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Justice Department takes interest in birther investigation

The Associated Press article, “Feds seek records on Arpaio’s investigation involving judge,” isn’t about President Obama’s birth certificate, but it lands squarely in the middle of the Dennis Montgomery, Mike Zullo, Joe Arpaio can of birther worms opened up first by Stephen Lemon of the Phoenix New Times in June of 2014, and now to much wider audience by Judge G. Murray Snow in questioning last month during the Melendres v. Arpaio contempt hearing.

According to the AP report, the U.S. Department of Justice is seeking documents given by Montgomery (often called by the press, “the Seattle scammer”) to Arpaio’s team, documents allegedly taken from the CIA that show some kind of conspiracy between the DOJ and Judge Snow (and much more).

Sheriff Arpaio has conceded that the Montgomery material is “junk,” and I suspect the DOJ will do no more than confirm a hoax perpetrated by Montgomery. The request was revealed in a court filing today (29 May 2015) in ECF 1134:

AMENDED NOTICE re: Document Request by the U.S. Department of Justice. Earlier this week, the Court-appointed Monitor received a request from the United States Department of Justice to copy the documents and hard drives containing materials that Dennis Montgomery delivered to the Maricopa County Sherriff’s Office and that were allegedly harvested from the Central Intelligence Agency. The Department of Justice has requested to copy these hard drives on Tuesday, June 2, 2015 under the supervision of a court-appointed security officer. Should any Party wish to be heard regarding this request or procedure, it should immediately notify the Court with its comments or objections and the reasons therefore. Signed by Judge G Murray Snow on 5/29/2015 (KFZ)

The AP reports:

The sheriff’s office says its lawyer will file an objection to an order by Snow for lawyers to provide input on the documents.

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Mike Zullo: Following the money

The transcript of Day 3 in the Melendres v. Arpaio contempt hearing is now available, courtesy of the Friends of the Fogbow. It contains a somewhat confusing exchange between Judge G. Murray Snow and Sheriff Arpaio relating to the Cold Case Posse’s involvement with confidential informant Dennis Montgomery in Seattle, and in particular with money.

Q. And is zoo — did you say Zulu? Zullo. Is he a posse member?
A. Yes.
Q. And did you pay funds from Maricopa County for Mr. Zullo to
go to the Washington area?
A. Yes.
Q. And then I assume you paid Anglin and Mackiewicz their travel costs?
A. We don’t pay for Zullo, but —
Q. But you paid Mackiewicz and Anglin.
A. Yes.

Q. And so Mr. Montgomery proposed to — who did he propose to at the MCSO that the DOJ was inappropriately — I assume it was of interest to you if they were wiretapping my phone, among others?
A. Yes. And mine, too.
Q. And yours, too. And so were you conducting this investigation?
A. No.
Q. Who was in your department?
A. This is Zullo and I think Mackiewicz.
Q. What rank does Mackiewicz have?
A. He’s a detective.
Q. Who did he report to about this investigation?
A. I think he and Zullo worked together.
Q. And who did they report to?
A. And Jerry Sheridan.
Q. They reported to Deputy Chief Sheridan?
A. At one time, but let me just say that the information we’re — we’ve been getting is the informer’s not very viable.
Q. Well, I understand that, I think the article itself says, that you became aware after a considerable amount of time that the reporter was giving you junk. Is that fair to say?
A. Yes.
Q. Or the informer was giving you junk?
A. Yes
Q. How much money did you spend on the informant?
A. I don’t recall.
Q. How much money did you spend on the investigation?
A. I don’t have the figures.

Q. Did you keep any of the materials that Mr. Montgomery has
provided you?
A. I don’t have them.
Q. Who does?
A. I believe Zullo does.
Q. And is he subject to your control —
A. Yes.
Q. — as a member of your posse?
A. Yes.

THE COURT: I just wanted to reiterate some of the
things I said during my questioning of you to make sure
everybody was clear. I was told over lunch that posse funds
like Mr. Zullo — Mr. Zullo’s the head of one of your posses.
THE WITNESS: Yes.
THE COURT: Is it the Cold Case posse?
THE WITNESS: Yes.
THE COURT: I was told that you also have various sources of funding within the MCSO, like the Cold Case posse has its own funds. Is that possible?
THE WITNESS: No.
THE COURT: Okay. Do you know what the possible funding sources were for the investigations that were related to the Seattle operation? When I say "operation," I mean the one involving Mr. Montgomery and the investigations with Brian Mackiewicz and Mr. Anglin.
THE WITNESS: I’m not sure if it was our RICO, which is drugs seized — I mean moneys seized from drug peddlers, or our general funds.
THE COURT: Were there other possible funds that might be involved that fund various like, for example, the Cold Case posse?
THE WITNESS: They’re independent 501(c) —
THE COURT: 501(c)(3).
THE WITNESS: — and they raise their own money.
THE COURT: All right. And you don’t have any control over those funds?
THE WITNESS: No.

OK, you got that?

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Arpaio’s legal blunder

imageAs you have read in these pages, Joe Arpaio through his attorney, has filed a motion to disqualify federal district judge G. Murray Snow, in the racial profiling case of Melendres v. Arpaio. The motion, “Motion for Recusal or Disqualification of District Court Judge G. Murray Snow,” invokes two federal statutes: 28 USC § 455 and 28 USC § 144. You can read about those in my article, Sheriff Joe cries “uncle”!

