Melendres #1752 Iafrate Memo Re Criminal Contempt

Case 2:07-cv-02513-GMS Document 1752 Filed 07/20/16 Page 1 of 18
Lewis Roca Rothgerber Christie LLP

201 East Washington Street, Suite 1200
Phoenix, AZ 85004-2595
Dale A. Danneman (State Bar No. 003776)
Direct Dial: 602.262.5371
Direct Fax: 602.734.3744
Email: ddanneman@lrrc.com
Attorneys for Michele M. Iafrate
UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Manuel de Jesus Ortega Melendres, on

behalf of himself and all others similarly
situated; et al.,
No. CV-07-2513-PHX-GMS
MEMORANDUM RE MICHELE
M. IAFRATE
Plaintiffs,
vs.
Joseph M. Arpaio, in his individual and
official capacity as Sheriff of Maricopa
County, AZ; et al.,
Defendants.
The Court has invited Michele M. Iafrate, former counsel to the Sheriff and the
MCSO, to address its consideration of whether to cite her for criminal contempt. We
do so here by asking that the court consider the entire record in this proceeding
concerning the Knapp IDs and not just the more limited record of the evidentiary
hearing.
Criminal contempt is a crime in the ordinary sense. Bloom v. Illinois, 391
U.S. 194, 201 (1968). Such proceedings are intended to vindicate and preserve respect
for the authority of the Federal Court which is essential to the rule of law. Criminal
contempt proceedings are governed by Rule 42, FEDERAL RULES OF CRIMINAL
PROCEDURE.
Rule 42(a)(2), FED. R. CRIM. P., provides [t]he court must request that the
contempt be prosecuted by an attorney for the government, unless the interest of justice
requires the appointment of another attorney: If the government declines the request,
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1 the court must appoint another attorney to prosecute the contempt. Thus, unlike other
2 criminal prosecutions, the prosecutor in a criminal contempt citation lacks the
2 prosecutorial discretion as to whether or not to proceed with a case. That government
3 attorney or another attorney must present evidence and advocate for the prosecution
4 even if he or she concludes that the case cannot be proven beyond a reasonable doubt.
5 Thus, in a practical sense the court alone has the prosecutorial discretion that otherwise
6 resides in government attorneys in criminal proceedings.
7
This Court has devoted considerable time and other resources to vindicate the

8 Constitutional rights of the class plaintiffs that the Court has determined were violated
9 over an extended period by recalcitrant defendants and others. Those Constitutional
10 rights, like all Constitutional rights, are vitally important as is the Courts need to
11 vindicate its authority and respect for its orders.
12
The conduct of Ms. Iafrate that the Court is concerned with occurred during a
13 period of weeks in July 2015. (Doc.1677, filed 5/13/16 at 295 348) As the court
14 has noted, Ms. Iafrate was never called as a witness, nor given a chance in the
15 evidentiary hearing to address the allegations made about her conduct. In exercising its
16 discretion as whether to proceed and how, the Court should recognize that if a criminal
17 contempt citation is issued as to Ms. Iafrate there will not only be a criminal trial, but
18 inevitably a disciplinary proceeding will also be initiated before the State Bar of
19 Arizona.
20
We urge the Court to consider the totality of the existing record related to the
21 Knapp IDs that we present here as it relates to the events of July 2015. That record,
22 including transcripts of witness statements not offered at the evidentiary hearing,
23 demonstrates that it is unlikely that any case presented against Ms. Iafrate related to
24 those events can meet the high burden of proof beyond a reasonable doubt required in
25 a criminal case. That record reveals that a criminal prosecution, which will consume
26 even more judicial resources in this long running case and the trial testimony of the
27 many percipient witnesses, is unlikely to succeed.
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If the Court is nevertheless persuaded that Ms. Iafrates conduct needs to be
2 thoroughly examined to vindicate the authority of the Court, then the appropriate
2 forum for that examination is the State Bar of Arizona. Not in a criminal trial.
THE RECORD
3
4 A.
July 17, 2015 and July 20, 2015 Meetings
There apparently is no recording or transcript of the Monitor team meeting with
6 the Professional Standards Bureau (PSB) staff on Monday, July 20, 2015. The
7 question or questions that were asked by the Monitor team, and the responses given

