Melendres # 1745 Sheridan Memo Re Criminal Contempt

Case 2:07-cv-02513-GMS Document 1745 Filed 07/18/16 Page 1 of 29
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Lee Stein (#12368)

lee@mitchellsteincarey.com
Barry Mitchell (#13975)
barry@mitchellsteincarey.com
Andrew R. Breavington (#27168)
andrew@mitchellsteincarey.com
MITCHELL | STEIN | CAREY, PC
One Renaissance Square
2 North Central Avenue, Suite 1900
Phoenix, AZ 85004
Telephone: (602) 358-0293
Facsimile: (602) 358-0291
Attorneys for Chief Deputy Gerard Sheridan
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UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA
Manuel de Jesus Ortega Melendres, et al., )
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Plaintiffs,
)
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v.
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Joseph M. Arpaio, et al.,
)
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Defendants.
)
)
No. CV-07-2513-PHX-GMS
CHIEF DEPUTY GERARD

SHERIDANS MEMORANDUM
REGARDING CRIMINAL
CONTEMPT
Preliminary Statement
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Over a year ago, Chief Deputy Sheridan acknowledged that his conduct
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constituted civil contempt and accepted the fact that there would and should be
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consequences. He has never wavered in accepting responsibility for his behavior.
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Among other things, the consequences for Chief Sheridan include internal investigations
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for which the punishment, if he is found responsible, will be his termination. There are
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volumes of sworn testimony and adverse findings by this Court relating to those
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investigations. There is little doubt that Chief Sheridan will be punished and punished
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severely for his actions. His 38-year career of service in the Maricopa County Sheriffs
Office may come to an abrupt and painful end as a result.
The adequacy of those and other civil remedies is but one of the considerations
when determining whether a matter should be referred for criminal contempt. To justify
a criminal referral, the following elements must be satisfied: (1) the existence of a clear
and definite order, (2) known by the contemnor, and (3) a willful disobeyance of that
order. Those elements cannot be satisfied here with respect to Chief Sheridan. While
Chief Sheridans conduct is rightly criticized, as Chief Sheridan has acknowledged
including his abdication of responsibility for Melendres to Executive Chief Sands and
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others he did not willfully disobey a clear and definite order for which no adequate civil
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remedy exists. If, as here, there is any doubt as to any of the necessary elements for
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criminal contempt, the matter should not be referred.
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Legal Framework
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A court should resort to criminal sanctions only after it determines, for good
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reason, that a civil remedy is inappropriate. Shillitani v. United States, 384 U.S. 364,
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371, n.1 (1966). Criminal contempt is punitive and is for the purpose of vindicating the
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authority of the court. Lasar v. Ford Motor Co., 399 F.3d 1101, 1110 (9th Cir. 2005).
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Only the least possible power of the court adequate to the end proposed should be used
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in contempt cases. United States v. Powers, 629 F.2d 619, 625 (9th Cir. 1980) (citation
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omitted).
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Criminal contempt is only appropriate where there is a clear and definite court
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order, the contemnor knows of the order, and he or she willfully disobeys it. United
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States v. Rose, 806 F.2d 931, 933 (9th Cir.1986) (emphasis added). The terms of the
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order must be clear and specific and leave no doubt or uncertainty in the minds of those
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to whom it is addressed. United States. v. Joyce, 498 F.2d 592, 596 (7th Cir. 1974); see
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also United States v. Fleischman, 339 U.S. 349, 370-371 (1950) (failure to take action
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required by an order can be punished only if the action is clearly, specifically, and
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unequivocally commanded by the order).
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A court should not make a criminal referral unless probable cause exists to believe
the alleged contemnor has willfully violated a court order. See United States v. Masselli,
638 F. Supp. 206, 210, n. 14 (S.D.N.Y. 1986) (showing of probable cause required before
criminal contempt may be prosecuted); U.S. ex rel. Vuitton Et Fils S.A. v. Karen Bags,
Inc., 592 F. Supp. 734, 749 (S.D.N.Y. 1984) (similar), rev'd on other grounds sub nom.
Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987); In re United Corporation,
166 F. Supp. 343, 345 (D. Del 1958); United States v. Kelsey-Hayes Co., 476 F.2d 265,
266 (6th Cir. 1973) (dismissing criminal contempt proceedings after order to show cause
on the basis of courts determination of a lack of probable cause and that there was no
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willful violation of the relevant order).
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Willfulness for purposes of criminal contempt means a deliberate or intended
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violation of the courts order. Clement v. United States, 766 F.2d 1358, 1367 (9th Cir.
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1985). It implies a deliberate or intended violation, as distinguished from an accidental,
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inadvertent, or negligent violation of an order. United States v. Armstrong, 781 F.2d
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700, 706 (9th Cir. 1986). In criminal contempt proceedings, willful disobedience of a
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court order must be proven beyond a reasonable doubt. Falstaff Brewing Corp. v. Miller
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Brewing Co., 702 F.2d 770, 782 (9th Cir. 1983); In re Kirk, 641 F.2d 684, 687 (9th Cir.
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1981).
Argument
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1. The December 23, 2011 Preliminary Injunction
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The Courts conclusion that Chief Sheridan knowingly and intentionally failed to
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implement the Preliminary Injunction1 relies on Chief Sheridans acknowledgment that
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he read the Arizona Republic, which included articles about the Preliminary Injunction;
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that he was present at a Board of Supervisors meeting where the Preliminary Injunction
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was discussed; that he was copied on correspondence discussing the Preliminary
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Injunction; testimony of Chief Sands that he told Chief Sheridan about the Preliminary
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Injunction; and evidence leading to the inference that Chief Sheridan met with Tim Casey
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Doc. 1677 at 66-92.

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to discuss the Melendres case. The Court relied on this evidence in concluding that
Chief Deputy Sheridan could not have remained in perpetual ignorance of the
preliminary injunction during the seventeen months in which it was in force.2

While the Court may have concluded that ignorance of the injunction was not
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possible, more than a passing awareness of the existence of the injunction is required for
a criminal referral. Testimony and evidence during the evidentiary hearing demonstrated
that Chief Sheridan was not aware of the specific terms of the Preliminary Injunction.
Evidence from the hearing confirmed that although Chief Sheridan may have heard about
the existence of the Preliminary Injunction, he did not possess knowledge of the specific
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contents. More importantly, neither he nor anyone else at MCSO believed it was Chief
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Sheridans responsibility to implement the order.

Without knowledge of the specifics and an understood responsibility to carry it
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out, Chief Sheridan could not have deliberately violated the order as required for a
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criminal contempt referral. See Rose, 806 F.2d at 933 (contemnor must have clear and
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definite knowledge of order); Clement, 766 F.2d at 1367 (willfulness requires deliberate
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or intended violation of order); Armstrong, 781 F.2d at 706 (accidental, inadvertent or
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negligent violation insufficient).

Responsibility for communicating and seeing to the implementation of orders
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arising out of the litigation, indisputably, fell to Executive Chief Sands. He was handling
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the matter for MCSO before Chief Sheridan became the Chief Deputy and continued
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after Chief Sheridan assumed his role. Nobody disputes that was Chief Sands role or
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that Chief Sands interacted directly with Sheriff Arpaio on the matter.
Thus, any finding that Chief Sheridan was responsible for implementation and
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therefore should have known about the specifics of the order is premised solely and
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exclusively on his role as Chief Deputy. While that may be sufficient for purposes of
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imposing civil contempt (as Chief Sheridan has acknowledged), it does not establish the
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Doc. 1677 at 91.

