United States District Court, D. Arizona
Manuel de Jesus Ortega Melendres, on behalf of himself and all others similarly situated; et al. Plaintiffs,
Joseph M. Arpaio, in his official capacity as Sheriff of Maricopa County, Arizona; et al. Defendants. and United States of America, Plaintiff-Intervenor,
ORDER RE CRIMINAL CONTEMPT
Honorable G. Murray Snow United States District Judge.
Order is entered pursuant to 18 U.S.C. § 401 and Rule 42
of the Federal Rules of Criminal Procedure.
reasons set forth below, the Court refers Sheriff Joseph M.
Arpaio to another Judge of this Court, to be randomly
selected by the Clerk’s office, for a determination of
whether he should be held in criminal contempt for: (1) the
violation of this Court’s preliminary injunction of
December 23, 2011; (2) failing to disclose all materials that
related to the Montgomery investigation in violation of: (a)
this Court’s specific order entered orally on April 23,
2015 (Doc. 1027 at Tr. 625-60), and (b) this Court’s
orders to comply with the Monitor’s requests for
documents including the Monitor’s follow-up ITR
(investigative team requests) for this material, (Doc. 606
¶ 145; Doc. 700 at Tr. 71-73; Doc. 795 at 20); and/or
(3) his intentional failure to comply with this Court’s
order entered orally on April 23, 2015 that he personally
direct the preservation and production of the Montgomery
records to the Monitor, (Doc. 1027 at Tr. 625-60).
Deputy Sheridan is likewise referred to the same Judge for a
determination of whether he should be held in criminal
contempt for: (1) concealing from the Monitor, the parties,
and this Court, the existence of the 1459 IDs and the related
PSB investigation into them in violation of this
Court’s orders of October 2, 2013, (Doc. 606
¶¶ 145-47), May 14, 2014, (Doc. 700 at Tr. 71-77),
November 20, 2014, (Doc. 795 at 16-21), December 9, 2014,
(Doc. 825 at 2), and February 12, 2015, (Doc. 881 at 2); and
(2) intentionally withholding the 50 Montgomery hard drives
from production to the Court, (Doc. 1027 at Tr. 625-60).
Bailey is also referred to the same Judge for a determination
of whether he should be held in criminal contempt for
concealing from the Monitor, the parties, and this Court the
existence of the 1459 IDs and the related PSB investigation
into them in violation of this Court’s orders of
October 2, 2013, (Doc. 606 ¶ 145), May 14, 2014, (Doc.
700 at Tr. 71-73), November 20, 2014, (Doc. 795 at 16-21),
December 9, 2014, (Doc. 825 at 2), and February 12, 2015,
(Doc. 881 at 2).
Iafrate is likewise referred to the same Judge for a
determination of whether she should be held in criminal
contempt for concealing from the Monitor, the parties, and
this Court the existence of the 1459 IDs and the related PSB
investigation into them, and her instructions to her client
to misstate facts as to the IDs in violation of this
Court’s orders of October 2, 2013, (Doc. 606 ¶
145), May 14, 2014, (Doc. 700 at Tr. 71-73), November 20,
2014, (Doc. 795 at 16-21), December 9, 2014, (Doc. 825 at 2),
and February 12, 2015, (Doc. 881 at 2).
extent that Chief Deputy Sheridan and/or Captain Bailey may
have committed other contemptuous acts, the Court determines
either that the remedies imposed in the civil contempt order
will adequately serve the purposes of this Court or that
referral of the matter to other agencies will provide the
most appropriate resolution to the matter.
Court has further determined, for the reasons set forth
below, that it is not appropriate to prosecute as criminal
contempt the multiple intentional false statements made by
Sheriff Arpaio and Chief Deputy Sheridan. The United States
Attorney is presumably already aware of this Court’s
findings of fact with respect to Sheriff Arpaio and Chief
Deputy Sheridan’s untruthful testimony. Whether any
resulting criminal prosecutions are merited is a matter
appropriately left to the discretion of the Department of
contempt serves to vindicate the Court’s authority by
punishing the intentional disregard of that authority.
Lasar v. Ford Motor Co., 399 F.3d 1101, 1110 (9th
Cir. 2005) (citation omitted); United States v.
Asay, 614 F.2d 655, 659 (9th Cir. 1980). Non-parties can
be prosecuted for criminal contempt if they are under a
parties’ control and have actual notice and knowledge
of and are bound by the Orders that have been violated.
United States v. Baker, 641 F.2d 1314, 1314-15 (9th
Cir. 1981). If appropriate, a court can impose both criminal
and civil contempt on the same party for the same conduct.
United States v. Rose, 806 F.2d 931, 933 (9thCir.
