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No. 17-10448

In The United States Court Of Appeals
For The Ninth Circuit
______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
V.

JOSEPH M. ARPAIO,
Defendant-Appellant.
______________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA, NO. 2:16-CR-01012
BRIEF FOR THE UNITED STATES OPPOSING APPOINTMENT OF A
SPECIAL PROSECUTOR
______________
JOHN DIXON KELLER
Deputy Chief

JOHN. P. CRONAN
Acting Assistant Attorney General
Criminal Division

VICTOR R. SALGADO
SIMON JOSEPH CATALDO
Trial Attorneys
Criminal Division
Public Integrity Section

MATTHEW S. MINER
Deputy Assistant Attorney General
Criminal Division
JAMES I. PEARCE
Criminal Division, Appellate Section
U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Washington, DC 20530
(202) 532-4991
james.pearce@usdoj.gov

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TABLE OF CONTENTS
TABLE OF AUTHORITIES .............................................................................................. ii
INTRODUCTION................................................................................................................ 1
STATEMENT OF THE CASE .......................................................................................... 2
ARGUMENT ......................................................................................................................... 6
A.

B.

The Court lacks authority here to appoint a special prosecutor................ 7
1.

The prosecutorial powers are vested in the Executive
Branch. .................................................................................................. 7

2.

The narrow exception for judicial appointment of a special
prosecutor does not apply here. ......................................................... 9

En banc rehearing is warranted if the Order is not limited to
appointment of amicus counsel to defend the district court’s
decision. .......................................................................................................... 12
1.

The Order should be clarified to confirm that it does nothing
more than appoint amicus counsel. ................................................. 12

2.

If the Order vests the special prosecutor with broader
powers, en banc rehearing is warranted. ........................................... 13

CONCLUSION ................................................................................................................... 16
CERTIFICATE OF SERVICE ......................................................................................... 17
CERTIFICATE OF COMPLIANCE .............................................................................. 18

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TABLE OF AUTHORITIES
Cases
Bloom v. Illinois, 391 U.S. 194 (1968) ..................................................................................... 8
Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council,
485 U.S. 568 (1988) ........................................................................................................ 13
Ex Parte Grossman, 267 U.S. 87 (1925) ............................................................................... 15
Greenlaw v. United States, 554 U.S. 237 (2008)..................................................................... 15
In re Debs, 158 U.S. 564 (1895) .............................................................................................. 8
In re Special Proceedings, 373 F.3d 37 (1st Cir. 2004) ............................................................. 8
Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) ................................................................ 2
Mistretta v. United States, 488 U.S. 361 (1989) ..................................................................... 14
Morrison v. Olson, 487 U.S. 654 (1988)........................................................................... 13, 14
United States v. Arpaio, --- F.3d ---, 2018 WL 2473495 (9th Cir. June 1, 2018) .............. 12
United States v. Arpaio, 887 F.3d 979 (9th Cir. 2018) ..................................................passim
United States v. Barnett, 376 U.S. 681 (1964)........................................................................ 11
United States v. Nixon, 418 U.S. 683 (1974)........................................................................... 7
United States v. Providence Journal Co., 485 U.S. 693 (1988)................................................. 11
United States v. Vlahos, 33 F.3d 758 (7th Cir. 1994) ............................................................. 9
Universal Oil Products Co. v. Root Rfg. Co., 328 U.S. 575 (1946) ......................................... 11
Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987) ...............................6, 7, 8, 10

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Statutes, Rules, and Constitutional Provisions
U.S. Const. art. II, § 1 ............................................................................................................ 7
U.S. Const. art. II, § 2 .......................................................................................................... 14
U.S. Const. art. II, § 3 ............................................................................................................ 7
18 U.S.C. § 401.................................................................................................................... 2, 3
Fed. R. App. P. 29 ................................................................................................................ 11
Fed. R. App. P. 35 ................................................................................................................ 12
Fed. R. Crim. P. 42 ........................................................................................................passim
Fed. R. Crim. P. 42, Committee Notes on Rules—2002 Amendment............................ 8
Other Authorities
Stephen M. Shapiro et al., Supreme Court Practice (10th ed. 2013) .............................. 10, 15