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knowing, intentional and willful conduct necessary to support a criminal contempt
referral.
a. Chief Sheridans Testimony on the Preliminary Injunction
The Court has expressed the view that Chief Sheridan should have known about
the Preliminary Injunction by nature of his position as MCSOs second in command.3
While in hindsight Chief Sheridan should have known what was required by the
Preliminary Injunction and should have been meaningfully involved in its
implementation, the facts demonstrate that he did not and was not.
Chief Sheridan first came to understand the contents of the Preliminary Injunction
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during his March 27, 2014 deposition in the Department of Justice (DOJ) matter.4 The
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Findings of Facts conclude this testimony is demonstrably false.5 However, a review
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of the DOJ deposition transcript, not referenced in the Findings of Facts, demonstrates
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Chief Sheridan is genuine and credible on this issue:

Q: What did you understand the preliminary injunction to
be?
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A: It was 142 pages, I believe. 149. Do you want me to

summarize that? And I can in one sentence. Were out of the
illegal immigration business. 6
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Chief Sheridan was referring to the Courts earlier Findings of Fact and
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Conclusions of Law which was in fact 142 pages.7 After counsel clarified she meant a
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different order, explained what the Preliminary Injunction addressed, and asked Chief
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Sheridan about its implementation, Chief Sheridan stated: Im having a hard time
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answering your questions because I dontI dont remember the details of the
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preliminary injunction order.8
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Id. at 68.
Doc. 1043 at 949:22-25.
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Doc. 1677 at 68.
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Relevant Excerpts of 3/27/14 DOJ Deposition of Gerard Sheridan (DOJ Depo.),
attached as Exhibit 1, at Tr. 121:5-12.
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See Doc. 579.
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DOJ Depo at 123:5-7.
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Counsel then handed Chief Sheridan a copy of the Preliminary Injunction and
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asked whether he remembered receiving any information about the order in December
2011. Chief Sheridan responded that he did not, explained his focus on other issues at the
time and finished: I pretty much left the Melendres case to Chief Sands to deal with. So
II didnt even recall this until you mentioned it.9 This, of course, was long before
Chief Sheridans knowledge of the order was an issue relevant to contempt.

Chief Sands was MCSOs liaison for the Melendres matter.10 MCSOs counsels
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testimony confirms this. Mr. Liddy testified that Chief Sands was MCSOs primary
contact for Melendres.11 Mr. Casey also testified that Chief Sands, until he left MCSO,
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was Mr. Caseys primary client contact at MCSO. It was not until Chief Sands
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departure that Mr. Casey began working with Chief Sheridan.12
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Chief Sheridan did not appreciate the importance of the Melendres case in
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December 2011.13 He was not deposed and he did not testify in the Melendres matter; he
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was not involved in determining whether to appeal the Preliminary Injunction, and he did
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not talk with either Tim Casey or Tom Liddy about Melendres until around the time it
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concluded.14 Chief Sheridan did not take an active role in Melendres until around the
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time the Court issued its Findings of Facts and Conclusions of Law in May 2013.15
Chief Sheridan described his work load and the other priorities consuming his time
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and focus when the Preliminary Injunction was issued.16 After Sheriff Arpaio put David
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Hendershott on administrative leave, Chief Sheridan was left with responsibility to
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address many urgent problems, including a very broken relationship with the Maricopa
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Id. at 124:10-12.
Doc. 1043 at 950:22-951:9.
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Relevant Excerpts of 9/21/15 Deposition of T. Liddy, attached as Exhibit 2, at 118:311.
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Doc. 1417 at 1612:24-1613:10.
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Doc. 1465 at 1383.
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Doc. 1043 at 953:6-19.
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Id. at 1403:2-18.
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DOJ Depo at 123:25-124:10; Doc. 1043 at 947-948; Relevant Excerpts of G. Sheridan
Monitor Interview (Monitor Interview), attached as Exhibit 3, at 174:7-175:2.
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County Board of Supervisors.17 That issue alone took a significant amount of his time
every day for a few years.18

A week before the Preliminary Injunction issued, the DOJ initiated civil rights
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litigation against MCSO related to unlawful detention of Hispanics. Chief Sheridan was
very involved in that litigation.19 A week later, a deputy sheriff was murdered in the line
of duty. Around the same time Chief Sheridan was also dealing with an inmate murdered
in custody.20 He was also handling audits, in progress criminal investigations, a $14
million employee lawsuit, and a significant number of internal investigations.21 Chief
Sheridan was responsible for all of these issues in addition to the day-to-day operations of
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MCSOthe third largest Sheriffs office in the nation, with seven districts, over 700
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deputies, and a territory of 9,226 miles.22
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b. Testimony from Former MCSO Counsel
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Mr. Caseys testimony and the evidence he provided to the Court fully supports
Chief Sheridans testimony that he was not involved with the case and therefore did not
familiarize himself with the contents of the Preliminary Injunction and the
implementation of that order.
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In the days before the Preliminary Injunction was issued Mr. Casey met with
Sheriff Arpaio, Chief Sands and Lt. Sousa - but did not meet with Chief Sheridan - to
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discuss the oral argument on Plaintiffs summary judgment motion.23 After the
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Preliminary Injunction was issued, Mr. Casey read it and called Chief Sands not Chief
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Sheridan to give him an oral report.24 Mr. Casey had a subsequent lengthy meeting
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Doc. 1043 at 947:22-948:11.

Id. at 948:12-17.
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Id. at 948:18-23.
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Id. at 950:14-22.
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Id. at 948:24-949:7; Monitor Interview at 174:7-175:2.
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Doc. 1043 at 836:17-22; 934:22-935:2; 949:1-7.
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Doc. 1417 at 1628:17-1630:5 (referencing Ex. 2533, billing records).
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Id. at 1630:25-1631:21.
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with Chief Sands and Lt. Sousa but not Chief Sheridan to exhaustively review the
injunction and what MCSO could and could not do.25
Mr. Casey testified in his deposition that given his professional relationship with
Chief Sheridan at the time, it did not surprise him that Chief Sheridan had testified that
Mr. Casey and Chief Sheridan did not discuss violations of the Preliminary Injunction at
that stage.26 Mr. Casey also testified he did not believe he ever met with Chief Sheridan
about the Preliminary Injunction.27
Other MCSO counsel testified consistently. Mr. Liddy testified during his
deposition that he and Mr. Casey only ever met with Sheriff Arpaio and possibly Chief
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Sands to discuss the Preliminary Injunction Order when it was issued.28 Mr. Liddy
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confirmed that he never discussed the Preliminary Injunction Order with Chief Sheridan
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during 2012 and 2013.29

Ms. Stutzs deposition testimony was that Chief Sheridan told her that the first
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time he remembered seeing the Preliminary Injunction Order was during his DOJ
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deposition and that he expressed concern [to her] that he had not been more involved in
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the management of those issues and that he had made that he thought that Chief Sands
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was taking care of those things.30 Notably, Ms. Stutz had this discussion with Chief
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Sheridan before he became a principal in the IA investigation into the dissemination of
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the Preliminary Injunction and before he was named a contemnor in this action.31
Mr. Casey further testified that when he became concerned later on during the
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Melendres trial over violations of the order, he followed up with various members of the
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MCSO command, but not Chief Sheridan, because Chief Sheridan was not involved in
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Doc. 1422 at 1767:17-25.

