Sunday, November 25, 2018

Case o' The Week: Defending the government's conviction (when the government won't) -- Arpaio and Fed. R. Crim. Proc. 42 Special prosecutors

 A convicted felon, pictured below, has again lost in the Ninth Circuit.
 United States v. Arpaio, 906 F.3d 800 (9th Cir. Oct. 10, 2018) (Ord. denying rehearing en banc), concurrence and dissent available here

Players: Concurrence in denial of rehearing en banc by Judge W. Fletcher, joined by Judges Graber, Gould, Paez and Christen. Statement of agreement by Senior Judge Tashima.
  Dissent from denial of rehearing en banc by Judge Callahan, joined by Judges Bybee, Bea, and Ikuta. Statement of agreement by Senior Judge Tallman.

Facts: Former Sheriff Joe Arpaio violated an order of the district court. Id. at 801. The United States successfully prosecuted Arpaio for criminal contempt of court, on July 31, 2017. Id. In August 2017, prior to sentencing, President Trump pardoned Arpaio. Id. Arpaio then moved to dismiss the prosecution, and vacate the conviction. The district court granted the motion to dismiss the prosecution, but denied the motion to vacate the conviction. Id. Arpaio appealed, and the government told the Ninth that it did not intend to defend the district court’s order. Id.
  The motions panel (Judges Fletcher, Tashima, and Tallman) issued an order appointing a private attorney as a special prosecutor “to provide briefing and argument to the merits panel.” Id.; see generally blog entry here
  A judge of the Ninth Circuit called for rehearing en banc. Id. at 801.

Issue(s): Should the motion panel’s order appointing a special prosecutor be reheard en banc?

Held:A vote was taken, and a majority of the non-recused active judges of the court failed to vote for en banc rehearing. Fed. R. App. P. 35(f). Rehearing en banc is DENIED.” Id. at 801.

Of Note: NorCal is the epicenter of the national “separation of powers” battle. In his concurrence, Judge Fletcher explains that this was a routine order – just part of the court’s inherent power that had been recognized by the Supreme Court before Fed. R. Crim. Proc. 42 was amended to make it explicit. See id. at 802 (discussing Young v. United States ex rel. Vuitton, 481 U.S. 787, 793 (1987).
  Judge Callahan disagrees: “The executive branch’s role is to prosecute. Our role is to adjudicate. When we close our eyes to the constitutional limits of our power, we are bound to veer out of our lane, and there’s no telling what else we might do simply because ‘we see no reason why’ not. The prosecutors here intend to do their job—we should let them and worry about doing our own job.” Id. at 811 (Callahan, J., dissenting from denial of rehearing en banc).
   This debate resonates with more-recent events. President Trump has harshly criticized an immigration decision of an “Obama judge,” sparking a rare public defense of the federal judiciary by Chief Justice Roberts. See article here
  Ironically, the President incorrectly blamed the Ninth Circuit for this courageous asylum decision. Who was the district judge who actually issued a temporary restraining order against the President’s new asylum rule?

The Hon. District Judge Jon Tigar, Northern District of California
 The Hon. Judge Jon Tigar, of the Northern District of California. Id.

How to Use: Does the Judiciary’s frustration with the Executive inure to the benefit of our clients? Well, it can’t hurt.
  In 2004 and 2005, SCOTUS’ frustration with Congress and politically-driven guidelines (particularly after the 2003 PROTECT Act) arguably resulted in Blakely and Booker and “advisory” guidelines. DOJ grumbled that the number of in-guideline sentences promptly dropped. See “Fact Sheet” here 
  This history of the Judiciary's response to the encroachment of the other branches is interesting to mull, as the Judiciary now considers challenges to Acting Attorney General Matthew Whitaker. See articles here, and here        
For Further Reading: Before Thanksgiving, President Trump continued a long tradition and pardoned two turkeys. 
  In another jab at our circuit, the President warned that ‘he couldn't promise the turkeys their pardons ‘won't be enjoined by the Ninth Circuit (Court of Appeals).’” See article here

Image of former Maricopa County Sheriff Officer Joe Arpaio from

Image of the Honorable District Judge Jon Tigar from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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