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INTRODUCTION
In April 2018, this Court issued an Order indicating that it will appoint a special
prosecutor “to defend the decision of the district court.” In June 2018, the Chief Judge
directed the parties to submit briefing on whether the Court should rehear the Order
en banc to decide whether the Court “has the authority, either pursuant to Fed. R. Crim.
P. 42(a)(2) or under its inherent authority, to appoint a special prosecutor under the
circumstances presented by this case.”
The Court lacks the power, either under Rule 42 or its inherent authority, to
appoint a special prosecutor at this stage of the litigation. The government already
prosecuted defendant Joseph Arpaio for criminal contempt, the President pardoned
him before he could challenge his contempt conviction, and the sole question at issue
in this appeal is whether Arpaio’s inability to challenge his conviction as a result of the
President’s pardon means that the conviction should be vacated. The government
agrees with Arpaio on that issue. But proceedings on that question do not remotely
implicate the district court’s authority, either under Rule 42 or inherently, to appoint a
special prosecutor when the government declines in the first instance to prosecute
criminal contempt. Instead, as in other cases where the government agrees with the
defendant on a legal question on appeal, the most that this Court could do here is to
appoint an amicus to defend the district court’s judgment—and the government takes
no position on whether it should do that.

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Panel rehearing or, if necessary, rehearing en banc is warranted to clarify that the
Order does no more than authorize the appointment of amicus counsel to defend the
judgment below and that it does not vest the appointed counsel with broader powers.
The prosecution of crimes is a prerogative of the Executive Branch, subject to a narrow
exception for appointment of a special prosecutor in contempt actions that is codified
in Rule 42. But the appointment of a special prosecutor under the circumstances of
this case does not fit within that narrow exception, and thus would intrude into an area
that is constitutionally reserved for the Executive. And the separation-of-powers
concern would be particularly severe if the special prosecutor were able to challenge the
validity of the pardon itself.
STATEMENT OF THE CASE
Following a referral in the United States District Court for the District of
Arizona, the district court adjudicated defendant Joseph Arpaio guilty of criminal
contempt, in violation of 18 U.S.C. § 401(3). Before the court imposed a sentence, the
President pardoned Arpaio.
1. In December 2011, the district court (Snow, J.) presiding over a civil lawsuit
against Arpaio and the Maricopa County Sheriff’s Office, entered a preliminary
injunction prohibiting the defendants from “detaining any person based solely on
knowledge, without more, that the person is in the country without lawful authority.”
Melendres v. Arpaio, 695 F.3d 990, 994, 1000 (9th Cir. 2012) (internal quotation marks
omitted). In August 2016, the district court entered an order referring the matter to
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another judge (randomly assigned to Bolton, J.) to determine whether Arpaio and others
should be held in criminal contempt for willfully violating that injunction. DE 1, at 1;
see 18 U.S.C. § 401; Fed. R. Crim. P. 42(a)(2).1 The government responded by agreeing
to prosecute Arpaio. DE 27, at 8-9. Following a bench trial, at which attorneys from
the Department of Justice prosecuted the pending charge, the district court found
Arpaio guilty of criminal contempt, in violation of § 401(3). DE 210.
2. Before sentencing, the President issued Arpaio a “Full and Unconditional
Pardon.” DE 221. The Pardon encompassed Arpaio’s “conviction” under Section
401(3) and any other criminal contempt offenses arising out of the underlying civil
litigation. See id.
Arpaio moved to dismiss the case with prejudice and “vacate the verdict and all
other orders.” DE 220, at 1-2. The government similarly argued that the pardon’s
issuance “after the guilty verdict but before judgment moots the case, prevents appellate
review, and thus warrants vacatur.”

DE 236, at 3.

Various individuals and

organizations sought leave to file briefs as amicus curiae challenging the pardon’s
validity on constitutional grounds. See, e.g., DE 223, 227, 228, 229. One supplemented
its amicus brief to argue that the court should appoint a private prosecutor under Rule
42 to prosecute the criminal contempt case. DE 231.

