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Case 2:16-cr-01012-SRB Document 114 Filed 03/31/17 Page 1 of 16

1 Mark D. Goldman (012156)


Jeff S. Surdakowski (030988)
2
GOLDMAN & ZWILLINGER PLLC
3 17851 North 85th Street, Suite 175
Scottsdale, AZ 85255
4
Main: (480) 626-8483
5 Facsimile: (480) 502-7500
E-mail: docket@gzlawoffice.com
6
Attorneys for Defendant Joseph M. Arpaio
7
UNITED STATES DISTRICT COURT
8
DISTRICT OF ARIZONA
9
10
United States of America, Case No.: 2:16-cr-01012-SRB-1
11
Plaintiff,
12
NOTICE OF ERRATA
13 v.
14
Joseph M. Arpaio,
15
Defendant.
16
17
18
19
20 Defendant Joseph M. Arpaio (Defendant or Mr. Arpaio) files this Notice of
21 Errata (Notice) in regard to Defendants Motion Requesting a Voluntariness Hearing and
22
Supplement in Support of Defendant Arpaios Motion to Clarify Background and History of
23
24 The Civil Contempt Admission (the Motion). The document that was uploaded and
25 filed electronically failed to sync or fully save the final edits that were made to it. The
26
corrected Motion is attached hereto as Exhibit A. These edits are found primarily in
27
28 paragraph four (4) of Section B. See Motion at 6:17-25.

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Case 2:16-cr-01012-SRB Document 114 Filed 03/31/17 Page 2 of 16

1 DATED this 31st day of March, 2017.


2
GOLDMAN & ZWILLINGER PLLC
3
4
/s/ Mark D. Goldman
5 Mark D. Goldman
Jeff S. Surdakowski
6
17851 North 85th Street, Suite 175
7 Scottsdale, AZ 85255
Attorneys for Defendant Joseph M. Arpaio
8
9
10
11
12
CERTIFICATE OF SERVICE
13
I hereby certify that on this 31st day of March 2017, I electronically transmitted the
14
foregoing Reply to the Clerk of Court through the CM/ECF System which will send a Notice of
15 Electronic Filing to all CM/ECF registrants for this matter.
16
17 /s/ Dina D. Horsman
18
19
20
21
22
23
24
25
26
27
28

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Case 2:16-cr-01012-SRB Document 114 Filed 03/31/17 Page 3 of 16

Exhibit A

Case 2:16-cr-01012-SRB Document 114 Filed 03/31/17 Page 4 of 16

1 Mark D. Goldman (012156)


Jeff S. Surdakowski (030988)
2
GOLDMAN & ZWILLINGER PLLC
3 17851 North 85th Street, Suite 175
Scottsdale, AZ 85255
4
Main: (480) 626-8483
5 Facsimile: (480) 502-7500
E-mail: docket@gzlawoffice.com
6
Attorneys for Defendant Joseph M. Arpaio
7
UNITED STATES DISTRICT COURT
8
DISTRICT OF ARIZONA
9
10
United States of America, Case No.: 2:16-cr-01012-SRB-1
11
Plaintiff,
12
MOTION REQUESTING A
13 v. VOLUNTARINESS HEARING AND
SUPPLEMENT IN SUPPORT OF
14
Joseph M. Arpaio, DEFENDANT ARPAIOS MOTION TO
15 CLARIFY BACKGROUND AND
Defendant. HISTORY OF THE CIVIL
16
CONTEMPT ADMISSION
17
18
(Expedited Oral Argument Requested)
19
20 Defendant Joseph M. Arpaio (Defendant or Mr. Arpaio) requests a voluntariness
21 hearing regarding the agreement he made for a finding of civil contempt (the Agreement) in
22
Melendres et al. vs. Arpaio et al., case number CV07-2513-PHX-GMS (the District Court
23
24 Matter). Mr. Arpaio was coerced into making the Agreement, and there were improper
25 apparent promises that led him to believe the Agreement would avoid the criminal charges he
26
faces in the case at bar. Further, Mr. Arpaio never received the proper assistance of counsel in
27
28 regard to the Agreement because he was never informed that the Agreement would leave him

