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Melendres v. Arpaio

United States District Court, D. Arizona

August 19, 2016

Manuel de Jesus Ortega Melendres, on behalf of himself and all others similarly situated; et al. Plaintiffs,
v.
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.

         This Order is entered pursuant to 18 U.S.C. § 401 and Rule 42 of the Federal Rules of Criminal Procedure.

         For the 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).

         Chief 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).

         Captain 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).

         Michele 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).

         To the 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.

         The 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 Justice.

         I. ANALYSIS

         Criminal 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.[1] Young v. U.S. ex rel. Vuiton et Fils S.A., 481 U.S. 787, 801 (1987).

         The 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 933.

         A. Sheriff Joseph M. Arpaio

         1. Violation of this Court’s December 2011 Preliminary Injunction

         Based 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.)

         In 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.

         Sheriff 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.)

         Since 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.)

         It has 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. ¶¶ 157-63.)

         2. Failure to Produce the Montgomery Material

         Throughout 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 I’m saying?

[ARPAIO]: Yes.

THE COURT: And you’ll so direct your people?

[ARPAIO]: Yes.

THE COURT: All right. Thank you, sir.

(Doc. 1677 ¶ 351.)

         Despite 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).)

         There 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.

         Neither 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.)

         The 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.

         3. The Sheriff and Chief Deputy’s False Testimony

         Perjury 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).

         This 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).

         Although 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 contemptuous.

         4. Criminal Contempt Charges Are Warranted for Sheriff Arpaio

         As has 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 contempt.

         Almost 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 also Doc. 1677 ¶ 367). Both of these revisions increased the duties of the appointed Monitor at the expense of county taxpayers.

         Within one month of those revisions, the Defendants disclosed to the Court the arrest, suicide, and subsequent discovery of misconduct of Deputy Ramon “Charley” Armendariz who had been a significant witness at the trial of the underlying matter. Among other things, the disclosure of Armendariz’s misconduct eventually resulted in the determination that: (1) the Sheriff had not complied with his discovery obligations in the underlying action, (see Doc. 1677 ¶¶ 213-17); (2) that MCSO supervisors had long been aware of Armendariz’s problematic behavior and misconduct and had not appropriately supervised Armendariz and many other deputies; (3) the MCSO was routinely depriving members of the Plaintiff class of their property and retaining it without justification; (4) the Sheriff had done nothing to implement this Court’s 2011 preliminary injunctive order; and (5) the Sheriff was not investigating the allegations of misconduct in good faith-especially those that pertained to him or to members of his command staff.

         Sheriff Arpaio and Chief Deputy Sheridan intentionally manipulated the investigations they initiated in response to the misconduct revealed by the Armendariz discovery to engineer pre-determined results, (id. ¶¶ 609-47), to prevent effective investigations, (id. ¶¶ 424-34), to cause investigations to be untimely, (id. ¶¶ 574-83), and to fail to follow up on appropriate allegations, (id. ¶¶ 648-54). Moreover, the investigations were conducted pursuant to policies that discriminated against the Plaintiff class. (Id. ¶¶ 509-14.)

         Although the Monitor pointed out many investigative flaws early on, they were never corrected nor even recognized as flaws. (Id. ¶¶ 655-69.) In fact, it was not until November 2014 that the MCSO finally informed the Court that the videotapes found in Armendariz’s garage demonstrated that the MCSO had done nothing to implement this Court’s December 23, 2011 preliminary injunction.[2] Shortly after that discovery, Sheriff Arpaio and Chief Deputy Sheridan, among others, became the subjects of civil contempt proceedings. Thereafter, the Sheriff, Chief Deputy Sheridan, and members of their command staff misstated facts to both the MCSO investigators and those of the Monitor team. (See, e.g., id. ¶¶ 15, 15 n.4, 337, 517-19.) Disciplinary processes were further subverted by appointing a biased decision-maker. (Id. ¶¶ 439-55, 484-89.) Despite this Court’s order that the Sheriff keep the Court updated on the initiation and completion of the IA investigations, (Doc. 795 at 17), he did not timely or adequately do so. ...


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