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No. 15-16440
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MANUEL DE JESUS ORTEGA MELENDRES, ET AL.,


Plaintiffs-Appellees
v.
JOSEPH M. ARPAIO,
Defendant-Appellant
and
DENNIS L. MONTGOMERY,
Putative Intervenor.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF ARIZONA
2:07-cv-02513-GMS
The Honorable G. Murray Snow
United States District Judge
PLAINTIFFS-APPELLEES RESPONSE IN OPPOSITION TO
EMERGENCY MOTION FOR STAY ON APPEAL
Stanley Young
Michelle L. Morin
COVINGTON & BURLING LLP
333 Twin Dolphin Drive, Suite 700
Redwood shores, CA 94065-1418
Telephone: (650) 632-4700
Facsimile: (650) 632-4800
syoung@cov.com
mmorin@cov.com

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)

Attorneys for Plaintiffs-Appellees


MANUEL DE JESUS ORTEGA MELENDRES, ET AL.

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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

Jorge Martin Castillo


MEXICAN AMERICAN LEGAL AND
EDUCATIONAL FUND
634 South Spring Street, 11th Floor
Los Angeles, CA 90014
Telephone: (213) 629-2512
Facsimile: (213) 629-0266
jcastillo@maldef.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

Attorneys for Plaintiffs-Appellees


MANUEL DE JESUS ORTEGA MELENDRES, ET AL.

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TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................... ii
STATEMENT OF RELEVANT FACTS ................................................................. 1
1.

Selected Procedural History ................................................................. 1

2.

Testimony and Documents Produced Regarding MCSOs


Investigation ......................................................................................... 2

3.

Montgomerys Previous Motions to Intervene and to Recuse the


District Court ........................................................................................ 4

4.

Sheriff Arpaios Motions Seeking Recusal and Stay ........................... 7

5.

Order on Discoverability of MCSO Documents Allegedly


Provided by Montgomery..................................................................... 7

ARGUMENT ............................................................................................................ 9
I.

The Emergency Motion Should Be Denied Because


Montgomery Lacks Standing to Intervene in Either the District
Court or the Appellate Proceedings. .................................................... 9

II.

The Emergency Motion Should Be Denied Because


Montgomery Seeks Review of Matters Not Yet Considered by
the District Court. ............................................................................... 14

III.

The Emergency Motion Duplicates Other Pending and


Resolved Motions, Yet Cites No Changed Circumstances
Warranting Separate Consideration. .................................................. 14

IV.

The Emergency Motion Should Be Denied Because The


Weight of the Nken Factors Does Not Warrant a Stay. ..................... 15

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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Putative intervenor Dennis Montgomery (Montgomery), through his


Emergency Motion for Stay on Appeal (the Emergency Motion, Dkt. 5), again
seeks the district courts recusal, and further asks this Court to stay the district
court proceedings pending reconsideration of his request. Yet 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. For these and the additional reasons
set forth herein, the motion should be denied.
STATEMENT OF RELEVANT FACTS1
1.

Selected Procedural History

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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In February 2015, on a motion by Plaintiffs, the Court ordered MCSO,


Sheriff Arpaio, Chief Deputy Sheriff Sheridan, and others in MCSO to show cause
why they should not be held in civil contempt for violating several court orders,
including the December 23, 2011 preliminary injunction and the courts discovery
orders. Id. at 3-4 (discussing Dkt. 880 (Attached as Ex. 1)). Arpaio and Sheridan
admitted to civil contempt, and a show-cause hearing was held in April 2015,
during which Plaintiffs put on evidence as to the facts underlying the contempt,
including whether Arpaios admitted contempt was an isolated incident or reflected
a pattern of resistance on his part or by MCSO to the courts directives. The Court
indicated that this latter issue was important from a remedial perspective. Id. at 6
(citing No. CV07-2513, Apr. 23, 2015 Tr. 635:12-18 (Attached as Ex. 21)).
2.

Testimony and Documents Produced Regarding MCSOs


Investigation

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.

Montgomerys Previous Motions to Intervene and to Recuse the


District Court

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.

Sheriff Arpaios Motions Seeking Recusal and Stay

Defendant Sheriff Arpaio and non-party contemnor Gerard Sheridan also


filed a motion to recuse the district court. No. CV07-2513, Dkt. 1117 (Attached as
Ex. 8). That motion was denied, as was a motion to stay pending Ninth Circuit
appeal of the order. No. CV07-2513, Dkt. 1164 (Attached as Ex. 13); July 20, 2015
Tr. 9:20-15:8 (Attached as Ex. 24) (denying Dkt. 1171 (Attached as Ex. 17),
Sheriff Arpaios motion to stay); see also Dkt. 1175 (Attached as Ex. 18)
(plaintiffs opposition to motion to stay). On August 6, 2015, Sheriff Arpaio and
Sheridan filed a petition for a writ of mandamus in this Court, requesting that the
district court be compelled to recuse himself from further proceedings. No. 1572440. That petition is pending, and Montgomery has filed a notice of filing
suggesting he desires to intervene in that matter. No. 15-72440, Dkt. 4 (Attached as
Ex. 25).
5.

Order on Discoverability of MCSO Documents Allegedly Provided


by Montgomery

The district court has continued to hold status conferences on a variety of


discovery issues, in anticipation of the continued contempt hearing scheduled to
proceed on September 22, 2015. One such issue has been the discoverability of
certain materials in MCSOs possession relating to Montgomerys investigations
while employed as MCSOs confidential informant. Montgomerys statements to
the MCSO had raised the possibility that the information he provided to MCSO

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included classified or sensitive information, or information that should have


remained the property of the U.S. Government. No. CV07-2513, July 20, 2015 Tr.
42:14-45:14 (Attached as Ex. 24). When this issue came to light in the district
court, the documents and information at issue were in the MCSOs possession and
controlnot Montgomerys. The district court determined that the information
was discoverablerelevant, at minimum, to the ongoing contempt proceedings
and specifically to the appropriate remedy for civil contempt by the Defendants,
which has already been admitted. A central concern at the remedy stage is to
ensure defendants future compliance with the district courts orders, taking into
account a long record of recalcitrant conduct. Notably, Defendants investigation
into ways to undermine the courts authority with spurious claims of conspiracy is
inconsistent with such compliance. And any disclosure of any information that
actually warrants confidential treatment will be pursuant to a protective order
prohibiting sharing the information with anyone outside the context of the
litigation.
Because of the potentially classified status of the documents, a
representative of the U.S. Government was notified, and the documents provided
by Montgomery to MCSO were made available to the U.S. Government for a
determination of whether the documents were in fact classified or otherwise the
property of the United States. Id. This disclosure for government inspection was

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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.

The Emergency Motion Should Be Denied Because Montgomery


Lacks Standing to Intervene in Either the District Court or the
Appellate Proceedings.
Montgomerys motion should be denied because he lacks Article III

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-

Plaintiffs refer to and incorporate by reference the arguments in the Opposition to


Montgomerys Notice of Filing (Motion to Intervene). Plaintiffs intend to move
to dismiss Montgomerys pending appeals, No. 15-16440 and 15-16626, as well.

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judgment proceedings in this case or testimony involving the allegations of


contempt of the Courts injunction brought by the Plaintiffs.). He is not a
contemnor, nor (upon information and belief) a defendant in any related criminal
case. The district court has made no findings against Montgomery, and its denial of
Arpaios and Sheridans recusal motion does not cause Montgomery any personal
or individual injury. He claims to desire to intervene to protect his property rights,
but no property in Montgomerys possession has been ordered seized or
confiscated, and all the information or documents in MCSOs possession and
allegedly provided by Montgomery have been ordered produced subject to orders
to all recipients regarding preservation of those documents confidentiality.
Montgomerys alleged property interests relating to this case appear to be
premised upon his status as the source of discoverable documents and
electronically-stored information he placed in MCSOs possession. But at the July
20, 2015 status conference, his counsel Mr. Klayman was unable to define any
property interest in the information being disclosed, other than by citing rulings by
a Nevada district court that held Montgomery had certain property interests in
documents at issue in the Nevada litigation. No. CV07-2513, July 20, 2015 Tr.
49:13-51:18 (Attached as Ex. 24); see also Dkt. 5 at v-vi (identifying Nevada
Orders). But, as the district court pointed out at the July 20 status hearing, the
Nevada orders issued in 2006 or 2007, before Montgomery allegedly collected the

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information at issue in this case in 2009-2010 and provided it to MCSO in 2014,


and therefore do not relate to the documents in MCSOs possession, that have been
ordered produced in this case. No. CV07-2513, July 20, 2015 Tr. 50:14-51:18
(Attached as Ex. 24). Mr. Klayman offered no response. Id. at 51:5-8 (I dont
have that information, Your Honor. I dont have it. But we want an opportunity to,
in a systematic way, put forward a brief to this Court on that issue.). Despite again
being offered the opportunity to offer a response in his reply in support of Mr.
Klaymans motion for admission pro hac vice, Montgomery did not do so, and has
not offered any brief to the district court on this issue. His brief seeking an
emergency stay from this Court does no better. Dkt. 5 at v-vi.
None of these theoretical property interests confer upon Montgomery the
constitutional standing to intervene as to the contempt proceedings in the district
court. The documents ordered produced in this case are MCSO documents that are
part of an investigation that MCSO commissioned and paid for. They have been in
MCSOs possession for months. Montgomery has not claimed that he lent them to
MCSO or that MCSO has any obligation to give them back. If these materials are
indeed Montgomerys property, he should sue the MCSO to get them back, rather
than trying to force his (and his attorneys) way into this lawsuit. See, e.g., No.
CV07-2513, Dkt. 1223 (Attached as Ex. 20), Reply of Larry Klayman to
Opposition of Plaintiffs to Counsels Motion to Appear Pro Hac Vice at 4

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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.

The Emergency Motion Should Be Denied Because Montgomery


Seeks Review of Matters Not Yet Considered by the District Court.
The only issue the district court has decided against Montgomery is the

discretionary denial of pro hac vice applications filed by Montgomerys attorneys,


who are not admitted to practice in the District of Arizona. Though Montgomery
might have standing to contest these collateral pro hac vice determinations, he is
unlikely to prevail. See infra, Section IV. Furthermore, his appeal of those orders is
no emergency warranting stay of the entire district court litigation. This Courts
consideration of Montgomerys appeal should not encompass substantive review of
Montgomerys motion to intervene in the district court proceedings, as the district
court has not yet ruled on that question. Granting Montgomerys motion to stay the
district court proceedings would prematurely decide this matter, preempting the
authority of the district court to rule on this issue in the first instance.
III.

The Emergency Motion Duplicates Other Pending and Resolved


Motions, Yet Cites No Changed Circumstances Warranting Separate
Consideration.
Montgomerys motion should be denied for the additional reason that it is

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.

The Emergency Motion Should Be Denied Because The Weight of the


Nken Factors Does Not Warrant a Stay.
Even if Montgomery had standing to request a stay of the district court

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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thus impeding the orderly administration of Justicenor be readily answerable to


the court, denial of pro hac vice status is appropriate. United States v. Ries, 100
F.3d 1469, 1471 (9th Cir. 1996).
Third, analysis of the harms factors counsels against a stay. Montgomery has
not shown that he will be irreparably injured absent a stay. His property in
MCSOs possession is subject to MCSOs discovery obligations and is being
handled extremely cautiously by the district court, which has ordered production of
these materials to be subject to clear restrictions against public dissemination by
any party. There is no reason to suggest that the protective orders in the district
court will be ineffective.
Moreover, Montgomery has failed to show that plaintiffs class will not be
harmed by a stay, or that the public interest favors a stay. This case has been active
for years. Defendants in the case below violated the constitutional rights of the
Plaintiffs class members and have admitted to civil contempt. The contempt
proceedings, which are focused on the particulars of how the contemnors violated
the district courts orders, and relatedly, on determining the proper remedy, have
revealed that Sheriff Arpaio and his subordinates paid no heed to numerous orders
of this Court, that MCSO has shown little interest in administering discipline to the
persons responsible, and that Defendants violated Plaintiffs constitutional rights in
ways beyond those shown at trial. According to the most recent Monitor report

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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.

Dated: August 20, 2015

By /s/ Stanley Young


Stanley Young
syoung@cov.com
Michelle L. Morin
mmorin@cov.com
Hyun S. Byun
hbyun@cov.com
COVINGTON & BURLING LLP
333 Twin Dolphin Drive, Suite 700
Redwood Shores, CA 94065-1418
Telephone: (650) 632-4700
Facsimile: (650) 632-4800
Rebecca A. Jacobs
rjacobs@cov.com
COVINGTON & BURLING LLP
1 Front Street
San Francisco, CA 94111-5356
Telephone: (415) 591-7036
Facsimile: (415) 955-6566
Priscilla G. Dodson
pdodson@cov.com
COVINGTON & BURLING LLP
One City Center
850 Tenth Street NW
Washington, DC 20001-4956
Telephone: (202) 662-6000

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Facsimile: (202) 662-6291


Dan Pochoda
dpochoda@acluaz.org
ACLU FOUNDATION OF
ARIZONA
3707 N. 7th St., Ste. 235
Phoenix, AZ 85014
Telephone: (602) 650-1854
Facsimile: (602) 650-1376
Anne Lai
alai@law.uci.edu
401 E. Peltason, Suite 3500
Irvine, CA 92697-8000
Telephone: (949) 824-9894
Facsimile: (949) 824-0066
Cecillia D. Wang
cwang@aclu.org
ACLU FOUNDATION
Immigrants Rights Project
39 Drumm Street
San Francisco, California 94111
Telephone: (415) 343-0775
Facsimile: (415) 395-0950
Andre Segura
asegura@aclu.org
ACLU FOUNDATION
Immigrants Rights Project
125 Broad Street, 17th Floor
New York, NY 10004
Telephone: (212) 549-2676
Facsimile: (212) 549-2654
Jorge Martin Castillo
jcastillo@maldef.org
MEXICAN AMERICAN LEGAL
DEFENSE AND EDUCATIONAL

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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.

Date: August 20, 2015

/s/ Stanley Young


STANLEY YOUNG

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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.

Date: August 20, 2015

/s/ Stanley Young


STANLEY YOUNG

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Manuel De Jesus Ortega Melendres, Et Al.


15-16440 Index of Materials
Exhibit

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

No. CV07-2513, Dkt. 880 - Order to Show Cause


No. CV07-2513, Dkt. 1057 - Dennis L. Montgomerys Motion
for Intervention as of Right
No. CV07-2513, Dkt. 1060 - Order Denying Application of
Attorney for Admission Pro Hace Vice from Jonathon A.
Moseley
No. CV07-2513, Dkt. 1067 - Intervenor Dennis L.
Montgomerys Motion to Disqualify Judge G. Murray Snow
Under 28 U.S.C. 114
No. CV07-2513, Dkt. 1080 - Clarification of Motion for
Admittance Pro Hac Vice of Jonathon A. Moseley
No. CV07-2513, Dkt. 1093 - Order Denying Application of
Attorney for Admission Pro Hace Vice from Jonathon A.
Moseley
No. CV07-2513, Dkt. 1112 - Motion for Reconsideration of
Motion for Admittance Pro Hac Vice of Jonathon A. Moseley
No. CV07-2513, Dkt. 1117 - Motion for Recusal or
Disqualification of District Court Judge G. Murray Snow
No. CV07-2513, Dkt. 1120 - Order re Motion for Recusal or
Motion to Disqualify
No. CV07-2513, Dkt. 1145 - Sheriff Joseph Arpaio and Chief
Deputy Gerard Sheridans Response to Putative Intervenor
Dennis Montgomerys Supplement to Motion for
Reconsideration
No. CV07-2513, Dkt. 1150 - Response in Opposition to Sheriff
Arpaio and Chief Deputy Sheridans Motion for Recusal or
Disqualification of the Court
No. CV07-2513, Dkt. 1150-1 - 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]
No. CV07-2513, Dkt. 1164 - Order Denying Motion for
Recusal or Disqualification
No. CV07-2513, Dkt. 1166 - 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
No. CV07-2513, Dkt. 1167 - Order Denying Motion for
Reconsideration of Motion for Admittance Pro Hac Vice of
Jonathon A. Moseley
No. CV07-2513, Dkt. 1170 - Fourth Report of Independent
Monitor for the Maricopa County Sheriffs Office (excerpts)

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Manuel De Jesus Ortega Melendres, Et Al.


15-16440 Index of Materials
Exhibit

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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1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

8
9
10

Manuel de Jesus Ortega Melendres, on


behalf of himself and all others similarly
situated; et al.

11

ORDER TO SHOW CAUSE

Plaintiffs,

12

v.

13

Joseph M. Arpaio, in his individual and


official capacity as Sheriff of Maricopa
County, AZ; et al.

14

No. CV-07-02513-PHX-GMS

15

Defendants.

16
17
18
19
20
21
22
23
24
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

prohibited MCSO from detaining individuals in order to investigate civil violations of

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

immigration law. (Id. at 7.) Moreover, Hispanic appearance, an inability to speak

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

occupants. (Id. at 6.)

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

authority over the enforcement and implementation of that order.

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

held a number of hearings to address the repeated mischaracterization and condemnation

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

pending appeal, be distributed within MCSO. (Docs. 680, 684.)

19

On May 14, 2014, Defendants informed the Court that a former member of the

20

Human Smuggling Unit, Deputy Charley Armendariz, was found to be in possession of

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

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.)

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

recordings. (Id. at 24.)

16

In light of the inappropriate activity observable on Deputy Armendarizs

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

Deputy Sheridan, to twenty-seven Departmental Commandersincluding the supervisor

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

existing recordings rather than surrender them to MCSO leadership.

Even so, the ensuing investigations unearthed previously undisclosed recordings

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

deputies were also confiscating items of personal propertysuch as identifications,

15

license plates, Mexican currency and passports, credit cards, cell phones, purses, and

16

religious shrinesfrom individuals detained in conjunction with immigration

17

enforcement activities. These items were apparently routinely retained by deputies,

18

destroyed, or deposited in collection bins in the various administrative districts of MCSO.

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

Armendariz videotapes resulted in administrative interviews with MCSO personnel that

24

have apparently revealed that Defendants, as a matter of regular practice and operation,

25

continued actively enforcing federal immigration law by conducting immigration

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

its preliminary injunction. Plaintiffs previously contacted Defendants in October 2012

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about suspected violations of the injunction after MCSO published News Releases

pertaining to three immigration enforcement endeavors. (Doc. 843, Ex. A, at A1A5.)

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

A court of the United States shall have power to punish by


fine or imprisonment, or both, at its discretion, such contempt
of its authority, and none other, as

14

...

15

(3) Disobedience or resistance to its lawful writ, process,


order, rule, decree, or command.

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

See Fed. R. Civ. P. 65(d)(2) (defining scope of individuals bound by a court


order to include the parties, the parties officers, agents, servants, employees, and
attorneys; and other persons who are in active concert or participation with the parties
and their officers, agents, etc., provided they receive actual notice of the order); Fed. R.
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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,

544 F.2d 396, 404 (9th Cir. 1976)).

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

reasonable step to comply. Sekaquaptewa, 544 F.2d at 406. In assessing whether an

14

alleged contemnor took every reasonable step, a district court may consider a history of

15

noncompliance. Stone, 968 F.2d at 857. A partys subjective intent is irrelevant to a

16

finding of civil contempt.3 Id. at 856.

17

A courts exercise of its contempt authority must be restrained by the principle

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

(internal quotation marks omitted). If contemptuous conduct is punished criminally,

21

Federal Rule of Criminal Procedure 42(a) requires the appointment of a federal

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

In their Request for an Order to Show Cause, as supplemented by the telephonic

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

At its December 4, 2014 hearing, the Court expressed concern whether, if a

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

individuals possibly affected by their contempt of the preliminary injunction.

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

criminal proceedings that are separate from this matter.

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

terms of the preliminary injunction:

19

Preliminary Injunction Violations

1.

Maricopa County Sheriffs Office

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

the preliminary injunction.

While it continued this immigration enforcement activity in violation of the

injunction, MCSO also wrongfully believed that it could consider Hispanic ancestry in

making law enforcement decisionssuch as whom to detain to investigate immigration

violations. In addition to a Fourth Amendment violation, this error in belief would have

resulted in the violation of the Fourteenth Amendment rights of persons of Hispanic

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

deputies confiscated items of personal propertysuch as identifications, license plates,

13

credit cards, cell phones, purses, Mexican currency and passports and religious shrines

14

from individuals detained in conjunction with immigration enforcement activities and

15

who were members of the Plaintiff class. These items were apparently routinely kept by

16

deputies, destroyed, or deposited in collection bins in the various administrative districts

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

Defendants have identified an e-mail from Casey to Chief Deputy Sheridan,


Executive Chief (Retired) Brian Sands, Chief MacIntyre, and Lieutenant Sousa regarding
the injunction shortly after its filing. (Doc. 804 at 56.)
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Plaintiffs have identified sufficient evidence confirming the occurrence of

violations of this Courts injunction. The Armendariz videotapes, for example,

demonstrate that Deputy Armendariz participated in immigration enforcement well after

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

videotapes resulted in an acknowledgement by Defendants that the HSU continued to

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

Findings of Fact and Conclusions of Law. (Doc. 804 at 5.)

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

preliminary injunction).) On September 20, 2012, MCSO deputies apparently detained

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

Ex. B, at A8.) This course of actiondetaining individuals based solely on suspected

28

civil immigration violations pending an inquiry to federal authoritieswould have been

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in direct contradiction of the terms of the preliminary injunction. This is true regardless

of whether deputies believed to be operating at the direction of federal officers, to the

extent that obedience necessitated conduct that violated this Courts Orders. (See id., Ex.

B, at 23.)

2.

Sheriff Joseph M. Arpaio

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

No. 2-12-cv-00981-ROS).) A front-page article published in the Arizona Republic on

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

obey its terms in the meantime.7

18

Plaintiffs have proffered evidence that Arpaio failed to take reasonable steps to

19

implement the preliminary injunctions proscriptions. See Sekaquaptewa, 544 F.2d at

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

as saying Regardless of the Obama Administration[]s policy, I am going to continue to

enforce all of the illegal immigration laws, (id. at 8), despite the preliminary injunction

prohibiting him from doing so.

Similarly, according to another MCSO press release, on September 26, 2012

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

Ex. 2, at 9 (News Release, Sheriffs Deputies Execute Search Warrant at Construction

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

Alien From Sheriffs Deputies Since September, October 9, 2012).)

20

Sheriff Arpaios public pronouncements, in conjunction with MCSOs admission

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

despite the federal government revoking MCSOs 287(g) authorization in 2009, he

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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questioning by defense counsel, Sheriff Arpaio testified to some instances in which

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.

Chief Deputy Gerald Sheridan

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

responsibility to disseminate such information. (Id.)

24

Chief Deputy Sheridans deposition testimony in United States v. Maricopa

25

County, provided by Plaintiffs, appears to be inconsistent with these statements. Under

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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No. 2-12-cv-00981-ROS).) Sheridan concedes, however, that he never discussed this

purported delegation with Sands. (Id.) Neither MCSO nor Sheridan took any steps to

ensure MCSOs compliance with the injunction. (Doc. 840 at 4.)

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.

Executive Chief Brian Sands

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

execution, Sands allegedly understood it to be the attorneys responsibility to

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

Sands at 185:1220, Maricopa Cnty., No. 2-12-cv-00981-ROS).) Therefore, it appears

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

from defense counsel.

17

5.

Deputy Chief John MacIntyre

18

Deputy Chief John McIntyre acknowledges that he received notice of the

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

believed to be under no obligation to implement the preliminary injunction within

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

duties that he now contests. (See Doc. 838.)

6.

Lieutenant Joseph Sousa

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

officers in his division.

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

Sheriff Arpaio have had no difficulty communicating their enforcement priorities

22

throughout the department, the nature of an injunction is such that compliance is

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

2013pursuant to a subsequent orderDefendants implemented a new policy . . . to

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

justifies, in part, the very necessity of this Order to Show Cause.

11

In evaluating the appropriateness of a contempt order, Defendants record of

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

having read this Courts orders, were repeating Sheridans mischaracterizations to

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

mischaracterizations of this Courts orders, therefore, is not an example of past

of

the

memorandum

correcting

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their

previous

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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

respond to discovery requests. As the Advisory Committee explains, [i]f primary

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).