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Case 2:16-cr-01012-SRB Document 114 Filed 03/31/17 Page 5 of 16

1 open to the criminal charges he faces in the case at bar, and/or he was directly led to believe his
2
Agreement would avoid such charges. In the alternative, the Court should rule that the
3
Agreement for a finding of civil contempt should not be considered. This motion is supported
4
5 by the following Memorandum of Points and Authorities, the attached exhibits which are
6
incorporated herein by reference, and the Courts entire file in this matter.
7
MEMORANDUM OF POINTS AND AUTHORITIES
8
9 A) MR. ARPAIO DESERVES A VOLUNTARINESS HEARING BECAUSE HIS
AGREEMENT WAS COERCED.
10
The Supreme Court has determined that [i]t is now axiomatic that a defendant in a
11
12 criminal case is deprived of due process of law if his conviction is founded, in whole or in part,
13 upon an involuntary confession, without regard for the truth or falsity of the confessionand
14
even though there is ample evidence aside from the confession to support the conviction.
15
16 Jackson v. Denno 378 U.S. 368, 377, 84 S.Ct. 1774, 1781 (1964)(internal citations omitted);
17 citing to Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760; Malinski v. New
18
York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029; Stroble v. California, 343 U.S. 181, 72 S.Ct.
19
20 599, 96 L.Ed. 872; Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975. The
21 Constitution demands that confessions be made voluntarily. U.S. v. Haswood, 350 F.3d 1024,
22
1027 (9th Cir.2003). A confession is involuntary if coerced either by physical intimidation or
23
24 psychological pressure. Id. Here, the Agreement made by Mr. Arpaio was made under
25 psychological pressure, and therefore it was involuntary.
26
A confession is involuntary if it is not "the product of a rational intellect and a free
27
28 will." Brown v. Horell, 644 F.3d 969,979 (9th Cir. 2011)(citing Townsend v. Sain, 372 U.S.

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Case 2:16-cr-01012-SRB Document 114 Filed 03/31/17 Page 6 of 16

1 293, 307 (1963)). "The test is whether, considering the totality of the circumstances, the
2
government obtained the statement by physical or psychological coercion or by improper
3
inducement so that the suspect's will was overborne." Beaty v. Schriro, 509 F.3d 994,999 (9th
4
5 Cir. 2007)(citing Haynes v. Washington, 373 U.S. 503,513-14 (1963)). Moreover, a statement
6
may be considered involuntary if it is "extracted by any sorts of threats or violence, [or]
7
obtained by any direct or implied promises, however slight, [or] by the exertion of any
8
9 improper influence." Id. (citing Hutto v. Ross, 429 U.S. 28, 30 (1976)).
10
A confession is involuntary if coerced either by physical intimidation or psychological
11
pressure. In determining whether a defendant's confession was voluntary, the question is
12
13 whether the defendant's will was overborne at the time he confessed.... Therefore, we must
14
consider the totality of the circumstances involved and their effect upon the will of the
15
defendant. United States v. Crawford, 372 F.3d 1048,1060 (9th Cir. 2004) (internal citations
16
17 and quotation marks omitted). Psychological coercion invokes no per se rule. United States v.
18
Miller, 984 F.2d 1028, 1030 (9th Cir.1993). Therefore, "we must consider the totality of the
19
circumstances involved and their effect upon the will of the defendant." Id. at 1031(citing
20
21 Schneckloth v. Bustamonte, 412 U.S. 218, 226-27,93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)).
22
Whether the confession was voluntarily given is determined by the totality of the
23
circumstances. Frazier v. Cupp, 394 U.S. 731,739 (1969). The traditional indicia of coercion
24
25 are " 'the duration and conditions of detention, the manifest attitude of the police toward [the
26
defendant], [the defendant's] physical and mental state, the diverse pressures which sap or
27
28

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Case 2:16-cr-01012-SRB Document 114 Filed 03/31/17 Page 7 of 16