Relevant Excerpts of 9/16/15 Deposition of T. Casey (Casey Depo.) attached as
Exhibit 4, at 314:20-315:12.
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Casey Depo. at 126:10-23.
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Liddy Depo. at 9:9-10:9.
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Id. at 28:24-29:7.
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Relevant Excerpt of 9/18/15 Deposition of C. Stutz (Stutz Depo.), attached as
Exhibit 5, at 97:15-98:4.
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Id. at 99:7-17.
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the case.32 Mr. Casey testified he had no personal knowledge that Chief Sheridan was
aware that, under the Preliminary Injunction Order, MCSO could not detain people based
solely on suspected illegal presence because Mr. Casey had no interaction with Chief
Sheridan in regard to the Preliminary Injunction.33
c. Correspondence Addressing the Preliminary Injunction
Chief Sheridan was copied on certain correspondence, including Tim Caseys
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December 23, 2011 email, which attached and discussed the Preliminary Injunction.
Chief Sheridan has consistently maintained he does not recall receiving, opening, or
reviewing that email, which arrived at 5:15 pm on a Friday evening, two days before
Christmas. Chief Sheridan triages the hundreds of emails he receives each day, and
because this was not an issue for which he had day-to-day responsibility, he did not pay
attention to it.34 That testimony has not been refuted there is no evidence he opened the
email, forwarded it, deleted it, printed it, mentioned it to anyone, or took any action with
respect to its contents.
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Mr. Caseys testimony again supports Chief Sheridan. When Mr. Casey sent the
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December 23, 2011 email, he copied Chief Sheridan as a sheer courtesy to him because
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he was the new deputy chief.35 At the time, Chief Sheridan honestly was a new face
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and an unknown commodity who Mr. Casey did not get to know until the Melendres
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trial and trial prep in July and August 2012.36
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Mr. Casey testified he only copied Chief Sheridan because he was number two in
the MCSO chain of command but didnt have any expectations of Chief Sheridan in
regard to this issue because he had not dealt with him on the Preliminary Injunction.37
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Doc. 1422 at 1855:10-1856:3.

Casey Depo. at 215:117-216:11.
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Doc. 1043 at 951:10-13.
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Doc. 1417 at 1632:22-1633: 22.
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Id. at 1635:16-22. This comports with Chief Sheridans testimony that he did not meet
with Mr. Casey until either towards the very end of the case or after the case was over.
See Doc. 1043 at 1150:6-20.
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Doc. 1417 at 1635:24-1636:1.
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Chief Sheridan was not involved at this stage with anything to do with the Preliminary
Injunction.38 Mr. Casey has no memory of ever meeting with Chief Sheridan about the
Preliminary Injunction at or shortly after the time it came down.39

In November 2014, Mr. Casey sent an email to MCSO to provide additional
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background and context for the December 23, 2011 email. He stated that email was
likely written in follow-up to a telephone conversation I had with Chief Brian Sands after
the decision/Order came out.40 He clarified why he sent the email to Chief Sheridan:
At the time the email was sent, Chief Sheridan was still rather
new to me and he was copied solely as a protocol courtesy
because I believed he was either the Interim Chief Deputy or
the newly appointed replacement Chief Deputy. Chief
MacIntyre was also copied solely as a courtesy so he was aware
of the Order. It was neither my expectation nor understanding
that Chiefs Sheridan or MacIntyre would take action on this
Order because HSU and saturation patrols were historically in
the province of Brians command authority, he was the one that
exclusively handled matters arising in this litigation that
affected HSU/saturation patrols, and Brian was handling this
Order.41
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It is also noteworthy that Chief Sheridan was not copied on a series of emails sent
between January 2012 and March 2012, discussing the contents of the Preliminary
Injunction Order and the development of training scenarios for HSU deputies based on
the order.42 Mr. Casey testified these emails were in response to a discussion he had with
Chief Sands on implementation of the order.43 Chief Sands was the sole chief involved in
the development and implementation of training in response to the Preliminary Injunction
Order.44
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Doc. 1422 at 1755:24-1756:3.

Id. at 1757:2-6.
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November 6, 2014 email from T. Casey to S. Fax, attached as Exhibit 6.
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Id. (emphasis added).
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See, e.g., Ex. 2536 (email from Lt. Sousa to Deputy Palmer).
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Doc. 1417 at 1763:1-18.
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Id. at 1766:5-22.
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As another example, after Plaintiffs counsel Andre Segura contacted Mr. Casey in
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October 2012 to allege violations of the Preliminary Injunction, Mr. Casey met with
Sheriff Arpaio and Chief Sands not Chief Sheridan to determine whether violations
had occurred.45 Mr. Casey also met with Lt. Sousa and Lt. Jakowinicz and not Chief
Sheridan on the same issue.46

While certain of Mr. Caseys billing records reference meetings with MCSO,
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listing Chief Sheridans presence, there was no testimony about what was specifically
discussed at these meetings. The best evidence on this issue is the testimony of Mr.
Casey. And, as discussed above, he testified that he believed he never met with Chief
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Sheridan on the Preliminary Injunction because Chief Sheridan was not involved with it.
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d. Chief Sheridan Did Not Know the Contents of the Preliminary

Injunction
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Chief Sheridan does not claim he was never at a meeting (such as the January 21,
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2012 Board of Supervisors meeting) where the Preliminary Injunction was referenced.
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Nor does he claim he never heard the term Preliminary Injunction. He may have even
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had some vague knowledge that there was a court order addressing HSUs practices. But,
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the crucial distinction is, that he paid no attention to, and has no recollection of the
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specific contents of the Preliminary Injunction. Undisputed evidence demonstrates it was
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Chief Sands role to address anything arising from the Melendres litigation at that time,
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including implementation of the Preliminary Injunction.47
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A conclusion that Chief Sheridan should have paid attention and learned about the
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Preliminary Injunction and was negligent for not doing so is reasonably supported by the
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evidence and supports a finding of civil contempt. However, the evidence does not
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Id. at 1691:6-19.
Id. at 1801:1-19.
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The Court should discount Chief Sands testimony that he told Chief Sheridan about
the contents of the Preliminary Injunction. Chief Sands testimony is self-serving and not
credible because it is outweighed by testimony from all of MCSOs counsel who
uniformly agree that Chief Sheridan was not involved in the Preliminary Injunction.
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reasonably support the conclusion that Chief Sheridan (1) knew the contents of the
Preliminary Injunction Order, and (2) willfully failed to disseminate it.
2. The Events of May 14, 2014
An ambiguous court order, precludes the essential finding in a criminal contempt
proceeding of willful and contumacious resistance to the court's authority. In re Betts,
927 F.2d 983, 987 (7th Cir. 1991). The essential element of willfulness in criminal
contempt does not exist where there is a good faith pursuit of a plausible though
mistaken alternative. United States v. McMahon, 104 F.3d 638, 643 (4th Cir. 1997). A
defendant's good faith belief that he is complying with the order of the court may prevent
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a finding of willfulness. Armstrong, 781 F.2d at 706.