“DE” refers to docket entries in the district court. “ECF” refers to docket entries in
this Court.
3

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At a hearing on Arpaio’s motion, the district court permitted the amicus briefs
but concluded that the pardon was constitutional, denied the request to appoint a
private prosecutor, dismissed the criminal contempt action against Arpaio with
prejudice, and took under advisement whether to “enter any further orders.” See DE
243. In a subsequent written order, the district court denied Arpaio’s motion for
vacatur “insofar as it seeks relief beyond dismissal with prejudice.” DE 251, at 4.
3. a. Arpaio appealed. As relevant here, an amicus curiae in the district court
sought appointment under Rule 42 principally to file a cross-appeal challenging the
pardon’s validity. ECF 5-2, at 8-9. The amicus also indicated it would defend the
district court’s order refusing vacatur. Id. at 8. This Court issued an order denying the
request for a Rule 42 appointment to cross-appeal as untimely, and directing the
government to file a statement addressing whether (1) the government would defend
the district court’s non-vacatur decision; (2) the government would “represent the
government’s interests on appeal”; and (3) the Court should “appoint counsel to
represent the government’s interests on appeal and defend the district court’s order.”
ECF 9, at 1-2.
In response, the government filed a statement indicating that it did not intend to
defend the district court’s order denying vacatur; did intend to “represent the
government’s interests in this appeal”; and “t[ook] no position” on whether this Court
should “appoint counsel to make any additional arguments.” ECF 12, at 2. The
government did not address whether this Court has the authority to appoint a special
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prosecutor, because the Court’s order only raised the possibility of appointment of
counsel—and in the government’s view the Court had the authority to appoint counsel
as an amicus curiae (though the government did not take a position on whether such
an appointment would be appropriate).
b. A motions panel of this Court issued an Order indicating that it will appoint
not amicus counsel, but a special prosecutor. See United States v. Arpaio, 887 F.3d 979
(9th Cir. 2018). The panel majority drew support from Rule 42(a)(2)—though it
acknowledged that by its terms the Rule only permits an appointment to prosecute
contempt when the government declines to do so. Id. at 981. The panel also pointed
to the longstanding Supreme Court practice of appointing counsel as an amicus curiae
to defend a position that the government has abandoned. Id. at 981-82. The Order
stated that the merits panel would not “receive the benefit of full briefing and
argument” without the appointment of a special prosecutor “to defend the decision of
the district court.” Id. at 981; see id. at 980 (appointing a special prosecutor “to provide
briefing and argument to the merits panel”).
Judge Tallman dissented, pointing out that the government has already
prosecuted Arpaio and had advised the Court that it “is not abdicating its responsibility
to represent the Government’s interest in this appeal.” Arpaio, 887 F.3d at 983
(Tallman, J., dissenting). For this reason, Judge Tallman viewed the appointment of a
special prosecutor as “ill-advised and unnecessary.” Id. Moreover, the need for a special
prosecutor is over, Judge Tallman explained. The “powers of prosecution do not—
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and should not—extend to tangential matters of end-of-case record-keeping or vacatur
of the record of a successful conviction following a pardon. This is not why Rule
42(a)(2) exists.” Id. at 984. Likewise, the district court’s authority, Judge Tallman stated,
“was vindicated when Arpaio was convicted of criminal contempt. Its authority will
not be usurped if that conviction is vacated in light of the pardon, or if the court of
appeals ultimately affirms.” Id. Judge Tallman expressed concern that appointment of
a special prosecutor “prejudged” the case by showing that the Court disagrees with the
government’s position, id. at 985, and he speculated that the real motive for those
seeking appointment as a special prosecutor was to attack the validity of the pardon.
Id. at 985-86.
ARGUMENT
The Court lacks authority to appoint a special prosecutor in this case. As a
general matter, prosecutorial power is vested only in the Executive Branch. There is a
narrow exception under Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987),
codified in Rule 42(a)(2), for the appointment of a special prosecutor to pursue criminal
contempt when the government declines to do so, in order to vindicate the authority
of courts over their proceedings. But that narrow exception does not apply here
because the government pursued contempt and is continuing to represent the
government’s interests on appeal.
The only potential basis for any appointment of counsel is the government’s
agreement with Arpaio that his contempt conviction should be vacated because the
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President pardoned him before the conviction became final. That legal question about
the effect of the President’s pardon is distinct from this Court’s authority to ensure that
a contemnor faces prosecution.

