03/24/2017 101 SUPPLEMENT In Support by Joseph M Arpaio to 86 MOTION to Continue Trial filed by Joseph M Arpaio. (MAP) (Entered: 03/24/2017)
D.ariz._2-16-Cr-01012_101
Título original
USA v ARPAIO #101 Arpaio Supplement in Support of Motion to Continue Trial
03/24/2017 101 SUPPLEMENT In Support by Joseph M Arpaio to 86 MOTION to Continue Trial filed by Joseph M Arpaio. (MAP) (Entered: 03/24/2017)
D.ariz._2-16-Cr-01012_101
03/24/2017 101 SUPPLEMENT In Support by Joseph M Arpaio to 86 MOTION to Continue Trial filed by Joseph M Arpaio. (MAP) (Entered: 03/24/2017)
D.ariz._2-16-Cr-01012_101
Case 2:16-cr-01012-SRB Document 101 Filed 03/24/17 Page 1 of 4
1 A. Melvin McDonald, Bar #002298
Linda K. Tivorsak, Bar #024789 2 JONES, SKELTON & HOCHULI, P.L.C. 40 North Central Avenue, Suite 2700 3 Phoenix, Arizona 85004 Telephone: (602) 263-1700 4 Fax: (602) 200-7847 mmcdonald@jshfirm.com 5 ltivorsak@jshfirm.com 6 Attorneys for Defendant Joseph M. Arpaio 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF ARIZONA 9 United States of America, NO. 2:16-CR-01012-SRB 10 Plaintiff, DEFENDANT ARPAIOS 11 SUPPLEMENT IN SUPPORT OF v. SECOND MOTION TO 12 CONTINUE Joseph M. Arpaio, 13 (Filed under seal) Defendant. 14 (Expedited oral argument under seal requested) 15 16 Pursuant to 18 U.S.C. 3161(h)(7)(A), undersigned counsel for Defendant 17 Joseph M. Arpaio joins in Mr. Goldmans Motion to Continue trial and associated Reply, 18 currently scheduled to start on April 25, 2017, for at least sixty (60) days. In addition to 19 the reasoning provided by Mr. Goldman, undersigned counsel has had additional 20 developments that have occurred within the recent weeks that establish exceptional 21 circumstances justifying continuing the trial in this matter. This is Defendant Arpaios 22 second motion to continue.1 23 24 25 The Government was orally advised by undersigned counsel last week that a 1 motion to continue would be filed for the reasons included in this Motion, in addition to 26 those asserted by Mr. Goldman. Undersigned counsel was in the process of finalizing a supplement to Mr. Goldmans Motion to Continue when the Court issued its order on 27 March 20, 2017, directing Defense counsel to file a reply to the Governments Response to the Motion to Continue. [Doc. 88]. Undersigned counsel, therefore, files this 28 supplement in support of Mr. Goldmans Motion to Continue and associated Reply. 5711261.1 Case 2:16-cr-01012-SRB Document 101 Filed 03/24/17 Page 2 of 4
1 I. ADDITIONAL CHANGED CIRCUMSTANCES JUSTIFY A
CONTINUANCE IN THIS ACTION. 2 During this Courts January 25, 2017 conference, undersigned counsel 3 revealed to the Court that counsel in the underlying Melendres civil contempt action 4 (Melendres Civil Attorneys), who are employees of the undersigned counsels law firm 5 and had been previously working on the case before this Court and representing 6 Defendant Arpaio personally, were screened from participation in this action because of 7 their continued representation in the Melendres civil litigation on behalf of Sheriff 8 Penzone, in his official capacity as Sheriff of Maricopa County. As a result of this screen, 9 undersigned counsel and an associate were the only lawyers from Jones, Skelton & 10 Hochuli that remained in the criminal matter. [1/25/17 RT at 23]. Undersigned counsel 11 informed the Court that this screen has a drastic effect on the criminal case. [Id. at 24:3- 12 7]. Undersigned Counsel also informed the court that he had contacted two other 13 lawyers and that he was in the process of trying to bring on additional counsel to assist 14 in the criminal defense in light of the screen. [Id. at 24:11-12; 32:8-10]. In light of the 15 foregoing, the Court made the following statement: 16 I believe that this, with this schedule, is a reasonable period of 17 time in order to prepare for trial. 18 And while I am not saying today that under no circumstances will I grant a trial continuance, any request for a continuance 19 would have to justify why under the circumstances of the dates that I have set for the government's disclosure and the 20 amount of disclosure that the government has made to date and the limited things that are requested -- that are expected in 21 the future why that is not a realistic amount of time for the defense to prepare. 22 [Id. at 34:15-24]. In response, and in light of the reduced evidence and witness list 23 provided by the Government, undersigned counsel stated the following: I think we'll 24 probably be okay for the April 25th unless there is some new surprise that comes in that I 25 don't know about. [Id. at 36:21-23 (emphasis added)]. 26 After this hearing, on February 9, 2017, the Melendres Civil Attorneys 27 withdrew from their representation in Melendres v. Arpaio on behalf of Sheriff Penzone, 28 5711261.1 2 Case 2:16-cr-01012-SRB Document 101 Filed 03/24/17 Page 3 of 4
1 in his official capacity as Sheriff of Maricopa County. [Doc. 1942, 2:07-cv-02513-GMS].