The reasonableness of an orders specificity must be evaluated in context and with
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reference to its audience; it may be necessary that the specificity of an order directed to
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laypersons be greater than that directed to lawyers. United States v. Turner, 812 F.2d
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1552, 1565 (11th Cir. 1987); In re Hipp, Inc., 5 F.3d 109, 112 (5th Cir. 1993)
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(Determining whether an order is specific requires a factual inquiry into the
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reasonableness of the orders specificity, given the context in which it was issued.).
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In assessing whether an order is sufficiently specific, courts look at the
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defendants behavior and not to a hypothetical situation. United States v. McMahon, 104
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F.3d 638, 643 (4th Cir. 1997). While criminal contempt may be based on an oral order,
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the order must nevertheless be sufficiently specific for contempt charges to lie. Hipp, 5
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F.3d at 112, n.4; see also United States v. Turner, 812 F.2d 1552, 1566 (11th Cir. 1987)
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(oral order not to inject racial prejudice into trial nor appeal to jury on basis of racial
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prejudice was not sufficiently specific to hold attorney in criminal contempt).
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The events of May 14, 2014, were complicated and should not be viewed in a
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vacuum. When viewed in the proper context, as provided by the testimony of MCSOs
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counsel, there is insufficient evidence to refer Chief Sheridan for criminal contempt
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proceedings based on his conduct on that day. While he certainly made mistakes, there
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was no clear and definite order, nor did he willfully disobey the direction of the Court.
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a. The Status Conference
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The Findings of Facts stated that on May 14, 2014, MCSO, and more specifically
Chief Sheridan, violated the Courts Order to formulate, with the Monitors approval, a
plan to quietly gather responsive recordings made by the officers.48 A review of the
transcript and the testimony of those involved confirms that there was no such order in
place. And more significantly, Chief Sheridan believed he was acting consistent with the
Courts direction.
The issue arose after MCSO had identified recorded traffic stops in the possession
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of Charles Armendariz and told the Court it believed other deputies may have similar
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recordings. A discussion then ensued about how best to recover the videos. The
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transcript from the status conference demonstrates an evolving discussion in which the
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Court gave somewhat conflicting direction on the level of involvement it wanted from the
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Monitor in collecting the videos. For the majority of the time, the Court stated the
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Monitor was to have input and give assistance if MCSO wanted it:
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The Court tells Chief Sheridan and Sheriff Arpaio that the first order of
business is to obtain all the material that is possibly out there. (Doc. 700 at
57:4-10)
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Chief Sheridan informs the Court that on the previous day he had ordered the
chief of patrol, Chief Trombi, to begin to identify who has the devices and to
gather any information on where those videos were, and if they were not in
evidence, to obtain them. (Id. at 58:23-59:3)
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The Court does not order Chief Trombi to stand down until the Monitor had
approved the plan. Instead, the Court states that the Court and the Monitor
wanted to assist MCSO in the most effective and efficacious way in
getting the videos. (Id. at 59:10-14)
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The Court states: I will have my monitor work with you to develop a proif
you want his assistance and expects MCSO to execute a thought-through
plan. (Id. at 61:2-18 (emphasis added))
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Doc. 1677 at 219.

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Later in regard to digital recorders, the Court orders: Can you find that out
and do your best, and I mean your level best, come up with a plan, review it
with the monitor if you will, if you need to, to recover all that data? (Id. at
63:21-24 (emphasis added))
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The Court then asks MCSO to formulate a plan to gather videos that the
Monitor could approve. (Id.at 75:18-24)
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Chief Sheridan tells the Court he had spoken with Chief Warshaw and Chief
Martinez and he took what they had to say and [MCSO] will incorporate that
into how we approach this situation. (Id. at 76:9-15). The Court does not
correct Chief Sheridan to tell him the Court required the Monitor to sign off on
the plan before implementation rather than just provide input.
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The Court later states it wanted the Monitor to be proscriptive and involved,
and inform the Court if MCSO rejected the Monitors suggestions. (Id. at
94:6-17).
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Tim Casey addresses and clarifies the Courts direction. He tells the Court
MCSO understood the Monitor was to be involved, have input, and give
advice, recommendation. (Id. at 96:1-6).
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15
17
The Court does not correct Mr. Casey to tell him the Monitor had to give more
than input, advice or a recommendation because the Court was ordering MCSO
it could not institute any plan without the pre-approval of the Monitor.
18
Importantly, at the time Chief Sheridan left the courtroom and returned to MCSO
19
to meet with Sheriff Arpaio and MCSO counsel, he had no written order from the Court,
20
no transcript of the hearing, and he did not take any notes during the Status Conference.49
21
Chief Sheridan testified that when he left the Status Conference, he believed the
22
Monitors role was to help us in any way they could and to meet with them. 50 Chief
23
Sheridan thought he had a good understanding of what the Court wanted MCSO to do but
24
he did not believe he was required to get the approval of Chief Warshaw on what
25
procedure to use to collect the videos.51
16
26
27
28
49
Doc. 1043 at 934:1-7.

Id. at 930:22-25.
51
Id. at 933:3-11. Mr. Liddy, who was present at the Status Conference, had a similar
memory of the Status Conference. During his deposition, his recollection was that the
50
-14-
Chief Sheridans belief is supported by the transcript. The directive cited in the
Findings of Facts is the only time during the Status Conference that the Court indicated
the Monitor had to pre-approve a plan to gather the videos. Elsewhere during the
hearing, both before and after making that statement, the Court gave the conflicting
directive that the Monitor was available to give advice or input, and also repeatedly
indicated MCSO was free to reject that input.
The evolving nature of the hearing supports a finding that Chief Sheridans
subsequent collection efforts were good faith attempts to comply with the order as Chief
Sheridan understood it. Chief Sheridans attempt to implement an oral order to collect
10
the traffic stop videos should not lead to a referral for criminal contempt, given the
11
uncertain role of the Monitor in the collection and Chief Sheridans understanding of the
12
Courts directions. See Matter of Betts, 927 F.2d at 987 (7th Cir. 1991) (willfulness
13
negated if order not sufficiently specific); Armstrong, 781 F.2d at 706 (defendant's good
14
faith belief that he is complying with the order of the court may prevent a finding of
15
willfulness).
16
b. The Directive to Chief Trombi to Gather Videos
17
18
19
20
21
22
23
24
25
26
27
28
The Court found that Chief Sheridan directed Chief Trombi to email MCSO
division and bureau commanders without first consulting the Monitor.52 This occurred
during a meeting between Sheriff Arpaio, Chief Sheridan, and MCSO counsel after the
Status Conference. As a threshold matter, there is confusion and conflicting testimony
over exactly what Chief Trombi was asked to do and whether the directive to Chief
Trombi occurred at that meeting and if so, whether it even originated from Chief
Sheridan.
Chief Sheridan testified that having Chief Trombi organize the collection of the
videos was a collaborative decision made by everyone in the room, including MCSO
Court stated that Chief Sheridan was allowed to collect the videos and that the monitor
would be available to assist Chief Sheridan in any way. Liddy Depo. at 209:25-210:16.
52
Doc. 1677 at 223.
-15-
counsel who were present at the hearing.53 Chief Sheridan testified he assumed that it
was he who instructed Chief Trombi, because Chief Trombi was his direct report, but that
even to this day its difficult to determine exactly who told Trombi. I was in a meeting
with four other peoplethree lawyers, the sheriff, myselfand I know its going to be
hard for you to believe, but in that room Im the lowest man on the totem pole.54
Chief Trombi testified that Chief Sheridan told him to collect the videos.55 Chief
6
7
Trombi did not testify that Chief Sheridan told him to communicate his instructions to
gather videos by email. In fact, Chief Trombi testified he himself made the decision to
send an email and Chief Sheridan didnt indicate what steps he should take to maximize
10
receipt of all tapes that had been made.56 Chief Trombi also testified that he didnt
11
discuss the contents of the email with Chief Sheridan or anyone else.57
MCSOs lawyers who were in the room recall events differently from Chief
12
13
Trombi. Tim Casey testified he did not recall Chief Sheridan providing Chief Trombi
14
with any direction regarding the collection of videos. Mr. Casey recalled the retrieval of
15
the videos was discussed when Chief Trombi was in the room, but thought the direction
16
regarding how to retrieve the videos had been given at an earlier date.58 Ms. Stutz
17
testified that Chief Sheridan told Chief Trombi that he would be responsible for
18
collecting the videos, but that she could not remember whether Chief Sheridan
19
specifically told Chief Trombi to send an email.59
20
21
22
23
24
25
26
27
28
53
Doc. 1043 at 937:21-938:2.

