melendres # 1568 | macintyre renewed motion

8/20/2019 Melendres # 1568 | MacIntyre Renewed Motion

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[email protected]

Gary L. Birnbaum (#004386)David J. Ouimette (#006423)DICKINSON WRIGHT PLLC 1850 North Central Ave., Suite 1400Phoenix, Arizona 85004-4568Telephone: (602) 285-5000Facsimile: (602) 285-5100E-Mail: [email protected]

[email protected]

Special Counsel for Deputy Chief John “Jack” MacIntyre

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Manuel de Jesus Ortega Melendres, et al.,

Plaintiffs,

vs.

Joseph M. Arpaio, et al.

Defendants.

CV 07-2513-PHX-GMS

RENEWED REQUEST DEPUTY CHIEF J

MACINTYRE FOR DE

THAT CRIMINAL

CHARGES WILL NOT

REFERRED AGA

PERSONA

(ORAL ARGUMEN

I. INTRODUCTION

Despite the complexities of this case, the Court should not, and we

lose sight of the fact that this contempt proceeding was commenced by th

a limited and carefully crafted Order to Show Cause (“OSC”). In conn

the Court indicated the possibility of a referral to the United States Att

Case 2:07-cv-02513-GMS Document 1568 Filed 11/19/15 Page 1


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individuals in the civil contempt proceedings) and have independentl

counsel (who receive no compensation from the County or the MCSO) to

in connection with a possible criminal contempt proceeding.

Deputy Chief MacIntyre has been required to sit through days of

two (partial) days of depositions, and over six hours of interviews with

Monitor. He has also been required to read, analyze and digest countless

and transcripts. As the evidentiary proceedings are now concluded, on b

MacIntyre we respectfully submit that any potential of a criminal con

now be removed. Review of the evidentiary record confirms Depu

position throughout these proceedings -- that regardless of the conduct

others, there is no connection (and certainly no meaningful or incri

between the alleged violations cited by this Court as the basis for the OS

Deputy Chief MacIntyre. It is appropriate, therefore, to introduce this

extraordinary conduct which must be proven -- and the level of proof r

charge of criminal contempt.

II. THE CRIMINAL CONTEMPT STANDARD

The Court has wide latitude in determining whether there

contemptuous disregard of a Court order to support a charge of civil co

criminal contempt, however, requires proof of willful disobedience of the

For a nonparty “to be held liable in contempt, it is necessary

respondent must either abet the defendant [in violating the court's

identified with him.”3 The conclusion “depends upon whether the [non-p



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somehow personally connected with defying the authority of the court or

decrees.’”4 However, in any case “an agent’s inability to comply with

circumstances beyond his or her control may constitute a defense to a con

is potentially an important limitation in this case.

Moreover, for criminal contempt, “[w]illfulness and awareness o

violated] must be shown beyond a reasonable doubt.”6 Willfulness i

volitional act done by one who knows or should reasonably be awar

wrongful.”7 Willfulness “means a deliberate or intended violation, as

accidental, inadvertent, or negligent violation of an order.”8 Therefore,

the matter for criminal contempt proceedings, under the applicable stand

would be required to prove, beyond a reasonable doubt, that the non

MacIntyre) intentionally committed a volitional action which the no

violate the Court’s order.9 To say the least, there is no evidence in th

breach (of a court order); and (3) the defendant must substantially as primary violator in the achievement of the breach. See Inman v. Wesc

2635603, at *2 (D. Ariz. June 12, 2013) (District Judge Snow). BLACK

defines “aid and abet” as: “To assist or facilitate the commission of a cr

accomplishment. … To ‘aid’ is to assist or help another. To ‘abet’ …

means to encourage, advise, or instigate the commission of a crime.” A

LAW DICTIONARY (10th Ed. 2014) (internal citation omitted). However,

is characterized by affirmative criminal conduct and is not established aor negative acquiescence.” STEVEN H. GIFIS, THE LAW DICTIONARY 9 (14 United States. v. Voss, 82 F.3d 1521, 1526 (10th Cir. 1996) (emph

“required personal connection with the organization's defiance of the cou

agent's general control over the organization's operations or from his or h

aiding and abetting in conduct circumventing the … order.” Id. (citing U



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support such a determination as to Deputy Chief MacIntyre in this case,

the Court’s continued consideration of a possible criminal contempt refer

III.