At most, as in other criminal cases where the

government agrees with the defendant that the district court erred, this Court could
appoint an amicus curiae to present arguments in defense of the district court’s decision.
The Order’s appointment of a “special prosecutor,” who might rely on that designation
to assert broader powers—such as the power to challenge the validity of the pardon—
gives rise to grave separation-of-powers concerns that warrant clarification or
correction by the motions panel or the en banc Court.
A.

The Court lacks authority here to appoint a special prosecutor.
1.

The prosecutorial powers are vested in the Executive Branch.

The Constitution vests prosecutorial power solely in the Executive Branch. See
U.S. Const. art. II, §§ 1, 3. Accordingly, the “Executive Branch has exclusive authority
and absolute discretion to decide whether to prosecute a case.” United States v. Nixon,
418 U.S. 683, 693 (1974) (citations omitted). A narrow exception to that exclusive
authority exists, however, for the prosecution of criminal contempt of court. See Fed.
R. Crim. P. 42(a)(2); Young, 481 U.S. at 795, 801-02. Specifically, a district court may
appoint a special prosecutor to pursue criminal charges for contempt of court
committed outside the presence of the judge, but only if the court first “request[s] that

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the contempt be prosecuted by an attorney for the government” and the government
“declines th[at] request.” Fed. R. Crim. P. 42(a)(2). 2
That exception enables a court to “compel obedience to its orders,” In re Debs,
158 U.S. 564, 595 (1895), but the Supreme Court has repeatedly emphasized that it is a
narrow exception, due to the “unwisdom of vesting the judiciary with completely
untrammeled power to punish contempt,” Bloom v. Illinois, 391 U.S. 194, 207 (1968)
(abrogating Debs in part). In particular, in Young, the Court reasoned that judicial
initiation of criminal contempt proceedings “must be restrained by the principle that
only the least possible power adequate to the end proposed should be used.” 481 U.S.
at 801 (citations, internal quotation marks, and brackets omitted). Courts must “first
request the appropriate prosecuting authorities to prosecute contempt actions,” and
appoint a private prosecutor only where the government declines to prosecute,
“ensur[ing] that the court will exercise its inherent power of self-protection only as a
last resort.” Id. Rule 42(a)(2) was then revised to “adopt[ ] the holding in Young.” In re
Special Proceedings, 373 F.3d 37, 42 (1st Cir. 2004); Fed. R. Crim. P. 42, Committee Notes
on Rules—2002 Amendment. Thus, “the prosecutor should be given the right of first
refusal to prosecute contempt, because prosecution of contempt—even though it is a

Rule 42(a)(2) also permits the appointment of a private prosecutor without such a
request where the “interest of justice requires.” The motions panel did not rely on that
rationale, which is inapplicable here and has been applied principally where prosecutors
are potentially implicated in the contempt. See, e.g., In re Special Proceedings, 373 F.3d 37,
42-43 (1st Cir. 2004).
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crime against the judiciary—is a responsibility which the Constitution gives to the
executive branch.” United States v. Vlahos, 33 F.3d 758, 764 (7th Cir. 1994) (Manion, J.,
concurring).
2.

The narrow exception for judicial appointment of a special
prosecutor does not apply here.