1 sustain [the defendant's] powers of resistance and self-control.' " Colorado v. Spring, 479 U.S.
2
564, 574 (1987) (quoting Culombe v. Connecticut, 367 U.S. 568, 602 (1961)).
3
On April 23, 2015, Mr. Arpaio appeared in an Evidentiary Hearing in front of Judge
4
5 Murry Snow (Judge Snow). See Transcript of Evidentiary Hearing Day 3, attached hereto as
6
Exhibit 1. During the hearing, Mr. Arpaio was questioned directly by Judge Snow regarding
7
questions Judge Snow described as questions that may be difficult to answer. Id. at 625:12-
8
9 13. Many of the questions took the form of Judge Snow asking do you admit that youre in
10
civil contempt of that order? Id. at 626:3-4, 14-17, 627:3-5, 8-9, 633:20-21, 634:2-3. The
11
questioning even extended to Judge Snow forcing an answer by asking, do you acknowledge
12
13 that you are in civil contempt for that order, or am I going to need to make a determination
14
regarding it? Id. at 634:13-15. Judge Snows reasoning for these questions was that, its
15
important for me to understand when Im evaluating what kind of relief and I am going to
16
17 give some relief, clearly, to the plaintiff class, and it may be quite extensive or it may be
18
limited. Id. at 635:6-9.
19
Clearly, and as further evidenced bellow by the statements made prior to this hearing,
20
21 Judge Snow was presenting to Mr. Arpaio that he had already determined how he was going to
22
rule on the matter in the midst of his questioning during the evidentiary hearing. While doing
23
so, he placed Mr. Arpaio on the witness stand, a place Mr. Arpaio was not free to leave without
24
25 Judge Snows express approval. He further stated that it was not a question of how he was
26
going to rule, but what the extent of the relief he was intending of giving to the plaintiff class.
27
28

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Case 2:16-cr-01012-SRB Document 114 Filed 03/31/17 Page 8 of 16

1 B) MR. ARPAIO DESERVES A VOLUNTARINESS HEARING BECAUSE HIS


AGREEMENT WAS MADE BASED ON AN INCORRECT
2
UNDERSTANDING.
3
Recently, in Hutto v. Ross, 429 U.S. 28, 30, 97 S.Ct. 202,203, 50 L.Ed. 194,197 (1976),
4
5 the United States Supreme Court reaffirmed its prior holdings that a confession obtained by
6 any direct or implied promises, however slight," is involuntary. A confession is voluntary in
7
law if, and only if, it was, in fact, voluntarily made. A confession may have been given
8
9 voluntarily, although it was made to police officers, while in custody, and in answer to an
10 examination conducted by them. But a confession obtained by compulsion must be excluded,
11
whatever may have been the character of the compulsion, and whether the compulsion was
12
13 applied in a judicial proceeding or otherwise." Davis v. United States, 32 F.2d. 860 at 861 (9th
14 Cir. 1929).
15
Further, in Hutto the Supreme Court rejected a per se rule of inadmissibility where a
16
17 confession is made as a result of a plea bargain. In that case the plea bargain did not call for a
18 confession. Against the advice of his attorney, Hutto made a statement in which he
19
incriminated himself, even though it was made clear to him that the terms of the plea bargain
20
21 would continue to be available to him without such a statement. The plea bargain was later
22 withdrawn and the confession introduced at Hutto's trial. The Court held that the confession
23
was not the result of any direct or implied promise and was voluntarily given. Conversely, a
24
25 confession given as the result of a direct or implied promise would be legally involuntary. In
26 short, the true test of admissibility is that the confession is made freely, voluntarily, and
27
without compulsion or inducement of any sort. Haynes v. Washington, 373 U.S. 503, 513-14
28

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Case 2:16-cr-01012-SRB Document 114 Filed 03/31/17 Page 9 of 16