THERE IS NO EVIDENCE THAT DEPUTY CHIEF MACINKNOWINGLY AND WILLFULLY VIOLATED ANY COUR

This Court ordered the MCSO and certain non-party individua

Chief MacIntyre, to show cause why they should not be held in cont

(1) alleged violation(s) of the Court’s Preliminary Injunction; (2) alleg

Federal Rules of Civil Procedure governing pre-trial discovery; and (3) a

the Court’s directives announced at the May 14, 2014 hearing (relating t

of an evidence-collection protocol). The OSC relates to allegations of c

by the MCSO, including allegations of such importance as knowindetaining persons based on suspicion of immigrant status, holding p

charges in violation of the law and the Preliminary Injunction, and obs

video footage of, and personal materials confiscated during, traffic and pa

However, as to Deputy Chief MacIntyre, there are no fa

contemptuous conduct in the OSC or elsewhere – at most, there is refere

that contemptuous conduct might conceivably be discovered at a later d

in this case, undersigned special counsel asked the Court to release De

from the possibility of a criminal contempt referral. Counsel took

submitting to the Court on behalf of Deputy Chief MacIntyre two pre

which established the following -- all of which have been corroborat

testimony of others:



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2. Following the events surrounding a 2008 litigation hold l

addressed by the Court, Deputy Chief MacIntyre was not responsib

record retention, production of documents or coordination of witness

Melendres case.

11

3. Deputy Chief MacIntyre was not in attendance or involved in any

Court’s oral directives with respect to the sealed hearing held on May

In response to special counsel’s early request, the Court indicated

the release of Deputy Chief MacIntyre from the prospect of a criminal co

Plaintiffs consented. At the suggestion of the Court, Deputy Chief

counsel sent a letter to the Plaintiffs seeking an agreement concerning th

possible criminal contempt referral against Deputy Chief MacIntyre.1

citing only the belief that Deputy Chief MacIntyre might bear som

violations of the Preliminary Injunction, but citing no evidence supportin

Discovery is now complete, all hearing testimony has been receiv

admitted, and Plaintiffs have rested their case. Deputy Chief MacInty

and has testified fully regarding his lack of involvement in the Melendre

MacIntyre’s supervisor, Executive Chief Michael Olsen, has testified. E

Chief Deputy Sheridan and Sheriff Arpaio have all testified. Even t

Mr. Casey, has testified about his December 23, 2011 e-mail to var

respect to the Preliminary Injunction. Nevertheless, Plaintiffs have

11 Id. at ¶¶ 14–17. Deputy Chief MacIntyre further testified th

principal or assigned contact for attorney Timothy Casey. Mr. Casey

time, he did communicate with Deputy Chief MacIntyre, but that may

response to a suggestion provided to him by the County Attorney’s Offi

and at the time of his appointment as counsel. In fact, the Legal Liaison



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contemptuous conduct on the part of Deputy Chief MacIntyre with resp

Preliminary Injunction or otherwise.15

Each of the critical facts stated in Deputy Chief MacIntyre’s decla

basis for a finding of contempt -- let alone criminal contempt -- exists w

Chief MacIntyre in this case. Indeed, during his testimony, Executive

Chief MacIntyre’s supervisor) confirmed that, at the relevant time, Dep

worked in the detention division of the MCSO, not in enforcement, and

Deputy Chief MacIntyre had no State authorized arrest powers.16

detention officers are not State certified peace officers, Executive Chief

Deputy Chief MacIntyre, nor did Deputy Chief MacIntyre have the aut

enforcement operations, or to give enforcement staff advice or instructi

enforcement operations.17

Specifically, Executive Chief Olsen testified

the detention side don’t have the training in law enforcement … [and]

law enforcement operations.”18

Further, “there’s no way that one of

myself could go to the sworn side and say: This is what you need to d

with that court order. They have the expertise; I don’t.”19

When asked

MacIntyre had responsibility for ensuring that the Preliminary Injun

Executive Chief Olsen indicated that Deputy Chief MacIntyre was not o

assigned duties in the detention division, but that Executive Chief Olsen

15 Importantly, MSCO’s then-counsel Timothy Casey testified durin

hearing that Deputy Chief MacIntyre was copied on the December 23, 20



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did he want, Deputy Chief MacIntyre involved.20