8 during what was apparently a meeting of some length covering many topics, is thus
9 subject to the varying recollections of the many participants. There is also apparently
10 no recording or transcript of the preparation meeting Ms. Iafrate attended with the PSB
11 staff the previous Friday, July 17, 2015.
12
The Courts Order of February 12, 2015 required defendants to produce copies
13 of identification documents seized by MCSO personnel from apparent (emphasis

14 added) members of the Plaintiff class. (Doc. 881, p. 1-2) The Plaintiff Class is
15 defined as All Latino persons who, since January 2007 (emphasis added), have been
16 or will be in the future, stopped, detained, questioned or searched by MCSO . . . .
17 (Doc. 494, p. 40)
18
The testimony at the evidentiary hearing was that Ms. Iafrate had said she would
19 need to research whether the Knapp IDs were covered by the Courts orders. Given the
20 information that Knapp acquired the IDs starting in 2006 (Exhibit A, Doc.
21 1194,Transcript of 7/25/15 Hearing, p. 12, lns. 1 7) and the Plaintiff class was
22 confined to individuals in contact with the MCSO after January 2007, it was reasonable
23 for Ms. Iafrate to want to consider and analyze the issue as well as the IDs before
24 advising her client whether the newly discovered Knapp IDs were covered by the
25 Courts orders.
26
The record reflects the following general recollection of Lieutenant Seagraves
27 as to what took place at the Friday, July 17, 2015 meeting of the PSB staff:
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Q.
And you were the one who brought up the topic of the
identifications during that meeting, is that right?
A.
I believe so, from my memory, yes.
Q.
And you brought it up because you thought its something that
the monitors might ask about?
A.
Yes.
Q.
And you asked the question during that meeting, If were
asked about any other IDs, licenses, what would be the response, is
that correct?
A.
Yes.
10
Q.
And when you said that, Ms. Iafrate responded that the answer
11
should be no, is that correct?
12
A.
It was more to it than just that.
13
Q.
She said that they should that the answer to that should be no
14
to the monitors, correct?
15
A.
She didnt yes, but she elaborated on the reason.
16
Q.
Captain Bailey you didnt actually touch the IDs, did you?
17
A.
No.
18 (Exhibit B, Doc. 1455, October 1, 2015 Evidentiary Hearing Transcript, p.

19 2169 at lns. 3 24)
20
Defendants counsel on recross-examination, however, did ask Lieutenant
21 Seagraves to elaborate:
BY MR. POPOLIZIO:
22
23
Q.
Now, we also heard some testimony from you this morning
24
with regard to 1500 IDS and a meeting with regard to those IDs, or a
25
meeting in which those IDs we discussed.

Do you recall that?
26
27
A.
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Yes.
4

Q.
made some statements during that meeting, right?
A.
Yes.
Q.
Do you recall that you also testified that Ms. Iafrate
elaborated?
A.
Yes.
Q.
She said more than just the word no?
A.
Thats correct.
Q.
During that meeting with regard to the 1500 IDs, did Ms.
Iafrate comment something to the effect that It must be determined
10
Okay. Now, in your testimony you stated that Ms. Iafrate
if the IDs
11
MR. SEGURA: Objection, leading.
12
BY MR. POPOLIZIO:
13
Q.
-- met the element of the order?
14
MR. KILLEBREW: Objection, leading.
15
THE COURT: Sustained.
16
BY MR. POPOLIZIO:
17
Q.
Do you recall what Ms. Iafrate said in that meeting with
18
regard to the court order?
19
A.
Generally, yes.
20
Q.
And what was that?
21
A.
That she felt that the IDs didnt meet the order, and in her
22
opinion, and she was going to do some additional research to
23
determine whether or not they were within the parameters of the court
24
order, and that she would let us know, but in the meantime to respond
25
negatively.
26 (Id., pp. 2239, ln. 2 2240, ln. 8)