This Court lacks authority to appoint a special prosecutor here, because the
government did not “decline[] the request” to prosecute Arpaio for contempt. Fed. R.
Crim. P. 42(a)(2). To the contrary, the government affirmatively accepted the referral,
prosecuted Arpaio, and obtained “a contempt conviction at trial,” such that “any
affront to the court’s authority was vindicated.” Arpaio, 887 F.3d at 984 (Tallman, J.,
dissenting). Of course, following the prosecution, verdict, pardon, and dismissal of the
contempt action with prejudice, the government determined as a legal matter that the
pardon should result in the vacatur of Arpaio’s conviction, and the government agrees
with Arpaio that the district court erred in concluding otherwise. But the government’s
disagreement with the district court’s decision—after obtaining a conviction that was
followed by the pardon—does not mean that the government “decline[d]” the court’s
“request” that it “prosecute the contempt.” Fed. R. Crim. P. 42(a)(2); see Arpaio, 887
F.3d at 985 (Tallman, J., dissenting) (“The Government has . . . never declined to
prosecute this case.”); id. (noting the lack of any legal authority “for the proposition that
Rule 42 requires appointing a special prosecutor where, as here, the Government has
already successfully obtained a conviction, but the President has pardoned the
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contemnor.”). The government continues to serve as the prosecutor in this case and
to represent the interests of the Executive, even if it disagrees with the district court
over the correct application of the law. See ECF 12, at 2.3
Nor is the appointment of a special prosecutor necessary to safeguard the district
court’s authority over the underlying civil case. “[E]nsuring that an alleged contemnor
will have to account for his or her behavior” vindicates judicial authority “regardless of
whether the party is ultimately convicted or acquitted.” Young, 481 U.S. at 796 n.8.
Here, Arpaio was made to account for his behavior—and the district court’s authority
was vindicated—when he was prosecuted for (and convicted of) criminal contempt.
The subsequent question of whether that conviction should be vacated following an
intervening Presidential pardon and the dismissal of the contempt case with prejudice
is far afield from what Rule 42 and courts’ inherent authority concern: “the initiation
of contempt proceedings to punish disobedience to court orders.” Young, 481 U.S.
at 795. The distinct question here is “a matter of record-keeping as to the fact of his

Although the Order states that the government has “declined to oppose the
contemnor’s arguments on appeal,” 887 F.3d at 981-82, the government has only
declined to defend the district court’s decision on vacatur; it has not expressed any
position on the sufficiency and trial-related claims that Arpaio presses in his appellate
brief. See ECF 22, at 19-72. In any event, the government does not abdicate the
prosecutorial function when it agrees with a defendant on a legal question. The
government has an independent obligation to assess the merits of any given legal
argument, as the Solicitor General’s practice of confessing error in the Supreme Court
illustrates. See Stephen M. Shapiro et al., Supreme Court Practice § 5.12(a), at 345-46 (10th
ed. 2013).

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conviction.” Arpaio, 887 F.3d at 985 (Tallman, J., dissenting). There is accordingly “no
underlying affront to the court’s authority stemming from criminal contempt left to
vindicate.” 4 Id.
To the extent the court wishes to hear from counsel defending the district court’s
non-vacatur decision, it has the authority to appoint such counsel as an amicus curiae.
See Fed. R. App. P. 29(a)(2); see also United States v. Barnett, 376 U.S. 681, 738 (1964)
(Goldberg, J., dissenting) (recognizing “power of federal courts to appoint ‘amici to
represent the public interest in the administration of justice’” (quoting Universal Oil
Products Co. v. Root Rfg. Co., 328 U.S. 575, 581 (1946))). The United States takes no
position on whether the Court should appoint an amicus—only that, under the
circumstances of this case, any appointment of counsel must be pursuant to the Court’s
inherent authority to provide for an amicus “to file briefs and present oral argument”
in defense of the district court’s decision. See United States v. Providence Journal Co., 485
U.S. 693, 704 (1988). The distinction is important because, by its nature, counsel
appointed as amicus would be limited to defending the judgment and could not claim
any of the powers associated with a special prosecutor.

The Order correctly observes that the “operation of Rule 42(a)(2) is not confined to
investigations and trials in the district court” and that a properly appointed special
prosecutor is authorized to handle litigation in the courts of appeals. Arpaio, 887 F.3d
at 981. But that says nothing about whether the motions panel here properly appointed
a special prosecutor in the first place.
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B.

En banc rehearing is warranted if the Order is not limited to
appointment of amicus counsel to defend the district court’s
decision.