Id. at 856:23-857:4.
55
Doc. 1017 at 53:13-54:16.
56
Id. at 56:20-57:25.
57
Id. at 60:11-15.
58
Casey Depo. at 339:1-340:1; 359:9-360:4 (The events of May 14, 2014 were not
discussed during Mr. Caseys hearing testimony).
59
Stutz Depo. at 118:22-119:20. Ms. Stutz also expressed her opinion that the fact Chief
Trombi emailed command staff before MCSO and the monitor team came up with a plan
to collect the evidence did not negatively impact MCSOs ability to collect the videos.
Id. at 159:2-17.
54
-16-
Mr. Liddy testified that Chief Sheridan did not give Chief Trombi a directive to
1
2
collect the videos at that meeting, but rather at an earlier meeting on May 12th.60 During
that earlier meeting, Mr. Liddy had stated MCSO should attempt to collect any videos in
the possession of MCSO deputies.61 Mr. Liddy believed Chief Trombi sent out the email
on May 14th at least in part on Mr. Liddys advice during the earlier meeting on May
12th.62
Mr. Liddy recalled Chief Trombi was asked for an update on the collection efforts
7
8
on May 14th.63 Mr. Liddy also testified that he did not believe that Chief Sheridan
instructed Chief Trombi to issue an email about gathering the videos, and did not recall
10
Chief Trombi being given any direction or recommendation about collecting the videos
11
although the subject matter came up.64 Mr. Liddy believed Chief Sheridan may have
12
confused the events of May 12th when Chief Sheridan testified he gave direction to Chief
13
Trombi on May 14th.65

The conflicting memories and testimony show that the who, what and how of
14
15
the directive to Chief Trombi is far from clear. Moreover, even if Chief Sheridan did
16
direct Chief Trombi to send an email to collect the videos (the conflicting testimony
17
demonstrates he may not have done so), three lawyers were present at the meeting
18
Casey, Stutz, and Liddy. None of them intervened. None of them expressed any concern
19
over Chief Sheridans conduct or told him he was acting contrary to the Courts orders.
20
The fact that counsel did not intervene should be sufficient to conclude that referral for
21
criminal contempt on this basis is inappropriate and unwarranted. Cf. Snyder, 428 F.2d at
22
23
24
25
26
27
28
60
Liddy Depo. at 188:3-19.

Id. at 195:17-196:10.
62
Id. at 196:11-18.
63
Id. at 187:15-188:2.
64
Id. at 196:19-22; 204:15-21.
65
Id. at 205:2-17. Mr. Liddys belief is supported by Chief Sheridans own testimony at
the Status Conference that he had already the previous day directed Chief Trombi to
identify who had the videos and start to gather them. See Doc. 700 at 58:23-59:3.
61
-17-
523 (party may defend against criminal contempt on the basis of good faith reliance upon
counsel's advice that actions were not in violation of the court's order).
c. Meeting with the Monitor Team and MCAO Attorney Christine

Stutz
After the initial MCSO meeting, Chief Sheridan and Christine Stutz met with the
5
6
Monitor Team. The Findings of Facts notes that Chief Sheridan did not disclose to the
Monitor Team he had already directed Chief Trombi to gather videos.66
Ms. Stutz testified that to her knowledge Chief Sheridan did not know at the time
of the Monitor meeting whether Chief Trombi had taken any steps to gather the videos.67
10
She didnt tell the Monitors that Chief Sheridan had already told Chief Trombi to gather
11
the videos and didnt think there was any reason for her to do so.68
Ms. Stutz told Chief Sheridan after the Monitor meeting that he should find out
12
13
whether Chief Trombi had already taken action in response to the earlier directive.69
14
She testified And Jerry looked at me kind of like he didnt really know what I was
15
talking about. And he said, What do you mean? or something to this effect.70 After
16
she reminded him of the earlier directive given to Chief Trombi, and that they needed to
17
see if he had started to collect the evidence, Chief Sheridan said something to the effect
18
of Well, why didnt you kick me under the table? or something like that.71
Chief Sheridan was stunned when reminded of what transpired earlier. He said a
19
20
couple of expletives because he had failed to tell the Monitor that he had given Chief
21
Trombi the earlier direction.72 It is clear from this testimony that Chief Sheridans failure
22
to reveal what he earlier told Chief Trombi during the Monitor meeting was not an
23
attempt to willfully mislead or misdirect the Monitor or disobey a court order. He had
24
25
26
27
28
66
Doc. 1677 at 224.

Stutz Depo. at 119:21-120:13.
68
Id. at 118:1-20.
69
Id. at 126:8-21.
70
Id. at 126:22-24.
71
Id. at 126:25-127:5.
72
Doc. 1043 at 848:6-9.
67
-18-
either forgotten what had transpired earlier during that stressful, long day or was
confused about the events. Such confusion was understandable; testimony from the
people who were at the first meeting, including three MCSO lawyers, establishes there is
confusion and dispute over what actually transpired at the meeting. This evidence does
not show willful disregard of a court order by Chief Sheridan.
d. Chief Sheridan and Christine Stutz Meet with Chief Trombi
Chief Sheridan and Ms. Stutz had another discussion with Chief Trombi after the
Monitor meeting where Chief Trombi told Chief Sheridan that he had already sent the
email to gather the videos.73 Chief Trombi informed Chief Sheridan he had already sent
10
the email because he was surprised when Chief Sheridan said the Monitor Team was
11
going to formulate a plan for collecting the videos.74 Chief Sheridan testified he was
12
surprised to find out that Chief Trombi had sent the email so quickly.75 This is supported
13
by the testimony of Chief Trombi who stated Chief Sheridan was shocked and
14
surprised and said he had forgotten he had told Chief Trombi to contact the
15
commanders.76 The testimony of Chief Trombi and Ms. Stutz confirm that Chief
16
Sheridan did not deliberately conceal the fact that Chief Trombi had already been
17
directed to start collecting videos during the first Monitors meeting.
18
e. Telephone Call with Chief Warshaw

After he realized what had happened, Chief Sheridan called Chief Warshaw within
19
20
minutes of him leaving MCSO.77 The Findings of Facts stated that Chief Sheridan made
21
a false statement during that call that Chief Trombi sent the email without his
22
knowledge.78 Chief Sheridan explained that he had told Chief Trombi to contact the
23
commanders, but did not know during the Monitor meeting (which occurred directly after
24
25
26
27
28
73
Doc. 1677 at 226.

Doc. 1017 at 115:4-21.
75
Doc. 1043 at 938:21-25.
76
Doc. 1017 at 115:22-116:3.
77
Stutz Depo. at 127:19-128:7.
78
Doc. 1677 at 227.
74
-19-
Chief Trombi met with Chief Sheridan and the others in Sheriff Arpaios office) whether
Chief Trombi had taken any steps to reach the commanders.79

The Court found that Chief Sheridan was intentionally untruthful to the Monitor.80
3
4
However, Ms. Stutz and Chief Trombi confirm that when Chief Sheridan met with the
Monitor Team and Ms. Stutz, he had genuinely forgotten about the discussion with Chief
Trombi and didnt know that an email had been sent. Moreover, as the testimony of Mr.
Casey, Mr. Liddy and Ms. Stutz confirm, exactly what Chief Trombi was told to do is
unclear.
Chief Sheridan also testified that he did not tell Chief Warshaw all the details of
9
10
the incident because the conversation was very short, he was embarrassed, and Chief
11
Warshaw was angry and excited.81 Ms. Stutz testified she was present during this
12
conversation and could hear some of what Chief Warshaw was saying on the other end.82
13
Ms. Stutz was there in her capacity as MCSO counsel. She didnt make any attempt to
14
correct anything Chief Sheridan said during that call, which she would have had an
15
obligation to do if she heard anything from Chief Sheridan she believed to be untruthful.
f. Letter to Chief Warshaw
16
Chief Sheridan subsequently wrote a letter at Chief Warshaws insistence to
17
18
explain the incidents of that day. The Findings of Facts states Chief Sheridan
19
intentionally and untruthfully stated neither he nor Chief Trombi remembered who
20
directed Chief Trombi to send the email, and that it was a collective decision of all
21
parties.83
Chief Sheridan wrote the letter at 11:00 pm that night and it was based on his best
22
23
recollection at the time.84 He was suffering from fatigue, stress, and distractions.85 He
24
25
26
27
28
79
Doc. 1043 at 849:12-850:5.