To reiterate, Depu

supervisor, Executive Chief Olsen, did not expect or want Deputy Chie

with the operational aspects of Preliminary Injunction compliance (n

MacIntyre have the authority or training to advise sworn officers), and

that he ever was involved.

This distinct division of operational duties was further confirm

command above Executive Chief Olsen. Chief Deputy Sheridan (Ex

supervisor) confirmed that Deputy Chief MacIntyre had no role in the M

Further, Sheriff Arpaio noted (most clearly in his deposition testimon

Chief MacIntyre is an attorney, Deputy Chief MacIntyre’s administrativ

the Melendres litigation.

22

When asked specifically whether Dep

consulted on issues related to the Melendres lawsuit, Sheriff Arpaio

[different] lawyer [for that].”23

In his testimony, Deputy Chief MacIntyre not only reaffirmed wh

declarations, but he testified before this Court that he personally read

Court’s Preliminary Injunction to Sheriff Arpaio in January 2012.24

Be

the appropriate members of the operational staff within the MCSO (wh

administer and/or enforce the Preliminary Injunction) were fully aware

Chief MacIntyre had no further duty (if he had any duty at all), or ope

enforce those terms. Importantly, with respect to a possible criminal con

20 Id. at 3666-25–3667:3.

21 Evidentiary Hearing Tr. (Apr. 24, 2015) at 956:9-11 (When asked



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neither evidence nor even allegation that Deputy Chief MacIntyre wil

volitional act concerning any of the three areas addressed in the Court’s O

Out of an abundance of caution, we nevertheless review specifica

three areas noted in the OSC -- to summarize the relevant testimony, t

context, and to help guide the Court’s consideration of this Request.

1. The Court’s Directives at the Hearing Held on May 14,

It is appropriate to first address (and hopefully dispense wit

compliance by Deputy Chief Macintyre with the Court’s oral directives

14, 2014 hearing. During this hearing, in which the existence of the “A

was disclosed, the Court directed Defendants to consult with the Court’s

satisfactory protocol to quietly gather evidence. Plaintiffs allege tha

Arpaio, and Chief Deputy Sheridan violated these directives by imple

protocol without first consulting with, or receiving approval from, the Co

Deputy Chief Macintyre is not even referenced in the OSC as an

in any manner for the alleged violation of the Court’s oral directives. Si

has repeatedly acknowledged that Deputy Chief MacIntyre was not not

the Court’s oral directives of May 14, 2014.25

Indeed, Deputy Chie

present at this hearing, nor was he involved in any related meetings of t

Court’s Monitor concerning the collection of Armendariz-related evid

meeting during which the decision was made to have MCSO departmen

recordings was apparently attended only by Sheriff Arpaio, Chief Depu

Casey, Tom Liddy, and Christine Stutz.27



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possession of, and used during their official duties (in some cases,

mandated procedure), body and/or vehicle mounted audio or video rec

addition to the non-disclosure of recordings made with the referenced dev

allegedly did not disclose personal property and identification inform

patrol deputies, nor the written reports of the HSU unit. However, none

apply to Deputy Chief MacIntyre.

The Court has required that Deputy Chief MacIntyre show cause

held in contempt for abetting Defendants’ discovery violations.34

On th

prior findings that Deputy Chief MacIntyre “has already once borne r

2008 “litigation hold” violation (not an issue in this OSC proceeding), th

Deputy Chief MacIntyre may have played a continuing role in MCSO’s d

in the Defendants’ failure to disclose the evidence currently at issue.35

There was at the time - - and there certainly is now - - no eviden

an inference, particularly in evaluating a possible criminal contempt re

MacIntyre’s inadvertent failure (for which this Court has already impose

forward the 2008 litigation hold letter to the responsible MCSO person

the Court’s current concern (alleged years after the 2008 events) that De

may have abetted the Defendants in subsequent and independent alle

discovery rules. At no time during the course of this litigation has De

personally been responsible for collecting or producing evidence, or fo

the discovery process. There is no evidence to the contrary.

