United States v. Arpaio

• Decision Date: 27 February 2020
• Docket Number: No. 17-10448,17-10448
• Citation: 951 F.3d 1001
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph M. ARPAIO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

951 F.3d 1001

UNITED STATES of America, Plaintiff-Appellee,

v.Joseph M. ARPAIO, Defendant-Appellant.

No. 17-10448

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 23, 2019 San Francisco, California

Filed February 27, 2020

John D. Wilenchik (argued) and Dennis I. Wilenchik, Wilenchik & Bartness P.C., Phoenix, Arizona; Mark Goldman and Jeff S. Surdakowski, Goldman & Zwillinger PLLC, Scottsdale, Arizona; Larry Klayman, Washington, D.C.; for Defendant-Appellant.

James I. Pearce (argued), Appellate Section, Criminal Division; Matthew S. Miner, Deputy Assistant Attorney General; John P. Cronan, Acting Assistant Attorney General; John Dixon Keller, Deputy Chief; Victor R. Salgado and Simon Joseph Cataldo, Trial Attorneys, Public Integrity Section; United States Department of Justice, Washington, D.C.; for Plaintiff-Appellee.

Christopher G. Caldwell (argued), Boies Schiller Flexner LLP, Los Angeles, California, Special Prosecutor Plaintiff-Appellee.

Steven A. Hirsch, Ian Bassin, Justin Florence, Aditi Juneja, and Anne Tindall, The Protect Democracy Project Inc., Washington, D.C.; Jean-Jacques Cabou, Shane R. Swindle, and Katherine E. May, Perkins Coie LLP, Phoenix, Arizona; Locke E. Bowman and David M. Shapiro, Roderick and Solange Macarthur Justice Center, Chicago, Illinois; Ronald A. Fein and Shanna M. Cleveland, Free Speech for People, Newton, Massachusetts; Noah Messing, Messing & Spector LLP, New York, New York; Phil Spector, Messing & Spector LLP, Baltimore, Maryland; Dennis Aftergut and Louise H. Renne, Coalition to Preserve, Protect, and Defend, San Francisco, California; for Amici Curiae Laurence H. Tribe ; Martin H. Redish ; Lawrence Friedman; William D. Rich; Citizens for Responsibility and Ethics in Washington; Coalition to Preserve, Protect and Defend; Free Speech for People; MoveOn; The Protect Democracy Project, Inc.; Republicans for the Rule of Law; and The Roderick and Solange Macarthur Justice Center.

Spencer G. Scharff, Scharff PLC, Phoenix, Arizona; R. Bradley Miller, Guttman Bushner and Brooks PLLC, Washington, D.C.; for Amicus Curiae Certain Members of Congress.

Dennis P. Riordan and Donald M. Horgan, Riordan & Horgan, San Francisco, California; for Amici Curiae Erwin Chemerinsky, Michael E. Tigar, and Jane B. Tigar.

Before: Jay S. Bybee, N. Randy Smith, and Daniel P. Collins, Circuit Judges.

BYBEE, Circuit Judge:

Defendant-Appellant Joseph Arpaio, the former Sheriff of Maricopa County, Arizona, was found guilty of criminal contempt in a bench trial for willfully violating a preliminary injunction prohibiting him from enforcing federal civil immigration law. After entry of the verdict, but before the court could sentence Arpaio, he was granted a pardon by the President. Arpaio asked the district court to vacate the verdict and dismiss the criminal case against him with prejudice. The district court granted the motion to dismiss the case with prejudice, but refused to vacate the verdict. Arpaio appeals that decision, arguing that vacatur was required under the Supreme Court’s decision in United States v. Munsingwear, Inc. , 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950). Because we find that Munsingwear does not apply in this case, we affirm the judgment of the lower court.

I. FACTS AND PROCEDURAL HISTORY

Joseph Arpaio was the elected sheriff of Maricopa County, Arizona, from 1993 through 2016. In 2007, a class of Hispanic Maricopa County residents sued Arpaio in the U.S. District Court for the District of Arizona under 42 U.S.C. § 1983. They alleged "illegal, discriminatory and unauthorized enforcement of federal immigration laws against Hispanic persons in Maricopa County." According to the plaintiffs, Arpaio and his officers, "acting under color of law and in concert with one another, engaged in profiling of" Hispanic motorists by detaining persons based solely on their ethnicity. In 2011, Judge Murray Snow preliminarily enjoined Arpaio and the Maricopa County Sheriff’s Office (MCSO) "from detaining any person based on knowledge, without more, that the person is unlawfully present within the United States." Ortega-Melendres v. Arpaio , 836 F. Supp. 2d 959, 992–93 (D. Ariz. 2011), aff’d , 695 F.3d 990 (9th Cir. 2012). In 2013, Judge Snow issued a permanent injunction. That injunction barred the MCSO from "[d]etaining, holding, or arresting Latino occupants of vehicles in Maricopa County based on a reasonable belief, without more, that such persons were in the country without authorization."

