07-2513, Melendres v. Arpaio, 8/11/15 Status Conference 37
concern.
know, for months while you decide whether or not you're going
to look at them.
09:50:26
But we're not going to sit here while you decide, you
10
MR. GOMEZ:
11
THE COURT:
12
MR. GOMEZ:
09:50:39
13
speaking to, you know, from the United States, have expressly,
14
and reaffirmed yesterday, that they want to take this one step
15
at a time and look at the two Banker Boxes and the one
16
17
18
19
THE COURT:
All right.
09:51:05
20
21
22
MR. GOMEZ:
23
THE COURT:
09:51:24
That we
24
25
the extent that they have reasonable concerns that there may be
09:51:36
(519 of 523)
Case: 15-16440, 08/20/2015, ID: 9654788, DktEntry: 7-2, Page 490 of 494
CV07-2513, Melendres v. Arpaio, 8/11/15 Status Conference 38
MR. GOMEZ:
THE COURT:
All right.
5
6
Do we get to
know who these client entities are, or is that top secret for
some reason?
9
10
11
THE COURT:
09:51:59
12
13
14
15
16
17
THE COURT:
18
MR. GOMEZ:
19
20
21
but I'll have to confirm the actual number, if the entity can't
22
23
24
from disclosure.
25
THE COURT:
09:51:47
09:52:26
09:52:48
09:53:13
(520 of 523)
Case: 15-16440, 08/20/2015, ID: 9654788, DktEntry: 7-2, Page 491 of 494
CV07-2513, Melendres v. Arpaio, 8/11/15 Status Conference 39
disclose that today, but an executive order I'm not sure binds
this Court.
We'll see.
MR. GOMEZ:
THE COURT:
know is:
reviewing?
MR. GOMEZ:
10
11
12
13
14
15
THE COURT:
09:53:57
16
MR. GOMEZ:
17
THE COURT:
18
19
20
21
defendants.
09:54:08
23
this.
24
material?
25
09:53:41
on September 22nd.
22
09:53:27
MS. IAFRATE:
09:54:23
(521 of 523)
Case: 15-16440, 08/20/2015, ID: 9654788, DktEntry: 7-2, Page 492 of 494
CV07-2513, Melendres v. Arpaio, 8/11/15 Status Conference 40
information.
THE COURT:
MS. IAFRATE:
THE COURT:
MS. WANG:
I have.
THE COURT:
Okay.
10
11
material is.
12
13
move forward.
09:54:46
14
MR. GOMEZ:
15
THE COURT:
Okay.
16
hard drives, Ms. Iafrate, Mr. Masterson, Ms. Wang, do you want
17
18
19
20
21
22
for --
23
09:54:33
believe.
8
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09:55:00
MS. IAFRATE:
09:55:17
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them, and I think that waiting until the eve of the next trial
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09:55:34
(522 of 523)
Case: 15-16440, 08/20/2015, ID: 9654788, DktEntry: 7-2, Page 493 of 494
CV07-2513, Melendres v. Arpaio, 8/11/15 Status Conference 41
THE COURT:
MS. WANG:
THE COURT:
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MS. IAFRATE:
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to make a copy?
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09:56:05
THE COURT:
Should I file
09:56:34
09:56:19
Okay.
Why don't
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09:56:51
(523 of 523)
Case: 15-16440, 08/20/2015, ID: 9654788, DktEntry: 7-2, Page 494 of 494
CV07-2513, Melendres v. Arpaio, 8/11/15 Status Conference 72
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s/Gary Moll