1986). Generally, however, a trial court should do so only if
the civil remedy is deemed inadequate. Young v. U.S.
ex rel. Vuiton et Fils S.A., 481 U.S. 787, 801 (1987).
need for a criminal contempt order must be considered in the
context of each case, taking into account such matters as the
surrounding controversy, prior warnings from the trial judge,
and the conduct of the contemnor. See Hawk v. Al
Cardoza, 575 F.2d 732, 735 (9thCir. 1978). To impose
criminal contempt on a party for the violation of a court
order, the order must be clear and definite and the contemnor
must willfully disobey it. See Rose, 806 F.2d at
Sheriff Joseph M. Arpaio
Violation of this Court’s December 2011 Preliminary
on the extensive testimony set forth at the hearing, the
Court has already concluded under the civil standard of proof
that Sheriff Arpaio knew of the December 2011 preliminary
injunction and intentionally disobeyed it. (See Doc.
1677 ¶¶ 1-65.)
brief summary, in December 2011, still well prior to trial,
this Court entered a preliminary injunction prohibiting the
Defendants from enforcing federal civil immigration law or
from detaining persons they believed to be in the country
without authorization but against whom they had no state
charges. It also ordered that the mere fact that someone was
in the country without authorization did not provide, without
more facts, reasonable suspicion or probable cause to believe
that such a person had violated state law.
Arpaio admitted that he knew about the preliminary injunction
upon its issuance and thereafter. (Id. ¶ 15.)
Sheriff Arpaio’s attorney stated to the press that the
Sheriff disagreed with the Order and would appeal it, but
would also comply with it in the meantime. (Id.
¶ 14.) Sheriff Arpaio’s attorney and members of
his command staff repeatedly advised him on what was
necessary to comply with the Order. However, the Court found
that Sheriff Arpaio intentionally did nothing to implement
that Order. (Id. ¶ 65.) The MCSO
continued to stop and t\detain persons based on factors
including their race, (id. at ¶ 161), and
frequently arrested and delivered such persons to ICE when
there were no state charges to bring against them,
(id. ¶¶ 157-61). Sheriff Arpaio did so
based on the notoriety he received for, and the campaign
donations he received because of, his immigration enforcement
activity. (Id. ¶¶ 58-60.)
Sheriff Arpaio had previously taken some of his arrestees to
the Border Patrol when ICE refused to take them, he
determined that referral to the Border Patrol would serve as
his “back-up” plan for all similar circumstances
going forward. (Id. ¶¶ 40-41.) Sheriff
Arpaio’s failure to comply with the preliminary
injunction continued even after the Sheriff’s appeal to
the Ninth Circuit Court of Appeals was denied months later.
(Id. ¶¶ 42-44.) When Plaintiffs accused
Sheriff Arpaio of violating the Order, he falsely told his
lawyers that he had been directed by federal agencies to turn
over persons whom he had stopped but for whom he had no state
charges. (Id. ¶¶ 50-52.) Nevertheless,
Sheriff Arpaio’s lawyer still advised him that he was
likely operating in violation of the preliminary injunction.
(Id. ¶ 53.) Although Sheriff Arpaio told
counsel on multiple occasions either that the MCSO was
operating in compliance with the Order, or that he would
revise his practices so that the MCSO was operating in
compliance with the Order, he continued to direct his
deputies to arrest and deliver unauthorized persons to ICE or
the Border Patrol. (Id. ¶¶ 55-57.)
not been possible for the MCSO to track the number of persons
who were stopped or arrested because of Sheriff
Arpaio’s violation of this Order over the ensuing
17-months that it was ignored. (See Id. ¶¶
Failure to Produce the Montgomery Material
this case, the Court has reminded Sheriff Arpaio that he is
the party to this lawsuit, not his subordinates, and thus the
failure of his subordinates to carry out this Court’s
orders would amount to his own failure to do so.
(See Doc. 700 at Tr. 71-73; Doc. 1027 at Tr. 632.)
When Sheriff Arpaio gave his April 23, 2015 testimony on the
Montgomery investigation, he testified that the MCSO
possessed some documents and materials pertaining to it. To
assign personal responsibility for the preservation and
production of such materials, including all electronic data,
the Court ordered the Sheriff to personally take charge of
preserving, retrieving and disclosing the documents.
THE COURT: . . . I want you to direct your people to put a
hold on it immediately and preserve it. And that includes any
documentation or numbers that would relate to Mr.
Montgomery’s confidential status. You understand that?
[ARPAIO]: Your Honor, are you referring to this investigation
with the monitors and ---
THE COURT: No, no. I’m referring to the investigation
that Mr. Montgomery was undertaking with Mr. Mackiewicz, Mr.
Anglin, Mr. Zullo, anybody else from your staff, anybody else
from the MCSO, or anyone else from the posse. I want all
records that in any way relate to it, all electronic data or
anything else, or the financing, funding of that operation,
all phone records, e-mails, reports, I want it all preserved.
And I think I will send the monitor to begin taking
possession of those records and we’ll do it
confidentially, imminently. But I don’t want in the
interim any of those records lost inadvertently or otherwise.
You understand what
THE COURT: And you’ll so direct your people?
THE COURT: All right. Thank you, sir.
