Thursday, February 27, 2020

BREAKING: 9th Circuit Refuses To Vacate Criminal Contempt Verdict Against Joe Arpaio Because Trump Pardon Came Before Sentencing; Arpaio Sees Victory In Reasoning

Former Sheriff Joe Arpaio's criminal contempt verdict cannot be vacated simply because President Donald Trump pardoned him, the Ninth Circuit Court of Appeals ruled today.  The panel unanimously affirmed the District Court Judge Susan Bolton's decision that the Sheriff appealed;  Arpaio's attorneys are declaring a victory.

Confused? The devil is in the details, and the details are in the wording.

Judge Bolton conducted a five-day trial in July 2017, and ended up " concluding that Arpaio was guilty of criminal contempt of court." She set the sentencing for October.  However, the following month, President Trump pardoned his friend.

Arpaio's attorneys asked that Judge Bolton vacate her finding of guilt. She declined, and the U.S. Department of Justice took the Sheriff's side. The Ninth Circuit appointed an independent attorney to represent the prosecution's usual role, and the Sheriff unsuccessfully appealed that appointment to the U.S. Supreme Court.

The Court today determined that Judge Bolton's ruling stands and that the verdict is not vacated. However, the appellate judges took a "slightly different path" to reach the same decision as Bolton. Noting that the Sheriff's attorneys "clarified" their appeal. The court states that Judge Bolton could have said that Arpaio's challenge to the finding of guilt is moot because the finding cannot be used in the future ("no future preclusive effect").

Arpaio attorney Jack Wilenchik told AZ Law that they will not try to return to the Supreme Court "because we won." He explained that "the Court gave us exactly what we asked for, which is a finding that the guilty verdict is meaningless as a matter of law (it “has no legal consequences”).

Wilenchik acknowledges that the ruling will not necessarily prevent Arpaio opponents from continuing to state that he was found guilty of criminal contempt - even though it doesn't have a preclusive effect. It should, he tells AZ Law, prevent media outlets from writing that Arpaio was "convicted".

Here is what the 9th Circuit judges had to say on that subject:
Though colloquially we refer to the district court’s finding of guilt as a “conviction,” in reality, Arpaio never suffered a final judgment of conviction for criminal contempt. “Final judgment in a criminal case means sentence. The sentence is the judgment.” (citing Berman v. United States). Here, the issuing of a presidential pardon, and Arpaio’s acceptance of the pardon, preempted his sentencing. Thus, there is no final judgment of conviction in this case; instead, there was a final judgment of dismissal with prejudice. This lack of a final judgment of conviction precludes the attachment of “legal consequences,” such as a sentencing enhancement in a subsequent criminal case or claim or issue preclusion in a civil case. 
(AZ Law removed/modified the citations for purposes of clarity.)

Arpaio is running for the Republican nomination to regain his Sheriff's badge in November.

h/t to Phoenix attorney Eric Spencer for first calling our attention to the opinion.


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