Pre-Trial Discovery Violations

16

During the pre-trial phase of litigation Plaintiffs submitted a number of formal

17

discovery demands, including requests for admissions, requests for documents, and

18

interrogatories, for records on MCSOs traffic stops:

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23
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25
26
27
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Describe all documents that an MCSO officer may request,


review, reference or create during, or as a result of, a Routine
Traffic Stop, including the purposes of each document
identified and the factors that guide the exercise of an
officers discretion, if any, to request such documents from a
driver or passenger.
(Pls. 1st Set Interrogs. at 5.)
If incident histories or summaries of the traffic stops
conducted in the above-listed operations are not contained
with MCSOs computer aided dispatch (CAD) database that
was produced to Plaintiffs, please explain in detail: (1) what
documents would reflect those traffic stops; (ii) how such
documents are created and maintained; and (iii) who would
have access to, or control over, those documents.
(Pls. 2d Set Interrogs. at 4.)

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[Produce] [a]ll documents relating to all traffic stops


performed by every MCSO supervisor, officer, posse member
or volunteer for years 2005 to present
that may include one or
more of the following [information]8. . . [and] [a]ll documents
relating to MCSOs policies, practices, instructions, or
training pertaining to traffic stops of any type. . . .

1
2
3
4

(Pls. 1st Req. Produc. at 78.)

[Produce] [a]ll documents relating to MCSOs Human


Smuggling Unit, Illegal Immigration and Interdiction Unit . . .
or volunteer posses as they pertain to . . . MCSOs
enforcement of federal immigration law, state immigration
law . . . and [t]he performance of Routine Traffic Stops.

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

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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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information of any type is transmitted, recorded, or preserved.


The term document also means every copy of a document
where such copy is not an identical.

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(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

does not constitute a contemptuous violation of Defendants pre-trial discovery

obligations.

In addition to the named Defendants, Deputy Chief MacIntyre is also ordered to

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

subsequent crime suppression operations. Deputy Chief MacIntyre is an attorney who

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

standard practice upon receiving requests for the production


of MCSO documents in litigation or requests to preserve
MCSO documents in litigation . . . [is] to forward such
requests for handling to the MCSO Legal Liaison Division,
and the appropriate personnel within the MCSO that . . . may
have documents potentially responsive to the particular
request.

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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.

Failure to Cooperate with May 14, 2014 Oral Orders

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

collection protocol to retrieve outstanding recordings, such as those made by Armendariz,

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.

Maricopa County Sheriffs Office

The Maricopa County Sheriffs Office is responsible for its leaders apparent

10

sharing of confidential information discussed under seal with non-participants, in

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

investigation and to discourage the destruction of evidence by culpable parties within

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

Trombi nor any of the twenty-seven MCSO commanders he subsequently notified by

19

memorandum were present at this hearing.

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

retrieval course of action

25
26
27
28

is a thought-through plan that is executed very quickly,


because this is all, likely, already through part of the
department, in which you can quietly gather up such material,
such data, and that you can determine where it was held,
when it was held, and if any particular officer says it was
deleted, when that deletion occurred, and from where. Or
destruction, if it was held on DVDs like Armendarizs.

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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,

Im going to direct the monitor to work with you on a plan


that he can approve thats your best thinking about how you
can, without resulting in any destruction of evidence, gather
all the recordings, and then based on what you find, and/or
maybe beginning before you can assess what you find,
depending upon your thoughts, you result in an appropriate
and thorough investigation.

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(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 Joseph Arpaio

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

Monitor would play:

The Court:

All right. And you will cooperate completely


with my monitor.

Arpaio:

Yes, I

The Court:

And no information will be withheld from


him. . . . You will cooperate with the monitor,
Sheriff?

Arpaio:

Yes. If we have some differences . . . we will


bring that forward and try to alleviate any
problems.

The Court:

And do that in a timely fashion. But withto


me. But in the meantime, I believe that all
records and all activity pursuant to any of these
investigations is under his authority. And Mr.
Casey, if you have any problem with that, its
time to let me know now.

Casey:

No.

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(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 Gerald Sheridan.

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

commanding officers that countermanded the Courts order and preemptively

undermined the arrangement subsequently agreed to in consultation with the monitoring

team. (Doc. 803 at 59.)

III.

Remedies

Civil contempt sanctions are imposed to coerce obedience to a court order, or to

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

should be accompanied by conditions by which the contempt judgment may be purged.

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

and criminal contempt. Rylander, 714 F.2d at 1001.

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

number of suggestions for providing remuneration to the individuals harmed by

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

contempt is charged will be of chief interest to the Court if Defendants, or their

28

subordinates, are ultimately adjudged to be in contempt of court.

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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

Plaintiffs requests for expedited discovery in anticipation of an evidentiary hearing in

11

these matters.

12

IT IS THEREFORE ORDERED setting an evidentiary hearing for April 21, 22,

13

23, and 24, 2015. Proceedings will begin daily at 9:00 a.m. in Courtroom 602 of the

14

Sandra Day OConnor Courthouse at 401 W. Washington Street, Phoenix, Arizona

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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IT IS FURTHER ORDERED that the Clerk of the Court is DIRECTED to

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

provided to the United States Attorney for the District of Arizona.

Dated this 12th day of February, 2015.

7
8
9

Honorable G. Murray Snow


United States District Judge

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

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11
12

Manuel de Jesus Ortega Melendres, on


behalf of himself and all others similarly
situated; et al.

13

ORDER

Plaintiffs,

14

v.

15

Joseph M. Arpaio, in his individual and


official capacity as Sheriff of Maricopa
County, AZ; et al.

16

No. CV-07-2513-PHX-GMS

17

Defendants.

18
19

At the Status Conference today the Court mentioned receiving an Application of

20

Attorney for Admission to Practice Pro Hac Vice Pursuant to LRCiv 83.1(b)(2) from Mr.

21

Jonathon A. Moseley who practices in Virginia. The application was accompanied by

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

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indicates he is a staff attorney working for the public interest law firm Freedom Watch,

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Inc. and that he seeks to intervene in this action on behalf of Dennis Montgomery,

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Freedom Watch apparently represents Mr. Montgomery in Florida defamation litigation.

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In the letter Mr. Moseley is apparently critical of the testimony of Sheriff Arpaio or Chief

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Deputy Sheridan or both.

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

period, and in providing his explanation he thought it would be preferable to avoid

mentioning third parties in the public court files.

provided [the additional information] to counsel to allow them to fulfill their

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

He nevertheless avows that he

Curiae brief for Sheriff Joe Arpaio by attorney Larry Klayman of Freedom Watch.

11

This statement of representation appears to be inconsistent with that stated in his

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

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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

Moseleys intentions, the three page Additional Information document is forwarded to

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

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///

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///

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IT IS FURTHER ORDERED directing the Clerk of Court to send a copy of the


Additional Information by mail to all Plaintiffs Counsel and Defense Counsel of record.
Dated this 8th day of May, 2015.

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Honorable G. Murray Snow


United States District Judge

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

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Manuel de Jesus Ortega Melendres, on


behalf of himself and all others similarly
situated; et al.

ORDER

Plaintiffs,

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12

v.

13

Joseph M. Arpaio, in his individual and


official capacity as Sheriff of Maricopa
County, AZ; et al.

14

No. CV-07-2513-PHX-GMS

Defendants.

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18

A status conference in this action was held on May 14, 2015. The Court orders the
following:

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1. On May 07, 2015, Magistrate Judge John Z. Boyle issued a ruling regarding the

20

applicability of attorney-client privilege and/or work-product immunity to certain

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

Gerard Sheridan voluntarily disclosed Mr. Caseys mental impressions, opinions,

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
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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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work-product doctrine to these materials in light of Chief Deputy Sheridans


statements to the press. Although, of course, Judge Boyle will fix any briefing
schedule, the Court requests that if the parties wish to brief the issue they do so
expeditiously.
2. The Application of Attorney for Admission to Practice Pro Hac Vice received by
Jonathon A. Moseley, who practices in Virginia, is denied. The record
demonstrates that actual and potential conflicts of interest exist between Mr.
Moseleys current representation of Sheriff Arpaio in another action and his
proposed representation of Mr. Dennis L. Montgomery before this Court. See E.R.
1.7(a) ([A] lawyer shall not represent a client if the representation involves a
concurrent conflict of interest.); Cole v. U.S. Dist. Court for the Dist. of
Idaho, 366 F.3d 813, 822 (9th Cir. 2004) (Attorneys admitted pro hac vice are
held to the same professional responsibilities and ethical standards as regular
counsel. . . .). Mr. Moseley was given the opportunity to appear telephonically at
the status conference but did not do so. The Court denies Mr. Moseleys
application. Accordingly, his pending Motion to Intervene (Doc. 1057) and
Motion to Disqualify (Doc. 1067) are hereby stricken pursuant to Federal Rule of
Civil Procedure 12(f) and Local Rule 7.2(m)(1).
3. In light of the newly disclosed documents, the Court orders that the parties
proceed as follows so as to effectively manage the discovery period prior to the
continuation of the show cause hearing:
a. The Monitor, pursuant to its authority to evaluate the integrity of MCSOs
operations and compliance efforts, shall investigate matters that are raised
by the documents recently disclosed to them by Defendants. The Parties
shall fully cooperate with such investigations. Although the Monitor has
broad authority to set the direction of an investigation, this authority is
limited by the orders previously entered in this matter. Ongoing
investigations by the MCSO Professional Standards Bureau do not restrict

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the Monitor in his investigative authority.


b. Chief Sherry Kiyler is authorized to be involved in all investigations
pertaining to recent MCSO disclosures.
c. To the extent that the Monitor interviews persons who are in the employ of
MCSO, any and all counsel may be present at the interviews. All parties
and specially appearing non-parties will have the right to pay for and obtain
transcripts of any interview done by the Monitor.
d. The witness is entitled to counsel at his or her own expense, and is also
entitled to all rights and privileges which are available to him or her under
federal law.
e. The Parties and named non-party contemnors may conduct their own
depositions coextensively with the Monitor, so long as they obtain the
approval of the Monitor prior to scheduling such depositions so as not to
interfere with the Monitors investigation. Copies of transcripts from all
such deposition shall be provided to the Monitor.
f. Aspects of the Seattle operation are germane to the show cause
proceedings, and shall be addressed by the Parties insofar as they relate to
the charged bases for contempt or the appropriateness of any remedial
measures. The Court will consult with the Parties on the topics that merit
addressing at the hearings to be resumed on June 16, 2015 once the scope
of relevant issues are sufficiently refined by document review and the
Monitors investigations.
Dated this 14th day of May, 2015.

24
25
26

Honorable G. Murray Snow


United States District Judge

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Michele M. Iafrate, Bar #015115


Iafrate & Associates
649 North Second Avenue
Phoenix, Arizona 85003
Tel: 602-234-9775
miafrate@iafratelaw.com

A. Melvin McDonald, Bar #002298


Jones, Skelton & Hochuli, P.L.C.
2901 North Central Avenue, Suite 800
Phoenix, Arizona 85012
Telephone: (602) 263-1700
Fax: (602) 200-7847
mmcdonald@jshfirm.com

Attorneys for Defendant Joseph M. Arpaio

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7

10

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Barry Mitchell Bar #013975


Lee Stein Bar #12368
Mitchell, Stein, Carey, PC
One Renaissance Square
2 North Central Avenue, Suite 1900
Phoenix, Arizona 85004
Telephone: (602) 358-0290
Fax: (602) 358-0291
barry@mitchellsteincarey.com
lee@mitchellsteincarey.com

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Attorneys for Gerard Sheridan

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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20

Manuel de Jesus Ortega Melendres, et al.,


Plaintiff,

21
v.

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23

Motion for Recusal or


Disqualification of District Court
Judge G. Murray Snow

Joseph M. Arpaio, et al.,


Defendant.

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25

NO. CV 07-02513-PHX-GMS

I.

INTRODUCTION

26

No doubt, moving for the recusal or disqualification of any sitting judge is a

27

serious matter. Under statute, case law, and judicial canons, the perception of judicial bias

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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

no other choice but to file this Motion.

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

affidavit and corresponding Certificates of Filing in Good Faith by Counsel. Defendant

10

Arpaio and Chief Deputy Gerard Sheridan respectfully request the transfer of this case to

11

a different judge, immediately, as provided by 28 U.S. Code 144, and the

12

disqualification or recusal of Judge Snow in further related proceedings concerning

13

Defendant Arpaio and Chief Deputy Gerard Sheridan.1

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

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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

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issues involving his own family.

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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.

This alone is sufficient to mandate recusal and

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

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Arpaio and Chief Deputy Gerard Sheridan move that this Motion for Change of Judge for

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26
27
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The legal opinion of Professor Ronald Rotunda, a renowned expert on


Professional Responsibility and Constitutional Law, is attached and incorporated in
support of this Court's disqualification. (Exhibit 10). As Professor Rotunda explains in his
declaration, Judge Snow now has- by his own admission- an incurable personal interest
in the case, at least in this new phase of this case as it has metastasized into something
entirely new. Id.
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Cause be assigned to another United States District Court judge.

II.

STATEMENT OF FACTS RELEVANT TO MOTION


A.

Melendres Preliminary and Permanent Injunction

In December 2007, Latino motorists brought a class action under 42 U.S.C.

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,

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.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

law. [Doc. 1 at 1920.]

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

prohibited MCSO from detaining individuals in order to investigate civil violations of

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

Seventeen months later, approximately nine months following a bench trial,

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

27
28

MCSO, a non-jural entity, is no longer a named defendant in this action.


Maricopa County has recently become a defendant in this action.
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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

enforcement mechanisms for such remedies. [Doc. 606.]

B.

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Judge Snows Determination that a Civil Contempt Hearing was


Necessary.
On May 14, 2014, Defendants, on their own initiative, informed Judge

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

in existence. [Id. at 2527.] The ensuing investigations unearthed documents apparently

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.

Moreover, the Armendariz videotapes resulted in administrative interviews

with MCSO personnel.

Those interviews have apparently revealed that, for at least

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

conducting immigration interdiction operations, and detaining persons after officers

12

concluded that there was no criminal law basis for such detention,.

13

Accordingly, Judge Snow determined that civil contempt proceedings were

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

Plaintiff class, or if criminal remedies are necessary.

22

C.

Pre-Civil Contempt Hearing Events

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

Deputy Gerard Sheridan (collectively, Defendants) consent[ed] to a finding of civil

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

in civil contempt of court. [Doc. 948 at 3.]

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

compensate victims of the Defendants violation of the Courts December 2011

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

remedial measures Defendants sought to implement, including Defendants agreeing to

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

proceedings to determine whether sufficient evidence would be presented to justify

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24
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26
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The remedies proposed by Arpaio included: (1) acknowledging in a public forum


the violations of this Courts orders; (2) Sheriff Arpaio and MCSO will seek from
Maricopa County the creation and initial funding of a reserve to compensate victims of
MCSOs violation of the Courts December 2011 injunction; (3) develop and implement a
plan to identify victims of the Courts December 2011 order; (4) permit the Monitor to
investigate any matter that relates to Defendants violation of the Courts preliminary
injunction; (5) move to dismiss the then pending appeal in the Ninth Circuit Court of
Appeals; and (6) pay for Plaintiffs reasonable attorneys fees that were necessary to
ensure compliance with this Courts Orders. [Doc. 748, Ex. B].
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criminal contempt proceedings. In essence, Judge Snow requested that the U.S. Attorney

function as his investigator to determine whether criminal contempt of his Preliminary

Injunction had occurred.

invitation to participate in this capacity by letter and subsequently in open court.

D.

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Judge Snows Surprise Examination of Unexpected, Irrelevant Subjects


During Contempt Proceedings.
On April 23, 2015, Judge Snow embarked on his own inquiries during the

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

The U.S. Attorney appropriately declined Judge Snows

The Grissom Investigation

Specifically, Judge Snow questioned Sheriff Arpaio regarding a blog


posting by Stephen Lemons in the Phoenix New Times that detailed an alleged
investigation by Sheriff Arpaio regarding comments made by Judge Snows wife
(Grissom Investigation). [4/23/15 Transcript at 643-644].

During this line of

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.

[4/23/15 Transcript at 655].

8
9

The private investigators interviews of these individuals determined that


Mrs. Grissom was credible in the following statement:

10
11
12
13
14
15
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[Facebook Message, attached as Exhibit 5; 4/23/15 Transcript at 655]. The Grissoms

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

28:10-18 attached as Exhibit 6; 10/28/13 Transcript of Dale Grissom at 13:21-25, 16:5-12,

21

22:19-23:9, attached as Exhibit 7; 5/20/15 Arizona Republic Article, attached as Exhibit

22

8].

23

Although the interviews of these individuals were deemed credible, in that

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

Sheri Snow] . . . occurred. [4/24/15 Transcript at 966:11-16]. Moreover, to date, neither

27

Judge Snow nor Mrs. Snow have denied that Mrs. Snow made the statements attributed to

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her.
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2.

In addition, Judge Snow questioned Sheriff Arpaio and Chief Deputy

Sheridan regarding a second investigation, also unrelated to the three clearly defined

subjects of the contempt proceedings. Judge Snow inquired regarding athe unrelated

investigation and MCSOs use of a confidential informant, Dennis Montgomery,

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

of Maricopa County citizens. [4/23/15 Transcript at 647:1-3, 649; 4/24/15 Transcript at

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.

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14
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18
19
20

23
24
25
26
27

Post Contempt Proceeding Expansion of Monitors Duties by Judge


Snow
As the sole arbiter of the matters relevant to the contempt proceedings,

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

The Montgomery Investigation

When Defendant Arpaios counsel requested clarification regarding the


Monitors investigatory powers, Judge Snow refused. Instead, Judge Snow stated that he
is not going to limit the Monitors authority and [hes] not going to require [the Monitor]
to provide [Defendant Arpaios counsel] with advance notice of what [the Monitor] wants
to inquire into. [Id. at 53:15-21]. Defendant Arpaios counsel objected to the Courts
morphing of the OSC hearing into something quite different than the three subjects that
were a part of the original OSC Order and the expansion of the Monitors powers as a

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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

court ordered unlimited investigatory power.

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

Obamas birth certificate).5

10

III.

JUDGE SNOW MUST RECUSE HIMSELF FROM THIS ACTION.

11

The right to a neutral and detached judge in any proceeding is protected by

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

States, 785 A.2d 651, 655 (D.C. 2001).

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

Avoidance of the appearance of impropriety in all judicial activities is important because:

20

Public confidence in the judiciary is eroded by irresponsible or


improper conduct by judges. A judge must avoid all
impropriety and appearance of impropriety. This prohibition
applies to both professional and personal conduct. A judge
must expect to be the subject of constant public scrutiny and
accept freely and willingly restrictions that might be viewed as
burdensome by the ordinary citizen.

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.

Cannon 3 requires that [a] judge shall disqualify himself or herself in a

proceeding in which the judges impartiality might reasonable be questioned, including

but not limited to instances in which:

5
6

(a) the judge has a personal bias or prejudice concerning a


party, or personal knowledge of disputed evidentiary facts
concerning the proceeding;

...

(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

(d) the judge or the judges spouse, or a person related to


either within the third degree of relationship, or the spouse of
such a person is:

12

13

(iii) known by the judge to have an interest that could


be substantially affected by the outcome of the
proceeding; or

14
15

(iv) to the judges knowledge likely to be a material


witness in the proceeding;

16
17
18
19
20
21
22

Cannon 3 is, in essence, codified by 28 U.S.C. 455. Section 455(a)


covers circumstances that appear to create a conflict of interest, whether or not there is
actual bias. Preston v. United States, 923 F.2d 731, 734 (9th Cir.1991) (citation omitted)
(emphasis in original). In contrast, [s]ection 455(b) covers situations in which an actual
conflict of interest exits, even if there is no appearance of one. Id. (citation omitted).
Given the developments in this case, both provisions require recusal.

23
24
25
26
27

Proceeding includes pretrial, trial, appellate review, or other stages of


litigation. Cannon 3(C)(3)(d).

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A.

28 U.S.C. 455(b) Requires Mandatory Disqualification of Judge Snow.7

Section (b) of 28 U.S.C. 455 provides for mandatory recusal without

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.).

Section 455(b) requires disqualification under Section 455(a), even absent

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

Preston, 923 F.2d at 734 (emphasis added).

15

1.

16
17

28 U.S.C. 455(b)(5) Requires Disqualification of Judge Snow


Due to Spousal Relationship.

Under 28 U.S.C. 455(b)(5), a judge shall disqualify himself in the


following circumstances:

18
19

(5) He or his spouse, or a person within the third degree of


relationship to either of them, or the spouse of such a person:

20

21

(ii) Is acting as a lawyer in the proceeding;

22

(iii) Is known by the judge to have an interest that could be


substantially affected by the outcome of the proceeding; or

23

(iv) Is to the judges knowledge likely to be a material

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
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witness in the proceeding.


(Emphasis added).

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).

Here, Judge Snows recusal is required for three reasons:


First, a person within the third degree of relationship to Judge Snow is

9
10

affiliated with Plaintiffs Counsel.

Judge Snows brother-in-law is an attorney with

11

Covington Burling. Early in this action, Defendant Arpaios former counsel waived this

12

conflict. However, in light of recent events, reconsideration of this previously waived

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

also 28 U.S.C. 455(b)(4) (requiring disqualification when a Judge knows that he

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

anything to ensure he is not re-elected is without question a conflict that creates

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

the proceeding a waiver of any ground for disqualification enumerated in subsection

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

has a personal bias or prejudice concerning a party, or personal knowledge of disputed


evidentiary facts concerning the proceeding. Under Section 455(b), Judge Snow has
made comments that indicate he has a personal bias or prejudice concerning a party,
namely Sheriff Arpaio.
As revealed during the contempt proceeding, Judge Snow has engaged in

25

27
28

28 U.S.C. 455(b)(1) Requires Disqualification of Judge Snow


Due To His Personal Bias.

Under 28 U.S.C. 455(b)(1), a judge shall disqualify himself [w]here he

24

26

In fact, Mrs. Snow is undoubtedly a material witness in this

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

during the contempt proceeding.

[Id. at 19, 21].

In addition, he gave his own

testimony during the proceeding. [Id. at 22-23].

Furthermore, Judge Snow was

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

Dennis Montgomery, a confidential informant in an investigation unrelated to the

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

Montgomery is not a party to this action. [Id. at 25].

17

Moreover, Judge Snows inquiry into matters unrelated to the contempt

18

proceeding deprived Sheriff Arpaio of his due process constitutional rights.

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

requires progressively greater procedural protections for indirect contempts of complex

28

injunctions that necessitate more elaborate and in-depth fact-finding, as in this case. See
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At a

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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

demonstrates further evidence of the perception of an unwaivable bias towards Sheriff

12

Arpaio.

13

Finally, Judge Snow has improperly expanded the authority and

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

willingness to ignore Defendant Arpaios and Chief Deputy Sheridans constitutional

19

rights in favor of granting the Monitor unfettered access to further his own

20

investigational curiosities or agenda further demonstrates a perception of bias.10

21

B.

22

Under 28 U.S.C. 455(a), a judge shall disqualify himself in any

23
24
25
26
27
28

28 U.S.C. 455(a) Requires Disqualification of Judge Snow Because His


Impartiality is Questionable.

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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proceeding in which his impartiality might reasonably be questioned. A violation of

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

(1988). In determining whether disqualification is proper, courts apply an objective test:

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

reasonable person in this context means a well-informed, thoughtful observer, as

opposed to a hypersensitive or unduly suspicious person.

Id. (citations omitted).

10

Further, the grounds for disqualification must arise from extrajudicial factors, namely,

11

factors not related to the judicial proceeding at hand. Id.

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

than a de minimis interest that could be substantially affected by the proceeding or is

18

likely to be a material witness in the proceeding. See Rule 2.11(A)(2)(c)(d). In addition,

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

required, applies regardless of whether a Motion to Disqualify is filed. Additionally,

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

Finally, even in cases of a close question of judicial impartiality, this Court

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.

