By Howard Fischer
Capitol Media Services
PHOENIX -- A federal appeals court has rebuffed the bid by former Maricopa County Sheriff Joe Arpaio to have his criminal conviction formally erased.
In a unanimous ruling Thursday a three-judge panel of the 9th Circuit Court of Appeals acknowledged that Arpaio was found guilty by U.S. District Court Judge Susan Bolton of criminal contempt. That stemmed from her finding that he had willfully violated an injunction issued by another judge prohibiting him from enforcing federal civil immigration laws.
Before he could be sentenced, though, President Trump granted the former sheriff a full and unconditional pardon. And appellate Judge Jay Bybee, writing for the court, said that left them with nothing to consider.
But Jack Wilenchik, Arpaio's attorney, said he actually sees the ruling as a win.
He said the appeal was filed because Bolton, after considering the effect of the presidential appeal and dismissing the case, refused to vacate the verdict. And Wilenchik said Bolton suggested that conviction could be used against him in some future litigation.
What the 9th Circuit ruled, Wilenchik said, is that is not the case.
And Arpaio, who was sheriff from 1993 through 2016, told Capitol Media Services that's precisely what he wanted.
"The main issue was I want this off my record,'' said Arpaio, who again is running for sheriff this year.
The issue stems from a 2007 lawsuit filed by a group of Hispanic county residents who charged "illegal, discriminatory and unauthorized enforcement of federal immigration laws against Hispanic persons in Maricopa County.'' They said that Arpaio and his officer "engaged in profiling'' of Hispanic motorists by detaining people based solely on their ethnicity.
In 2011 U.S. District Court Judge Murray Snow issued a preliminary injunction barring the sheriff and his deputies "from detaining any person based on knowledge, without more, that the person is unlawfully present within the United States.''
Five years late, Snow concluded that Arpaio and his department had intentionally failed to comply with the injunction.
Arpaio conceded his liability for civil contempt. But Snow concluded that the sheriff had "intentionally disobeyed'' the order and he "did so based on the notoriety he received for, and the campaign donations he received because of, his immigration enforcement activity.''
The case was then referred to Bolton, with the case prosecuted by the U.S. Department of Justice. That ended with Bolton finding him guilty of criminal contempt of court.
Before he could be sentenced, though, Trump issued the pardon. But Bolton, while dismissing the charges, said that did not "revise the historical facts of the case.''
That led to the appeal.
Bybee, however, said there was really nothing to appeal.
"Arpaio never suffered a final judgment of conviction for criminal contempt,'' he wrote, with no final judgment of conviction in the case. "Instead, there was a final judgment of dismissal with prejudice.''
And that, the judge said, means there cannot be "legal consequences'' from the verdict, such as being able to use the conviction to enhance his sentence in any future criminal case. Nor can that conviction be used against him in any subsequent civil case.
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