(Doc. 1677 ¶ 351.)
this Court’s order that Sheriff Arpaio personally
direct compliance with this Court’s preservation and
production orders with regard to the Montgomery materials,
the Sheriff failed to do so. He subsequently testified that
he “wasn’t personally involved” with this
Court’s order regarding the preservation and the
production of the Montgomery materials and that he did not
recall having any discussion with anyone about the order.
(Id. ¶¶ 354-55; see also Doc.
1417 at Tr. 1589 (Chief Deputy Sheridan’s assumption
that Sheriff Arpaio intended to delegate to him the
production of the Montgomery materials).)
is probable cause to believe that the Sheriff intentionally
failed to produce all of the documents he had in response to
this Court’s order. Specifically, at the time the Court
issued the above order, the Sheriff knew that Montgomery had
given the MCSO 50 hard drives that Montgomery claimed to be
the master database of records that he had supposedly
purloined from the CIA. (Doc. 1677 ¶ 353; Doc. 1455 at
Tr. 2064; Doc. 1457 at Tr. 2331-32; Doc. 1458 at Tr.
2561-63.) To reveal those hard drives would have revealed
that they did not contain the materials that Montgomery had
described. It also may have called into question some of
Sheriff Arpaio’s other ongoing investigative activities
in which he had partnered with Montgomery, such as the
alleged illegitimacy of President Barack Obama’s birth
certificate. (See Doc. 1677 ¶¶ 360-63.) It
would also reveal that the MCSO actually took possession of,
and intended to use, material that it believed to have been
stolen from the CIA.
Sheriff Arpaio nor anyone else at the MCSO disclosed the hard
drives in response to this Court’s order or the
Monitor’s subsequent follow-up ITRs. Only months later,
during the July 2015 site visit, did the Monitor
independently discover the existence of the hard drives,
which had been placed in a locker in the property and
evidence department under a Departmental Report number
designed to shield their disclosure. (Id. ¶
356.) This failure to produce the 50 hard drives violates
this Court’s April 23, 2015 directive requiring such
production. It further violates orders requiring the Sheriff
and the MCSO to comply with all document requests made by the
Monitor as well as the directive that the Sheriff cooperate
with the Monitor and withhold no information from him. (Doc.
700 at Tr. 71-73.)
Sheriff now claims that he “wasn’t personally
involved” in implementing the Court’s order.
(Doc. 1677 ¶¶ 354-55.) The circumstances provide
probable cause to believe otherwise. Even if it were as the
Sheriff claims, however, the Sheriff still violated this
Court’s orders to personally direct the preservation
and production of all such documents.
The Sheriff and Chief Deputy’s False Testimony
is a crime. 18 U.S.C. § 1621. So is a false declaration
to the court. 18 U.S.C. § 1623. Perjury can also provide
a separate basis for a criminal contempt charge, but only
when it results in an actual obstruction or attempt at
obstruction of justice. In re Michael, 326 U.S. 224,
227-28 (1945); Ex parte Hudgings, 249 U.S. 378,
383-84 (1919); see also § 401. The law also
requires that even false testimony given in an attempt to
obstruct justice cannot provide the basis for a separate
criminal contempt charge unless “from the testimony
itself it is apparent that there is a refusal to give
information which in the nature of things the witness should
know.” Collins v. United States, 269 F.2d 745,
750 (9th Cir. 1959).
Court has found, under the civil standard of proof, that
Sheriff Arpaio and Chief Deputy Sheridan intentionally made a
number of false statements under oath. There is also probable
cause to believe that many if not all of the statements were
made in an attempt to obstruct any inquiry into their further
wrongdoing or negligence. Nevertheless, as expressed above,
“the test is not whether the testimony was perjurious
or false but whether without the aid of extrinsic evidence
the testimony is ‘so plainly inconsistent, so
manifestly contradictory, and so conspicuously unbelievable
as to make it apparent from the face of the record itself
that the witness has deliberately concealed the truth and has
given answers which are replies in form only and which, in
substance, are as useless as a complete refusal to
answer.’” Collins, 269 F.2d at 750 (9th
Cir. 1959) (citation omitted).
their testimony is internally inconsistent in many respects,
the falsity of that testimony is best demonstrated by
evidence extrinsic to their own testimony, rather than
“from the testimony itself.” Id. Thus,
though the false testimony may provide a potential basis for
a criminal prosecution, it cannot be separately charged as
Criminal Contempt Charges Are Warranted for Sheriff
been more extensively set forth by the Court in its Findings
of Fact, (Doc. 1677), Sheriff Arpaio and Chief Deputy
Sheridan have a history of obfuscation and subversion of this
Court’s orders that is as old as this case and did not
stop after they themselves became the subjects of civil
immediately after the Court entered its original October 2,
2013 injunctive order, (Doc. 606), the Court had to amend and
supplement the order and enter further orders because: (1)
the Sheriff refused to comply in good faith with the
order’s requirement that he engage in community
outreach, (Doc. 670; see also Doc. 1677 ¶¶
368, 368 n.13), and (2) the Sheriff and his command staff
were mischaracterizing the content of the order to MCSO
deputies and to the general public, (Doc. 680; see