Kelly, 888 F.2d 732, 744 (11th Cir. 1989).

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

in the judiciary is severely eroded by even the appearance of irresponsible, improper or

13

biased conduct by judges.

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

another United States District Court judge for immediate consideration.

20
21

DATED this 22nd day of May, 2015.

22

IAFRATE & ASSOCIATES

23
24

By s/ Michele M. Iafrate
Michele M. Iafrate
649 North Second Avenue
Phoenix, Arizona 85003
Attorneys for Defendants Joseph M. Arpaio

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26
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28
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DATED this 22nd day of May, 2015.

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2

JONES SKELTON & HOCHULI, PLC

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

DATED this 22nd day of May, 2015.

7
8

MITCHELL STEIN CAREY, PC

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

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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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EXHIBIT 9

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4
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6
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8

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

10
11
12

Manuel de Jesus Ortega Melendres, on


behalf of himself and all others similarly
situated; et al.

ORDER

Plaintiffs,

13
14

v.

15

Joseph M. Arpaio, in his individual and


official capacity as Sheriff of Maricopa
County, AZ; et al.

16

No. CV-07-2513-PHX-GMS

Defendants.

17
18

In light of the Motion for Recusal or Motion to Disqualify (Doc. 1117) filed this

19
20

morning,

21

IT IS HEREBY ORDERED vacating the Status Conferences set for May 29,

22

June 5 and June 12, 2015. The Court shall issue no further orders until the Motion is

23

fully briefed and/or a ruling has been issued.

24

IT IS FURTHER ORDERED directing the parties to continue to hold the dates

25

in June for the continued civil contempt hearings or for discovery, until further notice of

26

the Court.

27

///

28

///

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IT IS FURTHER ORDERED directing the parties to inform the Court of their


intention to file responses to the Motion on or before May 29, 2015 and submit a joint
expedited schedule for responses and/or replies.
Dated this 22nd day of May, 2015.

5
6

Honorable G. Murray Snow


United States District Judge

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8
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EXHIBIT 10

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1
2
3

Michele M. Iafrate (#015115)


miafrate@iafratelaw.com
IAFRATE & ASSOCIATES
649 North Second Avenue
Phoenix, Arizona 85003
Telephone: (602) 234-9775

A. Melvin McDonald (#002298)


Melmcdonald2@gmail.com
Joseph J. Popolizio (#017434)
jpopolizio@jshfirm.com
John T. Masterson (#007447)
jmasterson@jshfirm.com
JONES, SKELTON & HOCHULI, P.L.C.
2901 North Central Avenue, Suite 800
Phoenix, Arizona 85012
Telephone: (602) 263-1700

10

Attorneys for Defendant Joseph M. Arpaio

11

Lee Stein (#12368)


lee@mitchellsteincarey.com
Barry Mitchell (#13975)
barry@mitchellsteincarey.com
MITCHELL | STEIN | CAREY, PC
One Renaissance Square
2 North Central Avenue, Suite 1900
Phoenix, AZ 85004
Telephone: (602) 358-0293
Facsimile: (602) 358-0291
Attorneys for Chief Deputy Gerard Sheridan

5
6
7
8

12
13
14
15
16
17
18

UNITED STATES DISTRICT COURT

19

DISTRICT OF ARIZONA

20
21
22
23
24
25
26

Manual de Jesus Ortega Melendres, on behalf


of himself and all others similarly situated; et
al.,

NO. CV-07-02513-PHX-GMS

Plaintiffs, Sheriff Joseph Arpaio and Chief


Deputy Gerard Sheridans Response
v.
to Putative Intervenor Dennis
Montgomerys Supplement to Motion
Joseph M. Arpaio, in his individual and official for Reconsideration
capacity as Sheriff of Maricopa County, AZ; et
al.,
Defendants.

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28
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Putative intervenors attorneys Klayman and Mosley neither represent

Sheriff Arpaio and Chief Deputy Sheridan, nor speak for the interests of MCSO in this

action or in any proceeding related to this action.

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

place in this litigation.

RESPECTFULLY SUBMITTED this 3rd day of June, 2015.

IAFRATE & ASSOCIATES

10
By:

11
12
13

s:/ Michele M. Iafrate


Michele M. Iafrate
Attorneys for Sheriff Joseph M. Arpaio
and Maricopa County Sheriffs Office

JONES, SKELTON, & HOCHULI, P.L.C.

14
15
16

By:

s:/ A. Melvin McDonald


A. Melvin McDonald

By:

s:/ Joseph P. Popolizio


Joseph J. Popolizio

By:

s:/ John T. Masterson


John T. Masterson

17
18
19

Attorneys for Sheriff Joseph M. Arpaio

20

MITCHELL | STEIN | CAREY, PC

21
By:

s:/ Lee Stein


Lee Stein

By:

24

s:/ Barry Mitchell


Barry Mitchell

25

Attorneys for Chief Deputy Gerard


Sheridan

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23

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28
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3
4

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.

5
6

s:/ D. Weeks

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2
3
4
5

Cecillia D. Wang (Pro Hac Vice)


cwang@aclu.org
ACLU Foundation
Immigrants Rights Project
39 Drumm Street
San Francisco, CA 94111
Telephone: (415) 343-0775
Facsimile: (415) 395-0950

6
7
8
9
10
11
12
13
14

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)

15

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF ARIZONA

16
17
18

Manuel de Jesus Ortega Melendres,


et al.,

19
20

Plaintiffs,
v.

21
22
23
24
25
26
27
28

Joseph M. Arpaio, et al.,


Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

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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Additional Attorneys for Plaintiffs:

2
3
4
5
6
7

Andre I. Segura (Pro Hac Vice)


asegura@aclu.org
ACLU Foundation
Immigrants Rights Project
125 Broad Street, 17th Floor
New York, NY 10004
Telephone: (212) 549-2676
Facsimile: (212) 549-2654

Priscilla G. Dodson (Pro Hac Vice)


pdodson@cov.com
Covington & Burling LLP
One CityCenter
850 Tenth Street, NW
Washington, DC 20001
Telephone: (202) 662-5996
Facsimile: (202) 778-5996

Anne Lai (Pro Hac Vice)


alai@law.uci.edu
401 E. Peltason, Suite 3500
Irvine, CA 92697
Telephone: (949) 824-9894
Facsimile: (949) 824-0066

Jorge M. Castillo (Pro Hac Vice)


jcastillo@maldef.org
Mexican American Legal Defense and
Educational Fund
634 South Spring Street, 11th Floor
Los Angeles, California 90014
Telephone: (213) 629-2512
Facsimile: (213) 629-0266

8
9
10
11
12
13
14
15
16
17
18
19

Stanley Young (Pro Hac Vice)


syoung@cov.com
Hyun S. Byun (Pro Hac Vice)
hbyun@cov.com
Covington & Burling LLP
333 Twin Dolphin Drive, Suite 700
Redwood Shores, CA 94065
Telephone: (650) 632-4700
Facsimile: (650) 632-4800

20
21
22
23
24
25
26
27
28

Tammy Albarran (Pro Hac Vice)


talbarran@cov.com
Lauren E. Pedley (Pro Hac Vice)
lpedley@cov.com
Covington & Burling LLP
One Front Street
San Francisco, CA 94111
Telephone: (415) 591-7066
Facsimile: (415) 955-6566

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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

Courts actionsquestioning the movants about MSCO investigationswere proper and

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

Gillers Decl. 5. The motion should be denied.

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

it has seen. Liteky, 510 U.S. at 550-51.

18

Evidence of Sheriff Arpaio and Chief Deputy Sheridans Defiance of the Court

19

During the 18 months between the issuance of the Supplemental Permanent

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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Arpaio stated in a letter to supporters that he wont stand for a Court-appointed

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

Permanent Injunction, in which the Sheriff proclaimed, Im an elected constitutional

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

Grounds for Civil Contempt

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

committed suicide. MCSO searched Armendarizs home pursuant to a criminal warrant.

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

[Doc. 880 at 8, 18-21].

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

had already been implemented. [Doc. 880 at 23].

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.

Tr. of Nov. 20, 2014 at 67:10-67:24 [Doc. 804].

Relevance of MCSOs Internal Investigations

10

During the same period leading to the contempt hearing, the adequacy of

11

MCSOs internal investigation processes became a central issue. Immediately upon

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

2014, the Monitor reported serious deficiencies with MCSOs Armendariz-related

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

15:19-22; [Doc. 1007]; [Doc. 880 at 25].

25

Questioning About Defendants Investigations of the Court

26
27

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

conflict was an issue in the litigation leading up to the contempt hearing.

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.

20

During the Courts questioning of Sheriff Arpaio about the MCSO-Montgomery

21

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

investigator hired by Defendants then-counsel had investigated an allegation that the

24

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

Sheridan about the MCSO-Montgomery investigation.

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

produced by the Defendants indicate that the MCSO-Montgomery investigation

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

investigations. Tr. of Apr. 23, 2015 at 653:9-654:2, 655:13-17, 656:3-6, 656:25-657:2.

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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that proposal. Tr. of May 8, 2015 at 30:25-31:15. Contrary to Defendants assertions,

the Court did not order the production of documents that may be protected by the

attorney-client privilege or work product doctrine.

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

Apr. 7, 2015 at 32:13-23.

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

high degree of favoritism or antagonism as to make fair judgment impossible. Liteky,

20
21
22
23
24
25
26
27

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

motion entirely fails to meet this standard.

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

Montgomery as a confidential informant; ordered the production of documents relating to

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

appeal, not through a recusal motion. Liteky, 510 U.S. at 555.

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

19

ground for recusal. See Gillers Decl. 7.

20
21
22
23
24
25
26
27
28

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

Court introduced as an exhibit indicated that the MCSO-Montgomery investigation was

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

of the Courts Supplemental Permanent Injunction, in which there were numerous

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

Sheridanthe MCSO-Montgomery investigation targeted the Court. Wang Decl., Ex. B,

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

26
27
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suggested that the MCSO-Montgomery investigation might be an attempt to undermine

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

as his investigator to determine whether criminal contempt of his Preliminary Injunction

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

would be in a position to make an independent determination whether to proceed with a

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

U.S. Attorneys Office. Id. at 30:4-14. Moreover, Defendants themselves subsequently

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

yet been made. Tr. of Mar. 20, 2015 at 28:2-6.

18
19
2

20
21
22
23
24
25
26
27

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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Further, the Court properly authorized the Monitor to investigate MCSOs

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

log prior to producing documents relating to the MCSO-Montgomery investigation, and

15

the Court also proposed procedures to ensure that any confidential or sensitive documents

16

would be protected from disclosure. Tr. of May 8, 2015 at 30:1-4, 30:25-31:15.

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.

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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

initiated the questioning of Sheridan on this subject.

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

likely to be a material witness in the proceeding, and under 28 U.S.C. 455(b)(1),

14

which provides for recusal when a judge has a personal bias or prejudice concerning a

15

party, or personal knowledge of disputed evidentiary facts concerning the proceeding.

16

These arguments fail on the merits.

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

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interests are at stake because the allegations of the MCSO-Montgomery investigation

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,

1002:14-15. Documents relating to the MSCO-Montgomery investigation support that

testimony. Wang Decl., Ex. C, D, E.

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

Gillers Decl. 4.1-4.4, 12.

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

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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.

13-14. Moreover, a court has an independent and self-executing obligation under 28

U.S.C. 455(b)(1) to recuse if it has an actual bias, and the Court has not done so here.

Gillers Decl. 14.

9
10
11

III.

No Reasonable Observer Would Perceive an Appearance of Bias

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

reasonably be questioned. Section 455(a) imposes an objective standard, requiring

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

appearance of improper bias. Rumor, speculation, beliefs, conclusions, innuendo,

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

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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

intimidate the judge. Id. at 1179.

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

MCSO-Montgomery and Grissom investigations. Contrary to the testimony of Arpaio

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

the MCSO-Montgomery investigation did not target the Court is contradicted by

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

Controlling cases do not require recusal in these circumstances. In cases where a

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

against him, or by a litigants intemperate and scurrilous attacks. United States v.

24
25
26
27

One of the documents produced by the Defendants suggests that an MCSO


investigator leaked the MCSO-Montgomery investigation to the Phoenix New Times.
Wang Decl., Ex. B.

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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 Motion Should Be Denied as Untimely

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

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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

now rely upon an insinuation that the allegations in the MCSO-Montgomery

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

allegedly exhibited bias was untimely).

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

as an insurance policy to be cashed in if a partys assessment of his litigation risks turns

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

Sheridan attempted repeatedly to avoid the evidentiary hearing on contempt by filing

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

of manipulation. Gillers Decl. 11.

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.

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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

behalf of the Defendants as parties to this litigation.

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

above, the motion under 144 should be denied.

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

By: /s/ Cecillia D. Wang

20

Cecillia D. Wang (Pro Hac Vice)


Andre I. Segura (Pro Hac Vice)
ACLU Foundation
Immigrants Rights Project

21
22
23
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25
26

Daniel Pochoda
Joshua Bendor
ACLU Foundation of Arizona
Anne Lai (Pro Hac Vice)

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1
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3
4

Stanley Young (Pro Hac Vice)


Tammy Albarran (Pro Hac Vice)
Hyun S. Byun (Pro Hac Vice)
Priscilla G. Dodson (Pro Hac Vice)
Lauren E. Pedley (Pro Hac Vice)
Covington & Burling, LLP

Jorge M. Castillo (Pro Hac Vice)


Mexican American Legal Defense and
Educational Fund

Attorneys for Plaintiffs

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1
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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

/s/ Cecillia D. Wang

8
9
10
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EXHIBIT 12

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IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF ARIZONA

2
3

Manuel de Jesus Ortega Melendres,


et al.,

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

I, Cecillia D. Wang, declare as follows:


1.

I am an attorney admitted to practice in California and New

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

Liberties Union Foundation Immigrants Rights Project. I make the following

17

declaration based on my personal knowledge, except where indicated.

18

2.

I make this declaration in support of the Plaintiffs Response in

19

Opposition to Sheriff Arpaio and Chief Deputy Sheridans Motion for Recusal

20

or Disqualification of the Court.

21

3.

Attached hereto as Exhibit A is a document that was introduced

22

by the Court as Exhibit 522 during the evidentiary hearing in this matter, on

23

April 23, 2015. It is an article by Stephen Lemons published in the Phoenix

24
25
26
27

New Times on June 4, 2014, entitled Joe Arpaios Investigating Federal


Judge G. Murray Snow, DOJ, Sources Say, and Using a Seattle Scammer To
Do It. Exhibit A is a photocopy of the original document that was handed to
me and to defense counsel by the courtroom deputy. It bears my

28

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contemporaneous, handwritten notation of the announced exhibit number,

522.

4.

On May 6, 2015, Defendants produced documents to Plaintiffs

on an attorneys-eyes-only basis. Exhibits B-F, attached hereto, were among

those documents. I am submitting Exhibits B-F under seal, with redacted

copies in the publicly filed version of this Declaration.

a.

Attached hereto as Exhibit B is an email chain with the


top-most email dated June 29, 2014, from David Webb

to 1tick@earthlink.net, Bates-stamped MELC202132.

10

b.

11

Attached hereto as Exhibit C is an email chain with the


top-most email dated November 7, 2014, from Brian

12

Mackiewicz to Larry Klayman, Bates-stamped

13

MELC202173-75.

14
c.

15

Attached hereto as Exhibit D is a December 9, 2014


email from Mike to detmack@gmail.com, Bates-

16

stamped MELC202048.

17
d.

18

Attached hereto as Exhibit E is an email chain with the

19

top-most email dated April 20, 2015, from Larry

20

Klayman to Michael Zullo, Bates stamped

21

MELC202142-45.
e.

22

Attached hereto as Exhibit F is a document entitled Joe

23

Arpaio Brief/Timeline, Bates stamped MELC199917-

24

35.

25

5.

Attached hereto as Exhibit G is an email chain with the top-most

26

email dated May 27, 2015, from the Court-appointed Monitor, Robert

27

Warshaw, to me and to Defendants counsel Michele Iafrate and Richard

28

Walker. Exhibit G also includes an attachment to Chief Warshaws email, a

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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

instant Motion to Recuse.

5
6
7
8
9
10
11
12
13
14
15

6.

Attached hereto as Exhibit H is a true and correct copy of an

article, Stephen Lemons, Arpaios Desperation Move: Lawyers Move To


Disqualify Judge Snow, Phoenix New Times May 22, 2015. I obtained this
copy from the Phoenix New Times website at
http://www.phoenixnewtimes.com/news/arpaios-desperation-move-lawyersmove-to-disqualify-judge-snow-7352908. The article quotes specially
appearing counsel for the Sheriff in April 2015:
I've heard comment or commentary from so-called lawyer experts,
saying, Gee, the judge should recuse himself, McDonald stated.
That's ridiculous, of course he shouldn't! People suggest we should
now get rid of Judge Snow. Why? It was an inquiry. It ended there. It
was not any kind of a witch hunt. Case closed.

16

The online version of this article includes a link to an audio recording of

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

/s/ Cecillia D. Wang

23
24
25
26
27
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Exhibit A

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Exhibit B

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REDACTED

MELC202132

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Exhibit C

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REDACTED

MELC202173

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REDACTED

MELC202174

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REDACTED

MELC202175

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Exhibit D

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REDACTED

MELC202048

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EXHIBIT 13

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1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

8
9
10

Manuel de Jesus Ortega Melendres, on


behalf of himself and all others similarly
situated; et al.

11

ORDER DENYING MOTION FOR


RECUSAL OR DISQUALIFICATION

Plaintiffs,

12

v.

13

Joseph M. Arpaio, in his official capacity as


Sheriff of Maricopa County, AZ; et al.

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

Movants1 have submitted an affidavit by Sheriff Arpaio as required by 144, as well as

21

supporting exhibits and certifications from counsel.

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.)

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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

of the instant Motion.

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

supervising and assessing Defendants implementation of the injunction and reporting to

20

the Court on MCSOs ongoing compliance.2 (See Doc. 649.) Since his appointment, the

21
22
23
24
25
26
27
28

The Monitors position is outlined in the Supplemental Permanent Injunction.


Defendants appealed the injunction to the Ninth Circuit, which affirmed all provisions
except those that permitted the Monitor to consider MCSOs discipline for any
violations of departmental policy as well as whether any deputies are repeatedly the
subject of Complaints, civil suits, or criminal charges, including for off-duty conduct.
Melendres v. Arpaio, 784 F.3d 1254, 1267 (9th Cir. 2015) (quoting Doc. 606 at 53). The
Ninth Circuit reasoned that not every instance of officer misconduct bear[s] on the
constitutional rights at stake here, and directed that the injunction be clarified to relate to
the constitutional violations found by the Court. Id. The mandate from the Ninth Circuit
issued the day before this Order was filed. (Doc. 1163.) Thus, the Court shall more
narrowly define the aspects of MCSOs internal affairs processes that the Monitor may
consider so that they are clearly tailored to addressing the violations of federal law at
issue in this case and matters related thereto.
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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

cooperate with the Monitor in developing a protocol to recover audio/video recordings of

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

the first and the third.

13

The charges in the Order to Show Cause resulted from materials MCSO had

14

posthumously found in the home of Deputy Charley Armendariz as well as from

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

quantity of relevant evidence during pre-trial discovery. Because of Defendants

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.

10, 2013 Status Conf. 89:2191:23 (declining to incorporate Plaintiffs suggestions

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

issue).) As a result of these revelations and procedural inadequacies in MCSOs self-

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

materials in addition to supervising those undertaken by MCSO and its Professional

13

Standards Bureau (PSB). This authorization was to allow the Monitor to assess whether

14

Defendants implementation of the Courts orders and responsiveness to the Armendariz

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

Court if Defendants, or their subordinates, [we]re ultimately adjudged to be in contempt

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

See Memorandum from Chief Robert S. Warshaw to the Honorable G. Murray


Snow, Update and Assessment of MCSOs Armendariz and Related Investigations (Sept.
28, 2014) (Doc. 795, Attach. 1); (see generally Tr. Oct. 28, 2014 Status Conf., Docs. 776
780.)
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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

for Defendants discovery violations.

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

participate in any pre-referral settlement of criminal contempt with the contemnors.6

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

substantively identical to the first. (Docs. 1003, 1007.)

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.)
-5-

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completing the Armendariz investigations,7 assertion of a purported privilege over

information pertaining to ongoing internal investigations, and inadequate document

search and retrieval protocols. Consequently, Defendants had not disclosed the complete

catalog of documents responsive to Plaintiffs discovery requests by the beginning of the

April hearings.8 (Docs. 995, 1002, 1013; Tr. 16:1419:1.)

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

criminal representation during the hearing.

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

an isolated incident or reflected a pattern of resistance on his part or by MCSO to the

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

Defendants insufficient efforts to locate and produce the documents responsive


to Plaintiffs discovery request also led to the scheduling of the additional proceedings
that were supposed to begin in June.
9

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 . . . .).)
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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

MCSOs appointment of an independent contractor named Don Vogel to oversee the

15

two principal Armendariz-related investigations being conducted by MCSO. (See Tr.

16

979:2480:12.)

17

Sheriff Arpaio went on to confirm that, in addition to overseeing the Human

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

responsible for approving payments to confidential sources during Captain Baileys

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

Seattle, Washington named Dennis Montgomery to investigate possible collusion

26

between this Court and the United States Department of Justice. (Tr. 643:1417.) Sheriff

27

Arpaio confirmed the existence of an investigation being conducted by MCSO, the

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

produce all documents implicated by Sheriff Arpaios testimony, subject to a

contemporaneous review for privilege by counsel. (Tr. 653:1825.)

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

Sheridans testimony, three separate attorneys who presently or formerly represented

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

letter/investigative summary from Movants then-attorney to Sheriff Arpaio, which was

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

subject of the Courts examination. In approximately September 2013 MCSO apparently

19

hired Dennis Montgomery, a computer consultant based out of Seattle, Washington. (Tr.

20

960:914, 1006:24, 1007:2108:2.) Montgomery was given the status of an MCSO

21

confidential informant. (Tr. 998:1214, 1006:1016.) According to Movants,

22

Montgomery represented to MCSO that he was in possession of a large number of

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

Arpaio characterized Mr. Montgomerys investigation as pertaining to whether

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

representing Defendants in a related lawsuit brought against the MCSO by the

Department of Justice had been the subject of a secret wiretap by the government. (Tr.

999:161000:6.) At some point during Montgomerys investigation, Chief Deputy

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

nothing further ever did materialize. (Tr. 1003:1929.)

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

allegations; they were junk. (Id. at 650:1825, 961:111.)

20

Documents pertaining to the Montgomery investigation that were subsequently

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

of the federal executive branch. In addition, although Movants apparently knew by at

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

Movants filed the instant Motion.

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.

Are you aware that Ive ever been investigated by


anyone?

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.

Any of my family members?

A.

That have been investigated?

Q.

Yes.

A.

Not by our office.

Q.

Are you aware of anybody whos investigated any of


my family members by anyany office. Or anybody.

A.

I believe there was an issue, but once again, it wasnt


my office.

Q.

Well, whose office was it?

A.

It was an outside investigator not hired by us.

Q.

Who hired the outside investigator?

A.

Could have been Counsel.

Q.

Counsel meaning your counsel?

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

clarifying questions on this topic during defense counsels cross-examination of Chief

20

Deputy Sheridan. The Court asked no additional questions about a possible investigation

21

of its family members during its own colloquy with Sheridan.

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

principal Armendariz investigations were later outsourced by MCSOin October 2013

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

following determination: [T]he Grissom information is, in my judgment, so

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

information. (Id. (emphasis in original).)

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

Bias or Prejudice of Judge, and 28 U.S.C. 455, Disqualification of Justice, Judge, or

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

accompanied by a certificate of counsel of record stating that it is made in good faith.

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

144 in any case. 28 U.S.C. 144.

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

28

impartiality might reasonably be questioned. 28 U.S.C. 455(a). An objective standard


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applies to disqualification under 455(a), which contemplates whether a reasonable

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

himself, regardless of whether the conflict of interest creates an appearance of

impropriety:

7
8

(1) Where he has a personal bias or prejudice concerning a


party, or personal knowledge of disputed evidentiary facts
concerning the proceeding;

...