1 (U.S. 1963).
2
Prior to the April 23, 2015 Evidentiary Hearing, a Status Conference was held on
3
February 26, 2015. See Transcript of the February 26, 2015 Status Conference Hearing attached
4
5 hereto as Exhibit 2. During the Status Conference, Judge Snow made it abundantly clear his
6
position was that, just for the purpose of my own sanity, that Im not going to sign off on any
7
civil contempt settlement that does not also involve a criminal contempt settlement that is
8
9 applicable to me. Id. at. 37:16-19. I mean, there are going to be certain bottom-line
10
requirements for me to sign off on any settlement agreement that foregoes a a criminal
11
contempt hearing. Id. at 39-40:23-1. Here, it is obvious Judge Snow inextricably linked any
12
13 form of settlement in the civil matter to the criminal matter. By doing this, Judge Snow gave
14
the impression that if the remedies were agreed upon in the civil matter, those remedies would
15
extend to the criminal matter.
16
17 Judge Snows statements and suggestions created a situation where Mr. Arpaio
18
reasonably believed that his plea to civil contempt would forego a criminal contempt charge.
19
Though Judge Snow never had the authority to come to a conclusion regarding criminal
20
21 contempt in this matter, his statements had the effect of suggesting that an agreement in the
22
civil matter would avoid a criminal matter. As a direct result, Mr. Arpaio accepted the
23
Agreement with the understanding that the Agreement would insulate him from the very
24
25 criminal contempt charges Judge Snow requested.
26
27
28

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Case 2:16-cr-01012-SRB Document 114 Filed 03/31/17 Page 10 of 16

1 C) MR. ARPAIO DESERVES A VOLUNTARINESS HEARING BECAUSE HIS


HE DID NOT RECEIVE THE PROPER ASSISTANCE OF COUNSEL.
2
3 A defendant who pleads guilty on advice of counsel may attack the voluntariness of his
4
plea only by showing ineffective assistance of counsel. U.S. v. Signori, 844 F.2d at 638. A
5
defendant is entitled to withdraw his guilty plea for ineffective assistance if his attorney made
6
7 gross misrepresentations about existing law, United States v. Zweber, 913 F.2d 705, 712 (9th
8
Cir.1990); Signori, 844 F.2d at 638, but not if the defendant fails to establish that
9
misrepresentations were in fact made. Signori. at 844 F.2d at 638-39. Generally, claims of
10
11 ineffective assistance of counsel are analyzed pursuant to Strickland v. Washington, 466 U.S.
12
668 (1984). In order to prevail on such a claim, Movant must show: (1) deficient
13
performancecounsel's representation fell below the objective standard for reasonableness;
14
15 and (2) prejudicethere is a reasonable probability that, but for counsel's unprofessional errors,
16
the result of the proceeding would have been different. Id. at 687-88. Although the movant
17
must prove both elements, a court may reject his claim upon finding either that counsel's
18
19 performance was reasonable or that the claimed error was not prejudicial. Id. at 697.
20
Here, Mr. Arpaio made the Agreement because he believed that doing so would remove
21
the threat of criminal charges against him. This is most concerning as he was represented by
22
23 counsel at the time. However, it is clear through Mr. Arpaios current confusion that he was
24
never properly informed of the threat that criminal charges for contempt could still be
25
maintained after he made the Agreement. For that reason, Mr. Arpaio never received the proper
26
27 assistance of counsel that is afforded to him.
28

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Case 2:16-cr-01012-SRB Document 114 Filed 03/31/17 Page 11 of 16

1 D) THE FOURTEENTH AMENDMENT REQUIRES THAT ALL ELEMENTS OF


A CRIME BE PROVEN BEYOND A REASONABLE DOUBT.
2
3 In the alternative, the Court should rule that the Agreement for a finding of civil
4
contempt should not be considered for the following additional reasons. The United States
5
Court of Appeals for the Ninth Circuit has said of indirect criminal contempt proceedings, such
6
7 as this case, [a]n individual charged with an indirect criminal contempt is entitled to the right
8
to be advised of the charges; the right to a disinterested prosecutor; the right to assistance of
9
counsel; a presumption of innocence; proof beyond a reasonable doubt; the privilege against
10
11 self-incrimination; the right to cross-examine witnesses; the opportunity to present a defense
12
and call witnesses; and the right to a jury trial if the fine or sentence imposed will be serious.
13
(emphasis added). United States v. Glass, 361 F.3d 580, 590 (9th Cir. 2004) footnote 13 (citing
14
15 F.J. Hanshaw Enterprises, Inc. v. Emerald River Dev., Inc., 244 F.3d 1128, 1139 (9th Cir.
16
2001)). In this case, the Defendant is charged with indirect criminal contempt and is entitled to
17
proof beyond a reasonable doubt.
18
19 In a footnote, the Ninth Circuit said of the burdens of proof in contempt cases [i]n a
20
civil contempt action the proof of the defendants' contempt must be clear and convincing, a
21
higher standard than the preponderance of the evidence standard in most civil cases, but less
22
23 than the beyond the reasonable doubt standard of criminal contempt proceedings. United
24
States v. Powers, 629 F.2d 619, 626 (9th Cir. 1980)(citing United States v. Rizzo, 539 F.2d 458
25
(5th Cir. 1976)). As noted above in the Sandstrom case, the Supreme Court stated that the Due
26
27 Process Clause of the Fourteenth Amendment demands that the Government prove every
28
element of a criminal charge.

