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Case 2:07-cv-02513-GMS Document 1771 Filed 07/27/16 Page 1 of 7

1 Lewis Roca Rothgerber Christie LLP
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201 East Washington Street, Suite 1200
Phoenix, AZ 85004-2595

Dale A. Danneman (State Bar No. 003776)
Direct Dial: 602.262.5371
Direct Fax: 602.734.3744
Email: ddanneman@lrrc.com
Attorneys for Michele M. Iafrate

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201 East Washington Street, Suite 1200
Phoenix, AZ 85004-2595

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

8 Manuel de Jesus Ortega Melendres, on
behalf of himself and all others similarly
9 situated; et al.,
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Plaintiffs,

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No. CV-07-2513-PHX-GMS
SUPPLEMENTAL
MEMORANDUM RE MICHELE
M. IAFRATE

vs.

12 Joseph M. Arpaio, in his individual and
official capacity as Sheriff of Maricopa
13 County, AZ; et al.,
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Defendants.

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The Court should undertake a complete analysis of its Orders and the record

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17 evidence in determining if there is evidence that can prove a willful and intentional
18 violation of one of those Orders by Ms. Iafrate beyond a reasonable doubt. “[T]he
19 requirement that a court’s order, violation of which is the basis for the contempt, must
20 be clear and precise . . . ,” United States v. Cooper, 353 F.3d 161, 163 (2d Cir. 2003),
21 is well established.
22 I.

Record Evidence.

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The full record in this case includes deposition transcripts and monitor interview

24 transcripts in addition to evidentiary hearing transcripts. Captain Bailey’s deposition
25 transcript reflects that he testified he was instructed to stop or suspend the Knapp ID
26 investigation after Sergeant Knapp was interviewed by PSB because Chief Deputy
27 Sheridan wanted to talk to “the attorneys." (Exhibit 1, Deposition of Steve Bailey,
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1 Vol. II, September 22, 2015, p. 399, ln. 15 – p. 402, ln. 1) Captain Bailey further
2 testified that between July 8, 2015 and July 17, 2015 he did not speak with Ms. Iafrate
2 on the subject of the Knapp IDs because she was out of town. (Id., p. 410, lns. 11 – 18)
3 He also testified the Knapp IDs were not in the conference room during the preparation
4 meeting at PSB on July 17, 2015, but rather that the Knapp IDs were present in a
5 conference room at PSB where various PSB personnel examined them on July 10,
6 2015. Ms. Iafrate was not present at that meeting. (Id., p. 411, ln. 3 – p. 412, ln. 18)
7 Finally, Captain Bailey testified that on Friday, July 17, 2015 in his first and only

201 East Washington Street, Suite 1200
Phoenix, AZ 85004-2595

8 discussion with Ms. Iafrate about the Knapp IDs she said she “wanted to research the
9 orders.” (Id., p. 419, ln. 23 – p. 420, ln. 24)
10 II.

The Court’s February 12, 2015 Order to Produce (Doc. 881).

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The record in this proceeding reflects that Sergeant Jonathan Knapp, assigned to

12 the MCSO Court Security Division, commenced acquiring identification documents
13 that had been designated for destruction from the “Property and Evidence” division of
14 the MCSO in 2006. He did not come forward with his collection of IDs until sometime
15 in July 2015.
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The plaintiff class is confined to individuals having contact with MCSO agents

17 “since January 2007.” (Doc. 494) There is therefore a preliminary question for any
18 conscientious lawyer being asked to advise MCSO as to whether the Knapp collection
19 of IDs started in 2006 had been “seized by MCSO personnel from apparent members
20 of the Plaintiff Class.” “Apparent” is commonly defined as “readily seen,” “visible,”
21 “readily understood or perceived,” “evident,” or “obvious.” WEBSTER’S NEW WORLD
22 DICTIONARY, Third College Edition (1989) at p. 65. When Sergeant Knapp stated that
23 he at least began collecting his 1459 IDs before the class period commenced, it is not
24 obvious or evident or readily understood that those IDs are covered by the Court’s
25 February 12, 2015 Order (Doc. 881) which required production of IDs “from apparent
26 class members.” It was reasonable for Ms. Iafrate to want to take some time to analyze
27 whether the Knapp IDs were responsive.
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Case 2:07-cv-02513-GMS Document 1771 Filed 07/27/16 Page 3 of 7

1 III.

The Court’s October 12, 2013 “Supplemental Permanent Injunction.”

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(Doc. 606).

