Friday, February 28, 2020

Case o' The Week: Ninth Finds Arpaio Lacks Convictions -- Vacatur and the Musingwear rule

Every man in this picture has been found guilty of a crime

(but only one has not been "convicted.)"

United States v. Joseph Arpaio, 2020 WL 946065 (9th Cir. Feb. 27, 2020), decision available here.

Players: Opinion by Judge Bybee, joined by Judges N.R. Smith and Collins.  

Facts: Arizona Sheriff Joseph Arpaio was found guilty of criminal contempt after a bench trial. Id. at *2. [Note: Arpiao was “found guilty” – not “convicted!”] 
  Before he was sentenced, Arpaio was pardoned by President Trump. Id. Arpaio’s motion for vacatur of the verdict was denied by the district court. Id. Arpaio appealed both the verdict of guilt, and the denial of vacatur. Id. at *3. 
  When DOJ refused to oppose Arpaio’s appellate efforts, the Ninth appointed a special prosecutor. See generally blog entry here 
   Among other challenges on appeal, Arpaio argued in the Ninth that the “Musingwear rule” required vacatur. (“[T]he ‘Munsingwear rule,”. . . provides for vacatur in cases mooted while on appeal.” Id. at *4.

Issue(s): “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.” Id. at *3.

Held: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 hold that, because the mootness issue here arises from the fact that the district court’s findings of guilt can be given no future preclusive effect, the Munsingwear rule does not apply, and Arpaio is not entitled to vacatur. We thus affirm the judgment of the district court.Id. at *3.

Of Note: The Court’s decision hinges on the word, conviction. Judge Bybee explains that when there was a finding of guilt, Arpaio was not actually subject to a final judgement of conviction. In reality, a “[f]inal judgement in a criminal case means sentence. The sentence is the judgement.” Id. at *4 (citation omitted). 
  Because there was no final judgement of conviction, the Musingwear rule  did not apply, and the denial of Arpaio’s vacatur motion stood. (Presumably, had the President waited to pardon until after sentencing, there might have been a different outcome on this appeal . . . )

How to Use: When your client is offered a Presidential pardon, remember to ask the White House to wait until there is a “final judgement of conviction” after sentencing.
For Further Reading: Have you wondered how the addition of ten jurists appointed by President Trump will affect the Ninth Circuit? 

   For a fascinating, inside-baseball account on how the new crew are changing the old ways, see Maura Dolan, “Trump has flipped the 9th Circuit — and some new judges are causing a ‘shock wave’”, Los Angeles Times, available here.
  Of particular interest is Judge M. Smith’s insight on the combined impact of the senior judges: “Of the senior judges who will be deciding cases on ‘merits’ panels — reading briefs and issuing rulings — 10 are Republicans and only three are Democratic appointees, Smith said. ‘You will see a sea change in the 9th Circuit on day-to-day decisions,’ Smith predicted.” Id.

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


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