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Case 2:16-cr-01012-SRB Document 114 Filed 03/31/17 Page 12 of 16

1 Therefore, when Judge Snow found the Defendant in civil contempt of court, it was by
2
clear and convincing evidence, not beyond a reasonable doubt. The Defendant is now standing
3
trial for a criminal contempt charge. As stated by the Fifth Circuit, the burden of proof in a
4
5 criminal contempt action is beyond a reasonable doubt. U.S. v. Powers, 629 F.2d at 626. As
6
noted above, the burden of proof in a civil contempt matter is lower than a criminal contempt
7
matter. Id. Allowing the Government to use the finding of civil contempt against the
8
9 Defendant to prove an element of criminal contempt impermissibly lowers the burden that the
10
Government must meet. Doing so, and only proving the willfulness element beyond a
11
reasonable doubt unconstitutionally violates the Fourteenth Amendments requirement that the
12
13 Government prove all elements of a criminal case beyond a reasonable doubt. Doing so also
14
violates the Fourteenth Amendments directive that the burden of proof not be diluted.
15
E) CRIMINAL CONTEMPT IS WHOLLY DIFFERENT FROM CIVIL
16
CONTEMPT AND THEREFORE ALLOWING THE GOVERNMENT TO
17 PROVE THE ELEMENT OF CONTEMPT, IN A CRIMINAL CONTEMPT
CASE, VIA THE CIVIL CONTEMPT FINDING, IS INCONGRUOUS.
18
19 18 U.S.C. 402 defines criminal contempt, in relevant part, thusly: [a]ny person
20
willfully disobeying any lawful writ, process, order, rule, decree, or command of any district
21
22 court of the United Statesby doing any act or thing therein, or thereby forbidden, if the act or
23 thing so done be of such character as to constitute also a criminal offense under any statute of
24
the United States or under the laws of any State in which the act was committed, shall be
25
26 prosecuted for such contempt as provided in 3691 of this title and shall be punished by a fine
27 under this title or imprisonment, or both. 18 U.S.C. 3691 and Federal Rule of Criminal
28

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Case 2:16-cr-01012-SRB Document 114 Filed 03/31/17 Page 13 of 16

1 Procedure 42 define the procedure for a criminal contempt case. On its face, 18 U.S.C. 402
2
lists more than one element to criminal contempt. As noted above, the Government must prove
3
each and every element of the charge, so, an element may not be presumed.
4
5 Criminal contempt is very distinct from civil contempt. As stated above, the Glass case
6
spelled out special characteristics that a criminal contempt proceedings must have. 361 F.3d at
7
590. Those same protections were not mandated for the Defendant when Judge Snow
8
9 considered finding the Defendant in civil contempt. In essence, this Court is now considering
10
conflating a finding of civil contempt, proven by clear and convincing evidence, with the
11
contempt element in a criminal contempt case, which must be proven beyond a reasonable
12
13 doubt.
14
Writing of the differences between civil and criminal contempt, the Supreme Court of
15
the United States has stated that, [i]f it is for civil contempt the punishment is remedial, and
16
17 for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to
18
vindicate the authority of the court. Gompers v. Buck's Stove & Range Co., 221 U.S. 418,
19
441, 31 S. Ct. 492, 498, 55 L. Ed. 797 (1911). Comparing the language in Gompers to the
20
21 current case, Judge Snow found the Defendant responsible for criminal contempt and he
22
imposed sanctions intended to remediate the situation. Currently, the Defendant is being
23
charged with criminal contempt. The two types of contempt are different in that they have
24
25 different procedures, different rules, different statutes, different purposes, different burdens of
26
proof, and different punishments. Therefore, it completely violates the Defendants Fourteenth
27
Amendment Due Process rights for this Court to pre-suppose that the element of contempt in
28