In 2016, following extensive hearings, Judge Snow concluded that Arpaio and the MCSO had "intentionally failed to implement the Court’s preliminary injunction." Judge Snow held Arpaio in civil contempt, and Arpaio conceded his liability for civil contempt. In a separate order, Judge Snow found that Arpaio had "intentionally disobeyed" the injunction, and that he "did so based on the notoriety he received for, and the campaign donations he received because of, his immigration enforcement activity." On that basis, Judge Snow referred the matter to another judge to adjudicate the criminal contempt charges against Arpaio.

The case was randomly assigned to Judge Susan Bolton, who presided over the prosecution of Arpaio for "[d]isobedience or resistance to [the court’s] lawful writ, process, order, rule, decree, or command." 18 U.S.C. § 401(3). Judge Bolton requested that the U.S. Department of Justice prosecute the case, which it agreed to do. See Fed. R. Crim. P. 42(a)(2). In July 2017, after a five-day bench trial, the district court issued "Findings of Fact and Conclusions of Law," concluding that Arpaio was guilty of criminal contempt of court. United States v. Arpaio , No. CR-16-01012-001-PHX-SRB, 2017 WL 3268180, at *7 (D. Ariz. July 31, 2017). Judge Bolton scheduled sentencing for October 2017.

Arpaio was never sentenced. On August 25, 2017, before the district court could pronounce sentence, President Trump granted Arpaio a full and unconditional pardon "[f]or his conviction of Section 401(3) ... and for any other offenses under Chapter 21 of Title 18, United States Code that might arise, or be charged, in connection with Melendres v. Arpaio ."¹

Relying on the pardon, Arpaio asked the district court to dismiss his criminal case with prejudice and to "vacate the verdict and all other orders." The district court granted Arpaio’s motion to dismiss the case with prejudice, but denied vacatur of the verdict. United States v. Arpaio , No. CR-16-01012-001-PHX-SRB, 2017 WL 4839072, at *2 (D. Ariz. Oct. 19, 2017). The district court held that "[a] presidential pardon must be accepted to be effective." Id. at *1. The court found that Arpaio "accepted the pardon before a judgment of conviction was entered," and accordingly, "[t]he pardon undoubtedly spared [Arpaio] from any punishment that might otherwise have been imposed," but did not "revise the historical facts of this case." Id. at *2 (quotation marks omitted).²

Arpaio filed a timely appeal from the district court’s refusal to grant the vacatur. He urges two points. First, Arpaio argues that because his pardon mooted any challenge to the court’s verdict, that verdict must be vacated, and it was an abuse of discretion for the district court to refuse to do so. At oral argument, however, Arpaio clarified that, if we agree that his challenges to the findings of guilt are moot because they will have no future preclusive effects, then he seeks no further relief beyond that determination. Second, Arpaio contends that, if the district court’s finding of guilt will have future effects, then his challenges to those findings are not moot and must be decided by this court on the merits. He raises six issues that he claims warrant reversal of the district court’s verdict of guilt.³

II. JURISDICTION AND STANDARD OF REVIEW

Ordinarily, we do not acquire jurisdiction over a verdict of guilt in a criminal case until the sentence has been issued and the judgment of conviction is final. See United States v. Vela , 624 F.3d 1148, 1151 (9th Cir. 2010) ; see also Smith , 623 F.2d at 630 ("The general rule is that it is the judgment, not the verdict, that is the ‘conviction.’ "). We have no authority here to review the district court’s "Findings of Fact and Conclusions of Law" where the case was dismissed with prejudice and no sentence was ever imposed, because we do not have a final judgment of conviction before us and because that verdict can have no future preclusive effect. Arpaio’s claimed errors in the district court’s verdict are therefore moot, and we will not consider them further.

By contrast, Arpaio’s appeal from the denial of vacatur of the district court’s verdict is appealable as a final order over which we have jurisdiction under 28 U.S.C. § 1291. See United States v. Tapia-Marquez , 361 F.3d 535, 537 (9th Cir. 2004) ; see also Munsingwear , 340 U.S. at 40, 71 S.Ct. 104 ("Denial of a motion to vacate could bring the case here."). The district court’s order dismissed the case with prejudice, even as it denied the full vacatur that Arpaio sought. The district court’s order concluded the litigation and made the order appealed a final order.

We review a district court’s grant or denial of equitable vacatur for abuse of discretion. See Tapia-Marquez , 361 F.3d at 537. "A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence." Cooter & Gell v. Hartmarx Corp ., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) ; see United States v. Hinkson , 585 F.3d 1247, 1261–62 (9th Cir. 2009) (en banc).

III. ANALYSIS

Arpaio’s threshold claim is that the district court abused its discretion by refusing to vacate the district court’s verdict under Munsingwear . Arpaio urges us to correct the district court’s legal error and vacate the verdict. See 28 U.S.C. § 2106. We disagree with Arpaio, but follow a slightly different path from the district court. We...