Invoking § 144 is a problem. Here is the statute:

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

Note the highlighted portion: “A party may file only one such affidavit in any case.” The problem is that this not the first § 144 motion filed by Arpaio in this case. Let’s set the Wayback machine a thousand documents or so back in the Melendres docket to February 23, 2009, when the Melendres case was under a different judge, U.S. District Judge Mary Murguia. Arpaio filed a motion for recusal then:

Defendants Joseph M. Arpaio, Maricopa County, and the Maricopa County Sheriff’s Office, pursuant to 28 U.S.C. § 144 and 28 U.S.C. § 455, and also pursuant to Rule 83.5, Local Rules for the United States District Court for the District of Arizona, respectfully submit this Motion for Recusal.

That’s why the current judge is someone without a Latino surname, G. Murray Snow. Filing TWICE under 28 USC § 144 appears to this writer to be a huge legal blunder.

Update:

It appears that this issue was not lost on Judge Snow, as we now learn, according to the Phoenix New Times reporting on the status conference:

However, he [Judge Snow] noted that the defendants in Melendres already had an earlier judge in the case, Mary Murguia, recuse herself for cause, and that the defendants may only be allowed to have one judge so removed per case.

At this point, the Judge hadn’t read the motion for recusal.

 

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Stay in Melendres

Here’s the telegraphic version of today’s status conference in Melendres v. Arpaio:

Motion to disqualify judge Snow by criminal attorney for Arpaio. Judge issues stay of proceedings until motion has been reviewed by parties and judge.  Snow reserves right for clarification from defense. Snow may add oral argument. Hearing dates in June to be maintained. Arpaio criminal defense attorney objects to entire inquiry by Judge Snow and the unbridled authority of the court appointed monitors.

 
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Arpaio cries “uncle”!

imageDefendants Joe Arpaio and Jerry Sheridan (not pictured right) have taken the extreme step of filing a “Motion for Recusal or Disqualification of District Court Judge G. Murray Snow.”

Under statute, case law, and judicial canons, the perception of judicial bias  and the appearance of impropriety, punctuated by the material witness status of the presiding judge’s spouse, mandate the recusal and disqualification of the Honorable G. Murray Snow.

Do tell.

I suppose that I have some sympathy for the recusal argument, given that Arpaio’s investigation of the judge and his family has entered the case record. I don’t buy some of the arguments for actual bias—when they follow the Orly Taitz model for proving judicial bias: the judge ruled against me. Federal law requires disqualification when a judge’s impartiality “might reasonably be questioned.” It does not require proof of actual bias. Here are some things to consider:

  1. Significant judicial resources have already been invested in the Melendres case.
  2. The 9th Circuit Court of Appeals has already rejected a motion for the recusal of Judge Snow on similar allegations.
  3. It is unlikely that Judge Snow’s wife will be a material witness in the case.

The Supreme Court said in Liteky v. United States:

The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench trial) necessary to completion of the judge’s task.

Further, actions by a party that might create animus on the part of a judge (like investigating their wife) do not created grounds for disqualification. The Third Circuit said that the courts should not “encourage tactics designed to force recusal.”1

One matter that is raised late in the motion regarding what the judge’s wife said:

Moreover, regardless of the irrelevance of the Grissom and Montgomery investigations to the issue of whether the admitted contempt of the Preliminary Injunction occurred, Judge Snow infused himself and the materiality of his wife as a witness and her uncontradicted statement into the contempt proceeding. Whether a sitting judge is admittedly biased toward a defendant in his Court and will do anything to ensure he is not re-elected is – without question – a conflict that creates grounds for recusal.

It might have constituted grounds for recusal when Defendants became aware of it in August of 2013, but all of the circuit courts agree that such motions for recusal must be made “at the earliest moment after knowledge of the facts demonstrated the bias for such disqualification.”2 In particular the 9th Circuit requires “reasonable promptness after the ground for such a motion is ascertained.”3 Evidence of bias is not something that a party can keep in reserve until he feels he needs it.

My preceding comments refer to disqualification under 28 U.S. Code § 455, which requires recusal based on the appearance of bias. Arpaio’s attorneys have filed both under § 455 and § 144, the latter dealing with actual bias. A challenge under § 144 is rather a nuclear option. It can be done only once in a case, and it requires an affidavit by the party and a certificate of good faith from counsel that the judge is biased, and results in automatic transfer of the case to another judge. However, filings under § 144 must be timely:

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time.

I am not seeing how this motion is timely. Further, the affidavit, must allege facts sufficient to lead a reasonable person to believe that the judge is biased, and the discussion of § 455 applies and the deficiencies of the Arpaio motion already discussed are relevant.

In any case, I’m not qualified to judge the merits of the Arpaio filing, so I’ll wait and see what happens.

Legal citations in this article found in the Federal Judicial Center paper listed below.

Read more:


1United States v. Bertoli, 40 F.3d 1384, 1414 (3d Cir. 1994)

2Travelers Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d 1404, 1410 (5th Cir. 1994)

3Preston v. United States, 923 F.2d 731, 733 (9th Cir. 1991)

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