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Case 2:16-cr-01012-SRB Document 114 Filed 03/31/17 Page 14 of 16

1 this criminal case is already proven because of the prior civil contempt finding, to not have a
2
trial with respect to the contempt element, to allow the Government to prove only the
3
willfulness element of criminal contempt to prove Defendants guilt.
4
5 This is a criminal case. The Due Process Clause of the Fourteenth Amendment requires
6
that every element of a charged offense must be proven beyond a reasonable doubt. It would
7
violate the Defendants Fourteenth Amendment rights to Due Process to start the trial with the
8
9 Government deemed to have already proven the contempt element of the charge when civil and
10
criminal contempt are wholly different in purpose, character, and procedure, and they have
11
different burdens of proof. In essence, this Court, by deeming the contempt element proven,
12
13 dilutes the burden of proof required of the Government and violates the Defendants Due
14
Process rights. This Court should issue an order commanding the Government to prove each
15
and every element of the charge beyond a reasonable doubt.
16
17 CONCLUSION
18 Mr. Arpaio should receive a voluntariness hearing regarding the Agreement, because he
19
was coerced into making the Agreement, and there were improper apparent promises that led
20
him to believe the Agreement would avoid the criminal charges he faces in the case at bar.
21
22 Further, Mr. Arpaio never received the proper assistance of counsel in regard to the Agreement
23
because he was never informed that the Agreement would leave him open to the criminal
24
charges he faces in the case at bar, and/or he was directly led to believe his Agreement would
25
26 avoid such charges. In the alternative, the Court should rule that the Agreement for a finding of
27
civil contempt should not be considered.
28

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Case 2:16-cr-01012-SRB Document 114 Filed 03/31/17 Page 15 of 16

1 DATED this 24th day of March, 2017.


2
GOLDMAN & ZWILLINGER PLLC
3
4
/s/ Mark D. Goldman
5 Mark D. Goldman
Jeff S. Surdakowski
6
17851 North 85th Street, Suite 175
7 Scottsdale, AZ 85255
Attorneys for Defendant Joseph M. Arpaio
8
9
10
11
12
13
14
15 CERTIFICATE OF SERVICE
16
I hereby certify that on this 24th day of March 2017, I electronically transmitted the
17 foregoing Motion to the Clerk of Court through the CM/ECF System which will send a Notice
of Electronic Filing to all CM/ECF registrants for this matter.
18
19
/s/ Dina D. Horsman
20
21
22
23
24
25
26
27
28

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Case 2:16-cr-01012-SRB Document 114 Filed 03/31/17 Page 16 of 16

1
2
3
4
5
UNITED STATES DISTRICT COURT
6
DISTRICT OF ARIZONA
7
8
United States of America, Case No.: 2:16-cr-01012-SRB
9
Plaintiff,
10
ORDER GRANTING MOTION
11 v. REQUESTING A VOLUNTARINESS
HEARING AND SUPPLEMENT IN
12
Joseph M. Arpaio, SUPPORT OF DEFENDANT
13 ARPAIOS MOTION TO CLARIFY
Defendant. BACKGROUND AND HISTORY OF
14
THE CIVIL CONTEMPT
15 ADMISSION
16
17
18 The Court is in receipt of Defendants Motion Requesting A Voluntariness Hearing And
19 Supplement In Support Of Defendant Arpaios Motion To Clarify Background And History Of
20 The Civil Contempt Admission [Doc. __] , and good cause appearing,
21 IT IS ORDERED that a Voluntariness Hearing will be set on _____________, 2017.
22
23
24
25
26
27
28