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Case 2:16-cr-01012-SRB Document 108 Filed 03/29/17 Page 1 of 4

1 RAYMOND N. HULSER
Chief
2 Public Integrity Section, Criminal Division
U.S. Department of Justice
3
JOHN D. KELLER
4 Illinois State Bar No. 6293104
VICTOR R. SALGADO
5 DC Bar No. 975013
SIMON J. CATALDO
6 Massachusetts Bar No. 690879
Trial Attorneys
7 Public Integrity Section, Criminal Division
U.S. Department of Justice
8 1400 New York Ave, NW, 12th floor
Washington, D.C. 20005
9 Tel: (202) 514-1412
John.Keller2@usdoj.gov
10 Victor.Salgado@usdoj.gov
Simon.Cataldo@usdoj.gov
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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United States of America,
14 2:16-CR-01012-SRB
Plaintiff,
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v. RESPONSE IN OPPOSITION TO
16 DEFENDANT’S MOTION TO
EXCLUDE STATEMENTS THAT HE
17 Joseph M. Arpaio, MADE TO THE MEDIA
18 Defendant.
19 The Supreme Court has explicitly held that a defendant’s speech may be used as
20 evidence of his criminal conduct at trial. See, e.g., Wisconsin v. Mitchell, 508 U.S. 476,
21 489 (1993) (holding that the First Amendment “does not prohibit the evidentiary use of
22 speech to establish the elements of a crime or to prove motive or intent”) (collecting cases).
23 Without citing a single case to the contrary, the defendant urges this court to ignore
24 controlling precedent and to exclude his statements because their admission “will have a
25 chilling effect” and will “increase opacity in government.” Mot. at 6, ECF No. 104. The
26 defendant is not being prosecuted for expressing political opinions—he is being prosecuted
27 for intentionally disobeying a court order. His admissions as to his violations of that order
28 are plainly admissible, regardless of the context in which they were made.
Case 2:16-cr-01012-SRB Document 108 Filed 03/29/17 Page 2 of 4

1 There is a long line of cases establishing that political speech may be admitted in a
2 criminal case to prove any relevant fact. See, e.g., Haupt v. United States, 330 U.S. 874,
3 879 (1947) (“[T]hese [political] statements were explicit and clearly were admissible on
4 the question of intent and adherence to the enemy. Their weight was for the jury.”); United
5 States v. Barnett, 667 F.2d 835, 844 (9th Cir. 1982) (“As discussed above, the first
6 amendment does not compel the exclusion of evidence simply because it consists of
7 speech. If a defendant’s words or his silence are relevant to prove some issue in the case,
8 they are admissible subject to the rules of evidence and the fifth amendment privilege
9 against self-incrimination.”). The defendant fails to cite any legal authority to the contrary
10 and his cited “chilling effect,” Mot. at 6, ECF No. 104, “is far more attenuated and unlikely
11 than that contemplated in traditional ‘overbreadth’ cases.” Mitchell, 508 U.S. at 488. The
12 defendant repeatedly and openly boasted about his enforcement of federal immigration
13 laws at a time when he thought that it was in his best interest, and the law cited above
14 makes clear that he cannot escape the consequences of his actions or hide his statements
15 today by cloaking himself in the First Amendment.
16 The defendant also argues that his public statements are inadmissible under Federal
17 Rule of Evidence 403. But because the defendant’s statements regarding his continued
18 enforcement of federal immigration law are highly probative and are not unfairly
19 prejudicial, this argument also fails. See United States v. Blitz, 151 F.3d 1002, 1009 (9th
20 Cir. 1998) (“[E]ven if that evidence resulted in some prejudice (as all unfavorable evidence
21 about a defendant does), it was not ‘unfair prejudice’ and did not ‘substantially outweigh’
22 the high probative value of the evidence.”).
23 Accordingly, the defendant’s motion to exclude his public statements should be
24 denied without “expedited oral argument.”
25
26 Respectfully Submitted,

27 RAYMOND N. HULSER
Chief, Public Integrity Section
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Case 2:16-cr-01012-SRB Document 108 Filed 03/29/17 Page 3 of 4

1
By: /s/ Victor R. Salgado
2 Victor R. Salgado
John D. Keller
3
Simon J. Cataldo
4 Trial Attorneys
5 United States Department of Justice
6 Public Integrity Section
1400 New York Ave. NW
7 Washington, DC 20005
8 (202) 514-1412
Victor.Salgado@usdoj.gov
9 John.Keller2@usdoj.gov
10 Simon.Cataldo@usdoj.gov

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Case 2:16-cr-01012-SRB Document 108 Filed 03/29/17 Page 4 of 4

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CERTIFICATE OF SERVICE
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I HEREBY CERTIFY that on today’s date, I electronically filed the foregoing via
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the CM/ECF system which will provide notice to counsel of record for the defendant.
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/s/ Victor R. Salgado
6 Victor R. Salgado
Trial Attorney
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