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Pardon? Sheriff Joe Arpaio request to vacate criminal contempt finding denied

Pardon? Sheriff Joe Arpaio request to vacate criminal contempt finding denied

Judge finds that while Trump’s pardon is legally effective preventing sentencing, prior orders in the case will remain in place.

A federal judge in Arizona previously ruled that Donald Trump’s pardon of former Sheriff Joe Arpaio was legally effective, despite claims from several left-wing public interest groups and law professors that the pardon was unlawful. We covered that ruling in Pardon of Sheriff Joe Arpaio upheld by court.

In that post, we noted that there was an open issue as to whether the pardon required the court to vacate all prior orders in the case, including the finding of criminal contempt, or merely hold off on sentencing:

That the court took “under advisement” the request to vacate all prior Orders in the case (as opposed to just the conviction) is not surprising. While the validity of the pardon was crystal clear, whether it requires vacating everything that has happened in the case so far is less clear (though I think it does).

Yesterday, the court resolved that open issue, ruling that the presidential pardon did not require vacating all prior orders in the case. Addressing specifically the judgment of conviction, the court wrote (pdf.)(full embed at bottom of post):

… It does not erase a judgment of conviction, or its underlying legal and factual findings. United States v. Crowell, 374 F.3d 790, 794 (9th Cir. 2004); see also In re North, 62 F.3d 1434, 1437 (D.C. Cir. 1994) (noting that “a pardon does not blot out guilt or expunge a judgment of conviction”).1 Indeed, a pardon “carries an imputation of guilt; acceptance a confession of it.” Burdick, 236 U.S. at 94.

Defendant accepted the pardon before a judgment of conviction was entered. Defendant insists that “it is only fair that the Court vacate its verdict and all other rulings in this case.” (Mot. at 3.) Defendant relies on United States v. Schaffer, wherein an en banc D.C. Circuit vacated “all opinions, judgments, and verdicts” when a presidential pardon rendered the case moot on appeal. See 240 F.3d 35, 38 (D.C. Cir. 2001) (en banc)(per curiam). But Schaffer addressed a situation much different from the present one.  The legal question of Schaffer’s guilt was never reached. Id. at 38. This was due, not only to the pendency of an appeal when the pardon was issued, but also to the unique procedural posture of the case at that time. See id. Following Schaffer’s conviction, the district court ordered a new trial, from which the prosecutor appealed. Id. The appellate court reversed and remanded for sentencing; however, after Schaffer was sentenced, his petition for en banc review was granted and the sentencing order recalled. Id. “It was at that uncertain juncture that then President Clinton pardoned Schaffer, thus rendering the case moot.” Id.

The court concluded:

“The power to pardon is an executive prerogative of mercy, not of judicial recordkeeping.” United States v. Noonan, 906 F.2d 952, 955 (3d Cir. 1990). To vacate all rulings in this case would run afoul of this important distinction. The Court found Defendant guilty of criminal contempt. The President issued the pardon. Defendant accepted. The pardon undoubtedly spared Defendant from any punishment that might otherwise have been imposed. It did not, however, “revise the historical facts” of this case. See 67A C.J.S. Pardon & Parole § 33.

I think the court is wrong on this. The pardon vacated guilt, and to the extent there is a finding of criminal contempt, that must be vacated. It’s not record keeping – the record need not be expunged, but the finding should be vacated.

The same day the Order was entered Arpaio filed a Notice of Appeal. So this story is not over.


Joseph Arpaio – Order Denying Request to Vacate Criminal Contempt Finding by Legal Insurrection on Scribd


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Then lets play by their rules and start prosecuting all the actual criminals Obama pardoned.

    Milhouse in reply to Andy. | October 22, 2017 at 3:12 am

    Um, how would that be playing by any rules? Has anyone suggested that Arpaio can still be prosecuted for his contempt?

Indeed, a pardon “carries an imputation of guilt; acceptance a confession of it.” Burdick, 236 U.S. at 94.

This is obvious logical rubbish. The first part is implied only if courts and juries are infallible, and if the pardoner (President or governor) believes that they’re infallible. And if they’re infallible, the second part is unnecessary and irrelevant.

    regulus arcturus in reply to tom_swift. | October 20, 2017 at 4:55 pm

    You forgot prosecutors.

