CLAIM: “GOVERNMENT’S EVIDENCE INSUFFICIENT TO CONVICT”
by Sharon Rondeau
The first motion petitions the court for a new trial or, alternatively, to vacate the judgment issued by U.S. District Court Judge Susan R. Bolton on the basis that Arpaio should have been granted a trial by jury and that he was charged under an improper statute for the circumstances.
The former six-term Maricopa County Sheriff, Arpaio, 85, became well-known for his strong desire to apprehend illegal aliens within his jurisdiction in order to reduce crime and improve public safety. During the George W. Bush years, Arpaio’s office was accepted into the federal 287(g) program, which establishes a partnership between the Immigration and Customs Enforcement (ICE) agency and approved local law enforcement entities in the apprehension of illegal aliens.
Although the program was temporarily canceled during the Obama years and restarted on a moderate scale, ICE Acting Director Thomas Homan is expanding it under the Trump administration.
Arpaio’s July 31 conviction arose from his deputies having conducted immigration patrols over which a number of Hispanic plaintiffs filed a lawsuit in December 2007, claiming civil rights violations. The civil case ran for nearly nine years.
In early 2015, through his attorneys at the time, Arpaio admitted to not having adhered to U.S. District Court Judge G. Murray Snow’s 2011 order to discontinue the immigration patrols, offering to make restitution to the plaintiffs out of his personal funds.
Snow refused and insisted on a bench trial, costing taxpayers millions. Although evidence was presented during the civil contempt hearings that Snow was biased against Arpaio, he refused to recuse himself.
In May of last year, Snow found Arpaio guilty of civil contempt of court and made a referral for possible criminal contempt to the U.S. Attorney for the District of Arizona, who declined to pursue it based on a conflict of interest.
The case was then referred to the U.S. Justice Department, which announced in October that it would pursue the charge just days before early voting began in the state of Arizona as Arpaio sought re-election to a seventh term.
On November 8, 2016, Arpaio lost the election to Democrat Paul Penzone, who took office on January 1.
Arpaio is represented by the law firms of Wilenchik & Bartness of Phoenix and Goldman & Zwillinger PLLC of Scottsdale. The motions were filed on the same day that Gregg Jarrett of Fox News reported that President Donald Trump is considering pardoning Arpaio, who was an early Trump supporter and campaigned for him in Arizona.
If Trump issues the pardon, it will be the first of his presidency. On Monday, Arpaio reacted with surprise that Trump was aware of his case but said, “I am happy he understands the case.”
Arpaio’s attorneys contend, as they have for some time, that their client was charged under the wrong criminal statute because the applicable law’s time limitations had expired. On page 2, the attorneys claim that a Justice Department attorney made a false statement in regard to the meaning of one of Snow’s orders.
On page 2, the argument is made that Bolton could not have been neutral based on the argument that “…because the ‘victim’ in a contempt of court case is really the Court, trying the case to the Court is about as fair as trying a criminal case to the victim– the Court has an inherent conflict and prejudice, which the Defendant raised before trial both as a basis for granting a trial by jury… And again in his Motion to Change Venue…”
The attorneys argue that if the verdict is not vacated and a jury trial granted, “a certain reversal by the appellate courts” would be the result (p. 7).
Also on page 7, Arpaio’s legal team argues that their client was deprived of his right to be present when the verdict was rendered, alleging Fifth and Sixth Amendment violations.
The second motion filed on Monday, which asks for a “Judgment of Acquittal,” claims that Judge Snow’s 2011 order which Arpaio allegedly willfully violated remains unclear to the present day and that witness testimony supports their position. Conversely, the attorneys argue, Snow’s 2013 “permanent injunction” was expressed more clearly and resulted in Arpaio’s suspension of the immigration patrols (pp. 4-5).
On page 9, Arpaio’s attorneys argue that the Court’s verdict “is completely contrary to the evidence at trial, and to the truth” and that it declared “an innocent man guilty of contempt.”
On page 14, Arpaio’s team cites statements made by U.S. Border Patrol agents during the trial indicating that they had an expectation that the Maricopa County Sheriff’s Office, led by Arpaio at the time, would cooperate with them in detaining illegal aliens discovered within the county.
Four pages later, the attorneys argue that Snow conducted the civil-contempt hearings in a manner applying to criminal cases and that Arpaio’s subsequent criminal trial “constituted Double Jeopardy.”
Exhibit “A” informs the court that as of September 2012, state law “required that state law enforcement contact ICE or CBP when they encountered an illegal alien during a lawful stop.”
The five-page addendum concludes with, “…the Government’s evidence was insufficient to convict.”