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Nevertheless, whatever Lieutenant Seagraves understood to be Ms. Iafrates
2 advice, when the Monitor team interviewed Lieutenant Seagraves on Thursday, July
2 23, 2015 she disclosed the discovery of the Knapp IDs. When asked if there were any
3 other ID cases that she was aware of, Lieutenant Seagraves did not respond to those
4 questions negatively. Instead she stated her recollection of what she knew about the
5 Knapp IDs. (Exhibit C, Transcript of Interview of Lieutenant Suzanne Seagraves6 Young; BY: Chief Sherry Kiyler; PRESENT: Chief Donald Anders, Dawn Sauer,
7 Esquire; DATE: July 23, 2015; TIME: 3:06 pm; In RE: Maricopa County Sheriffs

8 Office, p. 20, ln. 4 27, ln. 4)

This witness to the July 17, 2015 PSB preparation meeting therefore remembers
10 Ms. Iafrate stating something to the effect of in her opinion it did not meet the
11 elements of the order . . . and that she would be doing some further research on the
12 topic. (Id.) If this witnesss general recollection is accurate, and the Court credited
13 her testimony in the Findings of Fact, then what it reflects is a lawyer who had made a
14 preliminary judgment but wanted to do further research.
While Ms. Iafrates
15 preliminary judgment or understanding of this Courts orders may have been wrong, or
16 her research not complete prior to the July 20 Monitor meeting, mere negligence will
17 not support a finding of criminal contempt. Falstaff Brewing Corp. v. Miller Brewing
18 Co., 702 F.2d 770, 782 (9th Cir. 1983); Vaughn v. City of Flint, 752 F.2d 1160, 1168
19 (6th Cir. 1985). This Court should not exercise its discretion to initiate a criminal
20 prosecution of a lawyer based upon negligent conduct.
21 B.
July 22, 2015 Monitor Interview of Lieutenant Swingle
22
The earliest transcript in the record that exists regarding the Knapp IDs is the
23 Monitor teams recorded interview of Lieutenant Kenneth Richard Swingle of the PSB
24 that took place on Wednesday, July 22, 2015. In that interview, conducted two days
25 after the Monitor meeting on July 20, the PSB Lieutenant was asked if other IDs had
26 been found and he identified the Knapp IDs.
27
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After covering other topics in the interview, Chief Kiyler asked the following
2 questions and received the following answers from Lieutenant Swingle:

MS. KIYLER: Okay. Other than those IDs, are you aware of
2
3
any other IDs that have been found?
LIEUTENANT SWINGLE: Yes.
MS. KIYLER: Can you tell me about that?
LIEUTENANT SWINGLE: Well, that was I should
probably mention that that was something that Michelle had said
MS. SAUER: Dont say anything about attorney-client

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conversations.
10
MR. ANDERS: Sorry. Whats the response?
11
MS. SAUER: Can we have a moment?
12
MR. ANDERS: Sure, thats fine.
13
MS. KIYLER: Do you want to step out or do you want us to
14
step out?
15
MS. SAUER: Well step out.
16
MR. ANDERS: The time is approximately 12:43. Were
17
going to go off the record pending the return of Ms. Sauer and the
18
detective lieutenant.
19
[Off the record]
20
MR. ANDERS: And were back on the record. The four
21
same individuals are back in the room and the time is approximately
22
12:47.
MS. KIYLER: Okay. Im going to go back and ask the
23
24
question that resulted in our quick timeout here. Are you aware of
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other issues involving IDs?

LIEUTENANT SWINGLE: I know that there were some
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identifications that had been signed out that were returned recently.
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Thats the only thing in recent history that I know that involves any
kind of identifications.
MS. KIYLER: Okay. When you say signed out and

returned, what does that mean?
LIEUTENANT SWINGLE: The employee that had them had
been to fraudulent-documents class and he had authored I guess some
emails or a memorandum, something up his chain of command
asking if he could retrieve those items from the Property Room and
then go on to use them, you know, in an upcoming class.

MS. KIYLER: Do you know how many IDs that was?
LIEUTENANT SWINGLE: Its a considerable number. Id
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say somewhere over a thousand.