Former counsel for the MCSO, Timothy Casey, testified before th



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As noted above, Sheriff Arpaio, Chief Deputy Sheridan, and E

have each confirmed that Deputy Chief MacIntyre did not have a ro

litigation. While Deputy Chief MacIntyre is a licensed attorney, Sherif

his deposition) that Deputy Chief MacIntyre’s administrative role (if any

issues was limited to the civil department and, in any event, did not in

litigation.43

When asked specifically whether Deputy Chief MacIntyr

related to the Melendres lawsuit, Sheriff Arpaio indicated, as previou

[different] lawyer [for that].”44

Neither Plaintiffs nor the Court in the OSC has identified any

Chief MacIntyre was involved in any Melendres-related discovery, bey

currently irrelevant) role in 2008. This was confirmed by then-couTimothy Casey. Any inference that Deputy Chief MacIntyre is respons

in, MCSO’s subsequent discovery process is simply unfounded. In

inference, based on the acknowledged, inadvertent mishandling of a sing

seven (7) years ago, falls far short of the knowing and willful conduct

finding Deputy Chief MacIntyre guilty of criminal contempt or to supp

by this Court.

3. The Preliminary Injunction

The Court has also ordered the Defendants, and certain non-part

Chief MacIntyre, to show cause why they should not be held in contemp

by the terms of the Preliminary Injunction. There is, however, no eviden

MacIntyre ever violated the letter or spirit of the Preliminary Injunctio


C 2 07 02513 GMS D 1568 Fil d 11/19/15 P 13


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charge.”45

We respectfully submit that the Court’s observation was corr

April 2015, and that nothing has changed. At most, Deputy Chief Ma

failing to promptly disseminate or distribute the Preliminary Inj

distribution was not his responsibility; when the target patrol personnel

scope of authority; when neither MCSO, the Sheriff nor MCSO’s trial

on him to do so; when he did in fact advise the Sheriff and others

Preliminary Injunction; and when all appropriate senior MCSO personne

a copy of the Preliminary Injunction.

We suspect the only reason that Deputy Chief MacIntyre has been

continuing presence (financially, physically and emotionally) in this ca

one of four individuals who received an unsolicited e-mail from then MC

Casey regarding the Preliminary Injunction. But Mr. Casey has test

Deputy Chief MacIntyre only as a professional courtesy and that he had

Deputy Chief MacIntyre would do anything in response.

The Court has noted that the MCSO has conceded that Deputy C

not have responsibilities with respect to the information contained in

(above-referenced) Preliminary Injunction e-mail.46

The MCSO has fu

“MacIntyre lacked an ‘official’ duty to act regarding the implementatio

injunction[.]”47

In its Motion for Reconsideration (on privilege issues), the MCS

that attorney-client privilege should attach to e-mails received by Dep

because MacIntyre somehow “served the Sheriff’s Office beyond his


C 2 07 02513 GMS D t 1568 Fil d 11/19/15 P 14


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communications with Deputy Chief MacIntyre, in part because he did

