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United States v. Arpaio

United States Court of Appeals, Ninth Circuit

April 17, 2018

United States of America, Plaintiff-Appellee,
v.
Joseph M. Arpaio, Sheriff, Defendant-Appellant.

          D.C. No. 2:16-cr-01012-SRB-1

          John Wilenchik and Dennis I. Wilenchik, Wilenchik & Bartness P.C., Phoenix, Arizona; Mark D. Goldman, Goldman & Zwillinger PLLC, Scottsdale, Arizona; for Defendant-Appellant.

          John D. Keller, Deputy Chief; James I. Pearce, Trial Attorney; United States Department of Justice, Washington, D.C.; for Plaintiff-Appellee.

          Before: A. Wallace Tashima, William A. Fletcher, and Richard C. Tallman, Circuit Judges.

         SUMMARY [*]

         Criminal Law

         In an appeal from the district court's denial of former Maricopa County Sheriff Joseph Arpaio's request-following a Presidential pardon-for vacatur of his criminal-contempt conviction, a motions panel issued an order appointing a special prosecutor to defend the district court's decision after the United States informed this Court that it does not intend to defend it.

         The panel held that it has authority to appoint counsel under Fed. R. Crim. P. 42(a)(2); and that, independently, it has inherent authority to appoint a special counsel to represent a position abandoned by the United States on appeal.

         Dissenting, Judge Tallman wrote that it is unwise for this Court to use its authority to appoint a private attorney at this late stage to "prosecute" the appeal of a case the Government already won, in the face of the Government's continued willingness to participate, and to countenance a surreptitious use of the vacatur appeal to pursue an untimely attack on the President's constitutional authority to pardon.

          ORDER

          TALLMAN JUDGE.

         This case is on appeal from the district court's denial of Defendant-Appellant's request for vacatur of his conviction for criminal contempt. The validity of the district court's denial will be addressed by the merits panel assigned to this case. We address only the question of whether to appoint a special prosecutor to defend the district court's decision in light of the United States' letter informing this Court that "[t]he government does not intend to defend the district court's order." For the reasons discussed below, we will appoint a special prosecutor to provide briefing and argument to the merits panel.

         I. Background

         Defendant-Appellant former Maricopa County Sheriff Joseph M. Arpaio ("Sheriff Arpaio") was referred for criminal contempt on August 19, 2016. The United States prosecuted Sheriff Arpaio and obtained a conviction on July 31, 2017. On August 25, 2017, President Donald J. Trump pardoned Sheriff Arpaio, noting that Sheriff Arpaio's sentencing was "set for October 5, 2017."

         On August 28, 2017, Sheriff Arpaio moved for two forms of relief. First, Sheriff Arpaio moved "to dismiss this matter with prejudice." Second, Sheriff Arpaio asked the district court "to vacate the verdict and all other orders in this matter, as well as the Sentencing on October 5th."

         The district court granted Sheriff Arpaio's first request. On October 4, 2017, the district court dismissed with prejudice the action for criminal contempt. No timely notice of appeal from the dismissal order was filed. We denied a late-filed request for the appointment of counsel to "cross-appeal the District Court's Order dismissing the charges."

         The district court denied Sheriff Arpaio's second request. On October 19, 2017, the district court denied vacatur and refused to grant "relief beyond dismissal with prejudice." That same day, Sheriff Arpaio filed a timely notice of appeal. In response to a request for the appointment of counsel to "defend the District Court's Order denying Arpaio's request for vacatur, " we ordered the United States to "file a statement indicating whether it intends to enter an appearance and file an answering brief in this appeal."

         The United States responded that it "does not intend to defend the district court's order from October 19, 2017 . . .; instead, the government intends to argue, as it did in the district court, that the motion to vacate should have been granted." The United States took "no position on whether ...


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