The relevant standard for en banc consideration is whether (1) the panel decision
conflicts with a Supreme Court or Ninth Circuit decision or (2) the case presents one
or more “questions of exceptional importance.” Fed. R. App. P. 35(b)(1). Unless the
panel clarifies that the counsel appointed by the Order is an amicus, the serious
separation-of-powers concerns raised by the designation of a special prosecutor would
warrant the intervention of the en banc Court.
1.

The Order should be clarified to confirm that it does nothing
more than appoint amicus counsel.

Although unclear, the Order can be read to do nothing more than authorize the
appointment of amicus counsel. The Order addresses “only the question of whether
to appoint a special prosecutor to defend the district court’s decision.” Arpaio, 887 F.3d at 980
(emphasis added).

Accordingly, the Order cabins the special prosecutor’s

responsibilities to “provid[ing] briefing and argument to the merits panel.” Ibid. That
briefing and argument must “defend the decision of the district court.” Id. at 981; see
United States v. Arpaio, --- F.3d ---, 2018 WL 2473495, at *1 (9th Cir. June 1, 2018)
(describing Order as “appointing a special prosecutor to defend the district court’s
denial of defendant Arpaio’s request for vacatur of his criminal contempt conviction”).
Moreover, the motions panel found support for its decision in the Supreme Court’s

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practice of appointing counsel as amicus curiae when the prevailing party declines to
defend a lower-court decision. 887 F.3d at 981-82.
For those reasons, although the panel majority referred to appointed counsel as
“a special prosecutor,” the nature of the appointment can and should be understood as
limited to filing briefs and presenting arguments in defense of the district court’s nonvacatur decision. So construed, the Order would avoid the serious constitutional
concerns posed by a more broadly empowered special prosecutor, see pp. 13-16, infra,
which itself weighs in favor of interpreting the Order to appoint counsel solely to
defend non-vacatur. Cf. Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr.
Trades Council, 485 U.S. 568, 575 (1988). The motions panel, and, if necessary, the en
banc Court, therefore should grant rehearing and, if it adheres to its decision to appoint
counsel, redesignate that counsel as an amicus.
2.

If the Order vests the special prosecutor with broader powers,
en banc rehearing is warranted.

If the Order is intended to vest the appointed counsel with the broader powers
typically possessed by a special prosecutor under Rule 42, including potentially the
power to attack the validity of the pardon, see Arpaio, 887 F.3d at 983 (Tallman, J.,
dissenting), that would significantly overstep the judicial authority and would violate
“the constitutional principle of separation of powers.” Morrison v. Olson, 487 U.S. 654,
685 (1988). The Court’s appointment of a more wide-ranging special prosecutor would
both “accrete” to the Judiciary power “more appropriately” vested in the Executive and
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“undermine the authority and independence” of the Executive. Mistretta v. United States,
488 U.S. 361, 382 (1989). As noted above, prosecution of crimes is an Executive
prerogative, and the narrow exception for appointment of a private attorney to
prosecute contempt is cabined by the Supreme Court’s decision in Young and Rule 42.
But judicial appointment of a special prosecutor under the circumstances of this case—
where the government already has prosecuted the contempt matter and thus vindicated
the district court’s interest in protecting its authority—contravenes Young and Rule 42,
and thus would encroach on the “quintessentially executive functions” of investigating
and prosecuting crime. Morrison, 487 U.S. at 706 (Scalia, J., dissenting) (citing cases).
Reflecting that separation-of-powers violation, vesting a special prosecutor with
broader powers could impede core Executive functions in a variety of ways. In
particular, such an appointment creates a risk that the special prosecutor could challenge
the validity of the pardon itself—notwithstanding that both the district court and this
Court denied motions to appoint a special prosecutor for that purpose. See Arpaio, 887
F.3d at 983, 985-86 (Tallman, J., dissenting). The counsel who sought the specialprosecutor appointment envision the special prosecutor launching just such a challenge,
see ECF 5, which would be particularly inappropriate because the Constitution
exclusively grants the President the “power to grant reprieves and pardons for offenses
against the United States.” U.S. Const. art. II, § 2, cl. 1 (capitalization altered). And the
Supreme Court has previously rejected the argument that the President’s pardon power
does not encompass the power to pardon individuals prosecuted or convicted for
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criminal contempt. See Ex Parte Grossman, 267 U.S. 87, 122 (1925). Appointment of a
special prosecutor who could challenge the President’s authority in prosecuting and
pardoning contempt would thus be doubly intrusive on the Executive’s prerogatives.
To the extent the Order permits a special prosecutor to attack the validity of the
pardon on appeal, it would also conflict with the “party presentation principle” that “an
appellate court may not alter a judgment to benefit a nonappealing party.” Greenlaw v.
United States, 554 U.S. 237, 244 (2008). Here, the government did not appeal the district
court’s decision dismissing the case with prejudice in light of the pardon. Moreover,
this Court has already denied an “emergency request” under Rule 42 to appoint a special
prosecutor to “‘notice a cross-appeal’” from the district court’s decision “‘upholding
[the] validity of the Pardon.’” ECF 9, at 1. An interpretation of the Order that permits
the special prosecutor “to take another stab at attacking the pardon on constitutional
grounds,” Arpaio, 887 F.3d at 985 (Tallman, J., dissenting), would impermissibly invite
arguments that would imply broadening of the judgment and seek to place before the
merits panel an issue decided below that no party has appealed. See Stephen M. Shapiro
et al., Supreme Court Practice ch. 6.35, p. 493 (10th ed. 2013) (citing cases in which the
Supreme Court has required a cross-petition for a writ of certiorari even where “the
party is not asking for more” than affirmance if “the rationale of an argument would give
the satisfied party more than the judgment below”).