MS. KIYLER: And where would those I know he got them
12
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from the Property Room but where in the Property Room would there
14
have been a thousand IDs that anybody could

LIEUTENANT SWINGLE: I think that was over a time
15
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period, a period of time. He didnt get them all at one time.

MS. KIYLER: Okay, but again, where would those IDs have
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been?
19
MS. SAUER: If you know.
20
LIEUTENANT SWINGLE: I dont know where they would
21
keep them in the Property Room.

MS. KIYLER: And how long have you been aware of that,
22
23
Lieutenant?
LIEUTENANT SWINGLE: I want to say for, like, a week.
24
25
26 (Exhibit D, Transcript of Interview of Lieutenant Kenneth Richard Swingle; By:

27 Sherry Kiyler; PRESENT: Chief Donald Anders, Dawn Sauer, Esquire; DATE:
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1 July 22, 2015, TIME: [sic] ; In Re: MARICOPA COUNTY SHERIFFS OFFICE,
2 pp. 16, ln. 9 18, ln. 16)
2
Chief Kiyler in the interview of Lieutenant Swingle was not definitive in her
3 memory as to the question she had asked about other IDs in the Monitor team
4 meeting with the PSB staff two days earlier:
MS. KIYLER: When we talked about those IDs on Mondays

5
6
[sic] and we asked if there were other IDs and you told us about the
not you specifically, but we were told about the 40 and the 42. Why
didnt you mention those?

LIEUTENANT SWINGLE: I wasnt asked.
MS. KIYLER: Wasnt it a general question, were there any
10
11
other IDs? Because I think two different people answered on the
12
ones that were. I think Captain Bailey answered regarding one of
13
them, and I believe it was Lieutenant Kratzer that answered on the
14
other one. I think it was a general question.

LIEUTENANT SWINGLE: I cant answer that.
15
16 (Id., pp. 21, ln. 23 22, ln. 10)

17
Lieutenant Swingle also told the Monitor in his interview in response to
18 questions that no one, including counsel, had instructed him not to mention the Knapp
19 IDs to the Monitor.
20
MS. KIYLER: Were you instructed by your attorney not to?
21
LIEUTENANT SWINGLE: No.
22 (Id., pp. 22, ln. 24 23, ln. 11

23
As the transcript also reveals, Lieutenant Swingle was accompanied at the
24 interview by Dawn Sauer, a lawyer at Iafrate & Associates. After Lieutenant Swingle
25 told Chief Kiyler that other IDs have been found, he then started an answer to a follow26 up question with I should probably mention that Michele had said --. (Id., p. 16, lns.
27 13-15) Ms. Sauer interrupted Lieutenant Swingle to admonish him not to reveal
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1 attorney conversations. Ms. Sauer and Lieutenant Swingle then stepped outside the
2 interview room for some four minutes and the interview resumed with Lieutenant
2 Swingle then telling the Monitor team what he knew about the Knapp IDs.
The transcript does not expressly reveal what Lieutenant Swingle understood
4 Ms. Iafrate to say. What the transcript does plainly reveal is that Lieutenant Swingle
5 did not understand that Ms. Iafrate advised him to conceal or lie about the existence of
6 the Knapp IDs. Lieutenant Swingles recollection five days after the July 17
7 preparation meeting with PSB staff as to what Ms. Iafrate said was more fresh in his

