United States v. Arpaio, No. 17-10448 (9th Cir. 2018)
Annotate this CaseFormer Maricopa County Sheriff Arpaio was referred for criminal contempt in August 2016. The government obtained a conviction on July 31, 2017. On August 25, 2017, the President pardoned Arpaio, noting that Arpaio’s sentencing was “set for October 5, 2017.” On August 28, 2017, Arpaio moved “to dismiss this matter with prejudice” and asked the district court “to vacate the verdict and all other orders” plus the sentencing. On October 4, the district court dismissed with prejudice the action for criminal contempt. No timely notice of appeal order was filed. The Ninth Circuit denied a late-filed request for the appointment of counsel to “cross-appeal” the dismissal. The district court denied Arpaio’s second request and refused to grant “relief beyond dismissal with prejudice.” Arpaio filed a timely notice of appeal. In response to a request for the appointment of counsel to defend the order denying Arpaio’s request for vacatur, the government stated that it “does not intend to defend the district court’s order” and intends to argue, as it did in the district court, that the motion to vacate should have been granted. The Ninth Circuit appointed a special prosecutor to file briefs and present oral argument on the merits.
Court Description: 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. UNITED STATES V. ARPAIO 3
The court issued a subsequent related opinion or order on June 1, 2018.
The court issued a subsequent related opinion or order on October 10, 2018.
The court issued a subsequent related opinion or order on February 27, 2020.
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