FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 17-10448 Plaintiff-Appellee, D.C. No. v. 2:16-cr-01012-SRB-1 JOSEPH M. ARPAIO, Defendant-Appellant. OPINION Appeal from the United States District Court for the District of Arizona Susan R. Bolton, District Judge, Presiding Argued and Submitted October 23, 2019 San Francisco, California Filed February 27, 2020 Before: Jay S. Bybee, N. Randy Smith, and Daniel P. Collins, Circuit Judges. Opinion by Judge Bybee 2 UNITED STATES V. ARPAIO SUMMARY* Criminal Law The panel affirmed the district court’s judgment dismissing former Maricopa County Sheriff Joseph Arpaio’s criminal proceeding with prejudice, and denying vacatur of the district court’s verdict finding Arpaio guilty of criminal contempt, in a case in which Arpaio was granted a pardon by the President before the district court could sentence him. The panel held that because the verdict can have no future preclusive effect, Arpaio’s claimed errors in the verdict are moot; and Arpaio’s appeal from the denial of vacatur of the verdict is appealable as a final order over which this court has jurisdiction under 28 U.S.C. § 1291. Arpaio claimed that the district court abused its discretion by refusing to vacate the district court’s verdict under the Munsingwear rule, which provides for vacatur in cases mooted while on appeal. The panel held that in this case, vacatur would not further the purposes of Munsingwear because the district court’s verdict finding Arpaio guilty of criminal contempt has no legal consequences. The panel explained that the verdict did not satisfy either of the two conditions for preclusive effect in a subsequent action because (1) there was no final judgment of conviction, as Arpaio was never sentenced; and (2) the verdict was inconsistent with, and thus not essential to, the final judgment, which dismissed the criminal contempt charge. * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. ARPAIO 3 COUNSEL John D. Wilenchik (argued) and Dennis I. Wilenchik, Wilenchik & Bartness P.C., Phoenix, Arizona; Mark Goldman and Jeff S. Surdakowski, Goldman & Zwillinger PLLC, Scottsdale, Arizona; for Defendant-Appellant. James I. Pearce (argued), Appellate Section, Criminal Division; Matthew S. Miner, Deputy Assistant Attorney General; John P. Cronan, Acting Assistant Attorney General; John Dixon Keller, Deputy Chief; Victor R. Salgado and Simon Joseph Cataldo, Trial Attorneys, Public Integrity Section; United States Department of Justice, Washington, D.C.; for Plaintiff-Appellee. Christopher G. Caldwell (argued), Boies Schiller Flexner LLP, Los Angeles, California, Special Prosecutor Plaintiff- Appellee. Steven A. Hirsch, Ian Bassin, Justin Florence, Aditi Juneja, and Anne Tindall, The Protect Democracy Project Inc., Washington, D.C.; Jean-Jacques Cabou, Shane R. Swindle, and Katherine E. May, Perkins Coie LLP, Phoenix, Arizona; Locke E. Bowman and David M. Shapiro, Roderick and Solange Macarthur Justice Center, Chicago, Illinois; Ronald A. Fein and Shanna M. Cleveland, Free Speech for People, Newton, Massachusetts; Noah Messing, Messing & Spector LLP, New York, New York; Phil Spector, Messing & Spector LLP, ...
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