“need to know,” and because the MCSO had not demonstrated that

relevant to Deputy Chief MacIntyre’s role in the organization.49

As

Order rejecting the privilege assertion, there was no reason for Deputy

facilitate dissemination of the Preliminary Injunction to or for other re

“who demonstrably had identical and independent contact with [Defense

As the Defendants have acknowledged -- and as the Court has in

for other (privilege-related) purposes -- Deputy Chief MacIntyre had no

respect to the Preliminary Injunction. Any inference or suggestion to th

without evidentiary support. As noted, former MCSO counsel, Timothy

Deputy Chief MacIntyre was copied on this e-mail solely as a “profess

that he was aware that Deputy Chief MacIntyre had no chain of comm

act on the injunction.51

The Court has properly observed that Depu

believed that he had “no obligation to implement the preliminary in

MCSO.”52

Deputy Chief MacIntyre’s supervisor testified, in turn,

MacIntyre lacked the authority to implement any aspect of the

Injunction.53

Defense counsel Timothy Casey’s December 23, 2011 e-mail was

of recipients, including MCSO Chief Deputy Sheridan, Executive C

Sands, Lieutenant Sousa, and Deputy Chief MacIntyre (the only official

49 Doc. 986 at 7:17–8:6.

50 Id. at 7:19-21.


Case 2:07 cv 02513 GMS Document 1568 Filed 11/19/15 Page 1


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who was not, directly or indirectly, in charge of patrol deputies).54

Th

December 23, 2011, after the Court’s issuance of the Preliminary Injunct

Indeed, Deputy Chief MacIntyre read (quoting the Order verbati

and members of the command staff directly from the Preliminary Injunc

MacIntyre testified that he read the order twice,56

to ensure that its

recognized by the operational staff (including the Sheriff) with the autho

requirements of the Order. Although arguably outside his authority, th

that Deputy Chief MacIntyre acted in support of, and not in defiance of, t

Deputy Chief MacIntyre’s testimony that members of the operati

aware of the Order is supported by the testimony of Executive Chief (R

among others. Executive Chief Sands has confirmed that MCSO coun

showed him the Preliminary Injunction and discussed with him how

deputies.57

After his meeting with then-counsel Timothy Casey, Ex

recalled that he met with Deputy Chief MacIntyre, and that Deputy Ch

Executive Chief Sands whether he had received the Preliminary

Executive Chief Sands indicated that he had; and when asked by Deput

the deputies were aware of the Injunction, Executive Chief Sands in

already discussed the matter with Chief Deputy Sheridan and Sheriff A

seemed to be in concert with what Casey had told them.”59

Executive Chief Sands also testified that following receipt

Injunction, steps were taken to distribute the order, including setting a




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counsel Timothy Casey to meet with Lieutenant Sousa, in a

communications (and initial development of videos) concerning training

Sands concluded that “MacIntyre had nothing to do with this op

MacIntyre’s out of the picture,” and “[a]nd quite frankly, MacIntyre wo

more to do with [the preliminary injunction] than making sure the Sherif

and Sheridan.”61

Executive Chief Sands assured Deputy Chief MacIn

being taken to inform patrol deputies of the Court’s Order.

This picture of Deputy Chief MacIntyre’s limited role, responsib

not only supported by the testimony of Executive Chief Sands (and oth

deposition testimony of Sheriff Arpaio. The Sheriff testified that he

Preliminary Injunction within a week of its issuance (possibly prior to i

Chief MacIntyre) and that he delegated responsibility for dissemination

to Chief Deputy Sheridan and Executive Chief Sands, “who was runn

When asked specifically about who within the MCSO was respo

compliance with the Preliminary Injunction, Sheriff Arpaio testified: “I

Sands] the mission of doing it.”63

Stated simply, there is no evidence that Deputy Chief MacIntyr

patrol deputies, nor any material involvement with any MCSO en

MCSO’s top enforcement officials (e.g., Sheriff Arpaio, Chief D

Executive Chief Sands) and counsel (e.g., Timothy Casey) had knowledg

Injunction, and those same officials have indicated that Deputy Chie



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CERTIFICATE OF SERVICE

I hereby certify that on November 19th

, 2015, I electronically tra

document using the CM/ECF system for filing, and which will be sen

registered participants as identified on the Notice of Electronic Filing, ansent to those indicated as non-registered participants. The Evidentiary A

the Renewed Request by Non-Party Deputy Chief John “Jack” MacInty

that Criminal Contempt Charges Will Not Be Pursued/Referred Agains

similarly filed and transmitted/delivered at the same time and in the same

s/ Suzanne Majorczak,

PHOENIX 63483-1 259264v3

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melendres # 1568 | macintyre renewed motion

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