10

(4) He knows that he, individually or as a fiduciary, or his


spouse . . . has a financial interest in the subject matter in
controversy . . . or any other interest that could be
substantially affected by the outcome of the proceeding; [or]

11
12

...

13
14

(5) He or his spouse, or a person within the third degree of


relationship to either of them, or the spouse of such a person:

15

...

16

(iii) Is known by the judge to have an interest that could be


substantially affected by the outcome of the proceeding; [or]

17

(iv) Is to the judges knowledge likely to be a material


witness in the proceeding.

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

or other interested party to a proceeding. 28 U.S.C. 455(b)(4)(5). The statute specifies

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

marks omitted)). A judges courtroom conduct, expressions of opinion, or adverse rulings

18

during the course of proceedings in which disqualification is sought, or in related

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

after the ground for such a motion is ascertained. Id.

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

from his own personal knowledge. Balistrieri, 779 F.2d at 1202.


DISCUSSION

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

automatic recusal provisions of 28 U.S.C. 455(b), or raises a reasonable question about

14

the Courts impartiality.12 (See Doc. 1117 (quoting 28 U.S.C. 455).)

15

I.

The Courts Actions and Rulings Relating to the Contempt Proceedings Are

16

Not Grounds for Recusal.

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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Litkey, 510 U.S. at 55051.

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

these allegations solely by reference to the declaration13 of Ronald D. Rotunda, who is a

12

professor at Chapman University School of Law. (See id. at 1415.)

13

However, the Rotunda declarationas well as Plaintiffs corresponding

14

declaration by Stephen Gillers, a professor at New York University School of Lawis an

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

Movants reply memorandum is accompanied by a second declaration from


Professor Rotunda dated June 19, 2015. (Doc. 1158, Ex. 1.) In addition to the reasons
stated below, the Court will not consider this new declaration because parties may not
present new evidence for the first time in their reply briefs. Provenz v. Miller, 102 F.3d
1478, 1483 (9th Cir. 1996) (Where new evidence is presented in a reply to a motion . . .
the district court should not consider the new evidence without giving the [non-]movant
an opportunity to respond. (quoting Black v. TIC Inv. Corp., 900 F.2d 112, 116 (7th Cir.
1990))).
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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

would not reasonably doubt the Courts impartiality.

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

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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

brunt of the financial costs incurred by Movants recalcitranceand Movants ability to

19

solicit contributions to fund their litigation, Movants might appreciate no adverse

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

provide reasonable grounds to question the judge's impartiality . . . .). Disinterestedness

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

set forth in Liteky. Marshall, 721 F.3d at 1043.

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

questioning. (Tr. 657:1859:1.)

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

Court as necessary to oversee and coordinate Defendants compliance with existing

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

judge and court-appointed outside housing advisor). In addition, the Monitors

20

unprompted comment during the recess did not provide the Court with the kind of

21

substantive information about proceedings that cannot be controverted or tested by the

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

clarifying questions did not constitute an independent investigation or otherwise

26

demonstrate that the Court possessed impermissible knowledge of a disputed evidentiary

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

relating to document production were justified by Defendants past failures to adequately

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

imposition of sanctions at an earlier stage of litigation. (Doc. 493.) Movants non-

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

contempt. Further, Defendants ambivalence toward meeting self-imposed deadlines has

15

repeatedly delayed the judicious progression of this litigation; in the context of internal

16

affairs, for example, Defendants delay in completing the Armendariz-related

17

investigations has prevented the Monitor from being able to assess the adequacy of a

18

number of MCSOs self-investigations. In light of this history, the Courts efforts to

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

Monitors investigative and oversight authority extended to the Montgomery

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

in a number of modifications to the scope of the Monitors authority.

10

For instance, in April 2014 the Court, at the parties request, amended the

11

Supplemental Permanent Injunction to transfer responsibility for conducting community

12

outreach programs designed to improve relations with the Plaintiff class from Defendants

13

to the appointed Monitor after Defendants objected to their compelled participation in

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

After the Movants agreed to voluntarily address these misrepresentations, subsequent

21

press coverage caused Sheriff Arpaio to change his mind. (Doc. 680 at 3.) The Court, in

22

response, entered an enforcement order requiring that Defendants distribute a corrective

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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MCSO insisted on undertaking such investigations despite the conflict of interest,

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,

resulted in the addition of an independent investigative component to the Monitors

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

to look into the Montgomery investigation. Certainly, the documents produced by

12

Defendants after Movants testimony do suggest, at a minimum, the inaccuracy of their

13

previous testimony sufficient to justify the Monitor to consider such matters in

14

conjunction with his investigative and oversight authority.

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

responsible for identifying, prosecuting, adjudicating, and sanctioning the contumacious

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

entitlement to advance notice of every question he might be asked. The now-challenged

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

Defendants had restricted Plaintiffs ability to develop the evidentiary record by

15

withholding discoverable evidence. See United States v. Parodi, 703 F.2d 768, 775 (4th

16

Cir. 1983) (noting judges questioning of witnesses is especially appropriate in such

17

circumstances). No due process violation occurred merely because Movants compelled

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

enforcement of court orders).

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

Wife a Disqualifying Interest in the Outcome of the Proceedings,

15

Demonstrate its Actual Bias, or Otherwise Warrant Recusal.

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

U.S.C. 455(a)(b)(1). Furthermore, neither investigation implicates an interest of the

20

Court or its wife that stands to be substantially affected by the outcome of this

21

proceeding. See id. 455(b).

22

A.

The Montgomery Matter

23

A charge of bias or prejudice under 455(b)(1) or that a judges impartiality might

24

reasonably be questioned under 455(a) must be sufficiently grounded in fact to generate

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

conspiracy that is reflected in the documents on the Montgomery matter produced by


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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

materials provided by Mr. Montgomerythey believed those materials to be junk (Tr.

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

428 F.3d 1175, 1178 (9th Cir. 2005).

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

See 28 U.S.C. 455(a).

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

undertake no investigation of the Court. He further testified that no additional materials

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

Montgomery documents implicating the Court in an alleged conspiracy, but nevertheless

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

Montgomerys credibility.15 There is a presumption that a recusal petition submitted after

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

resource-intensive operation involving Mr. Montgomery at a time when MCSO was

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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under an obligation to implement the Supplemental Permanent Injunction. To the extent

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

implementation of the permanent injunctive relief. This may be particularly germane in

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

implicated by the Montgomery investigation. There is no dispute that there was

12

misconduct within the HSU and the MCSO generally that is relevant to this lawsuit,16

13

including patrol deputies unexplained confiscation of personal identifications and other

14

items. These matters were, at least at the time, systemically under-investigated by

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

and ultimately compromised by conflicts of interest, delays, and procedural inadequacies.

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

Defendants have never contested the relevance of the Armendariz materials to


the Plaintiffs underlying constitutional claims or that it falls within the scope of the
Monitors oversight. (See, e.g., Tr. of May 14, 2014 Status Conf. 55:2156:8, 73:2024,
Doc. 700.)
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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.

See Liteky, 510 U.S. at 555.

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

in fact false or materially inaccurate or misleading, or attempts to intimidate the judge

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

455 (and its timeliness requirement) explicitly does not allow.

17

Lastly, none of the specific disqualifying subsections of 455(b) are applicable

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

reasonably brings into question a judge's partiality. (quoting in parenthetical Sensley v.

Albritton, 385 F.3d 591, 600 (5th Cir. 2004))).

B.

The Grissom Matter

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

investigation, that he knew of an investigation involving a member of the Courts family.

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

attempt to clarify Sheriff Arpaios earlier statements. However, aspects of Sheriff

24

Arpaios testimony were sufficiently inaccurate to prompt the disclosure of additional

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

as the Parties litigated the applicability of attorney-client privilege and/or work-product

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

allegations and Movants decision to investigate them.

Mrs. Grissoms paraphrasing of a statement allegedly made by the Courts wife,

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

Professional Conduct. (Doc. 1115 at 7, 1819.) Movants acknowledge that they

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

cannot be used as an insurance policy to be cashed in if a partys assessment of his

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

recusal. The Court agrees with these conclusions.

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

materials came to light, precipitating the revelation of additional evidence of MCSOs

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

manipulation of the judicial process, it runs counter to 455s requirement of prompt

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

Montgomery investigations to the issue of whether the admitted contempt of the

27

Preliminary Injunction occurred . . .).) However, 455(b)(5)(iv) requires recusal only

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

demonstrating their entitlement to the hearing). Fourth, there is no precedent for

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

manipulate the recusal process by raising statements whose substance is fundamentally

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

what Movants attempt to do here by trying to re-raise a forfeited suggestion of alleged

bias. To the extent that anything about the Grissom matter continues to have incidental

relevance to this casefor example, it may illuminate that factual misrepresentations

have been made on the record, and suggests the existence of yet another potential conflict

in Defendants selection of Don Vogel as the independent contractor to whom to

outsource the Armendariz investigationsit is not because the Courts wife will be a

material witness.

Section 455s commitment to fairness in the administration of justice does not

10

require recusal upon the merest unsubstantiated suggestion of personal bias or

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

particularities is not someone who is hypersensitive or unduly suspicious, but rather is

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.

The Courts Brother-in-Laws Partnership Interest Does Not Require the

26

Courts Recusal

27

Movants also revive as an issue the Courts brother-in-laws affiliation with

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

and/or conflict of interest potentially implicated by its brother-in-laws partnership

20

interest at Covington & Burling. (Doc. 541.)

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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based on Mr. Teels partnership at Covington.18 (Doc. 542.) As Plaintiffs explained,

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

is not required where the alleged interest is remote).

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

under 455(b)(5)(iii), a conflict that is disqualifying only because it risks a judges

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

disqualification is a different issue than is addressed by subsection (e).). Movants

failure to raise this ground for disqualification before now precludes them from

attempting to do so at this juncture.

IV.

This Motion Is Legally Insufficient Under 28 U.S.C. 144.

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

grounds for recusal asserted).

10

In addition, this is Defendants second Motion for Recusal brought pursuant to

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

thereof. (Doc. 63.) Defendants motion was accompanied by an affidavit pursuant to

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.

7:138:9, Doc. 1130; Doc. 1158 at 12.)

The certifications of counsel submitted in support of Sheriff Arpaio and Chief

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

affidavit. . . (internal citations omitted)). Although attorneys may have an obligation to

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

clients interests and misstating or mischaracterizing the facts in order to effect

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

alternative Motion to Recuse pursuant to 144 as legally insufficient.

28

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CONCLUSION

1
2
3
4
5

IT IS THEREFORE ORDERED that Sheriff Arpaio and Chief Deputy


Sheridans Motion for Recusal/Disqualification (Doc. 1117) is DENIED.
IT IS FURTHER ORDERED that any stay on pre-hearing discovery and/or the
activities of the Monitor related to the resumption of the show-cause hearings is lifted.

IT IS FURTHER ORDERED setting a status conference in these matters for

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

Monitors billing; (6) whether Maricopa County is entitled to representation in this

16

litigation separate from Sheriff Arpaio; and (7) the scheduling of the second phase of the

17

civil contempt hearings.

18

Dated this 10th day of July, 2015.

19
20

Honorable G. Murray Snow


United States District Judge

21
22
23
24
25
26
27
28

20

Out-of-state counsel may appear telephonically for the status conference.


Plaintiffs counsel are directed to establish a call-in number and disseminate to the parties
and non-parties.
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IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF ARIZONA

2
3

Manuel de Jesus Ortega Melendres,


et al.,

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

I, Cecillia D. Wang, declare as follows:


1.

I am an attorney admitted to practice in California and New

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

Liberties Union Foundation Immigrants Rights Project. I make the following

17

declaration based on my personal knowledge, except where indicated.

18

2.

I make this declaration in support of the Plaintiffs Response in

19

Opposition to Sheriff Arpaio and Chief Deputy Sheridans Motion for Recusal

20

or Disqualification of the Court.

21

3.

Attached hereto as Exhibit A is a document that was introduced

22

by the Court as Exhibit 522 during the evidentiary hearing in this matter, on

23

April 23, 2015. It is an article by Stephen Lemons published in the Phoenix

24
25
26
27

New Times on June 4, 2014, entitled Joe Arpaios Investigating Federal


Judge G. Murray Snow, DOJ, Sources Say, and Using a Seattle Scammer To
Do It. Exhibit A is a photocopy of the original document that was handed to
me and to defense counsel by the courtroom deputy. It bears my

28

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contemporaneous, handwritten notation of the announced exhibit number,

522.

4.

On May 6, 2015, Defendants produced documents to Plaintiffs

on an attorneys-eyes-only basis. Exhibits B-F, attached hereto, were among

those documents. I am submitting Exhibits B-F under seal, with redacted

copies in the publicly filed version of this Declaration.

a.

Attached hereto as Exhibit B is an email chain with the


top-most email dated June 29, 2014, from David Webb

to 1tick@earthlink.net, Bates-stamped MELC202132.

10

b.

11

Attached hereto as Exhibit C is an email chain with the


top-most email dated November 7, 2014, from Brian

12

Mackiewicz to Larry Klayman, Bates-stamped

13

MELC202173-75.

14
c.

15

Attached hereto as Exhibit D is a December 9, 2014


email from Mike to detmack@gmail.com, Bates-

16

stamped MELC202048.

17
d.

18

Attached hereto as Exhibit E is an email chain with the

19

top-most email dated April 20, 2015, from Larry

20

Klayman to Michael Zullo, Bates stamped

21

MELC202142-45.
e.

22

Attached hereto as Exhibit F is a document entitled Joe

23

Arpaio Brief/Timeline, Bates stamped MELC199917-

24

35.

25

5.

Attached hereto as Exhibit G is an email chain with the top-most

26

email dated May 27, 2015, from the Court-appointed Monitor, Robert

27

Warshaw, to me and to Defendants counsel Michele Iafrate and Richard

28

Walker. Exhibit G also includes an attachment to Chief Warshaws email, a

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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

instant Motion to Recuse.

5
6
7
8
9
10
11
12
13
14
15

6.

Attached hereto as Exhibit H is a true and correct copy of an

article, Stephen Lemons, Arpaios Desperation Move: Lawyers Move To


Disqualify Judge Snow, Phoenix New Times May 22, 2015. I obtained this
copy from the Phoenix New Times website at
http://www.phoenixnewtimes.com/news/arpaios-desperation-move-lawyersmove-to-disqualify-judge-snow-7352908. The article quotes specially
appearing counsel for the Sheriff in April 2015:
I've heard comment or commentary from so-called lawyer experts,
saying, Gee, the judge should recuse himself, McDonald stated.
That's ridiculous, of course he shouldn't! People suggest we should
now get rid of Judge Snow. Why? It was an inquiry. It ended there. It
was not any kind of a witch hunt. Case closed.

16

The online version of this article includes a link to an audio recording of

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

/s/ Cecillia D. Wang

23
24
25
26
27
28

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Exhibit A

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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

From: Dennis [mailto:dennis@ncoder.net]


Sent: Sunday, June 29, 2014 12:08 PM
To: dwebb605@gmail.com
Subject: PROJECT

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!

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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.

Sent from my iPad


On Nov 3, 2014, at 1:20 PM, Larry Klayman <leklayman@gmail.com> wrote:
I don't appreciate your games...there would be no judge if not for me. I suggest you do not mess with Lamberth. There is no
reason to do so at this time and your games are just to squeeze Dennis through me. I don't appreciate being played.
I am preparing for an oral argument for the NSA case and these tactics are offensive at this time in particular.
On Nov 3, 2014 11:35 AM, "Brian Mackiewicz" <detmack@gmail.com> wrote:
Larry,
Pardon me I included you out of courtesy. No worries point taken and I will exclude you from all other communications,
between our confidential informant and the judge going forward. That is to include what path this investigation takes going
forward. Have a wonderful day. Good luck in your argument.
Sent from my iPhone
On Nov 3, 2014, at 10:25, Larry Klayman <leklayman@gmail.com> wrote:
This is inappropriate! I asked Mike to have us talk after my oral argument in the NSA case. I do not appreciate
this lack of respect! More later...
On Mon, Nov 3, 2014 at 8:16 AM, Brian Mackiewicz <detmack@gmail.com> wrote:
Gentleman,

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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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On Nov 2, 2014, at 9:54 PM, David Webb <dwebb605@gmail.com> wrote:


I have no problem defending my work. You have a lack of understanding of software development and
programs. This is what is hindering the work from moving forward.

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.

Go find someone else to do this work.

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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

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Exhibit E

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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'll call tomorrow best


On Apr 20, 2015 7:10 PM, "Mike" <1tick@earthlink.net> wrote:
Larry,
This is now my second request asking for a date set for the completion of the work Dennis
Montgomery has been promising for over 16 months.. Mr. Montgomerys behavior and
lack of performance flies in the face of his numerous promises pledging to complete the
work.. This is especially concerning given the face that Mr. Montgomery needs validation
like a drowning man needs oxygen. His behavior simply erodes whatever thread of
credibility he may have left. In fact as of this date, our experience dealing with Mr.
Montgomery mirrors what has been written about him.. It is apparent to us that this is just
a game of running the clock in the hope Montgomery can position himself as a Whistle
Blower with some jurisdiction and with your help get out from under his obligation to
the us. In our opinion Montgomery does not qualify under Federal Whistle Blower
protections. A risky game.

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

From: Mike [mailto:1tick@earthlink.net]


Sent: Thursday, April 16, 2015 1:34 PM

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To: Larry Klayman (leklayman@gmail.com); 'David webb'; 'Brian Mackiewicz'


Subject: FW: Home

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

(320 of 523)
Case
Case:
2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1166 DktEntry:
Filed 07/10/15
7-2, Page
Page
29125ofof494
61
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.

Time is of the essences Dennis


Mike

From: Dennis [mailto:dennis@ncoder.net]


Sent: Thursday, April 9, 2015 4:24 PM
To: 1tick@earthlink.net
Subject: Home

MELC202144

(321 of 523)
Case
Case:
2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1166 DktEntry:
Filed 07/10/15
7-2, Page
Page
29226ofof494
61
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)
Case
Case:
2:07-cv-02513-GMS
15-16440, 08/20/2015,
Document
ID: 9654788,
1166 DktEntry:
Filed 07/10/15
7-2, Page
Page
29327ofof494
61

Exhibit F

(323 of 523)
Case:
Case 15-16440,
2:07-cv-02513-GMS
08/20/2015,Document
ID: 9654788,
1166
DktEntry:
Filed 07/10/15
7-2, PagePage
294 of
28494
of 61
JOE ARPAIO BRIEF
Timeline

Description
Eric Holder Senior Partner Covington Burling Law Firm

2001 2009

Lanny Breuer Senior Partner Covington Burling Law Firm

02/12/07

ACLU Files Melendres Lawsuit Against Arpaio

06/15/08

US Department of Justice (DOJ) announces investigation into Joe Arpaio

02/01/09

US Department of Justice (DOJ) - Hires Eric Holder Attorney General US

03/15/09

Arizona Attorney General (AG) Issues Search Warrant Deputy Joel Fox

04/20/09

Lanny Breuer Hired As Assistant AG Criminal Div. - DOJ

07/07/09

Joe Arpaio Announces he will not cooperate with DOJ Investigation

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

Judge G. Murray Snow Assigned To Arpaio Federal Cases (Not Random)

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

US Department of Justice (DOJ) - Calls Federal Judge G. Murray Snow


John Gray Starts Intern Clerk Job with Federal Judge G. Murray Snow

09/26/09

US Department of Justice (DOJ) - Calls Federal Judge G. Murray Snow

09/28/09

US Department of Justice (DOJ) - Wire Tap #56990-34

10/15/09

US Gov breached Maricopa all domains, and subdomains

156.42.184.18

Maricopa Government - mcao.maricpoa.gov - mcso.maricopa.gov

156.42.184.65

Mail servers: extmail1.maricopa.gov extmail2.maricopa.gov

156.42.103.166

FI
D

07/23/09
09/01/09

Block 602-920-4000,++

05/28/10

DOJ Criminal Division Wire Tap #64402-03

08/15/10

US Gov breached Maricopa all domains, and subdomains

156.42.184.18

Maricopa Government - mcao.maricpoa.gov - mcso.maricopa.gov

156.42.184.65

Mail servers: extmail1.maricopa.gov extmail2.maricopa.gov

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

US Department of Justice (DOJ) files suit against Arpaio

09/15/10

John Gray Ends Intern Clerk with Federal Judge G. Murray Snow

10/01/10

John Gray Joins Perkins Coie Law Firm

10/23/10

US Government Breached - www.jshfirm.com mail.jshfirm.com

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
08/20/2015,Document
ID: 9654788,
1166
DktEntry:
Filed 07/10/15
7-2, PagePage
295 of
29494
of 61
JOE ARPAIO BRIEF
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

Sheriff Arpaio Fires MSCO Captain Joel Fox

09/01/11

US Department of Justice (DOJ) files complaint against Sheriff Arpaio

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

Red - Phone Calls made to or from the Department of Justice

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:
Case 15-16440,
2:07-cv-02513-GMS
08/20/2015,Document
ID: 9654788,
1166
DktEntry:
Filed 07/10/15
7-2, PagePage
296 of
30494
of 61

FI
D

EN

TI
AL

JOE ARPAIO BRIEF


Timeline

_______________________________
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:
Filed 07/10/15
7-2, PagePage
297 of
31494
of 61

FI
D

EN

TI
AL

JOE ARPAIO BRIEF


Timeline

_______________________________
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:
Filed 07/10/15
7-2, PagePage
298 of
32494
of 61
JOE ARPAIO BRIEF
Timeline

Date
2001 - 2008

Description
Eric Holder Senior Partner Covington Burling Law Firm

2001 2009

Lanny Breuer Senior Partner Covington Burling Law Firm

02/12/07

ACLU Files Melendres Lawsuit Against Arpaio

06/15/08

US Department of Justice (DOJ) announces investigation into Joe Arpaio

02/01/09

US Department of Justice (DOJ) - Hires Eric Holder Attorney General US

03/15/09

Arizona Attorney General (AG) Issues Search Warrant Deputy Joel Fox

04/20/09

Lanny Breuer Hired As Assistant AG Criminal Div. - DOJ

07/07/09

Joe Arpaio Announces he will not cooperate with DOJ Investigation

07/15/09

US Federal Judge Mary Murguia recuses herself from the Arpaio case.

07/20/09

US Department of Justice (DOJ) - Calls Federal Judge G. Murray Snow

07/22/09

Judge G. Murray Snow Assigned To Arpaio Federal Cases (Not Random)

07/23/09

US Department of Justice (DOJ) - Calls Federal Judge G. Murray Snow

09/01/09

John Gray Starts Intern Clerk Job with Federal Judge G. Murray Snow

09/16/09

Dennis Burke Becomes US Attorney General Arizona

09/25/09

US Department of Justice (DOJ) - Calls Dennis Burke US Attorney Arizona

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

Judge G. Murray Snow Calls US Department of Justice (DOJ)

11:04

602.322.7560

202.514.2000

16

09/28/09

Dennis Burke US Attorney - Calls Judge G. Murray Snow

11:44

602.514.7500

602.322.7560

09/28/09

US Department of Justice (DOJ) - Wire Tap #56990-34

10/15/09

US Gov breached Maricopa all domains, and subdomains

202.514.6225

602.322.7560

14

202.307.0652

602.322.7560

Block 602-920-4000,++
156.42.184.18

Maricopa Government - mcao.maricpoa.gov - mcso.maricopa.gov

156.42.184.65

Mail servers: extmail1.maricopa.gov extmail2.maricopa.gov

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

DOJ Criminal Division Wire Tap #64402-03

08/15/10

US Gov breached Maricopa all domains, and subdomains

03/25/10

602-920-4400, 602-920-4000
156.42.184.18

Maricopa Government - mcao.maricpoa.gov - mcso.maricopa.gov

156.42.184.65

Mail servers: extmail1.maricopa.gov extmail2.maricopa.gov

156.42.103.166

07/10/10

Covington Burling Law Firm Take Over Melendres Lawsuit Against Arpaio.