Doc. 1677 at 229.
81
Doc. 1043 at 851:6-17.
82
Stutz Depo. at 128:9-129:7.
83
Doc. 1677 at 230.
84
Doc. 1043 at 855:14-856:18.
85
Id. at 853:12-19; 859:2-4.
80
-20-
was also suffering from a migraine and was experiencing side-effects of the migraine
medication he had taken that evening.86 He tried calling Mr. Casey, Mr. Liddy, and Ms.
Stutz for advice but no one answered his calls.87

Chief Sheridan sent the letter without attorney input because he felt very
4
5
intimidated by Chief Warshaw in the manner he told me to complete the letter to him,
and he wanted it immediately because Judge Snow wanted to see it that next morning as
soon as his eyes opened.88 Chief Sheridan wanted to comply with the directive of Chief
Warshaw (and the Court) to get the letter out immediately.89

At the time he wrote the letter about 12 hours after the conclusion of the hearing
9
10
and after a long and stressful day, Chief Sheridan had already informed Chief Warshaw
11
of the mistakes of the day and had accepted responsibility for those mistakes. Moreover,
12
none of the perceived inaccuracies are material. Chief Sheridan had already disclosed to
13
Chief Warshaw that MCSO had initiated a process to gather the videos that was contrary
14
to the plan developed during the meeting with the Monitor.90
15
3. The 1459 IDs
16
17
18
19
The Court found that Chief Sheridan violated the Courts order requiring MCSO
to disclose newly found IDs when he suspended the IA investigation while MCSO
counsel analyzed whether the IDs fell within the scope of the Courts orders. Although it
would have been the better course for MCSO to immediately alert the Monitor to the
20
21
22
23
24
25
26
27
28
86
Id. at 859:5-20.
Id. at 939:8-14. Chief Sheridans testimony is supported by Ms. Stutz who
acknowledged that she received a call from Chief Sheridan but did not pick up due to the
lateness of the hour. See Stutz Depo. at 142:5-21.
88
Doc. 1043 at 939:15-20.
89
Id. at 939:21-23.
90
Because Chief Warshaw invoked the authority of the Court when he ordered Chief
Sheridan to draft the letter explaining the events of May 14th, that letter is a compelled
statement under Garrity v. New Jersey, 385 U.S. 493 (1967). Should the Court evaluate
the letter in conjunction with determining whether or not to make a criminal contempt
referral, it would infringe upon Chief Sheridans Fifth Amendment right against making
incriminating statements. Id. at 500.
87
-21-
existence of the IDs and to tell the Monitor that MCSO was researching whether the IDs
fell within the Courts order, that was not done. This failure does not equate to willful
disobeyance of a known Court order. Instead of immediate disclosure, MCSO sought
counsels guidance to determine whether the IDs fell within the scope of the order. The
reason MCSO delayed informing the Monitor was specifically to determine with counsel
whether a Court order covered the IDs in question.

It is undisputed that (1) the IDs were secured upon their discovery, 91 (2) an
7
8
internal affairs investigation was commenced, which triggered the assignment of a case
number in the MCSO system,92 (3) Sgt. Knapp was promptly interviewed about the IDs,93
10
(4) MCSO asked its counsel, Ms. Iafrate, whether the IDs must be disclosed,94 (5) Ms.
11
Iafrate initially was skeptical that they were responsive,95 and (6) at the time of the July
12
20 Monitor Meeting, Ms. Iafrate had not yet advised MCSO whether the IDs must be
13
disclosed.96
14
Chief Sheridan testified that when he met with Capt. Bailey and Ms. Iafrate after
15
the July 17, 2015 Meeting, Ms. Iafrate said it would be premature to disclose the IDs to
16
the monitor at the upcoming July 20, 2015, meeting.97 Chief Sheridan also testified that
17
Capt. Bailey asked Ms. Iafrate what he ought to do if the Monitor asks about the IDs and
18
she responded something to the effect of, if he asks specifically about the 1500 IDs, go
19
20
21
22
23
24
25
26
27
28
91
Doc. 1498 at 3860:24-3861:1 (10/28/15 Bailey Testimony).

Id. at 3861:2-4.
93
Id. at 3862:8-18; 3864:6-8.
94
Doc. 1465 at 1347-49; 1350:9-22; 1474:25-1475:5 (9/25/15 Sheridan Testimony).
95
Doc. 1455 at 2239:25-2240:7 (Lt. Seagraves testifying Ms. Iafrate was of the opinion
the IDs may not meet the Courts order, and that she was going to conduct research to
make a determination); Doc. 1498 at 3867:20-3868:13; 3934:1-13 (Capt. Bailey
testifying Ms. Iafrate told MCSO it would be premature to disclose the IDs until she had
conducted research into whether they were responsive to the Courts orders).
96
Doc. 1455 at 2239:25-2240:7 (Lt. Seagraves testifying Ms. Iafrate told MCSO staff
during the Rehearsal Meeting that she needed to conduct research to determine whether
the IDs fell within the parameters of the Courts orders).
97
Doc. 1465 at 1355:14-1356:9.
92
-22-
ahead, tell him.98 Capt. Bailey confirmed that Ms. Iafrate informed MCSO it would be
premature to disclose the IDs until she had determined whether the IDs were responsive
to the Courts orders.99 Lt. Seagraves testified that Ms. Iafrate told MCSO staff during
the Meeting that she was going to research whether the IDs fell within the parameters of
the Courts orders.100
Ms. Iafrates advice to MCSO not to disclose the existence of the Knapp IDs until
she had researched whether MCSO needed to disclose them is forceful evidence that late
disclosure of the 1459 IDs should not form the basis for a criminal contempt. See United
States v. Snyder, 428 F.2d 520, 523 (9th Cir. 1970) (A party may defend against criminal
10
contempt on the basis of good faith reliance upon the advice of counsel); see also In re
11
Walters, 868 F.2d 665, 668 (4th Cir. 1989) (advice of counsel may be a defense in a
12
criminal contempt proceeding because it negates the element of willfulness); In re Eskay,
13
122 F.2d 819, 822 (3d Cir. 1941) (defense that the contemnor acted in good faith upon
14
advice of counsel is a defense in criminal, but not civil contempt, proceedings).