8 mind than the recollection of the witnesses who testified at the evidentiary hearing
9 several months later in September and October.
Thus, the first transcript that exists of questions the Monitor staff asked and the
10
11 answers given by the PSB staff demonstrates that (1) a PSB Lieutenant truthfully
12 answered when the question was simply are you aware of any other IDs that have
13 been found, (2) no one (including Ms. Iafrate) advised Lieutenant Swingle to lie about
14 the Knapp IDs, and (3) if the Monitor team believed it was misled with incorrect
15 responses at the afternoon meeting with PSB staff on Monday, July 20, 2015, the PSB
16 command staff had given the Monitor team accurate answers to its question or
17 questions some 48 hours later.
Lieutenant Swingle was neither deposed nor called to testify in the evidentiary
18
19 hearing.
20 C.
July 24, 2015 Hearing
21
On Friday, July 24, 2015, the Court held an emergency hearing at the request of
22 the Monitor.
23
At the emergency hearing on the afternoon of July 24, 2015, Chief Warshaw
24 noted that he had gone that morning to the PSB office where he asked to see and was
25 shown the 1,459 IDs. The night before Chief Warshaw had sent an email to Ms.
26 Iafrate and other counsel at 9:11 p.m. to request access to certain documents, but his
27 email did not identify the documents he sought. (Exhibit E attached.) Ms. Iafrate
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1 responded to that email at 7:41 a.m. the next morning on July 24 asking what
2 documents were being sought by Chief Warshaw. (Id.) Chief Warshaw then called
2 Ms. Iafrate at 7:45 a.m. and told her he wanted access to the Knapp IDs and 50 hard
3 drives he believed to be associated with the Dennis Montgomery matter. (Exhibit A,
4 Doc. 1194, 7/24/15 Hearing Transcript, p. 10, lns. 8 14.) It is plain that the Monitors
5 discovery of the 50 hard drives which he had first learned about on Thursday
6 afternoon, July 23, 2015 during an interview of Lieutenant Seagraves was of
7 significant concern to the Monitor. (Exhibit C, Interview of Lieutenant Suzanne

8 Seagraves-Young; pp. 105 107)

9
It is those 50 hard drives that are the subject of paragraphs 349 364 of the
10 Courts Findings of Fact. (Doc. 1677.) There has been no suggestion that Ms. Iafrate
11 was aware of the existence of those 50 Montgomery hard drives before the Monitors
12 inquiries revealed their existence on Thursday afternoon.
13
At the emergency hearing the following exchange occurred:
14
CHIEF WARSHAW:
15
. . . . .
16
During the meeting that we had on this past Monday, the 21st [sic], with
17 representatives of the Professional Standards Bureau, we were apprised of two new

18 cases relevant to ID findings, one regarding 40 IDs and another involving 20, but there
19 was no mention of 1500 identifications that recently had been found.
20
Chief Kiyler, whos in the room, was present with me in the room, and we did
21 inquire at that time: Had there been any additional findings other than the two they
22 represented to us, the 40 and the 20?
23
During our investigative inquiries of other matters that
24
THE COURT: Well, what was the response?
25
CHIEF WARSHAW: That there were none other; there were no other.
26
THE COURT: So they did not indicate that 1500 had been found.
27
CHIEF WARSHAW: They did not.
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11
(Exhibit A, Transcript of 7/24/15 Hearing, pp. 7, ln. 17 8, ln. 9)
The question Chief Warshaw remembers being asked at the Monitor team
2 meeting with the PSB staff the previous Monday and that he then reported to the Court
3 on Friday is thus slightly different than the question Chief Kiyler suggested on
4 Wednesday that she had asked during her interview with Lieutenant Swingle. Without
5 a transcript of that July 20, 2015 meeting it can be expected that memories of the many
6 participants will differ as to what was said.

In that emergency hearing on July 24 the Court then addressed Ms. Iafrate:
THE COURT: Let me ask, and I realize there may be
privilege issues that need to be asserted here, I dont want to trample
10
on anybodys rights, but were you aware that the 1500 identifications
11
were found?
MS. IAFRATE: Yes, I was, Your Honor, and we did not lie to
12
13
the monitors or keep that from the monitors. In fact, when the
14
questions
15
THE COURT: Well, let me ask you, are you aware that any
16
instruction was given to MCSO that they were not to volunteer that
17
information?
MS. IAFRATE: No, and any further conversation is
18
19
privileged.
20
THE COURT: Well, it may or may not be privileged.
21
MS. IAFRATE: Well, I would assert the privilege to
22
THE COURT: I understand that you may assert the privilege,
23
and were not going to resolve that here this afternoon.
24
MS. IAFRATE: Understood.
25
Your Honor, I was in that meeting.
26
THE COURT: You were in that meeting?
27
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12
MS. IAFRATE: I was in no. Excuse me. I was in the
1
2
meeting with Chief Kiyler when it was discussed regarding pending
current investigations regarding IDs, and there was two.
THE COURT: Which involved the 40 and the 20.
MS. IAFRATE: Correct.
THE COURT: But not the 1500.
MS. IAFRATE: Correct.
THE COURT: So theres actually 1459 IDs, plus 40 more

IDs, plus 20 more IDs.