2 As a result of the JSH Melendres Civil Attorneys withdrawal from Sheriff Penzones 3 representation, the need for a screen was eliminated and the concerns expressed by 4 undersigned counsel during that January 25, 2017 status hearing are no longer present. 5 However, the Melendres Civil Attorneys have a trial set with Judge Teilborg beginning on 6 April 24, 2017 in Erickson v. City of Phoenix, NO. 2:14-cv-01942-JAT. Given the expert 7 witness schedules and deadlines previously set by that Court, the Melendres Civil 8 Attorneys do not believe that the trial date can be moved in order to facilitate their 9 assistance in the defense of this matter. 10 It is for this additional reason that undersigned counsel respectfully requests 11 that the Court continue this matter for the time period requested by Mr. Goldman so that 12 the Melendres Civil Attorneys can participate in the defense of this action. As 13 undersigned counsel has repeatedly intimated, the participation of the Melendres Civil 14 Attorneys would be extremely beneficial to the effective and appropriate defense in this 15 matter given these attorneys unique knowledge of the matters leading up to the criminal 16 referral. Undersigned counsel notes that the Government suffers no prejudice by this 17 short delay for trial, but that Defendant Arpaio will suffer significant prejudice if the 18 Court declines to continue this action. Moreover, Defendant Arpaio agrees that the 19 duration of the continuance would constitute excludable delay under 18 U.S.C. 3161(h) 20 and that the grant of the motion would constitute excludable time under defendants 21 speedy trial rights and agrees that all time covered by the continuance order constitutes 22 excludable delay. 23 Finally, and most importantly, none of the foregoing described events were 24 within the control of Defendant Arpaio, but rather, were the result of the unique situation 25 where the undersigned counsels law firm was not allowed to have the Melendres Civil 26 Attorneys continue to participate in the matter before this Court while they continued to 27 represent Sheriff Penzone in his official capacity as Sheriff of Maricopa County in the 28 Melendres civil case. That representation ended by substitution of counsel on February 9, 5711261.1 3 Case 2:16-cr-01012-SRB Document 101 Filed 03/24/17 Page 4 of 4
1 2017. (See Docs. 1942 and 1944 in Melendres v. Penzone, 2:07-cv-02513-GMS). In
2 other words, Defendant Arpaio is not responsible for any of the foregoing, but rather, he is 3 the negative beneficiary of legal circumstances beyond his control. 4 Accordingly, pursuant to 18 U.S.C. 3161(h)(7)(a), the ends of justice 5 served by granting a continuance in this matter outweigh the best interests of the public 6 and the defendant in a speedy trial. 7 II. CONCLUSION. 8 Based on the foregoing, undersigned counsel, on behalf of Defendant 9 Arpaio respectfully joins in Mr. Goldmans request that the Court continue the trial set in 10 this matter for at least 60 days. In addition, in light of the Governments objection to Mr. 11 Goldmans request for continuance and the sensitive nature of this supplement, 12 undersigned counsel requests expedited oral argument, under seal, on this issue. 13 14 RESPECTFULLY SUBMITTED this 21st day of March 2017. 15 JONES, SKELTON & HOCHULI, P.L.C. 16 17 By/s/A. Melvin McDonald A. Melvin McDonald 18 Linda K. Tivorsak 40 North Central Avenue, Suite 2700 19 Phoenix, Arizona 85004 Attorneys for Defendant Joseph M. Arpaio 20 21 CERTIFICATE OF SERVICE 22 I hereby certify that on this 21st day of March 2017, I electronically filed 23 the foregoing filing with the Clerk of Court through the CM/ECF System which will 24 send notification of such filing to the attorneys of record for the defendants. 25 /s/Karen Gawel 26 27 28 5711261.1 4
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