QUESTION OF “ERRONEOUS” STATUTE INVOKED
by Sharon Rondeau
Judge Susan R. Bolton is presiding over the proceedings in which Arpaio is being tried based on U.S. Code 18, § 401, as noted on the docket.
Arpaio is accused of willfully disobeying a federal judge’s order to halt patrols in the county aimed at ferreting out illegal aliens arising from a civil lawsuit filed in December 2007. The trial is expected to span eight days.
The Associated Press describes the objects of the patrols as “immigrants,” although persons in the country without documentation are “illegal aliens.” Many media outlets no longer use that term.
As were many other law-enforcement jurisdictions throughout the country, Arpaio’s office had been deputized during the George W. Bush administration under the Immigration and Customs Enforcement (ICE) 287(g) program with the ability to apprehend illegal aliens who they would then refer to ICE for processing.
The 287(g) provision is an adjunct to the 1952 Immigration and Nationality Act (INA) by which local law enforcers are trained and equipped to work in tandem with federal authorities to apprehend illegal aliens. Law enforcers must qualify and, once approved, complete a biennial refresher training course.
ICE severed its 287(g) relationship with Maricopa County in December 2011 for “racial profiling” at almost exactly the same time that U.S. District Court Judge G. Murray Snow ordered the immigration patrols to cease their activity without the existence of “state charges.”
Memoranda of Agreements have been renewed or initiated with local jurisdictions in 18 states since last June, including with three Arizona sheriffs’ offices.
In a January 25, 2017 executive order signed by President Donald Trump, immigration enforcement, a key component of his campaign pledges, was emphasized on several levels, including the role of ICE. Section 8 of the order reads:
Sec. 8. Federal-State Agreements. It is the policy of the executive branch to empower State and local law enforcement agencies across the country to perform the functions of an immigration officer in the interior of the United States to the maximum extent permitted by law.
(a) In furtherance of this policy, the Secretary shall immediately take appropriate action to engage with the Governors of the States, as well as local officials, for the purpose of preparing to enter into agreements under section 287(g) of the INA (8 U.S.C. 1357(g)).
(b) To the extent permitted by law and with the consent of State or local officials, as appropriate, the Secretary shall take appropriate action, through agreements under section 287(g) of the INA, or otherwise, to authorize State and local law enforcement officials, as the Secretary determines are qualified and appropriate, to perform the functions of immigration officers in relation to the investigation, apprehension, or detention of aliens in the United States under the direction and the supervision of the Secretary. Such authorization shall be in addition to, rather than in place of, Federal performance of these duties.
(c) To the extent permitted by law, the Secretary may structure each agreement under section 287(g) of the INA in a manner that provides the most effective model for enforcing Federal immigration laws for that jurisdiction.
As was first explained to the public by former Maricopa County Cold Case Posse investigator Mike Zullo in April, Arpaio’s lead attorney, Mark Goldman, contended in a Motion to Dismiss that his client was charged by the Department of Justice under an erroneous statute. Justice invoked U.S. Code 18, § 401, which allows for a five-year statute of limitations but requires that the state or federal government be a party to the charges.
The mainstream media virtually ignored the development while previously acknowledging that Snow had raised the possibility of criminal charges in December 2014. Justice announced that it would prosecute Arpaio in October of last year, just prior to the commencement of early voting as Arpaio sought a seventh consecutive term as sheriff.
A footnote from Goldman’s April 10, 2017 “Motion to Dismiss or Motion for Trial by Jury” reads:
A provision of § 402 reads:
No proceeding for criminal contempt within section 402 of this title shall be instituted against any person, corporation or association unless begun within one year from the date of the act complained of; nor shall any such proceeding be a bar to any criminal prosecution for the same act.
The Justice Department itself states, in regard to USC Title 18, § 401 and § 402:
770. Defenses—Statute of Limitations
Section 3282 of Title 18 applies a five-year statute of limitations to all criminal contempt actions encompassed by 18 U.S.C. § 401. If, however, the contemptuous act also constitutes a criminal offense under any statute of the United States or under the laws of any state in which the act was committed, then the contempt must be prosecuted under 18 U.S.C. § 402. Under 18 U.S.C. § 3285, a one-year statute of limitations applies to contempt actions brought under 18 U.S.C. § 402. It should be noted, however, that 18 U.S.C. § 402 is inapplicable to “contempts committed in disobedience of any lawful writ, process, order, rule, decree, or command entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States.”
On April 14, 2017, Arpaio’s defense team added the name of Attorney General Jeff Sessions to a potential list of witnesses in the case.
On April 24, 2017, The Post & Email reported that charges filed under § 402 against Arpaio’s former three co-defendants were dropped, as the one-year statute of limitations had expired.
In late May, Arpaio’s team appealed to the U.S. Supreme Court to grant the defendant a trial by jury instead of by judge. Two lower federal courts had denied the request, citing case law which states, “A defendant charged with criminal contempt does not have a constitutional right to a jury trial where the conviction can result in a sentence of imprisonment not longer than six months.”
On Tuesday, Jerome Corsi of Infowars published the text of a letter Goldman sent to Attorney General Jeff Sessions regarding the use of the wrong statute against his client while noting that the U.S. Supreme Court early on Monday denied to consider an emergency Writ of Mandamus requesting trial by jury.
The letter, dated June 22, was dispatched to Sessions using three different methods: hand-delivery, electronic mail, and the U.S. Postal Service. In it, Goldman contended that the actions taken against Arpaio by Obama’s Justice Department were “political” and “not unlike the apparent political actions taken by Former FBI Director Comey in relation to his pronouncements regarding then presidential candidate Hillary Clinton, and the investigation of her.”
Goldman also reiterated his finding expressed in the Motion to Dismiss:
In regards to other aspects of the prosecution, we request that you reconsider the DOJ’s prosecution of this matter because it was incorrectly brought under 18 U.S.C. Section 401. Section 401 relates to a simple criminal contempt of a lawful order. The matter should have been brought under 18 U.S.C. Section 402. Section 402 applies to contumacious conduct that is also a separate crime as more particularly described in the attached Petition. The allegations in this matter compel it to be prosecuted under 18 U.S.C. Section 402 that entitles the offender to a jury trial in accordance with 18 U.S.C. Section 3691. Additionally, Section 402 offenses come with a one year statute of limitations. Given that the matter was not charged under the correct statute, and consequently the Department of Justice has deprived Sheriff Arpaio of his jury trial right and the applicable statute of limitations, in the interest of justice we request that you move the Court to dismiss the criminal contempt proceedings or, at the very least, move the Court to stay the trial pending a full review of this matter by your office.
In his final paragraph, Goldman reminded Sessions that “time is of the essence” given that the trial was to start on Monday, June 26, 2017. “We request that you, at a minimum, move to adjourn this trial so that your office may review the genesis of this prosecution, the incorrect application by the DOJ of 18 USC Section 401 in lieu of Section 402, and the pending Petition for Writ of Mandamus that is presently pending at the Supreme Court of the United States,” Goldman wrote.