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The “Supplemental Permanent Injunction” provides “Defendants shall ensure

3 that the Monitor has timely, full and direct access to all . . . documents . . . that the
4 Monitor reasonably deems necessary to carry out its duties.” (Doc. 606, ¶ 145)
5 Additionally, ‘[u]pon [request from the Monitor or Plaintiffs], the Defendants shall
6 provide in a timely manner copies (electronic, where readily available) of the requested
7 documents.” (Doc 606, ¶ 148)
On Wednesday, July 22, 2015 the Monitor team interviewed Lieutenant Swingle

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Phoenix, AZ 85004-2595

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9 and learned that Sergeant Knapp had acquired a large collection of IDs from the
10 Property and Evidence division of MCSO. (Doc. 1752, Exhibit D to “Memorandum Re
11 Michele M. Iafrate” filed July 20, 2016) PSB had secured the custody of those IDs. It
12 was not until Friday morning, July 24, 2015 that the Monitor team asked for access to
13 the Knapp IDs when Chief Warshaw spoke by phone to Ms. Iafrate at 7:45 a.m. (Doc.
14 1752, Exhibit A to “Memorandum of Michele M. Iafrate” filed July 20, 2016 at pp. 1015 11) Prior to that phone call the Monitor team had not asked to access or otherwise view
16 the Knapp IDs despite knowing of their existence since Wednesday, July 22. As Chief
17 Warshaw reported to the Court at the emergency hearing on Friday afternoon, July 24,
18 2015, the Monitor team went to the PSB offices within an hour of its first request to see
19 the Knapp IDs and were given full access to them. (Id.) There was plainly no violation
20 of the express terms of paragraph 145 or paragraph 148 of the “Supplemental
21 Permanent Injunction” because the undisputed evidence is that the Monitor team was
22 given immediate access to the Knapp IDs upon request and MCSO thereby fulfilled the
23 requirements of those paragraphs of the Injunction. That Order only requires timely
24 access to requested documents and was fully complied with.
25 IV.

The November 20, 2014 “Order” (Doc. 795 at 18:16-22).

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This Order provides:

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When MCSO undertakes a new investigation that relates to
(a) the MCSO’s compliance with its discovery and/or disclosure
obligations in this case; (b) the MCSO’s compliance with the
resulting Orders of the court in this case, or, (c), any criminal or
administrative investigations arising from or involving issues similar
to the Armendariz or Perez investigations, it is ordered to lodge
under seal with the Court and to provide the Monitor written notice
specifically identifying the subjects and targets under inquiry and
specifically referencing the administrative number assigned to the
investigation.

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This Order plainly requires a written notice when the MCSO undertook a new

7 investigation in three specified subject area delineated as “(a),” “(b),” and “(c).” Both

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Phoenix, AZ 85004-2595

8 “(a)” and “(b)” have as a predicate requirement that the subject of the investigation
9 arise from the proceedings concerning the plaintiff class consisting of individuals
10 contacted by MCSO agents since January 2007. Again, the preliminary information
11 available to MCSO on July 17, 2015 and its counsel was that Sergeant Knapp began
12 collecting the IDs in 2006 thus raising the issue of whether these IDs met the predicate
13 requirement that they were “from apparent member of the Plaintiff Class.” As
14 MCSO’s counsel, Ms. Iafrate was obligated to consider the available information and
15 the IDs in a responsible and conscientious manner rather than provide incorrect advice
16 to the client. The consistent testimony of Lieutenant Seagraves, Captain Bailey, and
17 Chief Deputy Sheridan at the evidentiary hearing was that Ms. Iafrate was asked for
18 advice as to whether the Knapp IDs were covered by the Court’s order and her
19 response was that she needed to “research” the issue.
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The scope of “(c)” covers “investigations arising from or involving issues

21 similar to the Armendariz or Perez investigations.” Sergeant Knapp was a longtime
22 Court Security Deputy Sheriff, not a Deputy in the Human Smuggling Unit or Patrol
23 who was in the field potentially coming in contact with apparent class members. The
24 available information on July 17, 2015 did not suggest that the Knapp IDs “[arose]
25 from or [involved] issues similar to the Armendariz or Perez investigations.”
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There was no written notice of any investigation provided to the Monitor. As

27 Ms. Iafrate told the Court on July 24, 2015, she understood that the Knapp IDs were
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1 not the subject of a current pending investigation. Chief Deputy Sheridan and Captain
2 Bailey testified in the evidentiary hearing as to their respective understandings as to
2 whether there was an investigation, “suspended” or “stopped.” The Court has made its
3 Findings of Fact as to that testimony under a clear and convincing evidence standard
4 based upon the limited evidentiary hearing record as to the issues it found to be
5 relevant. However, the burden of proof for the Court’s civil contempt Findings of Fact
6 was a substantially lower burden of proof than the beyond a reasonable doubt standard
7 of proof required for a criminal case. Evidence that a lawyer sought to analyze the facts

201 East Washington Street, Suite 1200
Phoenix, AZ 85004-2595

8 and the Court’s Orders is not proof of a willful and intentional violation of those
9 Orders.
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A Proceeding for Criminal Contempt Against Ms. Iafrate is Unwarranted.

