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Case 2:16-cr-01012-SRB Document 98 Filed 03/24/17 Page 1 of 4

1 A. Melvin McDonald, Bar #002298


Linda K. Tivorsak, Bar #024789
2 JONES, SKELTON & HOCHULI, P.L.C.
40 North Central Avenue, Suite 2700
3 Phoenix, Arizona 85004
Telephone: (602) 263-1700
4 Fax: (602) 200-7847
mmcdonald@jshfirm.com
5 ltivorsak@jshfirm.com
6 Mark D. Goldman
GOLDMAN & ZWILLINGER, PLLC
7 17851 North 85th Street, Suite 175
Scottsdale, AZ 85255
8 Telephone: 480-626-8483
Fax: 480-502-7500
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Attorneys for Defendant Joseph M. Arpaio
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11 UNITED STATES DISTRICT COURT
12 DISTRICT OF ARIZONA
13 United States of America, NO. 2:16-CR-01012-SRB
14 Plaintiff, Defendant Arpaios Motion to
Preclude Alleged Victim
15 v. Testimony
16 Joseph M. Arpaio,
17 Defendants.
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Defendant Joseph M. Arpaio moves to preclude the testimony of any so
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called victim witness in this matter. The Government has listed two witness in this
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action whose sole testimony appears to be based on their victim status.1 Neither of these
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individuals, however, have any bearing on the issues to be litigated at trial, whether
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Defendant Arpaio violated Judge Snows preliminary injunction and if so, did he violate it
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intentionally. Accordingly, Defendant Arpaio moves to preclude their testimony in this
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To prevent the early disclosure of the identity of these witnesses, Defendant
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26 Arpaio does not provide their names or any specific facts related to their disclosures by
the Government. Defendant Arpaio submits that the specific factual information related
27 to these witnesses is not necessary to the Courts legal decision on this issue, but should
the Court require more information, Defendant Arpaio can submit that information under
28 seal with the Court.
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Case 2:16-cr-01012-SRB Document 98 Filed 03/24/17 Page 2 of 4

1 matter.
2 I. VICTIM WITNESSES TESTIMONY IS NOT RELEVANT AND IS
UNFAIRLY PREJUDICIAL TO A CHARGE OF CRIMINAL CONTEMPT
3 FOR VIOLATION OF A PRELIMINARY INJUNCTION.2
4 Evidence is relevant if: (a) it has any tendency to make a fact more or less
5 probable than it would be without the evidence; and (b) the fact is of consequence in
6 determining the action. Fed. R. Evid. 401. Here, the sole issue to be tried whether Joseph
7 M. Arpaio should be held in criminal contempt for willful disobedience of Judge Snows
8 preliminary injunction of December 23, 2011. [Doc. 36]. In criminal contempt willful
9 disobedience must be proved beyond a reasonable doubt. Falstaff Brewing Corp. v.
10 Miller Brewing Co., 702 F.2d 770, 782 (9th Cir. 1983). Willfulness in this context
11 means a deliberate or intended violation, as distinguished from an accidental, inadvertent,
12 or negligent violation of an order. Id. Here, any testimony and evidence provided by a
13 purported victim witnesses do not, in any way, make it more or less probable that
14 Defendant Arpaio made a deliberate or intended violation of the Courts December 23,
15 2011 preliminary injunction. Because their testimony cannot be of consequence to the
16 determination in this action, the Court should preclude any testimony and evidence
17 provided by victim witnesses in this action.
18 In addition, even assuming this testimony is relevant, the Court should
19 preclude it as unfairly prejudicial and a waste of time under Fed. R. Evid. 403. The term
20 unfair prejudice, as to a criminal defendant, speaks to the capacity of some concededly
21 relevant evidence to lure the factfinder into declaring guilt on a ground different from
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23 As a threshold matter, Defendant Arpaio is cognizant of the Courts admonition
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to the parties not to file any pretrial Motions in Limine. However, this Motion is not
24 intended to limit evidence or testimony presented during trial, rather, it is intended
preclude introduction of testimony and evidence prior to trial. Moreover, although the
25 concerns of the rules of evidence are relaxed in a bench trial context, they are not
eliminated. See U.S. Sec. & Exch. Comm'n v. Jensen, 835 F.3d 1100, 1116 (9th Cir. 2016)
26 (recognizing a clear risk of unfair prejudice in the context of a bench trial under Rule
403). Finally, should the Court determine that this Motion is improper, Defendant Arpaio
27 submits that the Court should considered it as bench memo for the Courts consideration
to the objection that will be raised at trial toward any victim witness testimony during
28 trial.
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Case 2:16-cr-01012-SRB Document 98 Filed 03/24/17 Page 3 of 4

1 proof specific to the offense charged. Old Chief v. United States, 519 U.S. 172, 180
2 (1997). Here, permitting the Government to parade in front of the Court witnesses who
3 claim they were unlawfully detained and deported under Arpaios alleged violation of the
4 Courts preliminary injunction would be substantially unfair and a waste of the Courts
5 time. The sole purpose of this irrelevant testimony, is to inflame the Courts sense of
6 passion and attempt to persuade it to adjudicate this action on something other than what
7 the law requires and other than the merits of the case. Moreover, given the utter lack of
8 relevance this testimony has on the issue before the court, as explained above, admitting
9 this kind of testimony would constitute unfair prejudice. Accordingly, Defendant Arpaio
10 believes that even if the Court somehow finds that these purported victim witnesses
11 testimony is admissible, it should be precluded under Rule 403, Fed. R. Evid.
12 II. CONCLUSION.
13 Based on the foregoing, Defendant Arpaio moves to preclude the testimony
14 of any victim witness in this matter because it is irrelevant to the Courts determination
15 in this action, unfairly prejudicial, and a waste of this Courts time.
16 RESPECTFULLY SUBMITTED this 24th day of March 2017.
17 JONES, SKELTON & HOCHULI, P.L.C.
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By /s/ A. Melvin McDonald
19 A. Melvin McDonald
Linda K. Tivorsak
20 40 North Central Avenue, Suite 2700
Phoenix, Arizona 85004
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GOLDMAN & ZWILLINGER
22 Mark D. Goldman
17851 North 85th Street, Suite 175
23 Scottsdale, AZ 85255

24 Attorneys for Defendant Joseph M. Arpaio

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Case 2:16-cr-01012-SRB Document 98 Filed 03/24/17 Page 4 of 4

1 CERTIFICATE OF SERVICE
2 I hereby certify that on this 24th day of March 2017, I electronically filed

3 the foregoing filing with the Clerk of Court through the CM/ECF System which will

4 send notification of such filing to the attorneys of record for the defendants.

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/s/ Diana Weeks
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