    Arpaio, while likely overstepping his bounds slightly, was most definitely the victim of malicious prosecution by the Obama DOJ and its diversity crusaders, in an unconstitutional effort to ignore existing immigration law, and prevent local law enforcement from performing that function.

regulus arcturus | October 20, 2017 at 4:57 pm

Arpaio is appealing to the 9th Circus, so this is en route to the Supreme Court shortly thereafter.

Just a black robed goddess, IN HER OWN MIND !

Here is my personal opinion, for what it is worth.

The court, as it has already acknowledged, MUST accept the pardon for the charge of criminal contempt of court.

As to the status of court orders issued during the case, all are n o longer applicable Arpaio and, this fact should be noted in the court record. Any orders which applied to any person, other than Arpaio would remain in affect. As to expunging the record of the orders or the conviction in the lower court, this can not be done as it is public record. Arpaio can make a good case for sealing the records of the conviction arrived at by the lower court, on the basis that the granting of the pardon made it impossible for him to continue his appeal of the lower court ruling. In other words, the pardon renders the ruling moot and, in fairness to the defendant, the record of that conviction should be sealed.

    Ragspierre in reply to Mac45. | October 20, 2017 at 10:43 pm

    Gawd, you’re an idiot.

    There’s only one court here, not a “higher and lower court”. There’s just the trial court.

    Records of cases are sealed all the time, every day. They’re ALL “public record”. Some are just withheld for good cause shown. Your BS isn’t even coherent, much less correct.

    I disagree with the Prof. on this. When Obama pardoned drug offenders, there was no “vacating” of their trial record. IIRC.

      Do try to keep up, here.

      First, I specifically said that Arpaio COULD make a good case for having the court records SEALED. Get it? Or should I repeat it AGAIN? Records which are seal still have to be maintained, as they are still public records and may be made available to the general public at a later date. What Arpaio wants the court to do is EXPUNGE the record of his conviction as well as all court orders relating to the case. This can not be done.

      Yes, there sre TWOa lower courts and a higher court involved. One lower court judge issued the orders which Arpaio was accused of violating and anotther heard the case concerning the criminal contemp charge. Also, Arpaio had appealed is conviction to the 9th. This appeal was never heard, as he was granted a pardon prior to that court taking up the matter. Also, Arpaio is now considering appealing this latest decision to the 9th.

      Now, on the subject of vacating all the orders in the original cases, which led up to the conviction for criminal contempt. This can not be done, simply because some of the court orders applied to persons other than Arpaio and those persons have not be granted a pardon for their actions in this regard. As to vacating, not expunging, the finding of guilt for criminal contempt of court, that should be granted. However, vacating an order or finding does not expunge it. It still exists as a part of the court record, it is only labeled as being vacated, in this case by Presidential pardon. This is why the court records for the trial on the criminal contempt charge should be sealed.

      Nothing that Arpaio does will remove the knowledge that he was found in criminal contempt of court. There is no way to make this go away. The only way that Arpaio can change being found in contempt of court is if he rejects the pardon and appeals the finding of contempt to a higher court and the lower court is revered.

        Ragspierre in reply to Mac45. | October 21, 2017 at 10:21 pm

        Yeeeeeeah, you’r a long-winded, verbose, remarkably stupid idiot.

        But still…and always…an idiot.

I think a pardon should negate guilt while commutation only negates punishment. Example: Scooter Libby (who should have been pardoned)remained guilty and lost his law license b/c his sentence was commuted and he was not pardoned. Had he been pardoned,the slate would have been wiped clean, he would not have been guilty, and he could have kept hi law license.

4th armored div | October 21, 2017 at 11:39 am

seems to me that Sharif Joe did not get good advice by his council.
the argument by Bolton that trials in which the penalty is 6 mos or leass is exempt to trial by jury.

Joe Arpaio’s temper did not help. He is NOW appealing to 9th circuit (good luck with that) for relief.
what does a pardon indicate ?
he is 85, his wife is VERY sick he should just accept the pardon and let others battle the illegal Obama destruction of the USA.

we are in the middle of an uncivil war and we MUST do all things necessary to win or move to Mars – in other words we -have-no-choice but to win.