09/02/10

US Department of Justice (DOJ) files suit against Arpaio

09/15/10

US Department of Justice (DOJ) Call Federal Judge G. Murray Snow

_______________________________
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
DktEntry:
Filed 07/10/15
7-2, PagePage
299 of
33494
of 61
JOE ARPAIO BRIEF
Timeline

Date
09/15/10

Description
John Gray Ends Intern Clerk with Federal Judge G. Murray Snow

10/01/10

John Gray Joins Perkins Coie Law Firm

10/23/10

US Government Breached - www.jshfirm.com mail.jshfirm.com

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

US Department of Justice (DOJ) Calls Perkins Coie (John Gray)

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

Dennis Burke Resigns As Us Attorney Arizona - Fast and Furious Scandal

10/21/11

Sheriff Arpaio Fires MSCO Captain Joel Fox

09/01/11

US Department of Justice (DOJ) files complaint against Sheriff Arpaio

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
DktEntry:
Filed 07/10/15
7-2, PagePage
300 of
34494
of 61
JOE ARPAIO BRIEF
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:
Filed 07/10/15
7-2, PagePage
301 of
35494
of 61
JOE ARPAIO BRIEF
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:
Filed 07/10/15
7-2, PagePage
302 of
36494
of 61
JOE ARPAIO BRIEF
Timeline

Date
2001 - 2008

Description
Eric Holder Senior Partner Covington Burling Law Firm

2001 2009

Lanny Breuer Senior Partner Covington Burling Law Firm

02/12/07

ACLU Files Melendres Lawsuit Against Arpaio

06/15/08

US Department of Justice (DOJ) announces investigation into Joe Arpaio

02/01/09

US Department of Justice (DOJ) - Hires Eric Holder Attorney General US

03/15/09

Arizona Attorney General (AG) Issues Search Warrant Deputy Joel Fox

04/20/09

Lanny Breuer Hired As Assistant AG Criminal Div. - DOJ

07/07/09

Joe Arpaio Announces he will not cooperate with DOJ Investigation

07/15/09

US Federal Judge Mary Murguia recuses herself from the Arpaio case.

07/20/09

US Department of Justice (DOJ) - Calls Federal Judge G. Murray Snow

07/22/09

Judge G. Murray Snow Assigned To Arpaio Federal Cases (Not Random)

07/23/09

US Department of Justice (DOJ) - Calls Federal Judge G. Murray Snow

09/01/09

John Gray Starts Intern Clerk Job with Federal Judge G. Murray Snow

09/16/09

Dennis Burke Becomes US Attorney General Arizona

09/25/09

US Department of Justice (DOJ) - Calls Dennis Burke US Attorney Arizona

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

Judge G. Murray Snow Calls US Department of Justice (DOJ)

11:04

602.322.7560

202.514.2000

16

09/28/09

Dennis Burke US Attorney - Calls Judge G. Murray Snow

11:44

602.514.7500

602.322.7560

09/28/09

US Department of Justice (DOJ) - Wire Tap #56990-34

10/15/09

US Gov breached Maricopa all domains, and subdomains

202.514.6225

602.322.7560

14

202.307.0652

602.322.7560

Block 602-920-4000,++
156.42.184.18

Maricopa Government - mcao.maricpoa.gov - mcso.maricopa.gov

156.42.184.65

Mail servers: extmail1.maricopa.gov extmail2.maricopa.gov

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

DOJ Criminal Division Wire Tap #64402-03

08/15/10

US Gov breached Maricopa all domains, and subdomains

03/25/10

602-920-4400, 602-920-4000
156.42.184.18

Maricopa Government - mcao.maricpoa.gov - mcso.maricopa.gov

156.42.184.65

Mail servers: extmail1.maricopa.gov extmail2.maricopa.gov

156.42.103.166

07/10/10

Covington Burling Law Firm Take Over Melendres Lawsuit Against Arpaio.

09/02/10

US Department of Justice (DOJ) files suit against Arpaio

09/15/10

US Department of Justice (DOJ) Call Federal Judge G. Murray Snow

_______________________________
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
DktEntry:
Filed 07/10/15
7-2, PagePage
303 of
37494
of 61
JOE ARPAIO BRIEF
Timeline

Date
09/15/10

Description
John Gray Ends Intern Clerk with Federal Judge G. Murray Snow

10/01/10

John Gray Joins Perkins Coie Law Firm

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

Covington Burling Law Firm Call Perkins Coie (John Gray)

14:21

650.632.4704

602.351.8092

19

10/23/10

US Government Breached - www.jshfirm.com mail.jshfirm.com

216.119.127.142

Service25-us.mimecast.com ; service26-us.mimecast.com
10/25/10
10/25/10

US Department of Justice (DOJ) Calls Perkins Coie (John Gray)

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

Dennis Burke Resigns As Us Attorney Arizona - Fast and Furious Scandal

10/21/11

Sheriff Arpaio Fires MSCO Captain Joel Fox

09/01/11

US Department of Justice (DOJ) files complaint against Sheriff Arpaio

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,
1166
DktEntry:
Filed 07/10/15
7-2, PagePage
304 of
38494
of 61
JOE ARPAIO BRIEF
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:
Filed 07/10/15
7-2, PagePage
305 of
39494
of 61
JOE ARPAIO BRIEF
Timeline

_______________________________
Confidential Information Not to Be Disclosed

Rev 1.5a

MELC199928

(335 of 523)
Case:
Case 15-16440,
2:07-cv-02513-GMS
08/20/2015,Document
ID: 9654788,
1166
DktEntry:
Filed 07/10/15
7-2, PagePage
306 of
40494
of 61
JOE ARPAIO BRIEF
Timeline

Date
2001 - 2008

Description
Eric Holder Senior Partner Covington Burling Law Firm

2001 2009

Lanny Breuer Senior Partner Covington Burling Law Firm

02/12/07

ACLU Files Melendres Lawsuit Against Arpaio

06/15/08

US Department of Justice (DOJ) announces investigation into Joe Arpaio

02/01/09

US Department of Justice (DOJ) - Hires Eric Holder Attorney General US

03/15/09

Arizona Attorney General (AG) Issues Search Warrant Deputy Joel Fox

04/20/09

Lanny Breuer Hired As Assistant AG Criminal Div. - DOJ

07/07/09

Joe Arpaio Announces he will not cooperate with DOJ Investigation

07/15/09

US Federal Judge Mary Murguia recuses herself from the Arpaio case.

07/20/09

US Department of Justice (DOJ) - Calls Federal Judge G. Murray Snow

07/22/09

Judge G. Murray Snow Assigned To Arpaio Federal Cases (Not Random)

07/23/09

US Department of Justice (DOJ) - Calls Federal Judge G. Murray Snow

09/01/09

John Gray Starts Intern Clerk Job with Federal Judge G. Murray Snow

09/16/09

Dennis Burke Becomes US Attorney General Arizona

09/25/09

US Department of Justice (DOJ) - Calls Dennis Burke US Attorney Arizona

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

Judge G. Murray Snow Calls US Department of Justice (DOJ)

11:04

602.322.7560

202.514.2000

16

09/28/09

Dennis Burke US Attorney - Calls Judge G. Murray Snow

11:44

602.514.7500

602.322.7560

09/28/09

US Department of Justice (DOJ) - Wire Tap #56990-34

10/15/09

US Gov breached Maricopa all domains, and subdomains

10/15/09

Maricopa Government - mcao.maricpoa.gov - mcso.maricopa.gov

156.42.184.65

10/15/09

Mail servers: extmail1.maricopa.gov extmail2.maricopa.gov

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

DOJ Criminal Division Wire Tap #64402-03

08/15/10

US Gov breached Maricopa all domains, and subdomains

08/15/10
08/15/10

Maricopa Government - mcao.maricpoa.gov - mcso.maricopa.gov

156.42.184.65

Mail servers: extmail1.maricopa.gov extmail2.maricopa.gov

156.42.103.166

07/10/10

Covington Burling Law Firm Take Over Melendres Lawsuit Against Arpaio.

09/02/10

US Department of Justice (DOJ) files suit against Arpaio

_______________________________
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

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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

John Gray Joins Perkins Coie Law Firm

10/18/10

Covington Burling Law Firm Call Department of Justice (DOJ) - Not In This Case

10/22/10

Covington Burling Law Firm Call Perkins Coie (John Gray)

10/23/10

US Government Breached - www.jshfirm.com mail.jshfirm.com

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

Dennis Burke Resigns As Us Attorney Arizona - Fast and Furious Scandal

10/21/11

Sheriff Arpaio Fires MSCO Captain Joel Fox

09/01/11

US Department of Justice (DOJ) files complaint against Sheriff Arpaio

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

US Department of Justice (DOJ) Calls Perkins Coie (John Gray)

07/24/12

Covington Burling Law Fim Call to US Rep Jon Kyl office

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

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Confidential Information Not to Be Disclosed

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Timeline

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Exhibit G

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EXHIBIT 15

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

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Manuel de Jesus Ortega Melendres, on


behalf of himself and all others similarly
situated; et al.

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v.

13

Joseph M. Arpaio, in his individual and


official capacity as Sheriff of Maricopa
County, AZ; et al.

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ORDER

Plaintiffs,

11

14

No. CV-07-2513-PHX-GMS

Defendants.

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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

document entitled Additional Information. Mr. Moseley subsequently filed a Motion to

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Intervene in this action on behalf of Dennis Montgomery, along with various other

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motions and memoranda. (See Docs. 1057, 1058, 1067, stricken by Doc. 1093.)

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Following a status conference at which Mr. Moseley was invited to appear telephonically

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in support of his request for admission pro hac vice, and at which he did not appear, the

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Court denied Mr. Moseleys application. (See Doc. 1093.) Mr. Moseley now moves for

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reconsideration of his application for admission on the grounds that (1) the record does

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not reflect the existence of any conflict of interest between Mr. Moseleys representation

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of Sheriff Joseph Arpaio in another action and his intended representation of Mr.

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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

As noted above, Mr. Moseley was authorized to appear telephonically at this


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of Professional Conduct, a lawyer may not represent a client if the representation


involves a concurrent conflict of interest, such as where the representation of one client
will be directly adverse to another client or where there is a significant risk that the
representation of one or more clients will be materially limited by the lawyer's
responsibilities to another client . . . . E.R. 1.7(a). Attorneys admitted pro hac vice are
held to the same professional responsibilities and ethical standards as regular
counsel. . . . Cole v. U.S. Dist. Ct. for the Dist. of Idaho, 366 F.3d 813, 822 (9th Cir.
2004). The comments to E.R. 1.7 offer some guidance on whether an impermissible
conflict exists: the comments provide that a lawyer may not act as an advocate in one
matter against a person the lawyer represents in some other matter, even when the matters
are wholly unrelated. A conflict may also exist by reason of substantial discrepancy in
the parties testimony, [or] incompatibility in positions in relation to an opposing
party . . . . E.R. 1.7 (advisory notes).
The interests of Mr. Montgomery are adverse to the interests of Sheriff Arpaio and
the MCSO, or at least the risk of such adversity, is sufficiently present to warrant denying
Mr. Moseleys application to represent the former. (See also Doc. 1145 (noting the
parties differences with some positions taken by Mr. Moseley)). Mr. Moseley concedes
that he has an attorney-client relationship with Sheriff Arpaio stemming from his
affiliation with Freedom Watch, which represents the Sheriff in another action in the
Circuit Court for the District of Columbia challenging President Obamas executive
action on immigration. Mr. Moseley seeks admission on behalf of Mr. Montgomery, who
was hired as a confidential informant by the MCSO. Sheriff Arpaio has testified in this
action that the material MCSO received from Mr. Montgomery was junk. (Tr. of Apr.
23, 2015 Evid. Hrg 650:2025, Docs. 1027.). Facts involving the Seattle operation and
the credibility of Mr. Montgomery are squarely before this Court, at least insofar as those

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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

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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

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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

Reconsideration (Doc. 1112) is DENIED.


Dated this 10th day of July, 2015.

7
Honorable G. Murray Snow
United States District Judge

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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.
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EXHIBIT 16

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FOURTH REPORT
Independent Monitor
for the
Maricopa County Sheriffs Office

Review Period First Quarter 2015


Robert S. Warshaw
Independent Monitor
July 14, 2015

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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.

Fourth Quarterly Report Summary


Compliance Status

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

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1
2
3
4
5
6
7

John T. Masterson, Bar #007447


Joseph J. Popolizio, Bar #017434
Justin M. Ackerman, Bar #030726
JONES, SKELTON & HOCHULI, P.L.C.
2901 North Central Avenue, Suite 800
Phoenix, Arizona 85012
Telephone: (602) 263-1700
Fax: (602) 200-7827
jmasterson@jshfirm.com
jpopolizio@jshfirm.com
jackerman@jshfirm.com

10

A. Melvin McDonald, Bar #002298


JONES, SKELTON & HOCHULI, P.L.C.
2901 North Central Avenue, Suite 800
Phoenix, Arizona 85012
Telephone: (602) 263-1700
Fax: (602) 200-7847
mmcdonald@jshfirm.com

11

and

12

Michele M. Iafrate, Bar #015115


Iafrate & Associates
649 North Second Avenue
Phoenix, Arizona 85003
Tel: 602-234-9775
miafrate@iafratelaw.com
Attorneys for Defendant Joseph M. Arpaio in his official
capacity as Sheriff of Maricopa County, AZ

8
9

13
14
15
16
17

UNITED STATES DISTRICT COURT

18

DISTRICT OF ARIZONA

19

Manuel de Jesus Ortega Melendres, et al.,

20

Plaintiffs,

21
22

NO. CV 07-02513-PHX-GMS

v.
Joseph M. Arpaio, et al.,

23

Defendants.

24
25
26

Defendant Joseph M. Arpaio and specially appearing non-party Gerard

27

Sheridan (Movants) respectfully request the Court to stay the district court proceedings

28
4373662.1
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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,

F.R.A.P., Movants do not expect the need for a lengthy stay.

The denial of a motion to recuse is not an appealable order; and thus,

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

preparing the petition at this very moment.

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

depend on a showing of actual bias. It requires instead that there be no reasonable

19

question, in any informed persons mind, as to the impartiality of the judge); In re

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. &
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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)

(the judge's Memorandum of Decision suggests that he made a confidential inquiry,

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

reassure a public already skeptical of lawyers and the legal system.).

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

expect to file their Petition by July 24.

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17

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DATED this 14th day of July, 2014.

1
2

JONES, SKELTON & HOCHULI, P.L.C.

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

JONES, SKELTON & HOCHULI, P.L.C.

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

IAFRATE & ASSOCIATES

11

14
By_s/ Michele M. Iafrate________________
Michele M. Iafrate, Bar #015115
649 North Second Avenue
Phoenix, Arizona 85003

15
16
17

Attorneys for Defendant Joseph M.


Arpaio in his official capacity as Sheriff
of Maricopa County, AZ

18
19

MITCHELL STEIN CAREY, PC

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

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1
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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

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of 1

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UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

8
9

Manuel de Jesus Ortega Melendres, et al.,


Plaintiffs,

10

Order Granting Motion to Stay

v.

11
12

NO. CV 07-02513-PHX-GMS

Joseph M. Arpaio, et al.,


Defendants.

13
14
15
16

Upon consideration of Defendant Joseph M. Arpaios and specially


appearing Gerard Sheridans Motion to Stay,

17
18

IT IS HEREBY ORDERED granting Defendants request for Motion to


Stay.

19
_____________________________
The Honorable G. Murray Snow
United States District Court

20
21
22
23

DATED this _______ day of ____________, 2015.

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EXHIBIT 18

(376 of 523)
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1
2
3
4
5
6
7
8
9
10
11
12
13
14

Cecillia D. Wang (Pro Hac Vice)


cwang@aclu.org
ACLU Foundation
Immigrants Rights Project
39 Drumm Street
San Francisco, California 94111
Telephone: (415) 343-0775
Facsimile: (415) 395-0950
Daniel J. Pochoda
dpochoda@acluaz.org
Joshua D. Bendor
jbendor@acluaz.org
ACLU Foundation of Arizona
3707 N. 7th St., Ste. 235
Phoenix, AZ 85014
Telephone: (602) 650-1854
Facsimile: (602) 650-1376
Attorneys for Plaintiffs (Additional attorneys
for Plaintiffs listed on next page)

15

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF ARIZONA

16
17
18

Manuel de Jesus Ortega Melendres,


et al.,

19
20
21
22
23
24
25
26
27
28

Plaintiff(s),
v.
Joseph M. Arpaio, et al.,
Defendant(s).

)
)
)
)
)
)
)
)
)
)
)
)

CV-07-2513-PHX-GMS
PLAINTIFFS OPPOSITION TO
MOTION TO STAY

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Additional Attorneys for Plaintiffs:


Andre I. Segura (Pro Hac Vice)
asegura@aclu.org
ACLU Foundation
Immigrants Rights Project
125 Broad Street, 17th Floor
New York, NY 10004
Telephone: (212) 549-2676
Facsimile: (212) 549-2654
Anne Lai (Pro Hac Vice)
alai@law.uci.edu
401 E. Peltason, Suite 3500
Irvine, CA 92697-8000
Telephone: (949) 824-9894
Facsimile: (949) 824-0066
Stanley Young (Pro Hac Vice)
syoung@cov.com
Hyun S. Byun (Pro Hac Vice)
hbyun@cov.com
Covington & Burling LLP
333 Twin Dolphin Drive
Suite 700
Redwood Shores, CA 94065-1418
Telephone: (650) 632-4700
Facsimile: (650) 632-4800
Tammy Albarran
talbarran@cov.com
Covington & Burling LLP
One Front Street
San Francisco, CA 94111
Telephone: (415) 591-7066
Facsimile: (415) 955-6566
Priscilla G. Dodson (Pro Hac Vice)
pdodson@cov.com
Covington & Burling LLP
One CityCenter
850 Tenth Street, NW
Washington, DC 20001-4956
Telephone: (202) 662-5996
Facsimile: (202) 778-5996

Jorge M. Castillo (Pro Hac Vice)


jcastillo@maldef.org
Mexican American Legal Defense and
Educational Fund
634 South Spring Street, 11th Floor
Los Angeles, California 90014
Telephone: (213) 629-2512
Facsimile: (213) 629-0266

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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.

Goodyear Tire & Rubber Co., No. 2:15-CV-00133-KJM-AC, 2015 WL 3623369, at *1

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

circumstances justify an exercise of that discretion. Id. at 433-34.

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

or that the public interest would be benefited by a stay.

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

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Disqualification, Doc. 1164, they are not likely to succeed on their petition for a writ of

mandamus. See Solis v. Washington, No. C08-5479BHS, 2010 WL 1708831, at *3

(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

writ of mandamus is an extraordinary remedy limited to extraordinary causes. In re

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
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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

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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

mandamus, and their motion to stay must be denied.


As to the second stay factor, Movants have not shown how they would be

12

irreparably injured by the continuation of these proceedings, or even which portion of

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

irreparably injure them.

19

Meanwhile, a stay of these proceedings would substantially injure the Plaintiff

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

administering discipline to the persons responsible; and that Defendants violated

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

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Defendants contempt. As this Court has repeatedly noted, and in part because of

Defendants inadequate recordkeeping and document production, 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 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

(internal citations and quotations omitted).

19
20

Movants have not and cannot carry their burden to merit a stay of these
proceedings. Their motion should be denied.

21
22

RESPECTFULLY SUBMITTED this 16th day of July, 2015.

23

By: /s/ Joshua D. Bendor

24

Cecillia D. Wang (Pro Hac Vice)


Andre I. Segura (Pro Hac Vice)
ACLU Foundation
Immigrants Rights Project

25
26
27

Daniel J. Pochoda
Joshua D. Bendor

28
4

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ACLU Foundation of Arizona

Anne Lai (Pro Hac Vice)

Stanley Young (Pro Hac Vice)


Tammy Albarran (Pro Hac Vice)
Hyun S. Byun (Pro Hac Vice)
Priscilla G. Dodson (Pro Hac Vice)
Covington & Burling, LLP

4
5
6

Jorge M. Castillo (Pro Hac Vice)


Mexican American Legal Defense and
Educational Fund
Attorneys for Plaintiffs

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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

Dated this 16th day of July, 2015.

/s/ Joshua D. Bendor

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EXHIBIT 19

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Case:
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15-16440, 08/20/2015,
Document
ID: 9654788,
1198-2
DktEntry:
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ID: 9654788,
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EXHIBIT 21

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

512

3
4
5
6
7
8
9

Manuel de Jesus Ortega


Melendres, et al.,
Plaintiffs,
vs.
Joseph M. Arpaio, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

CV 07-2513-PHX-GMS
Phoenix, Arizona
April 23, 2015
8:34 a.m.

10
11
12
13
14
15

REPORTER'S TRANSCRIPT OF PROCEEDINGS

16

BEFORE THE HONORABLE G. MURRAY SNOW

17

(Evidentiary Hearing Day 3, pages 512-817)

18
19
20
21
22
23
24
25

Court Reporter:

Gary Moll
401 W. Washington Street, SPC #38
Phoenix, Arizona 85003
(602) 322-7263

Proceedings taken by stenographic court reporter


Transcript prepared by computer-aided transcription

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635

reasonable steps to enforce my order.

Do you admit under that guideline that you are in

contempt for failing to -- to abide by the May 14th hearing

instructions I gave you?

A.

I would have to say yes.

Q.

All right.

I'm evaluating what kind of relief -- and I am going to give

some relief, clearly, to the plaintiff class, and it may be

quite extensive or it may be limited.

11:44:06

Now, it's important for me to understand when

And it's something that

10

I've got to consider in conjunction with the parties, and I

11

think it's going to require some careful thought.

12

11:44:25

But to me it is very important whether that contempt

13

that you and perhaps Chief Deputy Sheridan -- civil contempt --

14

committed on May 14 was an isolated incident or was a pattern

15

that reflects a hesitancy on the sheriff's office, on the

16

sheriff's department and on your part, or even a desire to

17

subvert the orders of this Court, so I'm going to ask you some

18

more questions about that.

19

Did you -- I may have already asked you.

11:44:48

Did you

20

impose any discipline on Chief Deputy Sheridan for violating my

21

order and giving that direction to Chief Deputy Trombi?

22

A.

No, sir.

23

Q.

Has there been any investigation regarding that?

24

there have been some investigations that my monitor and I have

25

insisted on, and there were a few investigations that were

11:45:11

I know

11:45:24

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642

Q.

Was that under the SID, Special Investigations Division?

A.

I'm not sure.

Q.

Does the Special Investigations Division do investigations

with confidential informants?

confidential informants?

A.

Yes.

Q.

And does the captain of SID have to approve investigations

involving confidential informants in terms of payments to them?

A.

Are they -- do they handle


11:53:00

Your Honor, I don't know how far down it goes for that

10

authority, whether it's a lieutenant or the captain or deputy

11

chief.

12

Q.

13

are made to confidential informants?

14

A.

Yes.

15

Q.

Are there any exceptions to that policy?

16

A.

I'm not sure.

17

Q.

Well, do you remember that right at the time -- and it was,

18

as I recollect, in June of 2014 -- that you named

19

Captain Bailey to become captain over the Professional

20

Standards Bureau instead of the Special Investigations

21

Division, that there was a newspaper article, maybe a blog,

22

that was published by somebody named Stephen Lemons?

23

A.

I know who he is.

24

Q.

Do you usually read the articles that he writes about you?

25

A.

Once in a while, yes.

Okay.

11:53:17

But somebody in the SID has to approve payments that

11:53:30

11:53:50

11:54:08

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643

Q.

Do you remember him writing about investigations that he

had sources were telling him your office was doing out of

Seattle involving confidential informants?

A.

He may -- I may remember that, yes.

Q.

Let me just give you -- I've copied the article.

give it to you and see if it helps to refresh your recollection

that you've read it.

Let me

Do you want to distribute that?

(Off-the-record discussion between the Court and the

10

clerk.)

11:54:57

11

THE COURT:

12

THE WITNESS:

Hand it to the attorneys.


It's a long article.

13

BY THE COURT:

14

Q.

15

read it, you can do that.

16

recollection, now having me give it to you, if you ever read

17

it.

