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Case 2:16-cr-01012-SRB Document 123 Filed 04/05/17 Page 1 of 4

1 A. Melvin McDonald, Bar #002298
Linda K. Tivorsak, Bar #024789
2 JONES, SKELTON & HOCHULI, P.L.C.
40 North Central Avenue, Suite 2700
3 Phoenix, Arizona 85004
Telephone: (602) 263-1700
4 Fax: (602) 200-7847
mmcdonald@jshfirm.com
5 ltivorsak@jshfirm.com
6 Mark D. Goldman
GOLDMAN & ZWILLINGER PLLC
7 17851 North 85th Street, Suite 175
Scottsdale, AZ 85255
8 Telephone: 480-626-8483
Fax: 480-502-7500
9 docket@gzlawoffice.com
10 Attorneys for Defendant Joseph M. Arpaio
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UNITED STATES DISTRICT COURT
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DISTRICT OF ARIZONA
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United States of America, NO. 2:16-CR-01012-SRB
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Plaintiff, DEFENDANT ARPAIO’S REPLY
15 IN SUPPORT OF MOTION TO
v. PRECLUDE VICTIM WITNESSES
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Joseph M. Arpaio,
17 Steven R. Bailey,
Michelle Iafrate, and
18 Gerard Sheridan,
19 Defendants.
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The Government attempts to make mountains out of molehills with regard
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to the potential probative value the Government’s purported victim witness testimony will
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provide. Nothing these witnesses can testify about, however, is relevant to the three
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issues that the Government admits must be established in this trial to prove that Defendant
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Arpaio is guilty of criminal contempt. See United States v. Powers, 629 F.2d 619, 627
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(9th Cir. 1980) (At trial, the government must prove that (1) Judge Snow issued a clear
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and definite order, (2) the defendant knew of the order, and (3) the defendant willfully
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disobeyed the order). As such, the Court should preclude this testimony in its entirety.
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Case 2:16-cr-01012-SRB Document 123 Filed 04/05/17 Page 2 of 4

1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. THE PURPORTED VICTIM TESTIMONY IS NOT RELEVANT TO ANY
ISSUE TO BE DETERMINED IN THIS TRIAL.
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At trial, the government must prove that (1) Judge Snow issued a clear and
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definite order, (2) the defendant knew of the order, and (3) the defendant willfully
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disobeyed the order. United States v. Powers, 629 F.2d 619, 627 (9th Cir. 1980). [Doc.
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109 at 2]. The Government claims that “[t]he victims’ testimony, coupled with
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corresponding MCSO news releases, is highly probative of the defendant’s awareness of,
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and involvement in, activities that violated Judge Snow’s preliminary injunction.” [Id. at
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2:3-6]. This is entirely incorrect.
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Any testimony that could be provided by “Witness 1 or 2” regarding their
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stops by MCSO deputies, transportation to ICE or U.S. Border Patrol has absolutely no
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relevant to whether (1) Judge Snow issued a clear and definite order, (2) Defendant
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Arpaio knew of the order, and (3) Defendant Arpaio willfully disobeyed the order.
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Indeed, neither of these witnesses, as least from the description of testimony the
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Government intends to offer [see Doc. 109 at 2:6-3:8] have the personal knowledge to
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testify that Defendant Arpaio intentionally violated a clear order from Judge Snow.
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Moreover, to the extent that the Government intends to introduce MCSO press releases
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during these Witnesses’ testimony, that would be entirely improper because the witnesses
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themselves do not have the requisite personal knowledge to testify that these statements
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came from Sheriff Arpaio or to provide adequate foundation for the admission of the press
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releases.
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Because Witness 1 and Witness 2 have no personal knowledge regarding
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whether Defendant Arpaio intentionally violated Judge Snow’s preliminary injunction,
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any testimony they could possibly provide regarding their detention from MCSO officers
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(not by Defendant Arpaio) is irrelevant to any matter to be determined in this action.
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Accordingly, pursuant to Fed. R. Evid. 401, the Government should be precluded from
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doing so.
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Case 2:16-cr-01012-SRB Document 123 Filed 04/05/17 Page 3 of 4

1 II. ADMISSION OF “VICTIM TESTIMONY” IS UNFAIRLY PREJUDICIAL.
2 As stated above, the anticipated testimony of Witness 1 and Witness 2 have

3 absolutely no relevance to the determination of whether Defendant Arpaio intentionally

4 violated the Court’s preliminary injunction. As such, the only purpose their testimony can

5 serve is to inflame the Court’s emotions by giving a firsthand account that on two

6 occasions Judge Snow’s preliminary judgment was violated. This is expressly why Fed.

7 R. Evid. 403 serves to exclude such testimony. See Old Chief v. United States, 519 U.S.

8 172, 180 (1997). Again, because neither of these two witnesses can establish that

9 Defendant Arpaio instructed MCSO deputies to violate the preliminary injunction on

10 these separate occasions, their testimony is entirely unfairly prejudicial on this subject.

11 Finally, as stated in Defendant Arpaio’s moving motion, even in the context of a bench

12 trial, Rule 403 concerns exist and should be addressed. See U.S. Sec. & Exch. Comm'n v.

13 Jensen, 835 F.3d 1100, 1116 (9th Cir. 2016) (recognizing “a clear risk of unfair

14 prejudice” in the context of a bench trial under Rule 403). Because the anticipated

15 “victim testimony” utterly lacks any probative value and presents substantial danger of

16 unfair prejudice, it should be excluded pursuant to Fed. R. Evid. 403.

17 III. CONCLUSION.
18 Based on the foregoing, Defendant Arpaio respectfully requests that the

19 Court preclude the Government from introducing the testimony of any “victim” witness in

20 this matter because it is irrelevant to the Court’s determination in this action, unfairly

21 prejudicial, and a waste of this Court’s time.

22 RESPECTFULLY SUBMITTED this 5th day of April 2017.
23 JONES, SKELTON & HOCHULI, P.L.C. GOLDMAN & ZWILLINGER PLLC
24 By /s/ A. Melvin McDonald By /s/ Mark D. Goldman (w/ permission)
A. Melvin McDonald Mark D. Goldman
25 Linda K. Tivorsak Attorneys for Defendant Joseph M.
Attorneys for Defendant Joseph M. Arpaio
26 Arpaio
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Case 2:16-cr-01012-SRB Document 123 Filed 04/05/17 Page 4 of 4

1 CERTIFICATE OF SERVICE
2 I hereby certify that on this 5th day of April 2017, I caused the foregoing

3 document to be filed electronically with the Clerk of Court through the CM/ECF System

4 for filing; and served on counsel of record via the Court’s CM/ECF system.

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I further certify that some of the participants in the case are not registered
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CM/ECF users. I have mailed the foregoing document to the following non-CM/ECF
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participants:
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Raymond N. Hulser
9 Chief, Public Integrity Section
John D. Keller
10 Victor R. Salgado
Trial Attorneys
11 United States Department of Justice
Public Integrity Section
12 1400 New York Ave. NW
Washington, DC 20005
13 John.Keller@usdoj.gov
Victor.Salgado@usdoj.gov
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/s/ Diana Weeks
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