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There was ample justification for Ms. Iafrate to wish to analyze and examine the

12 Knapp IDs, which she understood were dated, at least in part, from 2006 before the
13 class period began. The Knapp IDs did not clearly arise from patrol deputies or HSU
14 deputies that had contact with the plaintiff class so that the applicability of the
15 November 20, 2014 Order was not clear and unambiguous.
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A lawyer in Ms. Iafrate’s position in July 2015 should not be subjected to a

17 criminal prosecution because she was intent on providing responsible advice to her
18 client based upon considered analysis. The Supreme Court has rightfully refused to
19 sustain a criminal contempt conviction of a lawyer who gave his client legal advice in
20 good faith. See Manness v. Meyers, 419 U.S. 499 (1975). It would be incongruous for
21 a lawyer to be subjected to criminal contempt because she in essence said I want to
22 study the issue before I can advise you as to your obligations.
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Ms. Iafrate was a lawyer attempting to fulfill her professional obligations when

24 she sought to analyze the applicability of the Court’s Orders in a very short time frame.
25 There is simply inadequate evidence of any conduct on her part to sustain a finding of a
26 specific intent to violate the Court’s Orders. It would therefore be inequitable to cite
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1 her for criminal contempt based upon the evidence in the full record of these
2 proceedings including Monitor interview transcripts and deposition transcripts.
In a criminal contempt prosecution initiated by this Court pursuant to 18 U.S.C.

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3 § 401(3), the government attorney or another attorney, Rule 42(a)(2), FED. R. CRIM. P.,
4 will be required to prove a willful and intentional violation of a Court Order. The
5 entire record of this proceeding reflects that there is simply not proof beyond a
6 reasonable doubt that there was the required deliberate or intentional violation of this
7 Court’s orders. See Vaughn v. City of Flint, 752 F.2d 1160, 1168 (6th Cir. 1985). That

201 East Washington Street, Suite 1200
Phoenix, AZ 85004-2595

8 prosecutor will have no choice but to proceed to trial if this Court issues a criminal
9 contempt citation without regard to whether the prosecutor has concluded sufficient
10 proof can be presented.
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[I]t was not the purpose of Rule 42(b) to limit the authority of the
judge or to make the institution of a contempt proceeding
contingent upon the consent of any attorney, but rather to aid the
judge by providing for the prosecution of the charge by an
attorney rather than by the court.

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14 In Re Fletcher, 216 F.2d 915, 917 (4th Cir. 1954), cert. denied, 348 U.S. 931 (1955).
Ms. Iafrate was a lawyer attempting to do her job in analyzing the applicability

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16 of the Court’s orders to facts as she understood them in a compressed time frame to be
17 able to advise her client. The discovery of the existence of the 50 Montgomery hard
18 drives on Thursday afternoon, July 23, 2015, plainly raised alarms for the Monitor and
19 precipitated the emergency hearing the next day which swept in the Knapp IDs before
20 Ms. Iafrate could complete her analysis.
Subjecting Ms. Iafrate to criminal contempt because she was thoughtfully and

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22 responsibly attempting to analyze an issue to advise her client would be an unusually
23 harsh action against her . The Court’s very public consideration of such a course of
24 action has already damaged her professionally and charging her with criminal
25 contempt is unwarranted by the evidence in the entire record.
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DATED this 27th day of July, 2016.

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LEWIS ROCA ROTHGERBER CHRISTIE LLP

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By:

/s/ Dale A. Danneman
Dale A. Danneman
Attorneys for Michele M. Iafrate

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201 East Washington Street, Suite 1200
Phoenix, AZ 85004-2595

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CERTIFICATE OF SERVICE
I hereby certify that on July 27, 2016, I electronically transmitted the foregoing

12 document to the Clerk’s Office using the CM/ECF System for filing and transmittal of
13 a Notice of Electronic Filing to all CM/ECF registrants.
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/s/ May Livingston

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