USA V Arpaio #165 Arpaio Motion For Leave To File Motion To Strike Trial Brief & For Curative Measures
USA V Arpaio #165 Arpaio Motion For Leave To File Motion To Strike Trial Brief & For Curative Measures
USA V Arpaio #165 Arpaio Motion For Leave To File Motion To Strike Trial Brief & For Curative Measures
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20 Plaintiff,
DEFENDANTS
21 v. MOTION FOR LEAVE TO FILE
22 MOTION TO STRIKE
Joseph M. Arpaio, UNITED STATES TRIAL
23 MEMORANDUM
Defendant.
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Case 2:16-cr-01012-SRB Document 165 Filed 06/20/17 Page 2 of 3
3 162) filed on June 19, 2017. Defendants Motion to Strike could not be filed before the pretrial
4 motion deadline on March 24, because the United States just filed its Trial Memorandum on
5 Monday, June 19th. The Motion to Strike is attached hereto and submitted herewith.2
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23 The Courts April 12, 2017 Minute Entry stated: The Court advises Defense counsel that before any
motion filed after March 24 would be allowed a motion must be filed with the Court justifying why the
24 motion(s) could not be filed prior to the March 24, 2017 motions deadline.
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Excludable delay under 18 U.S.C. 3161(h)(1)(d) will occur as a result of this motion or of an order
based thereon.
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Case 2:16-cr-01012-SRB Document 165 Filed 06/20/17 Page 3 of 3
1 CERTIFICATE OF SERVICE
2 I hereby certify that on June 20, 2017, I electronically transmitted the foregoing Notice
3 to the Clerk of the Court through the CM/ECF system, which will send a Notice of Electronic
4 Filing to all CM/ECF registrants for this matter.
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Case 2:16-cr-01012-SRB Document 165-1 Filed 06/20/17 Page 1 of 4
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20 Plaintiff,
DEFENDANTS
21 v. MOTION TO STRIKE
UNITED STATES TRIAL
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Joseph M. Arpaio, MEMORANDUM
23 AND FOR
Defendant. CURATIVE MEASURES
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Case 2:16-cr-01012-SRB Document 165-1 Filed 06/20/17 Page 2 of 4
1 Defendant Joseph M. Arpaio (Defendant) hereby objects to and moves1 to strike the
2 Governments Trial Memorandum (Dkt. # 162) on the grounds that it is not authorized by any
3 statute, rule or court order, and that the memorandum constitutes prosecutorial misconduct
4 because it intentionally and improperly quotes testimony and evidence that is inadmissible and
5 clearly has not been admitted, including multiple quotations from attorney-client privileged
6 communications between attorney Tim Casey and Defendant (as well as a lengthy, matter-of-
7 fact discussion of their attorney-client privileged communications). The Government did not
8 notify defense counsel that it would be submitting such a memorandum, nor was it requested by
9 the Court (to the knowledge of defense counsel), and therefore it does not reflect or incorporate
10 the views of the defense, much less any of the evidence or testimony that defense witnesses will
11 offer at trial. By intentionally quoting from unadmitted and inadmissible evidence before trial,
12 and with the express purpose of persuading the Court with respect to its determination of the
13 guilt or innocence of the accused before trial, the Governments memorandum constitutes an
14 intentional effort to prejudice this Court without even conducting a trial. This places it into a
16 evidence in an opening statementbut even worse, since the Government is trying to do it even
17 before trial begins. The Court is therefore obligated to take any curative measures available to it.
18 See e.g. United States v. Thomas, 114 F.3d 228, 246 (D.C.Cir.), cert. denied, 522 U.S. 1033, 118
19 S.Ct. 635, 139 L.Ed.2d 614 (1997)(To determine whether a prosecutors opening statement
21 the Court (or its staff) has not read or considered the memorandum, then Defendant moves to
22 strike it, so as to prevent any prejudice therefrom from infecting the Court or these proceedings.
23 If the Court (or any member of its staff) have already read and considered the memorandum,
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In deference to the Courts request that a Motion for Leave be filed in conjunction with any further
pretrial motions, Defendant files a Motion for Leave together herewith.
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Case 2:16-cr-01012-SRB Document 165-1 Filed 06/20/17 Page 3 of 4
1 then Defendant moves for a mistrial and respectfully requests recusal, in order to cure any and
2 all prejudice to the trial. Due to the inevitable (and expected) public coverage of the improper
3 memorandum, Defendant also requests transfer to another venue. See e.g. Sheppard v. Maxwell,
4 384 U.S. 333, 360 (1966)(finding fundamental error where prosecution made clearly
5 inadmissible evidence available to news media before trial and it was disseminated, preventing
7 If the Court considers the memorandum before trial, then the Court will be further
8 compounding the structural error of refusing to grant a jury trial under 18 U.S.C. 402 (because
9 the contempt charged constitutes a violation of 18 U.S.C. 242, Deprivation of Civil Rights,
10 inter alia). Failure to give the Defendant a fair and unbiased trial, even to the Court, merely
12 If the Court denies this Motion to Strike, and the Court (or any member of its staff) reads
13 and considers the memorandum, but the Court does not recuse itself or grant a mistrial, then
14 Defendant requests a full and fair opportunity of at least fourteen days to respond to the
15 Memorandum, without waiving any argument that the Courts consideration of the
17 Excludable delay under 18 U.S.C. 3161(h)(1)(d) will occur as a result of this motion or
18 of an order based thereon.
1 CERTIFICATE OF SERVICE
2 I hereby certify that on June 20, 2017, I electronically transmitted the foregoing Notice
3 to the Clerk of the Court through the CM/ECF system, which will send a Notice of Electronic
4 Filing to all CM/ECF registrants for this matter.
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