MS. IAFRATE: Correct. And the 40 and the 20 are over in
9
10
Property.
11
THE COURT: Youre are aware that in February I issued an
12
order that the MCSO was to disclose let me see if I can find that. I
13
entered an order that MCSO was to disclose copies of identification
14
documents seized by MCSO personnel from apparent members of the
15
plaintiff class
16
MS. IAFRATE: Yes.
17
THE COURT: -- are you not?
18
MS. IAFRATE: Yes.
19
THE COURT: And these are yet an additional well, Im not
20
sure that they all involve members of the plaintiff class, but
21
apparently youve shown them to my Monitor Team and a number of
22
them involve members of the plaintiff class, correct?

MS. IAFRATE: I dont know what number does or does not.
23
24
I would assume that there would likely be some.
25 (Id,. pp. 16, ln. 4 17, ln. 25)

26
Ms. Iafrates exchange with the Court at the July 24 hearing, reflects her
27 understanding that the July 20 meeting discussion was regarding pending current
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13
1 investigations regarding IDs, and there was [sic] two. (Id.

2 2)
p. 16, ln. 24 p. 17, ln.
Ms. Iafrate thus believed that there was no pending current investigation[]
2 regarding the Knapp IDs and that the Monitor team was asking only about pending
3 current investigations, rather than IDs that are not subject to any current
4 investigations, when the Monitor was told there were no others.
Ms. Iafrates statement to this Court that there was no pending current
6 investigation was what she understood. She understood the Monitor teams question
7 on July 20, 2017 was whether there was a current pending investigation.
Her

8 understanding of the Monitor teams question may reflect negligence on her part in not
9 appreciating the status of the Knapp IDs in the PSB, but it cannot reasonably be
10 construed beyond a reasonable doubt as a willful violation of this Courts orders.
Neither negligence nor miscommunication are a basis for an adjudication of
11
12 criminal contempt.
The crime of contempt is established when a defendant willfully disobeys a
13
14 clear and definite court order of which the defendant is aware. United States v.
15 Armstrong, 781 F.2d 700, 706 (9th Cir. 1986) (citations omitted.)
Wilfulness, in turn, is defined as a volitional act done by one who knows or
16
17 should reasonably be aware that his conduct is wrongful. (citations omitted.) It

18 implies a deliberate or intended violation, as distinguished from an accidental,
19 inadvertent, or negligent violation of an order. Falstaff Brewing Corp. v. Miller
20 Brewing Co., 702 F.2d 770, 782 (9th Cir. 1983).
21 D.
The Evidentiary Hearing in September/October 2015
22
At the evidentiary hearing, the plaintiffs called three witnesses to testify
23 regarding the events relating to the Knapp IDs:
Chief Deputy Sheridan, Captain
24 Bailey, and Lieutenant Seagraves. It is their testimony that provides the basis for the
25 Courts Findings of Facts. By the time of their testimony, Ms. Iafrates role in this
26 case had shifted to working exclusively on the MCSOs compliance obligations
27 because of the considerable time required for that representation. She no longer had
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1 any responsibility, nor was she involved in the conduct of the evidentiary hearing. That
2 role was filled by other lawyers.
2
The defendants lawyers called no witnesses on the subject of the Knapp IDs at
3 the resumed evidentiary hearings in September and October 2015. The defendants
4 lawyers on cross-examination asked very few questions of Chief Deputy Sheridan,
5 Captain Bailey, and Lieutenant Seagraves. Not a single document exhibit proving
6 Knapp ID related events was introduced or even offered at the evidentiary hearing.
7
The Court found, based upon one witnesss memory, that five other people