18

11:54:26

It is a long article, and if you need to take the time to


But I'm just asking if you have any

11:55:44

I will tell you that in the article he says he talked

19

to you about some of the materials in the article, and that's

20

kind of on the last page, if that will help you.

21

11:56:01

(Pause in proceedings.)

22

BY THE COURT:

23

Q.

Do you remember reading this article?

24

A.

I believe I read it.

25

Q.

And I just want to ask you some questions about the article

11:56:53

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644

and some of the things that it states.

I recognize, and I believe Mr. Lemons does in the

article, too, that he can't personally vouch for everything

that the article says, it's just what he's had some sources

tell him.

11:57:10

So I don't mean to suggest one way or another that the

article is accurate.

things that it says so I understand them.

you'll tell me the truth, and you understand you're under oath,

10

I just want to ask about some of the


And I trust that

correct?

11

11:57:24

Did you detail some of your personnel to conduct

12

investigations that resulted in their frequent trips and stays

13

in the Washington state area beginning in 2013 or 2014?

14

A.

15

there, yes.

16

Q.

And who were those investigators?

17

A.

I think it was Zullo and Brian Mackiewicz.

18

Q.

And Mackiewicz is --

19

A.

A detective.

20

Q.

Is he in your -- is he assigned to you personally, your

21

risk detail?

22

A.

Well, we had a lot of threats on me and --

23

Q.

I understand that.

24

protect you and assess risks that come against you?

25

A.

We had a couple investigations -- investigators go up

Yes.

11:57:40

11:57:52

Is that generally his assignment, to

11:58:09

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645

Q.

And so you were aware when he was gone to the Seattle area?

A.

Yes.

Q.

And what about -- I think there's a Mr. Anglin mentioned in

the article.

Seattle as well?

A.

I think for a short period of time he did.

Q.

And is zoo -- did you say Zulu?

member?

A.

Yes.

10

Q.

And did you pay funds from Maricopa County for Mr. Zullo to

11

go to the Washington area?

12

A.

Yes.

13

Q.

And then I assume you paid Anglin and Mackiewicz their

14

travel costs?

15

A.

We don't pay for Zullo, but --

16

Q.

But you paid Mackiewicz and Anglin.

17

A.

Yes.

18

Q.

And did you also hire a consultant in the Washington state

19

area to help you with this investigation or investigations that

20

Mackiewicz and Zullo were working with?

21

A.

Not that I know of.

22

Q.

Did you have a confidential informant in the Washington

23

area that they were working with?

24

A.

Yes.

25

Q.

And does the article accurately identify who that

Was he also an officer that was assigned to go to


11:58:23

Zullo.

Is he a posse

11:58:33

11:58:47

11:59:02

May have.

11:59:12

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646

confidential informant was?

It says the name is Dennis Montgomery.

Is that the

confidential informant?

A.

Yes.

Q.

And so when Mr. Montgomery was a confidential informant, he

was some sort of a computer consultant?

A.

Yes.

Q.

And as a confidential informant, his fees would have to be

paid, or approved, if in fact it was before the transfer of

10

Captain Bailey, his fees would have had to have been approved

11

by Captain Bailey, or any payments to him would have had to

12

have been approved by Captain Bailey?

13

A.

I'm not sure at the time period, Your Honor.

14

Q.

Now, the article says that you were personally conducting

15

these investigations and personally aware of them.

16

11:59:38

11:59:57

12:00:14

Were you?

17

A.

Well, on a certain issue I was.

18

Q.

And what issue was that?

19

A.

It was the president's birth certificate.

20

Q.

Okay.

21

into the president's birth certificate.

22

ever tell you -- or, well, did you ever use Mr. Montgomery to

23

investigate anything about the Department of Justice?

24

A.

25

certificate.

So you were -- Mr. Montgomery was doing research

12:00:25

Did Mr. Montgomery

I don't believe that Montgomery was involved in the birth


It was other violations that he was looking into.

12:00:46

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647

Q.

And what were those?

A.

Had to do with computer tampering and also bank fraud, that

type of thing.

Q.

Montgomery was actually doing was investigating me.

You see that that's what the article says?

Did you ever -- you see that the article says that what

A.

It's not true.

Q.

All right.

by anyone?

12:01:12

Are you aware that I've ever been investigated

10

A.

You investigated?

11

Q.

Yes.

12

A.

No.

13

Q.

Any of my activities?

14

A.

No.

15

Q.

Any of my family members?

16

A.

That have been investigated?

17

Q.

Yes.

18

A.

Not by our office.

19

Q.

Are you aware of anybody who's investigated any of my

20

family members by any -- any office.

21

A.

22

office.

23

Q.

Well, whose office was it?

24

A.

It was an outside investigator not hired by us.

25

Q.

Who hired the outside investigator?

12:01:24

No.

12:01:31

Or anybody.

12:01:52

I believe there was an issue, but once again, it wasn't my

12:02:12

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Q.

at the MCSO that the DOJ was inappropriately --

650

And so Mr. Montgomery proposed to -- who did he propose to

I assume it was of interest to you if they were

wiretapping my phone, among others?

A.

Yes.

Q.

And yours, too.

And mine, too.

12:05:33

And so were you conducting this investigation?

A.

No.

Q.

Who was in your department?

10

A.

This is Zullo and I think Mackiewicz.

11

Q.

What rank does Mackiewicz have?

12

A.

He's a detective.

13

Q.

Who did he report to about this investigation?

14

A.

I think he and Zullo worked together.

15

Q.

And who did they report to?

16

A.

And Jerry Sheridan.

17

Q.

They reported to Deputy Chief Sheridan?

18

A.

At one time, but let me just say that the information

19

we're -- we've been getting is the informer's not very viable.

20

Q.

21

that you became aware after a considerable amount of time that

22

the reporter was giving you junk.

23

A.

Yes.

24

Q.

Or the informer was giving you junk?

25

A.

Yes.

12:05:40

12:05:52

Well, I understand that, I think the article itself says,

12:06:11

Is that fair to say?

12:06:24

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CV07-2513, Melendres v. Arpaio, 4/23/15 Evidentiary Hrg 817

1
2

C E R T I F I C A T E

3
4
5
6
7

I, GARY MOLL, do hereby certify that I am duly

appointed and qualified to act as Official Court Reporter for

the United States District Court for the District of Arizona.

10

I FURTHER CERTIFY that the foregoing pages constitute

11

a full, true, and accurate transcript of all of that portion of

12

the proceedings contained herein, had in the above-entitled

13

cause on the date specified therein, and that said transcript

14

was prepared under my direction and control.

15
16
17
18

DATED at Phoenix, Arizona, this 24th day of April,


2015.

19
20
21
22
23
24
25

s/Gary Moll

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EXHIBIT 22

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

818

3
4
5
6
7
8
9

Manuel de Jesus Ortega


Melendres, et al.,
Plaintiffs,
vs.
Joseph M. Arpaio, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

CV 07-2513-PHX-GMS
Phoenix, Arizona
April 24, 2015
8:41 a.m.

10
11
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14
15
16
17
18

REPORTER'S TRANSCRIPT OF PROCEEDINGS


BEFORE THE HONORABLE G. MURRAY SNOW
(Evidentiary Hearing Day 4, pages 818-1018)

19
20
21
22
23
24
25

Court Reporter:

Gary Moll
401 W. Washington Street, SPC #38
Phoenix, Arizona 85003
(602) 322-7263

Proceedings taken by stenographic court reporter


Transcript prepared by computer-aided transcription

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A.

Okay.

Q.

We can take it up again another time.

998

Let's talk about the Montgomery investigation.

A.

Yes, sir.

Q.

Chief -- or Sheriff Arpaio yesterday said that you were in

charge of that investigation.

MR. WALKER:

THE COURT:

MR. WALKER:

Is that true?

Your Honor -Sure.


Just so the record is clear, when we use

10

the word -- the name Montgomery, can we make it clear it's

11

Dennis Montgomery?

12
13

THE COURT:

17:06:55

Yes.

I'm sorry, that's correct.

17:07:18

It's

Dennis Montgomery, who is the confidential informant.

14

THE WITNESS:

Yes, sir.

15

BY THE COURT:

16

Q.

17

you -- folks reported to you.

18

A.

Yes, sir.

19

Q.

You seemed hesitant about that.

20

A.

Well, I'm only hesitant because when you said that I'm in

21

charge of, the detective, Brian Mackiewicz, I would consider

22

him to be in charge of an investigation.

23

Q.

All right.

24

A.

Correct.

25

Q.

He's a sergeant?

17:07:29

And I have some questions on this.

Sheriff Arpaio said

17:07:41

And so he is in charge of the investigation?

17:08:05

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A.

Yes, sir.

Q.

There is -- is it Sergeant Anglin as well?

A.

Yes, sir.

Q.

And somebody from your posse?

A.

Yes, sir.

Q.

And they spent a lot of time in Seattle?

A.

Yes, sir.

Q.

Did you report to Sheriff Arpaio about what they were

doing?

999

For a short time he was involved in the case.

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.

We got weekly updates, sometimes twice a week.

14

Q.

Think he understood what they were doing?

15

A.

I would think so, yes.

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

You heard that testimony, didn't you?

19

A.

Yes, sir.

20

Q.

I didn't hear you say anything about that.

21

of the investigation?

22

A.

23

There were wiretaps.

24

that were from my phone and the sheriff's phone in about 2008.

25

I certainly don't recall yours.

Was that part

17:08:58

I -- it's my recollection that I don't believe you were.


I know that there were wiretap numbers

17:09:30

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What maybe the sheriff was confusing that with, there

were -- there was information that Dennis Montgomery gave us

that certain law offices, Jones, Skelton & Hochuli, Ogletree

Deakins, two law firms that represented us in the DOJ case,

were breached.

representing us.

Q.

Well, let's go back to my question.

A.

I'm getting there, Your Honor.

Q.

Okay.

10

A.

Because you're next.

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

from the -- the DOJ to you.

15

One in particular with Mr. Popolizio, who was

17:10:19

But understand, Dennis Montgomery gave us no evidence

16

that showed the contents of any of those e-mails except one

17

sentence from Mr. Popolizio's e-mail that talked about

18

something about his daughter and a soccer game.

19

It's a very long story.

17:10:45

I don't think you have

20

time -- I can tell it in --

21

Q.

22

because we'll decide if we're going to take this up later.

23

17:10:06

17:11:14

I don't want to hear it, but I will let you tell it later

But in your description of the investigation I didn't

24

hear anything about the DOJ at all.

So why would

25

Mr. Montgomery have been looking at my computer to see if the

17:11:28

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DOJ was sending me e-mails?

A.

Mr. Montgomery.

don't remember the years, but it was '07 to '10 for a few

years, and he took --

Q.

understand that.

A.

because this has been a few years, and I've had other things on

10

Okay.

Here's where the plot thickens a little bit with


Mr. Montgomery worked for the CIA.

And I

17:11:58

When you say '7 to '10 for a few years, I don't -- I didn't

2007 to 2010, sometime -- I may have the dates wrong,

my mind since this thing kind of got cold.

11

17:12:15

He would -- when he worked for the CIA, he pulled data

12

from American citizens for the CIA.

I mean, we heard a lot

13

about this a few years ago; it was very much in the media.

14

he said he was one of the individuals that was tasked with

15

doing that, and he knew that was incorrect, it was wrong, and

16

so he made backup copies that he took and he kept.

17

mining that data to find these e-mail breaches, to find the

18

bank information that he originally came to us with.

19

Q.

20

communication to my computer?

21

A.

Something to that effect, yes.

22

Q.

And he brought that to you, and did he have the actual

23

content of the communication?

24

A.

No, sir.

25

Q.

How did he know -- how did he arrive at the conclusion that

And

17:12:38

And he was

Well, so he found information that the DOJ had sent a


17:13:05

17:13:17

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the DOJ had accessed my computer?

A.

us.

credible.

Again, we were always very skeptical of what he was giving


However, he was giving us information on occasion that was

We had a seated justice in Washington -- I can't

recall his name; I have it written down on my pad, Your

Honor -- that is a member of the FISA court in Washington, D.C.

We had Mr. Mon -- because the sheriff and I were concerned

about the CIA wiretapping our phones.

This justice actually

10

confirmed that these were typical wiretap numbers, and so it

11

did give Mr. Montgomery a little more credibility with us.

12

17:13:42

17:14:16

And we continued to work with him, we continued to

13

keep him on our informant payroll, so to speak, as he was

14

producing information.

15

stale, and we finally realized that he was stringing us along.

16

Q.

17

yesterday that he -- some pretty critical comments about the

18

Department of Justice.

But it became very slow, it became very


17:14:49

You know, with all due respect, we did hear the sheriff say

Do you remember those?

19

Maybe I misremember.

I'll scratch that.

20

Let me ask you this:

If in fact the sheriff thought

21

there might have been some improper collusion between me and

22

the Department of Justice, can you blame him if he wanted to

23

investigate that further?

24

A.

Could I blame the sheriff?

25

Q.

Yeah.

17:15:19

17:15:33

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A.

Well, there was -- there was really nothing to think that

there was any collusion.

Q.

an expensive proposition for the MCSO, was he not?

A.

He was.

Q.

Did you ever hear the sheriff describe his work as an

investigation of a conspiracy, or something of that nature,

between the Department of Justice and me?

A.

No, sir.

10

Q.

Did you ever hear him describe it as an investigation of me

11

to anyone at the MCSO?

12

A.

13

believe in the presence of the sheriff, with detective --

14

Sergeant Anglin and Detective Mackiewicz when this information

15

came forward that they were not, it was -- and I don't normally

16

do this because it's not my style, but I told them:

17

direct order from me.

18

information involving Judge Snow.

19

comes up, I want to know immediately.

20

materialize.

21

Q.

So Montgomery brought you some information?

22

A.

Initial.

23

would do, because -- I'll try and give you the two-second

24

version.

25

pieces and it could go all over the world.

Well, I certainly agree with that, but Mr. Montgomery was

No, sir.

17:15:48

17:16:04

As a matter of fact, I made quite sure, and I

17:16:29

This is a

You are not to investigate any


If any further information
Nothing ever did
17:16:52

And when we say "information," what Montgomery

When you send an e-mail, it goes out in bits and


It could go to

17:17:13

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Indonesia and back within seconds.

computer, the system puts it back together.

And it comes back in your

Montgomery has that data, or he says he does, in

those -- in that format.

He needs -- or he says he needed

supercomputers to put that information together.

have one.

forever to run programs.

information.

He doesn't

17:17:36

He's got this huge one in his garage, and it takes


And so he would come back with

Our primary focus, Your Honor, was the fraud, the bank

10

fraud, the -- excuse me, the computer fraud of him hacking into

11

person -- people's personal bank accounts.

12

Q.

13

investigation was?

14

A.

15

very prominent people.

16

Q.

17

Department of Justice.

18

A.

I -- I'm sorry, I don't.

19

Q.

Oh.

20

investigations?

21

A.

I don't --

22

Q.

When I say the target of the investigation, in other words,

23

he thought the Department of Justice was doing the bugging.

24

you remember that?

25

out the Department of Justice's bugging of judges and your

17:17:57

Are you uncomfortable telling me who the target of this

No, because there were about 50,000 people.

Some of them
17:18:14

Well, the sheriff told me that the target was the


Do you remember that?

Who would have had to sign off on these


17:18:30

Do

And the investigation was trying to find


17:18:42

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defense attorney and your offices.

Do you remember him saying that?

A.

I -- I don't remember.

Q.

He didn't mention anything about banks, that I recall.

A.

Well, when I think it's Dennis Montgomery and what we were

doing with him, it was really the bank fraud, it was the DOJ

wiretapping our phones going into the e-mail accounts of our

counsel, and there was something in there about your e-mail

also.

10

So, you know, the DOJ was on our radar screen because,

11

you know, personally if they did do an illegal wiretap on my

12

phone, I would have liked to -- I would like to know that.

13

Q.

I would, too.

14

A.

Probably good thing.

15

17:19:26

You didn't call me.

And so that's how -- that's how that happened.

So

16

when you say sign off on it, now, we were working with the

17

Arizona Attorney General's Office, as they were going to

18

prosecute this case if we were ever able to bring it to a

19

conclusion.

20

17:19:01

And it was also our intent and it is also our intent

21

to gather -- to complete gathering this information, because

22

Montgomery has promised us -- we're no longer paying him, we

23

haven't been paying him for a while -- some further

24

information, and to package this up and forward it to the

25

Federal Bureau of Investigation.

That was going to be our --

17:19:52

17:20:16

17:20:41

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our final conclusion to tie up this case.

Q.

isn't he?

A.

been verified, and you can google his name and find all kinds

of crazy stuff about him, but there were some pieces of

information that were verified and credible also.

informants that we deal with, there's a very shady side of them

and then there's also a very credible side for them.

Let me ask you, Montgomery's simply a computer consultant,

Well, that's what he is now.

He did work for, and this had


17:21:01

So like many

10

Q.

Well, why in the world did you have to designate him as a

11

confidential informant if there isn't anything he was doing

12

that was confidential was there?

13

A.

Well, he was working with us confidentially.

14

Q.

Well, why can't you just hire him as a consultant?

15

A.

Because he was -- well, I don't know.

16

handled him.

17

Q.

18

disclosure if you designate somebody as a confidential

19

informant, aren't there?

20

A.

Yes, sir.

21

Q.

That don't apply to just consultants?

22

A.

That's correct.

23

Q.

So I can do a public information request, you gotta give me

24

your consultants, but you don't have to give me your

25

confidential informants, do you?

This is the way we

17:21:24

17:21:41

Well, you don't have -- there's certain protections from

17:21:54

17:22:06

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A.

No, but when the -- somebody leaks to members of the media

who he is, he's no longer confidential.

Q.

confidential for?

A.

Well, it could have shown --

Q.

He hadn't infiltrated organized crime, had he?

A.

Could have shown that either the Department of Justice or

the CIA was breaching American citizens' personal information,

and he had at least 50,000, that I remember, of citizens that

Well, but what was he doing that he needed to be

17:22:26

10

lived here in Maricopa County.

11

Q.

12

what a confidential informant is anywhere in your operations

13

manual?

14

A.

Yes, sir, we do.

15

Q.

And is it written so broadly that Dennis Montgomery

16

qualifies?

17

A.

I believe so.

18

Q.

Who all has to sign off -- you purchased a bunch of

19

equipment for him.

20

A.

We did, but we never gave it to him.

21

Q.

You authorized travel and overtime and pay for your

22

detectives to go to Seattle?

23

A.

Yes, sir.

24

Q.

Why were you doing this out of Seattle?

25

A.

That's where he lives.

But I still don't understand.

17:22:52

Do you have a definition of

17:23:02

17:23:17

17:23:35

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Q.

Why did your detectives have to go to Seattle?

A.

That's where his massive computer system is.

Q.

Who -- did they have to be there with him?

A.

Well, that was always the discussion, because we wanted to

be there when he found the information.

harder when our detectives were there than when they weren't.

Q.

expenses?

A.

And he worked a lot

Was it worth paying their overtime and travel and all those

Well, now that we look back, and hindsight's 20/20,

10

probably not.

11

Q.

12

handled within PSB related to this investigation?

13

A.

17:24:07

Let me ask this:

Did you ever get any referrals that you

I don't believe so, no, sir.

14

THE COURT:

Well, I thank you for your patience.

We

15

will probably be resuming this matter in June, but I think it's

16

time to let you go.

THE WITNESS:

18

MS. WANG:

THE COURT:
How long is it?

22
23
24
25

Thank you, Your Honor.

Your Honor, I did have redirect.

Do you

want me just to defer that till June?

20
21

17:24:27

Thank you.

17

19

17:23:48

I had assumed you were going to redirect.

I assumed you were going to defer.

MS. WANG:

17:24:40

I'm sorry.

I'm happy to defer the redirect, Your

Honor.
THE COURT:
late in the day.

I think it makes sense.

We've gone pretty


17:24:48

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C E R T I F I C A T E

2
3
4
5
6

I, GARY MOLL, do hereby certify that I am duly

appointed and qualified to act as Official Court Reporter for

the United States District Court for the District of Arizona.

I FURTHER CERTIFY that the foregoing pages constitute

10

a full, true, and accurate transcript of all of that portion of

11

the proceedings contained herein, had in the above-entitled

12

cause on the date specified therein, and that said transcript

13

was prepared under my direction and control.

14
15
16
17

DATED at Phoenix, Arizona, this 27th day of April,


2015.

18
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s/Gary Moll

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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

In re: DENNIS L. MONTGOMERY.

No. 15-71433

DENNIS L. MONTGOMERY,

D.C. No. 2:07-cv-02513-GMS


District of Arizona,
Phoenix

Petitioner,
v.

ORDER

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF ARIZONA,
PHOENIX,
Respondent,
COUNTY OF MARICOPA; et al.,
Real Parties in Interest.

Before: GOODWIN, FARRIS, and FRIEDLAND, Circuit Judges.


Petitioner has not demonstrated that this case warrants the intervention of
this court by means of the extraordinary remedy of mandamus. See Bauman v.
U.S. Dist. Court, 557 F.2d 650 (9th Cir. 1977). Accordingly, the emergency
petition is denied.
No further filings will be entertained in this closed case.
DENIED.
SL/MOATT

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EXHIBIT 24

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

3
4
5
6
7
8
9

Manuel de Jesus Ortega


Melendres, et al.,
Plaintiffs,
vs.
Joseph M. Arpaio, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

CV 07-2513-PHX-GMS
Phoenix, Arizona
July 20, 2015
11:03 a.m.

10
11
12
13
14
15

REPORTER'S TRANSCRIPT OF PROCEEDINGS

16

BEFORE THE HONORABLE G. MURRAY SNOW

17

(Status Conference)

18
19
20
21
22
23
24
25

Court Reporter:

Gary Moll
401 W. Washington Street, SPC #38
Phoenix, Arizona 85003
(602) 322-7263

Proceedings taken by stenographic court reporter


Transcript prepared by computer-aided transcription

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CV07-2513, Melendres v. Arpaio, 7/20/15 Status Conference

questions, I'm available today.

That's why I am present.

THE COURT:

All right.

MR. GOMEZ:

Yes.

THE COURT:

Anyone else?

All right.

Those who are on the telephone?

MS. WANG:

Thank you.

Good morning, Your Honor.

the ACLU Immigrants' Rights Project.

here appearing telephonically for the plaintiff.


THE COURT:

10

All right.

MS. KIMMINS:

Andre Segura and I are

Good morning.

Good morning, Your Honor.

Anyone else?
Lynnette

11

Kimmins and Rosaleen O'Gara, specially appearing nonparties

12

from the U.S. Attorney's Office.

13

MR. CASTILLO:

14

11:06:48

Cecillia Wang of

11:07:08

This is Jorge Castillo with MALDEF on

behalf of the plaintiff.

15

THE COURT:

Anyone else?

16

All right.

I do note the presence of the monitor and

11:07:24

17

the Monitoring Team in the jury box.

18

witness box.

19

review and investigation and they are present.

20

The monitor's in the

This is one of their weeks of regular quarterly

We have a number of items to take up that I ordered

21

for the status conference today.

22

have filed motions to stay -- a motion to stay, which has been

23

fully briefed.

24

the pleadings and I'm prepared to rule and explain my reasons

25

therefor.

11:07:44

Since that time, the parties

Nobody requested oral argument.

I've reviewed

I might have a question or two to the parties

11:08:06

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regarding that motion to stay.

first.

I think we ought to rule on it

Basically, last week the movants -Now, Mr. Popolizio, are you and Mr. Masterson on

behalf of the -- I'm not taking oral argument on this but I

have a few questions.

are you here on behalf of the defendants?

Are you here on behalf of the movants or

MR. POPOLIZIO:

This is a joint motion for stay.

THE COURT:

I'm here on behalf of Sheriff Arpaio.

Well, wait a minute.

Are you here

10

representing the defendants or are you here trying to represent

11

Sheriff Arpaio separately?

12

MR. POPOLIZIO:

13

Sheridan is on this motion also.

14

THE COURT:

Today both, Your Honor.

I know.

Are you representing any of the

alleged non-party contemnors other than Sheriff Arpaio and

16

sheriff -- or Deputy Chief Sheridan?