The fact that these IDs had been retrieved from the destruction bin over a long
15
16
period of time caused Chief Sheridan to question whether they related to the Melendres
17
case and he asked his lawyer to answer that question before proceeding further. While it
18
may seem obvious that the IDs were responsive, it was not obvious to Chief Sheridan or
19
Ms. Iafrate.
20
4. The Montgomery Investigation
21
22
23
24
The Court states that Chief Sheridan falsely testified in April that MCSO was not
investigating the Court and that MCSO had received nothing from Mr. Montgomery
suggesting any collusion between the Court and the DOJ.101 As a threshold issue, Chief
Sheridans testimony at that time was cut short by the Court and he was not given a full
25
26
27
28
98
Id. at 1356:24-1357:5.
Doc. 1498 at 3867:20-3868:13; 3934:1-13.
100
Doc. 1455 at 2239:25-2240:7.
101
Doc. 1677 at 382.
99
-23-
opportunity to explain what he understood Montgomery was doing and what he told
MCSO.
When Chief Sheridan tried to expand on his explanation of the Montgomery
3
4
Investigation during questioning by the Court, the Court cut him off:
A.
. . . Its a very long story. I dont think you have time
I can tell it in
Q.
I dont want to hear it, but I will let you tell it later
because well decide if were going to take this up later.102
7
8
The Court never directly asked Chief Sheridan whether MCSO was investigating
9
10
11
12
13
14
15
the Court. The closest exchange occurred when the Court asked Chief Sheridan whether
he had ever heard the Sheriff describe Montgomerys work for MCSO as an investigation
of a conspiracy between the DOJ and Judge Snow and whether Chief Sheridan had ever
heard the Sheriff describe Montgomerys work as an investigation of Judge Snow.103
Chief Sheridan responded no and clarified that he had told everyone at MCSO that they
were not to investigate the Court.104
Chief Sheridans testimony was truthful. Others involved in the Montgomery
16
17
18
19
20
21
22
23
24
25
26
27
28
Investigation uniformly testified that Chief Sheridan repeatedly told them no one at
MCSO involved in the Montgomery matter was to investigate the Court.105 There is no
evidence that Chief Sheridan ever directed anyone at MCSO to investigate the Court.
Turning to whether MCSO had received anything suggesting collusion between
the Court and the DOJ, Chief Sheridan testified he did not give Montgomerys allegations
102
Doc. 1043 at 1000:19-22.

Id. at 1002: 6-11.
104
Id. at 1002:12-20.
105
Doc. 1466 at 2845:11-20; 2854:16-20; 2884:22-25; 2886:11-15 (Sgt. Anglin testifying
Chief Sheridan made it clear MCSO was not to investigate the Court and that he never
saw anything that indicated an investigation into the Court was taking place); Doc. 1498
at 3762:25-3763:12; 3764:23-3765:22; 3776:2-8 (Sgt. Mackiewicz testifying he was
given a direct order by Chief Sheridan at the beginning of the investigation not to
investigate the Court, heard Chief Sheridan reiterate that order on several other occasions,
that the order applied to everyone at MCSO involved in the investigation, and Mike Zullo
was present for at least one these occasions).
103
-24-
about collusion any credibility.106 Again, this testimony was truthful. Others from
MCSO involved in the Montgomery Investigation supported Chief Sheridans testimony
about this.107 Chief Sheridan testified in April there really was nothing to suggest any
collusion.108 This was not a misstatement because Chief Sheridan and others at MCSO
never believed Montgomerys so-called and unsupported evidence of collusion.
The Court concludes it was false for Chief Sheridan to testify in September that
Montgomery suggested investigating the Court only after the MCSO threatened to stop
paying him to investigate other matters, and that the MCSO rejected Montgomerys
invitation to investigate the Court.109 The Court disputes this statement, because of
10
invoices from MCSO for payments to Montgomery starting November 2013.110 While it
11
may be that Chief Sheridan was mistaken about the timing of the payments to
12
Montgomery, the record well establishes that (1) Chief Sheridan gave no credit to the
13
allegations Montgomery made about the Court, (2) Chief Sheridan consistently directed
14
MCSO personnel not to participate in investigating the Court, and (3) Montgomery never
15
delivered on his promises on the underlying hacking investigating and was stringing
16
MCSO along so that he would continue to be paid. Chief Sheridans error about the
17
timing of payments to Montgomery surely cannot lead to the conclusion that he
18
intentionally testified falsely, particularly when considered together with Chief
19
Sheridans consistent admonitions about limiting the scope of Montgomerys work.
20
21
22
23
24
25
26
27
28
106
Doc. 1043 at 1000:22-1001:3; 1002:1-2.

Doc. 1466 at 2846:8-2847:7 (Sgt. Anglin testifying others at MCSO shared his
concerns about the credibility of Montgomery); Doc. 1422 at 1726:22-1727:11 (Tim
Casey testifying Montgomerys information was hogwash and unbelievable.); Liddy
Depo. at 137:12-18 (general consensus was that Montgomery was a con man and a
whack.); Doc. 1471 at 3879:24-3880:4 (Capt. Bailey testified Chief Sheridan agreed
with his own assessment that he did not believe Montgomery was credible).
108
Doc. 1043 at 1002:1-2.
109
Doc. 1677 at 383 (citing Doc. 1465 at 1299-1300, 1464-65; Doc. 1417 at 1564);
385.
110
Doc. 1677 at 384.
107
-25-
5. The Civil Contempt Remedies Are Adequate
Chief Sheridans conduct in relation to the Preliminary Injunction arose because
he was consumed by other matters, trusted and relied upon the Chain of Command and
expected Chief Sands to handle Melendres related matters. As Chief Sheridan has
repeatedly acknowledged, he should have been more involved in the case. But he was
not. He acknowledges this as an institutional and personal failure. He similarly
acknowledges his failures with respect to the events of May 14, 2014, and his handling of
the 1459 IDs. Chief Sheridan has acknowledged that his conduct warrants civil contempt
sanctions, the consequences of which will be serious for him, both professionally and
10
personally.
11
The least possible power rule requires the Court to first determine whether civil
12
contempt sanctions may appropriately cure the issue before criminal contempt sanctions
13
can be imposed. See Young, 481 U.S. at 801 (1987); Shillitani, 384 U.S. at 371, n.1
14
(1966). The parties have extensively briefed and proposed a series of comprehensive
15
remedies in the civil contempt proceedings which will completely overhaul MCSOs
16
internal procedures and processes at an institutional level, and install safeguards to make
17
sure the events that led to these contempt proceedings will not be repeated. These
18
remedies include bringing in an independent party to oversee IA investigations. The
19
Court has also invalidated certain relevant IA investigations and has ordered them to be
20
redone, including the 953 investigation, which dealt with Chief Sheridans handling of
21
the Preliminary Injunction. Other IA investigations will be initiated to investigate Chief
22
Sheridans other conduct at issue in this matter (May 14, 2014; 1459 IDs; Montgomery
23
Investigation) and those investigations will be overseen by the Monitor. And the Court
24
will allow the independent IA investigations to incorporate the conclusions of the Courts
25
Findings of Facts into the IA investigations conclusions.
26
As a non-certified MCSO employee, Chief Sheridan will be subject to the
27
disciplinary matrix under the GC-17 Policy. He will face termination if an IA
28
investigation sustains any allegations of untruthfulness, and notably the Court has already
-26-
issued findings that he was untruthful. If he is terminated, it will affect his pension. He
will never be able to obtain employment in law enforcement, and it is unlikely he could
work as a private investigator or consultant. The civil contempt remedies are sufficient to
cure Chief Sheridans conduct because those remedies subject him to the most stringent
discipline from MCSO and send a loud and clear message to others at MCSO.
Even if Chief Sheridan manages to keep his job, the institutional changes will
ensure that Chief Sheridans conduct here will not be repeated. The new policies and
procedures will provide greater oversight and fail safes relevant to the duties of the Chief
Deputy and other officials. The new policies and the oversight by the Monitor will
10
ensure Chief Sheridans future compliance (in whatever capacity) with the Courts
11
relevant orders. This provides an additional and independent reason under the least
12
possible power rule that a criminal contempt referral of Chief Sheridan is unwarranted
13
and unnecessary. See Young, 481 U.S. at 801 (1987); Shillitani, 384 U.S. at 371, n.1
14
(1966).
15
16
Conclusion
To refer a matter for criminal contempt, the Court must find that (1) there is a
17
clear and definite order, (2) the contemnor knows of the order, (3) the contemnor
18
willfully disobeyed that order, and (4) civil remedies are inadequate to address the
19
conduct. There is not a sufficient basis to criminally refer Chief Sheridan:
20
Dissemination of the Preliminary Injunction: While there is a clear and
21
definite order, it is also clear that Chief Sheridan did not know and understand
22
the contents of the order. It is also clear that the implementation of the order
23
was the responsibility of others, primarily Chief Sands. Chief Sheridans
24
failure to learn the contents of the order and ensure its implementation were
25
not willful and therefore not appropriate for criminal referral.
26
Collection of the Videos: There is not a clear and definite order resulting
27
from the hearing relating to the collection of videos. The transcript reveals
28
conflicting direction ultimately resolved by a written order issued after the
-27-
relevant events. Three lawyers were in the room when Chief Sheridan gave the
direction to Chief Trombi (and there is confusion as to what the direction
actually was) and not one of the lawyers stopped Chief Sheridan to say his
direction was violating the Courts order. Failure to obtain approval from the
Monitor to collect the videos where there was no clear and definite order
regarding Monitor approval does not support a criminal referral. Chief
Sheridans statements to the Monitor verbally and in writing will be the subject
of internal investigations overseen by the Court and the Monitor, and if Chief
Sheridan is found responsible, he will be terminated.
10
The 1459 IDs: While orders addressing the disposition of IDs discovered by
11
MCSO were in place, there was doubt in the minds of Chief Sheridan and Ms.
12
Iafrate that those orders applied to these IDs. By seeking legal advice as to the
13
applicability of those orders, Chief Sheridan did not willfully disobey a clear
14
and definite order. He did not understand whether the order applied and was
15
seeking clarification from legal counsel while maintaining the security of the
16
IDs. As such, this should not be referred criminally.
17
The Montgomery Investigation: Chief Sheridan did not testify untruthfully
18
to any question from the Court concerning the Montgomery investigation.
19
Furthermore, the record is clear that he consistently told personnel at MCSO
20
that they were not authorized to investigate the Court in any respect. Criminal
21
referral is therefore not warranted.
22
With respect to each of the bases identified in the Findings of Facts and
23
Conclusions of Law, there are clear and effective institutional remedies that will address
24
the conduct. Chief Sheridans actions will be specifically investigated by independent
25
investigators and if found responsible he will be punished severely for that conduct.
26
Even if the Court were to determine that some elements have been satisfied on one or
27
more bases for criminal referral, the civil remedies are clearly adequate. There should be
28
no criminal referral of Chief Sheridan.
-28-
RESPECTFULLY SUBMITTED this 18th day of July, 2016.
2
MITCHELL | STEIN | CAREY, PC
3
4
By:
s:/ Lee Stein