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CONCLUSION
The appointment of a “special counsel” was in error. The panel, and, if
necessary, the en banc Court, should grant rehearing to clarify that the Order does no
more than authorize the appointment of an amicus to defend the district court’s refusal
to vacate Arpaio’s conviction.
Respectfully submitted,
JOHN DIXON KELLER
Deputy Chief

JOHN. P. CRONAN
Acting Assistant Attorney General
Criminal Division

VICTOR R. SALGADO
SIMON JOSEPH CATALDO
Trial Attorneys
Criminal Division
Public Integrity Section

MATTHEW S. MINER
Deputy Assistant Attorney General
Criminal Division
S/ JAMES I. PEARCE

Criminal Division, Appellate Section
U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Washington, DC 20530
(202) 532-4991
james.pearce@usdoj.gov

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 Case: 17-10448, 06/22/2018, ID: 10918184, DktEntry: 29, Page 21 of 22

CERTIFICATE OF SERVICE
I, James I. Pearce, Attorney in the Appellate Section of the Criminal Division at
the U.S. Department of Justice, hereby certify that on June 22, 2018 an electronic copy
of this brief was served by notice of electronic filing via this Court’s ECF system upon
opposing counsel.

s/ James I. Pearce

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 Case: 17-10448, 06/22/2018, ID: 10918184, DktEntry: 29, Page 22 of 22

CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitations provided in the Court’s Order on
June 1, 2018 because it contains 3,943 words, excluding the parts of the brief exempted
by Fed. R. App. P. 32(f).
2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the
type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a
proportionally spaced typeface using Microsoft Word 2013 in Garamond 14-point font
in text and Garamond 14-point font in footnotes.
3. This brief complies with the privacy redaction requirement of Fed R. App. 25(a)(5)
because it contains no personal data identifiers.
4. The digital version electronically filed with the Court on this day is an exact copy of the
written document to be sent to the Clerk; and
5. This brief has been scanned for viruses with the most recent version of McAfee
VirusScan Enterprise, version 8.7.0i, which is continuously updated, and according to
that program is free of viruses.
DATED: JUNE 22, 2018

s/ James I. Pearce
JAMES I. PEARCE
Attorney, Appellate Section
Criminal Division
U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Washington, DC 20530
(202) 532-4991
James.Pearce@usdoj.gov

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