18
19

MR. POPOLIZIO:

11:08:41

Jerry

15

17

11:08:27

11:08:53

Well, I represent the defendants

civilly, Your Honor.


THE COURT:

All right.

Then I'll note that you filed

20

last week a motion for stay, which basically said you disagreed

21

with my ruling on the motion to recuse -- not a big surprise --

22

and that you asked that I enter a stay based upon that

23

disagreement and the importance of the issue to this case.

24

didn't cite any legal authority, and you didn't say why this

25

met with the legal authority.

11:09:08

You

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Plaintiffs, in their response, filed legal authority,

and you, in your reply, then apparently accepted that authority

and joined the argument.

Normally, of course, we don't consider replies,

arguments raised in reply that weren't raised in the motion,

and so I'm inclined not to consider yours, except for I do

think that it's an important issue in this case.

8
9

Number one, whether you have made a strong showing


that you're likely to prevail on the merits, with all due

10

respect, I entered a 40-page order.

11

that your motion is filed in good faith, I developed in great

12

detail why I think the motion does not have any merit, let

13

alone any likelihood of success.

14

your motion is brought in bad faith.

15

what the Ninth Circuit will do and I respect that and

16

acknowledge it, but I do not think that you've shown a strong

17

likelihood of success on the merits.

18

11:09:44

And while I appreciate

11:09:59

That doesn't mean I think


The Ninth Circuit can do
11:10:16

Number 2, whether the applicant will be irreparably

19

injured absent a stay.

Well, as you do note, in fairness, the

20

supplemental injunctive relief has been largely affirmed by the

21

Ninth Circuit Court of Appeal, 784 F.3d 1254.

22

have twice admitted to being in contempt of my order.

23

Arpaio has admitted to being in contempt in all three aspects

24

of the notice of contempt, and sheriff -- Deputy Chief Sheridan

25

has admitted to being in contempt of two of them.

11:10:34

Your clients
Sheriff

11:10:53

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And the matters of interest, particularly pertaining

to the Montgomery investigation, which is the only thing that

we might go forward on in addition to the other things that

your client was supposed to provide but hasn't, which is what

required the continuation of the contempt hearing in the first

place, I think they're going to be of interest to whoever the

presiding judge is, whether it's me or whether it's another

judge.

course, the whole story hasn't been told, and I'm not assuming

11:11:07

The attitude and the documents revealed -- and of

10

that it has been told.

I've invited your clients to provide an

11

explanation for those documents and I haven't made any

12

decisions about them.

13

suggest is going to be worth exploration, and so I can't see

14

how your clients will be injured absent a stay.

11:11:25

But it does seem to me that what they

15

Whether the stay will substantially injure the other

16

parties in the litigation, Mr. Young has set forth that these

17

are constitutional violations identifying and compensating

18

members of the plaintiff class whose rights were deprived by

19

your client will be more difficult the longer this goes on.

20

think that's almost undeniable.

21

and certainly suggested that -- or at least there have been

22

facts which would suggest that your own client and the MCSO

23

have not taken adequate steps to deal with the Armendariz

24

investigation and matters that have been revealed as a result

25

thereto.

11:11:45

And it's certainly undeniable

11:12:02

11:12:22

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I certainly agree with you that the public interest

does stand in favor of the impartiality of the judiciary, and

that that's an important consideration.

interest also stands in favor of not having judges be

manipulated in favor of going forth with proceedings that have

already been going on for years and bringing an end to

litigation.

But the public

So as I look at all those factors and as I analyze

Nken, which apparently you acknowledge is the correct

10

authority, your motion to stay is denied, and you may

11

proceed -- I would also note that you asked me to evaluate a

12

motion to stay based on a writ of mandamus that you haven't

13

filed yet.

14

evaluation, but based on the matters you put in your reply I've

15

given them substantive consideration.

16
17

11:12:44

11:13:00

It's very difficult for me to make such an

11:13:17

Is there anything else you wanted to say on that


matter?

18

MR. POPOLIZIO:

Just one thing, Your Honor.

I know

19

that you're not granting oral argument, but I just wanted to

20

bring to the Court's attention --

21

THE COURT:

22

MR. POPOLIZIO:

11:13:27

Would you please approach the microphone?


I know Your Honor is not granting oral

23

argument.

You were clear on that, and I'm just going to bring

24

to the Court's attention that there was a case that I found

25

over the weekend, and that case's name is Fiore versus Apollo

11:13:42

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Education Group.

very similar to this with a brother-in-law who was an equity

partner in another firm on a firm that was before Judge Wake.

It was Judge Wake's decision on a situation

And he did side with your analysis and he cited you as

authority, but in that decision that I did not know about on

Friday when we filed the reply, that's why I'm bringing this to

the Court's attention, he wrote the Advisory Committee with

regard to the Advisory Opinion No. 58, and the Committee came

back and stated that it was grounds for recusal.

10

I just wanted to bring that to the Court's attention

11

so that could become part of the record that I realize that

12

this case existed -- exists now, but did not on Friday.

13

THE COURT:

motion reflects a misunderstanding of my order.

15

dealt with this three years ago, I believe that my

16

determination was that my brother-in-law has no substantial

17

interest, based on the facts set forward.

18

cuts out the Advisory Committee Note, although I did note that

19

the Advisory Committee Note violates the rule.

20

legal authority, including the Pashaian case out of the Second

21

Circuit, says as much.

Back when we
11:14:39

And that sort of

And the better


11:14:59

I have not, by the way, said that you waived any

23

argument as it pertains to (b)(4), but as to (b)(1) you have

24

waived, and the authority is clear on that point.

25

11:14:24

Well, I do think to some extent your

14

22

11:14:04

I appreciate your providing me the supplemental

11:15:14

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authority.

file any supplemental briefing, you can certainly do that.

I will tell you in advance that the advisory opinion and what

the Advisory Committee does on this point is not going to

change my mind about something that we ruled on three years

ago.

If you want to
But

MR. POPOLIZIO:

I understand that, Your Honor, and

thank you for that opportunity.

THE COURT:

10

All right.

Thank you.

The motion for definition of -- oh, I do expect -- the

11

Monitoring Team is here, and I have lifted the stay, and I

12

expect all of the defendants and all of the movants to fully

13

and completely comply with the document requests that have

14

already been made, those clear back in February that have not

15

yet been complied with, those made in May that have not yet

16

been complied with, and the investigative requests of the

17

monitor.

18

disciplinary action needs to be taken, but I don't anticipate

19

that that will be necessary.

20
21
22
23
24
25

11:15:30

But you can file a supplemental brief if you wish.

7
8

I didn't know about it, either.

11:15:41

11:16:01

And I will be available if enforcement or

Motion for definition of plaintiff class.

That was

11:16:18

your motion, I believe, was it not, Mr. Walker?


MR. WALKER:

Yes, Your Honor.

And with the Court's

permission, I'd like Mr. Jirauch to address that issue.


THE COURT:
this matter?

Has Mr. Jirauch entered an appearance in


11:16:40

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1
2

THE COURT:

All right.

completed, you'll provide it to the parties?

MS. IAFRATE:

THE COURT:

MS. IAFRATE:

THE COURT:

Correct.

Do you have an estimated date for me?


I do not, Your Honor.

11:47:47

Can you have one by the time of our next

status conference?

MS. IAFRATE:

THE COURT:

10

And as soon as that's

Yes.

Thank you.

DOJ's request to examine and copy the database of

11

documents given by Montgomery.

We had a representative from

12

the Department of Justice here.

Do you want to come forward

13

and tell us what your request is.

14

MR. GOMEZ:

Yes, Your Honor.

11:47:59

I believe on May 8th the

15

Court had issued an order to the defendants' counsel

16

instructing the defendants' counsel to contact the United

17

States; actually, the CIA general counsel's office.

18

point, we -- I'm an attorney in the Civil Division of the

19

Department of Justice in Washington, D.C., and we were

20

contacted, and pursuant to that instruction we had spoken to

21

defendants' counsel, and with the purpose of, since there had

22

been a representation made that documents contained in what

23

I'll refer to as the Montgomery documents were either documents

24

of the United States or documents that -- implied -- were

25

classified or sensitive.

11:48:25

At that

11:48:46

11:49:15

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Pursuant to that, the United States attempted to make

a -- or contacted the defendants' counsel to see if we can make

arrangements to copy and examine those documents to determine

whether they're classified or sensitive or otherwise the

property of the United States.

agreement, I guess, with the defendants' counsel, and we

contacted the Court-appointed monitor, Mr. Warshaw, and made

that request to him.

We were unable to reach an

The United States does not know whether there are any

10

documents in the Montgomery files that are in fact classified

11

or sensitive, but there is a representation that there were

12

documents that were of the United States.

13

able to make -- reach an agreement that we would copy the

15

documents under the supervision of the Court-appointed monitor.

16

Essentially, we would -- I believe there are two Banker Boxes

17

of documents, and a hard drive that contains something like

18

200-some megabytes.

11:50:24

We would take and copy them at the FBI office and then

20

here in Phoenix, with court-appointed security officers from

21

Washington, who would take custody of the documents, and then

22

we would examine those documents in Washington.

23

11:49:59

Pursuant to Mr. Warshaw and our discussion, we were

14

19

11:49:38

11:50:45

And at that point, I believe there was a motion --

24

there was notification to the parties, there was a motion for

25

recusal, and it was -- that was suspended and --

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THE COURT:

If I authorize you to receive such

documents for your examination, I assume that you would have no

objection if I order you not to disclose any of those documents

to any third party without further order of this Court.

MR. GOMEZ:

That's correct, Your Honor.

We would be

prepared to do that.

classified or sensitive information, we -- the review would be

conducted by the United States.

that may have to review it.

However, if the documents contained

There may be various entities

We would have a central -- or

10

central entities that would conduct the review at its -- at the

11

beginning.

12

entities as part of the United States, then I assume that that

13

prohibition wouldn't preclude that kind of review.

14

THE COURT:

It doesn't prohibit agents of the United

States reviewing the documents; it does prohibit any

16

dissemination to any third party.

18

11:51:45

If there was a need to contact other government

15

17

11:51:25

MR. GOMEZ:

11:52:05

The United States has no objection to

that, Your Honor.

19

THE COURT:

All right.

Any party object?

20

MS. IAFRATE:

21

THE COURT:

You may.

22

MR. GOMEZ:

Oh, one point, Your Honor.

May I be heard, Your Honor?

11:52:19

If we are

23

authorized to conduct the review, I would request the Court's

24

permission to either meet with the Court-appointed monitor,

25

Mr. Warshaw, today, or its designee, to make the arrangements.

11:52:33

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Thank you.

THE COURT:

All right.

MS. IAFRATE:

Your Honor, I kept you abreast of this

situation when it was unfolding.

letter to the CIA, which I did do and noticed the Court.

You had ordered me to write a

I then received a call from people that I did not know

that said that they were the United States and they were

entitled to those documents.

permission of the CIA and they said no, but they were the

10
11

11:52:50

I inquired whether they had the

United States and they were entitled to them.

11:53:06

I did not feel comfortable giving documents -- I

12

objected, based on that rationale, that if these are indeed CIA

13

documents, then the CIA needs to be the one to say whether they

14

can be disclosed or not.

15

The other thing, Your Honor, that we discussed

11:53:22

16

previously, and it's your document 1086, was a procedure that

17

the monitor and I were going to perform in order to protect

18

some private information.

19

the Monitor Team and I never got around to performing that

20

procedure that would protect some of these people's bank

21

accounts, Social Security numbers, things of that nature.

22

in fact, plaintiffs have some of these documents which you

23

told, You may look at, but please don't do anything with them

24

until we go through that procedure.

25

Because the stay was implemented,

11:53:47

And

I would ask that if you were inclined to allow the

11:54:03

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1
2

MR. KLAYMAN:
have a conflict.

3
4

We submit, Your Honor, that we don't

THE COURT:

All right.

Then I don't want to hear

that.

MR. KLAYMAN:

THE COURT:

Did you provide your motion for admittance

8
9
10
11
12
13

All right.

11:57:30

I will hear it in due course when --

pro hac vice to the other -- all the other -MR. KLAYMAN:

We did, Your Honor.

We e-mailed it to

everybody and it's been served by mail.


THE COURT:

All right.

11:57:43

Then what I'll do is I will

hear that next status conference.


MR. KLAYMAN:

That's fine, Your Honor, but we do

14

request that before that's heard, and if Your Honor should

15

grant it -- and I would like an opportunity to reply to that;

16

we just simply submitted the application pro hac vice -- that

17

you not release documents until such time as you make a ruling

18

on that, because Mr. Montgomery would like to renew his motion

19

to intervene to protect what he claims are his property

20

interests in those documents.

21

THE COURT:

11:57:53

11:58:10

Well, the only testimony that we have in

22

this action is that those are documents that he -- I don't know

23

how to -- I don't want to use words other than Chief Deputy

24

Sheridan used, but those are documents that he took from the

25

CIA that the CIA was harvesting from American citizens.

It

11:58:27

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doesn't sound to me like he has any property interest in such

documents.

To the extent that he does have such property

interests, and to the extent that -- because there may be other

documents in there that are -- and, in fact, there may be no

documents taken from the CIA; that possibility has been raised

by the evidence.

the United States of America to review and confirm that they

have no property interest in those documents?

If that is so, how is he damaged by allowing

What property

10

interest does Mr. Montgomery have in such documents that would

11

in any way be infringed by allowing the United States to review

12

those documents under seal to make sure that they have no

13

security interest in them?

14

MR. KLAYMAN:

intervene, as part of the various pleadings, a court -- and

16

we've cited it -- a court ruling in Nevada where the Department

17

of Justice was ordered to give documents back to

18

Mr. Montgomery.

19

THE COURT:

20

MR. KLAYMAN:

21

THE COURT:

11:59:13

And that was a 2006 ruling.


That's correct.

11:59:26

Well, this case supposedly reconstructed

22

material from a database that pertained to alleged telephone

23

calls and e-mails that occurred in 2009 and 2010.

25

11:58:59

We did submit with the motion to

15

24

11:58:42

How does that Nevada 2006 ruling relate to any


database that alleges to have 2009-2010 documents in it?

11:59:44

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1
2

MR. KLAYMAN:

would like the opportunity to argue in front of this Court.

3
4

That's something that Mr. Montgomery

THE COURT:

Well, I'm giving you the opportunity right

now.

MR. KLAYMAN:

I don't have that information, Your

Honor.

systematic way, put forward a brief to this Court on that

issue.

I don't have it.

THE COURT:

But we want an opportunity to, in a

And I think that you can have that

10

opportunity, but you need to explain to me now why any interest

11

that Mr. Montgomery might have in such materials is in any way

12

infringed by allowing the United States to review them under

13

seal to make sure that there are no secured documents that

14

belong to the CIA in those materials.

15

11:59:54

MR. KLAYMAN:

Your Honor, I'm not taking a position on

16

that; I'm simply wanting an opportunity to brief it in the

17

ordinary course.

18

have any conflict with Sheriff Arpaio.

12:00:07

12:00:28

And we came before this Court, and I don't

19

THE COURT:

20

MR. KLAYMAN:

21

THE COURT:

22

MR. KLAYMAN:

23

THE COURT:

We --

Well --- we stated that we're not --

12:00:37

-- you may take your seat.


-- taking any adverse position.

You may take your seat, because I've

24

already ruled on that.

I'm going to allow the other parties to

25

address your renewed motion to intervene.

But I would point

12:00:46

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1
2

C E R T I F I C A T E

3
4
5
6
7

I, GARY MOLL, do hereby certify that I am duly

appointed and qualified to act as Official Court Reporter for

the United States District Court for the District of Arizona.

10

I FURTHER CERTIFY that the foregoing pages constitute

11

a full, true, and accurate transcript of all of that portion of

12

the proceedings contained herein, had in the above-entitled

13

cause on the date specified therein, and that said transcript

14

was prepared under my direction and control.

15
16
17
18

DATED at Phoenix, Arizona, this 21st day of July,


2015.

19
20
21
22
23
24
25

s/Gary Moll

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EXHIBIT 25

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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

CASE NO. 15-72440


IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

In Re: JOSEPH M. ARPAIO, Sheriff of Maricopa County,


Arizona; et al., Defendants

From the United States District Court


For the District of Arizona
The Honorable G. Murray Snow, Presiding
Case No. CV-07-2513
NOTICE OF FILING
EXPEDITED ORAL ARGUMENT REQUESTED

Larry Klayman, Esq.


FREEDOM WATCH, INC.
2020 Pennsylvania Ave. NW, Suite 345
Washington, DC 20006
Tel: (310) 595-0800
Email: leklayman@gmail.com

Jonathon Moseley, Esq.


FREEDOM WATCH, INC.
2020 Pennsylvania Ave. NW, Suite 345
Washington, DC 20006
Of Counsel (Not Admitted to Ninth
Circuit)

Attorneys for Putative Intervenor Dennis L. Montgomery

(475 of 523)
Case:
Case:
15-16440,
15-72440,
08/20/2015,
08/10/2015,
ID:ID:
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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.

EXPEDITED ORAL ARGUMENT IS REQUESTED.

Dated: August 10, 2015


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

(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:

Honorable G. Murray Snow


United States District Courthouse
Sandra Day OConnor U.S. Courthouse, Suite 322
401 West Washington Street, SPC 75
Phoenix, AZ 85003-2160
Stanley Young, Esq.
Andrew Carl Byrnes, Esq.
333 Twin Dolphin Road
Redwood Shores, CA 94065
syoung@cov.com
650-632-4700
Attorneys for Plaintiffs
Daniel Pochoda, Esq.
ACLU FOUNDATION OF ARIZONA
3707 N. 7th Street, Suite 235
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

(478 of 523)
Case:
Case:
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15-72440,
08/20/2015,
08/10/2015,
ID:ID:
9654788,
9641648,
DktEntry:
DktEntry:
7-2,4,Page
Page449
5 ofof35494

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
Andre Segura, Esq.
ACLU FOUNDATION
IMMIGRANTS RIGHTS PROJECT
125 Broad Street, 18th Fl.
New York, NY 10004
asegura@aclu.org
4

(479 of 523)
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15-72440,
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9641648,
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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)
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Exhibit 1

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CASE NO. 15-16440


IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

MANUEL de JESUS ORTEGA MELENDRES, et al., Plaintiffs


v.
JOSEPH M. ARPAIO, Sheriff of Maricopa County,
Arizona; et al., Defendants
and
DENNIS L. MONTGOMERY, Putative Intervenor
From the United States District Court
For the District of Arizona
The Honorable G. Murray Snow, Presiding
Case No. CV-07-2513
EMERGENCY MOTION FOR STAY ON APPEAL
EXPEDITED ORAL ARGUMENT REQUESTED

Larry Klayman, Esq.


FREEDOM WATCH, INC.
2020 Pennsylvania Ave. NW, Suite 345
Washington, DC 20006
Tel: (310) 595-0800
Email: leklayman@gmail.com

Jonathon Moseley, Esq.


FREEDOM WATCH, INC.
2020 Pennsylvania Ave. NW, Suite 345
Washington, DC 20006
Of Counsel (Not Admitted to Ninth
Circuit)

Attorneys for Putative Intervenor Dennis L. Montgomery

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CIRCUIT RULE 27-3 CERTIFICATE


As the moving party, Putative Intervenor Dennis Montgomery, by counsel,
certifies that to avoid irreparable harm Montgomery must obtain relief in less than
21 days, including because his property has already been released to a third party
and he is continually suffering new harm as the underlying case progresses, and
because evidentiary hearings are scheduled to resume in September 2015. See,
Minute Order, July 20, 2015 (Doc. No. 1179). These matters need to be resolved
before the case progresses with plenty of time to prepare.
(i) Although they have not yet entered notices of appearances, the telephone
numbers, e-mail addresses, and office addresses of the likely attorneys
for the parties;
Stanley Young, Esq.
Andrew Carl Byrnes, Esq.
333 Twin Dolphin Road
Redwood Shores, CA 94065
syoung@cov.com
650-632-4700
Attorneys for Plaintiffs
Daniel Pochoda, Esq.
ACLU FOUNDATION OF ARIZONA
3707 N. 7th Street, Suite 235
Phoenix, AZ 85014
dpochoda@acluaz.org
602-650-1854
Attorney for Plaintiffs
Cecilia D. Wang
ACLU FOUNDATION
IMMIGRANTS RIGHTS PROJECT
ii

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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

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Andre Segura, Esq.


ACLU FOUNDATION
IMMIGRANTS RIGHTS PROJECT
125 Broad Street, 18th Fl.
New York, NY 10004
asegura@aclu.org
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
(ii) Facts showing the existence and nature of the claimed emergency; and
A dramatic transformation of the original case occurred in April 2015, which
is now targeting Dennis Montgomery, Putative Intervenor, although he is not a
party, has never been served, and should have nothing to do with the litigation. As

iv

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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-

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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

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before 9:00 AM local Arizona time, of Dennis L. Montgomerys intention to file


this motion for stay on an emergency basis. Counsel will be served via email as
soon as the motion has been filed with this Court.

vii

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EMERGENCY MOTION FOR STAY


I.

REQUEST FOR ORAL ARGUMENT


Dennis L. Montgomery (Montgomery) respectfully requests oral argument

on his motion, and expeditious handling of the motion and appeal.


II.

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

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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.

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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.

RELATED CASE WHICH MONTGOMERY RELIES ON


In a related petition before this Ninth Circuit, Defendant Arpaio and non-

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

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(2) Montgomery also filed an affidavit under 28 U.S.C. 144 on May 7,


2015 (Docket No. 1067) which compels unconditionally and without
subjective analysis or discretion that Judge Snow stop all work on the
case and that a different judge hear the question of recusal.
Both pleadings seeking recusal by both Arpaio and Sheridan and here
Montgomery are supported by the expert analysis of noted judicial ethics expert
Professor Ronald Rotunda, whose affidavits are attached to each.
IV.

STATEMENT OF FACTS RELEVANT TO THE MOTION


Prior to April 23, 2015, Dennis Montgomery had never been involved or

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).

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V.

STANDARD OF REVIEW
Putative Intervenor requests a stay pending appeal pursuant to Federal Rules

of Appellate Procedure (FRAP) Rule 8. In Nken v. Holder, the Supreme Court


noted four factors required:
(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.
556 U.S. 418, 434 (2009).
VI.

ARGUMENT
A. STANDING OF MONTGOMERY
It has already been decided that the intellectual property, documents, data,

work product, copyrighted material, and things are Montgomerys personal


property. See Nevada Orders, identified, supra. Montgomery has a personal
stake in this matter in which his property has been seized by verbal order on April
23, 2015, and by written Order, April 27, 2015, (Docket No. 1033).

B. PLAINTIFF HAS A SUBSTANTIAL LIKELIHOOD OF


PREVAILING ON HIS APPEAL ON THE MERITS
1) Application Pro Hac Vice
Montgomery has a substantial likelihood of prevailing on his appeal on his
attorneys motion to appear pro hac vice. Montgomery has a right to choose
5

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attorneys whom he believes will be knowledgeable enough of his circumstances to


represent him effectively and meaningfully, whom he can afford, and who will
protect his rights on other topics.
But here, especially, Montgomery would suffer unusual hardship.
Montgomery is both indigent and medically disabled. He could not afford regular
counsel. Also, the litigation is controversial and political, so that it would be
extremely difficult to find a local lawyer whose livelihood depends upon regularly
appearing before Judge Snow to defend Montgomery against this rush to judgment.
A person is entitled to his choice of counsel, including an attorney appearing
pro hac vice: A defendant's right to the counsel of his choice includes the right to
have an out-of-state lawyer admitted pro hac vice. U.S. v. Lillie, 989 F.2d 1054,
1056 (9th Cir. 1993); see also Panzardi-Alvarez v. U.S., 879 F.2d 975, 980 (1st
Cir. 1989)("[A] decision denying a pro hac vice admission necessarily implicates
constitutional concerns."), cert. denied, 493 U.S. 1082, 110 S. Ct. 1140, 107 L.
Ed. 2d 1045 (1990). A persons right to retain counsel of his choice therefore
represents 'a right of constitutional dimension' U.S. v. Cunningham, 672 F.2d
1064, 1070 (2d Cir.1982) (citing U.S. v. Wisniewski, 478 F.2d 274, 285 (2d
Cir.1973)), the denial of which may rise to the level of a constitutional violation.
Birt v. Montgomery, 725 F.2d 587, 592 (11th Cir.) (en banc), cert. denied, 469 U.S.
874, 105 S.Ct. 232, 83 L.Ed.2d 161 (1984); Wilson, 761 F.2d at 278-79. The right

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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.