Lee Stein
Barry Mitchell
Andrew Breavington
Attorneys for Chief Deputy Gerard
Sheridan
6
7
8
9
10
11
12
13
14
15
CERTIFICATE OF SERVICE
I hereby certify that on July 18, 2016, I electronically transmitted the attached document
using the CM/ECF system for filing, and which will be sent electronically to all
registered participants as identified on the Notice of Electronic Filing, and paper copies
will be sent to those indicated as non-registered participants.
16
17
18
s:/ B. Wolcott
19
20
21
22
23
24
25
26
27
28
-29-

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Case 2:07-cv-02513-GMS Document 1745 Filed 07/18/16 Page 1 of 29

Lee Stein (#12368)

UNITED STATES DISTRICT COURT

CHIEF DEPUTY GERARD

consequences. He has never wavered in accepting responsibility for his behavior.

Case 2:07-cv-02513-GMS Document 1745 Filed 07/18/16 Page 2 of 29

Office may come to an abrupt and painful end as a result.

Chief Sheridans conduct is rightly criticized, as Chief Sheridan has acknowledged

criminal contempt, the matter should not be referred.

unequivocally commanded by the order).

Case 2:07-cv-02513-GMS Document 1745 Filed 07/18/16 Page 3 of 29

willful violation of the relevant order).

Willfulness for purposes of criminal contempt means a deliberate or intended

1985). It implies a deliberate or intended violation, as distinguished from an accidental,

inadvertent, or negligent violation of an order. United States v. Armstrong, 781 F.2d

1. The December 23, 2011 Preliminary Injunction

implement the Preliminary Injunction1 relies on Chief Sheridans acknowledgment that

was discussed; that he was copied on correspondence discussing the Preliminary

Doc. 1677 at 66-92.

Case 2:07-cv-02513-GMS Document 1745 Filed 07/18/16 Page 4 of 29

preliminary injunction during the seventeen months in which it was in force.2

Sheridans responsibility to implement the order.

or intended violation of order); Armstrong, 781 F.2d at 706 (accidental, inadvertent or

negligent violation insufficient).

Doc. 1677 at 91.

Case 2:07-cv-02513-GMS Document 1745 Filed 07/18/16 Page 5 of 29

knowing, intentional and willful conduct necessary to support a criminal contempt

a. Chief Sheridans Testimony on the Preliminary Injunction

the Preliminary Injunction by nature of his position as MCSOs second in command.3

Preliminary Injunction and should have been meaningfully involved in its

Findings of Facts conclude this testimony is demonstrably false.5 However, a review

Chief Sheridan is genuine and credible on this issue:

A: It was 142 pages, I believe. 149. Do you want me to

preliminary injunction order.8

Case 2:07-cv-02513-GMS Document 1745 Filed 07/18/16 Page 6 of 29

Chief Sheridans knowledge of the order was an issue relevant to contempt.

departure that Mr. Casey began working with Chief Sheridan.12

Hendershott on administrative leave, Chief Sheridan was left with responsibility to

Case 2:07-cv-02513-GMS Document 1745 Filed 07/18/16 Page 7 of 29

every day for a few years.18

in custody.20 He was also handling audits, in progress criminal investigations, a $14

million employee lawsuit, and a significant number of internal investigations.21 Chief

deputies, and a territory of 9,226 miles.22

b. Testimony from Former MCSO Counsel

Doc. 1043 at 947:22-948:11.

Case 2:07-cv-02513-GMS Document 1745 Filed 07/18/16 Page 8 of 29

injunction and what MCSO could and could not do.25

about the Preliminary Injunction.27

during 2012 and 2013.29

Sheridan before he became a principal in the IA investigation into the dissemination of

Doc. 1422 at 1767:17-25.

Case 2:07-cv-02513-GMS Document 1745 Filed 07/18/16 Page 9 of 29

Sheridan in regard to the Preliminary Injunction.33

c. Correspondence Addressing the Preliminary Injunction

Chief Sheridan was copied on certain correspondence, including Tim Caseys

trial and trial prep in July and August 2012.36

Doc. 1422 at 1855:10-1856:3.

Case 2:07-cv-02513-GMS Document 1745 Filed 07/18/16 Page 10 of 29

Preliminary Injunction at or shortly after the time it came down.39

Doc. 1422 at 1755:24-1756:3.

Case 2:07-cv-02513-GMS Document 1745 Filed 07/18/16 Page 11 of 29

Sheridan on the same issue.46

d. Chief Sheridan Did Not Know the Contents of the Preliminary

specific contents of the Preliminary Injunction. Undisputed evidence demonstrates it was