Disqualification applies where serious

conflict exists. See Dunton v. County of Suffolk, 729 F.2d 903, 909 (2d Cir.1984),
amended 748 F.2d 69 (2d Cir.1984).

The proponent of disqualification must

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demonstrate the existence of a conflict of interest which is serious.


The relevant test for disqualification is whether the other representation is
substantially related to the current representation. See Gas-A-Tron of Arizona v.
Union Oil Co. of California, 534 F.2d 1322, 1325 (9th Cir.), cert. denied, 429 U.S.
861, 97 S.Ct. 164, 50 L.Ed.2d 139 (1976). A substantial relationship is found if
the factual contexts of the two representations are similar or related. Trone v.
Smith, 621 F.2d 994 (C.A.9 (Cal.), 1980) (emphasis added).
We held that the "relevant test for disqualification is
whether the former representation is 'substantially
related' to the current representation." Id. at 998; see
Gas-A-Tron of Arizona, supra, 534 F.2d at 1325;
Westinghouse Electric Co. v. Gulf Oil Corp., 588 F.2d
221, 223 (CA7 1978). "Substantiality is present if the
factual contexts of the two representations are similar
or related." Trone, supra, 621 F.2d at 998.
Trust Corp. of Montana v. Piper Aircraft Corp., 701 F.2d 85 (C.A.9 (Mont.), 1983)
(Emphases added).
Here, the the factual contexts of the two representations are not
similar or related. Id. Representation of Montgomery in the current case shares
no operative facts nor factual circumstances in common with Arpaios challenge to
the constitutionality of Obamas executive order on amnesty for illegal aliens.
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


8

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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

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9641648,
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might be government documents among Montgomerys documents. This is the


same callous disregard for Montgomerys rights that the Honorable Phillip Pro
and Magistrate Valerie Cooke condemned in the Nevada Orders, supra.
Federal Rules of Civil Procedure (FRCP) Rule 24 governs intervention by
additional parties in existing litigation in the federal courts:
Rule 24. Intervention
(a) INTERVENTION OF RIGHT. On timely motion, the court must
permit anyone to intervene who:
***
(2) claims an interest relating to the property or
transaction that is the subject of the action, and is so
situated that disposing of the action may as a practical
matter impair or impede the movant's ability to protect its
interest, unless existing parties adequately represent that
interest.
(b) PERMISSIVE INTERVENTION.
(1) In General. On timely motion, the court may permit
anyone to intervene who:
***
(B) has a claim or defense that shares with the main
action a common question of law or fact.
Montgomerys motion is timely. The case started to involve Montgomery
only in late April of 2015. Montgomery filed his motion within two weeks.
Montgomery also complied with FRCP Rule 24(c) by providing notice and a
proposed pleading.
3) Motion for Disqualification of Judge Snow
Montgomery has a substantial likelihood of prevailing on his motion for

10

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9641648,
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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

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to Judge Snow questioning Defendant Arpaio on areas on which he did not


receive prior notice. (Docket No. 1032, April 28, 2015.) Judge Snow then ruled
that his questioning about the Grissom Investigation (Judge Snows wife) and
the Seattle operation (Dennis Montgomery) will not be excluded. (Docket No.
1046, May 4, 2015.) Judge Snow injected personal issues into the case on April
23 and April 24, 2015. See, Motion for Recusal or Disqualification of District
Court Judge G. Murray Snow, May 22, 2015, Pages 8-9. (Docket No. 1117).
Montgomery filed an affidavit and certificate under 28 U.S.C. 144
Whenever a party to any proceeding in a district court
makes and files a timely and sufficient affidavit that the
judge before whom the matter is pending has a personal
bias or prejudice either against him or in favor of any
adverse party, such judge shall proceed no further
therein, but another judge shall be assigned to hear such
proceeding. The affidavit shall state the facts and the
reasons for the belief that bias or prejudice exists.
Montgomerys affidavit on May 7, 2015 (Docket No. 1067) compelled
Judge Snow to proceed no further in the case and requires another judge shall
be assigned to hear such proceeding, without subjective analysis or discretion.
A judges impartiality might reasonably be questioned by the public where
the judges wife volunteers that the judge hates the defendant and will do anything
to hound him from office (Docket No. 1117) and neither the judge nor his wife
have denied it, sought to explain the admission, nor apologized.

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9641648,
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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

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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

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15-16440,
15-72440,
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C. MONTGOMERY WILL BE IRREPARABLY HARMED ABSENT


A STAY
A stay is required because Montgomery is being harmed in ways that cannot
be adequately remedied. A stay is required because if this Court determines that
Judge Snow should recuse himself, any and all orders or proceedings will likely
have to be vacated, as Judge Snow admitted on July 20, 2015 -However, I am wondering if the County has been fully
advised that one of the positions Mr. Popolizio and Mr.
Masterson is taking is that if in fact this Court is
removed by the Ninth Circuit from presiding over this
case, the supplemental permanent injunction and the
findings of fact and conclusions of law I made three
years ago should be vacated, in which case there would
be no injunctive relief on which the County or the
plaintiffs could rely.
* * * So I wonder if the County has been fully advised, if
the plaintiffs in United States versus Arpaio have been
fully advised, that the movants are taking the position
not only that I should be removed from presiding over
the contempt hearing, but that the injunctive relief and
the findings of fact and conclusions of law I entered
years ago should be vacated.
Transcript, July 20, 2015, Status Conference, Melendres v. Arpaio, Pages 62-64
(emphases added).
D. PLAINTIFFS WILL NOT BE HARMED BY A STAY

15

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It cannot be overlooked that this case was concluded on October 2, 2013


(Docs. No. 606, 670) 21 months ago. Plaintiffs attorneys suggest that they have
to wait for relief, but legally, they have already obtained a final judgment.
These are post-judgment proceedings that concern implementation only.
(See, Order, January 16, 2014, Page 2, Doc. No. 856). The only legitimate issue
remaining is whether MCSO disobeyed the injunction on purpose or was merely
slow in implementation in a Sheriffs office that serves 4 million Arizona residents.
However, the Plaintiffs will not receive implementation of the injunction any
faster or slower either way. Regardless of any stay, MCSO and Arpaio are facing
sufficient motivation to implement the injunction as quickly as possible. MCSO
still knows that it must comply with the permanent injunction and any delay can
and will be used against them when the stay is lifted.

E. THE PUBLIC INTEREST FAVORS A STAY


This case is ostensibly about upholding the constitutional rights of the
Plaintiffs and those similarly-situated. Yet the District Court is violating the
constitutional rights of Montgomery. It is in the public interest that the federal
courts respect all the constitutional rights of all persons.
Plaintiffs purport to represent the community. The analysis is the same as in
(D) above. A stay will not change that. A possible decision as to state of mind
will not change that.
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However, the public interest is also served by improving the reputation of


the federal judiciary in the eyes of the public.
VII. CONCLUSION AND REQUEST FOR RELIEF
This Court should order a stay of the proceedings and, at at minimum, vacate
or order held in abeyance the implementation of Judge Snows orders as relate to
Montgomery until the appeal is heard.
EXPEDITED ORAL ARGUMENT IS REQUESTED.
Dated: August 10, 2015

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

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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:

Honorable G. Murray Snow


United States District Courthouse
Sandra Day OConnor U.S. Courthouse, Suite 322
401 West Washington Street, SPC 75
Phoenix, AZ 85003-2160

Stanley Young, Esq.


Andrew Carl Byrnes, Esq.
333 Twin Dolphin Road
Redwood Shores, CA 94065
syoung@cov.com
650-632-4700
Attorneys for Plaintiffs

Daniel Pochoda, Esq.


ACLU FOUNDATION OF ARIZONA
3707 N. 7th Street, Suite 235
18

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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

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
19

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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

Andre Segura, Esq.


ACLU FOUNDATION
IMMIGRANTS RIGHTS PROJECT
125 Broad Street, 18th Fl.
New York, NY 10004
asegura@aclu.org
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
20

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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.
General Counsel
Freedom Watch, Inc.
D.C. Bar No. 334581
2020 Pennsylvania Avenue N.W., Suite 345
Washington, DC 20006
Telephone: (310) 595-0800
Email: leklayman@gmail.com

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EXHIBIT 26

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

3
4
5
6
7
8
9

Manuel de Jesus Ortega Melendres,


et al.,
Plaintiffs,
vs.
Joseph M. Arpaio, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

No. CV 07-2513-PHX-GMS
Phoenix, Arizona
August 11, 2015
9:04 a.m.

10
11
12
13
14
15
16

REPORTER'S TRANSCRIPT OF PROCEEDINGS


BEFORE THE HONORABLE G. MURRAY SNOW
(Status Conference)

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

Proceedings taken by stenographic court reporter


Transcript prepared by computer-aided transcription

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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, do you have anything you wish to say on the


motion to intervene?

MS. WANG:

THE COURT:

09:12:01

No, Your Honor.


All right.

Well, then I will file an

order, probably within later today or in a day or two, granting

that motion.

And I'm granting it without limitation but I do,

10

as I think I've made clear, grant it without prejudice to any

11

assertion by the defendants that the United States is exceeding

12

the appropriate scope of the intervention in a fact-specific

13

context.

14

09:12:13

We have before us the pending renewal of the

15

pro hac vice application of Larry Klayman.

16

here.

17

it's still my intent.

18

Mr. Klayman is not

09:12:32

I had indicated my intent to hear that today and I guess

I note that the sheriff hasn't taken any position on

19

that intervention.

20

I notice that to the extent that Maricopa County is a separate

21

entity and a nonparty, they've also introduced a filing.

22

I notice that plaintiffs have opposed it.

I will say I have read the filing.

09:13:00

I'm not sure that

23

I'm going to take it into account, and I'm not sure that I need

24

to.

25

specific issues, and he did not do that, from my perspective,

When Mr. Klayman was here, I asked him to address some


09:13:25

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in his reply, and they remain for me very concerning.

It does seem to me that Mr. Klayman filed -- entered

with Mr. Moseley on Mr. Moseley's previous attempt, and Moseley

is an associate of Mr. Klayman's, and Mr. Klayman filed and

represented himself as of counsel on all of Mr. Moseley's

previous briefs.

District of Columbia action and he doesn't seem to contest

that.

Arpaio here, and yet in his reply he is vigorously critical of

09:13:55

Mr. Klayman represents Sheriff Arpaio in the

He says that he's not going to seek to challenge Sheriff

10

Sheriff Arpaio's representation, which I believe is -- and

11

infused issues and invective in this lawsuit that are simply

12

not issues, and suggests that he cannot fulfill his duty to

13

both of his clients -- Sheriff Arpaio, on the one hand, and

14

Mr. Montgomery on the other -- especially if he is not going to

15

seek in any way to challenge what Sheriff Arpaio has said in

16

his testimony, which would tend to indicate that

17

Mr. Montgomery -- and again, I'm not saying it does indicate

18

it, but based on the testimony as we have it to date the

19

sheriff is -- I think it was Chief Deputy Sheridan who said

20

that the representation was that these were documents taken

21

from the CIA, and that both Chief Deputy Sheridan -- and by

22

"the representation," I mean the representation that

23

Mr. Montgomery made to the MCSO -- and that both the sheriff

24

and the chief deputy have indicated that that material appears

25

to be extremely unreliable and junk.

09:14:19

09:14:45

09:15:07

09:15:29

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Certainly, some of the documents that have been

produced since then seem to support the sheriff's view, and as

it relate -- and Mr. Klayman says that he wishes to intervene

in this action to protect his ownership rights in the property,

and yet I asked him how anything about this action has to do

with whether or not he has ownership in the property.

thing we've done is turned it over -- at this point, authorized

the Department of Justice to look at it, and they are under an

order not to diffuse it in any way without further order of

The only

10

this Court, and I asked him how that in any way impaired

11

Mr. Klayman's ownership interest and he didn't have an answer

12

for me at that time, and he doesn't provide an answer in his

13

reply, at least as I read it.

14

09:15:50

09:16:10

I also pointed out that at least according to the

15

testimony and the documents that have been provided as I

16

understood them -- and again, I understand we don't have a

17

complete story here -- that what Mr. Montgomery was purporting

18

to be able to do to the Maricopa County Sheriff's Office was

19

reproduce phone calls and computer records between this Court,

20

the Department of Justice, between the Department of Justice

21

officials, and phone taps that may have taken place as against

22

the sheriff, as against Mr. Popolizio and Mr. Masterson, as

23

against this Court, as against other judges, in 2009 and 2010.

24

And I didn't understand -- when he said to me that the District

25

Court of Nevada had already found that he had certain materials

09:16:28

09:16:44

09:17:07

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related to a company that he operated and they had ruled in

2006 and 2007 that he owned those materials, I didn't

understand how, if they were claiming those were the same

materials, you could get anything from 2009 and 2010 on them,

so we must be talking materials that are different, if they are

as he represented them to be, than the materials from the

district court judgment, and again, he was unable to answer

that question and does not answer that question in his reply.

09:17:27

And again, I think that it's possible that Mr. Klayman

10

himself may be a witness in this case, based on the documents

11

that have been disclosed.

12

witness and I'm not even saying he has relevant testimony, but

13

the documents disclosed in connection with the motion to recuse

14

I think suggest strongly that Mr. Klayman himself may have even

15

been involved in efforts to convince Maricopa County that

16

Mr. Montgomery was providing them with real stuff.

17

09:17:52

And I'm not saying he will be a

09:18:10

And for all those reasons -- I appreciate what

18

Mr. Klayman says, that Mr. Montgomery has difficult finding

19

counsel, and I'm certainly not preventing him from appearing

20

here, either individually unrepresented or with any other

21

counsel.

22

his law firm, for reasons I've stated, including the fact that

23

in addition to what I view to be his -- at least, as far as I

24

can tell to date, unwarranted attacks on Ms. Iafrate and others

25

of the sheriff's counsel, and I think he's also attacked this

09:18:35

But I do not believe that Mr. Klayman or anyone in

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Court, he's attacked plaintiffs, he's attacked everybody else

and raised all kinds of issues that seem to me to be

extraneous, including the allegation that this Court and

various newspapers in town have a bias against the sheriff, it

just seems to me that in light of his conflict, in light of the

fact that I don't think he's raised -- he's raising anything

that relates to this case and that would merit intervention,

and in light of the fact that his behavior suggests that he

would infuse invective in this lawsuit and issues that are

10

simply not at issue, and in light of his past disciplinary

11

history, as well as in light of the past disciplinary history

12

of Mr. Moseley, I am not granting his motion to intervene at

13

this point.

14

Does anybody want to be heard on that one?

15

MS. WANG:

16

MR. MASTERSON:

17

MR. WALKER:

18
19

09:19:36

No, Your Honor.

09:19:55

I have nothing, Judge.

The County has nothing further, Your

Honor.
THE COURT:

All right.

I think now we need to start

20

focusing in on narrowing the issues and determining what's

21

going to take place in the September hearing if it goes

22

forward, and it seems to me there's some issues to address in

23

that respect.

24
25

09:19:18

09:20:09

First is the 1500 driver's licenses or other


identifications and the PSB investigation of those matters.

We

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1
2

THE COURT:

All right.

So you can go ahead and review

everything you've got.

MR. GOMEZ:

Yes, Your Honor.

THE COURT:

But that does leave sort of the elephant

in the room about what do you want to -- I mean, the only

reason -- well, let me restate what appears to be the state of

things at this moment, and I can't say it is the state of

things because things are still in flux.

on documents that we have seen, that MCSO actually took

But it appears, based

10

possession of 50 hard drives provided to them by

11

Mr. Montgomery, which he represented to be CIA-harvested

12

material.

13

County and placed in an evidence locker.

15

absolute confirmation that the 50 hard drives we have seized

16

are those hard drives, but it appears that that, at least for

17

present purposes, is not contested.

We don't have

18

The reason why you're involved at all, of course, is

19

because Ms. Iafrate contacted you and said that MCSO had this

20

material that had been represented to them as having been taken

21

from the CIA.

22

hard drive that you now have, it may also be true with respect

23

to the 50 hard drives that we now have.

25

09:47:45

Those 50 hard drives were brought here to Maricopa

14

24

09:47:22

09:48:01

09:48:22

And if that is true with respect to the one

We also have documents, but they are only documents,


which purport to be communications between members of the MCSO

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and Mr. Montgomery in which the MCSO expresses severe doubts

about the credibility of what Mr. Montgomery told them about

the contents of those hard drives.

that those 50 hard drives in fact have CIA-harvested material

on them, but, of course, I can't represent to you that they

don't.

So I can't represent to you

But I can say that I don't intend to wait for this

lawsuit for the Department of Justice to decide whether or not

it's going to review those 50 hard drives, and if they've got

10

secure material on them, they've got secure material on them,

11

but I'm going to make them available to the plaintiffs and to

12

the defendants if they want to review the material on that

13

hard drive.

14

09:49:17

And I understand your concern about not, you know,

15

altering the metadata that's on those hard drives, and I don't

16

know computer stuff, but I do understand that we can make ghost

17

copies of those existing hard drives and make them available to

18

both parties, or all parties who may want to look at them, so

19

that we can establish whether in fact those are the materials

20

provided by Mr. Montgomery to the MCSO, and if in fact they

21

contain what Mr. Montgomery purported to the MCSO that they

22

contained.

23

09:49:04

09:49:31

09:49:51

It may be, as I said last time, that the parties may

24

be able to stipulate that those are the -- for example, that

25

those are the materials provided by Montgomery to the MCSO, and

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that they don't seem to contain the material that Montgomery

indicated that they did.

stipulate to that, or that they will care to.

But I don't know that the parties can

And if you have a concern that you have -- that there

is secured material on them, we want to accommodate that

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

Do you understand what I'm saying?

10

MR. GOMEZ:

I understand, Your Honor.

11

THE COURT:

So how do you propose that we proceed?

12

MR. GOMEZ:

Well, the client entities that I'm

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

hard drive, and if there's material on there, make a

17

determination of how best to proceed.

18

Those are my instructions from the client.

19

THE COURT:

All right.

09:51:05

Well, would you please tell

20

your client entities that I have no intention of waiting on

21

their decision to proceed or not to proceed.

22

MR. GOMEZ:

Yes, Your Honor.

23

THE COURT:

That we are going to go forward.

09:51:24

That we

24

will, of course, accommodate the United States Government to

25

the extent that they have reasonable concerns that there may be

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material on there that needs to be protected, but that doesn't

mean we're just going to sit here.

MR. GOMEZ:

Yes, Your Honor.

THE COURT:

All right.

5
6

You can stay right there,

because Mr. Masterson has something he wants to say.


MR. MASTERSON:

Just a question, Judge:

Do we get to

know who these client entities are, or is that top secret for

some reason?

9
10
11

THE COURT:

I don't see why you can't know who those

client entities are.


MR. GOMEZ:

09:51:59

If there is classified information in the

12

material, then it would be -- we would not be able to identify

13

the entity or entities, so at this point we -- until we look at

14

the material, if in fact the material is of the nature where an

15

entity can't be identified because it's classified, then we

16

can't disclose, at least at this point --

17

THE COURT:

And what law are you basing that on?

18

MR. GOMEZ:

Well, based on the -- if the material is

19

in fact classified and the information as to the, you know,

20

executive order, I at the moment have -- I think it's 12386,

21

but I'll have to confirm the actual number, if the entity can't

22

be identified because it's classified, then along with the

23

other substantive material it, by executive order, is precluded

24

from disclosure.

25

THE COURT:

09:51:47

Well, I guess I'm not going to make you

09:52:26

09:52:48

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disclose that today, but an executive order I'm not sure binds

this Court.

We'll see.

MR. GOMEZ:

Yes, Your Honor.

THE COURT:

The other thing that I guess I want to

know is:

going to be before they get back to us whether they think

they've got any secured material in that material they're

reviewing?

Do your client entities have any idea how long it's

MR. GOMEZ:

I haven't been given a time line, but I've

10

expressed to them that, you know, the proceeding -- this case

11

is proceeding forward, and there are, in fact, at least as I

12

understand it, matters that are going forward as early as

13

September 22nd, and that there's not much time --

14
15

THE COURT:

09:53:57

16

MR. GOMEZ:

Yes, Your Honor.

17

THE COURT:

And let me also just say, and maybe we can

18

shortcut this, to the extent that you're only reviewing what

19

the defendants have already provided in April, I have the sense

20

that it has been thoroughly reviewed already by plaintiffs and

21

defendants.

09:54:08

Do any of you want to characterize --

Ms. Iafrate, you may have the best view of any of

23

this.

24

material?

25

09:53:41

Well, let me just say, it is going forward

on September 22nd.

22

09:53:27

Is there anything in there that you think may be secured

MS. IAFRATE:

Your Honor, I don't feel confident to

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determine what's confidential and what's not confidential

information.

THE COURT:

MS. IAFRATE:

THE COURT:

MS. WANG:

I have.

Ms. Wang, have you reviewed it all?


I have not personally, but our team has, I

THE COURT:

Okay.

Well, you can tell the United

States Government, then, and whatever entities they are,

10

they're well behind the eight ball in reviewing what this

11

material is.

12

security interests, if there are any, but I think we need to

13

move forward.

09:54:46

And so again, I'm glad to accommodate national

14

MR. GOMEZ:

Yes, Your Honor.

15

THE COURT:

Okay.

Now, with respect to the 50

16

hard drives, Ms. Iafrate, Mr. Masterson, Ms. Wang, do you want

17

access to those now, or do you want to give the United States a

18

little bit of time?

19

months, or years, but I don't know whether they're the topic of

20

a current investigation from MCSO or any other Arizona or

21

national law enforcement that you would have provided access to

22

for --

23

09:54:33

believe.

8
9

Have you reviewed it all?

09:55:00

I mean, you've had them for many, many

MS. IAFRATE:

09:55:17

Your Honor, we would like access to

24

them, and I think that waiting until the eve of the next trial

25

would not be prudent --

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THE COURT:

Yeah, I have no intention of doing that.

Why don't we do this?

MS. WANG:

Ms. Wang, let me hear from you.

Yes, Your Honor.

Plaintiffs also would

like to have access.

to review, and so the sooner the better, in our view.

THE COURT:

It seems like a large volume of material


09:55:46

In addition with your discussion about the

1500 identifications, why don't you discuss with the monitor

protocols for accessing the 50 hard drives that -- and we can

see if we can limit any disruption of metadata or anything else

10

that may be on those hard drives, if we can agree to a

11

procedure, and then let me know next status conference or

12

before and we can enter an order to provide access.

13
14
15

MS. IAFRATE:

Your Honor, that would be fine, and we'd

be willing to work with plaintiffs and the monitor.


The one other hard drive that was seized from

16

Chief Knight, what protocol should I follow?

17

something with the Court in order to obtain access to that one

18

to make a copy?

19
20
21
22
23

09:56:05

THE COURT:

Should I file

Well, Chief Martinez, did you say that the

monitor is already making a forensic copy?


CHIEF MARTINEZ:

09:56:34

Yes, Your Honor, and it should be

finalized later on today.


THE COURT:

09:56:19

Okay.

It took, like, 90 hours to copy.


Why don't when do this?

Why don't

24

we make another copy, or maybe two copies of that copy, and

25

give one of the copies to Ms. Iafrate.

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1
2

C E R T I F I C A T E

3
4
5
6
7

I, GARY MOLL, do hereby certify that I am duly

appointed and qualified to act as Official Court Reporter for

the United States District Court for the District of Arizona.

10

I FURTHER CERTIFY that the foregoing pages constitute

11

a full, true, and accurate transcript of all of that portion of

12

the proceedings contained herein, had in the above-entitled

13

cause on the date specified therein, and that said transcript

14

was prepared under my direction and control.

15
16
17
18

DATED at Phoenix, Arizona, this 11th day of August,


2015.

19
20
21
22
23
24
25

s/Gary Moll

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