8 attended the July 17, 2015 preparation meeting other than Sheridan, Bailey and Iafrate.
9 (Doc. 1677, 307 at p. 53) Other witnesses memories as to who was present varies as
10 reflected in the record of this proceeding. The Findings do not identify all those present
11 at the July 20, 2015 Monitor meeting, but it is plain that in addition to the multiple
12 members of the PSB staff present for the teams quarterly visit that there were also
13 multiple members of the Monitor team present.
14
We note these facts not to challenge or question the Courts Findings of Fact or
15 to be critical of the judgments made by the defendants counsel at the hearing who
16 were mainly focused on other issues. Rather, we mention these facts to point out that a
17 criminal contempt citation will certainly result in a criminal trial with some significant
18 number of new witnesses from both the Monitor staff and the Sherriffs office who
19 were not heard in the evidentiary hearing or otherwise, and who, based on the
20 information available from the interview transcripts and other transcripts, are likely to
21 have materially different accounts of the unrecorded discussions at the meetings on
22 both July 17, 2015 and July 24, 2015. At the end of the testimony in a criminal trial of
23 the many witnesses present at the two meetings at issue it will be unlikely that a Judge
24 or jury will be able to find proof beyond a reasonable doubt as to exactly what was said
25 by the participants in those meetings.
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27
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1 E.
CONCLUSION
As this Court has undoubtedly recognized, counsel representing the defendants
2 in this case have been confronted with an extraordinarily difficult representation. Ms.
3 Iafrate replaced prior counsel for the defendants when issues arose relating to his
4 representation.
Ms. Iafrate conscientiously represented the defendants in very
5 challenging circumstances from November 2014 until last month when she withdrew
6 from that representation following the Courts comments at the May 31, 2016 hearing.
7
She acknowledges and respects the Courts right to vindicate its authority. A

8 criminal contempt charge here is unwarranted, however, because the existing record,
9 incomplete as it is, demonstrates that it is highly unlikely that proof beyond a
10 reasonable doubt can be presented that Ms. Iafrate willfully violated a clear and
11 definite order of this Court. Conduct on her part in expressing the need to research and
12 investigate the issues concerning the Knapp IDs was that of a lawyer attempting to
13 fulfill her obligation of competence required by ER 1.1 of the Arizona Rules of
14 Professional Conduct. She understood that the responses given to the Monitor teams
15 question or questions were truthful.
16
The Court, as the sole repository of prosecutorial discretion, should not initiate a
17 criminal prosecution based upon the evidence in the total record concerning the Knapp
18 IDs which reflects that the elements of criminal contempt cannot be proven beyond a
19 reasonable doubt.
20
We do not invite the Court to initiate State Bar disciplinary proceedings.
21 However, if the Court is of the view that Ms. Iafrates conduct must be subject to
22 further examination then the State Bar of Arizona is the appropriate forum for that
23 examination not a criminal proceeding. The State Bar would assess the nature and
24 extent of Ms. Iafrates professional deliberations of the facts as she understood them at
25 the time, the cognizance of her clients duties to the Court as well as her own duties,
26 her conclusions, her communications that may have flowed from such conclusions, and
27 the extent to which ensuing actions were consistent with her communications.
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DATED this 20th day of July, 2016.

LEWIS ROCA ROTHGERBER CHRISTIE LLP
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By:
/s/ Dale A. Danneman

Dale A. Danneman
Attorneys for Michele M. Iafrate
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CERTIFICATE OF SERVICE
1
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I hereby certify that on July 20, 2016, I electronically transmitted the foregoing
2 document to the Clerks Office using the CM/ECF System for filing and transmittal of
3 a Notice of Electronic Filing to all CM/ECF registrants.
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/s/ May Livingston
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Case 2:07-cv-02513-GMS Document 1752-1 Filed 07/20/16 Page 1 of 84

Melendres #1752 Iafrate Memo Re Criminal Contempt

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Melendres #1752 Iafrate Memo Re Criminal Contempt

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Case 2:07-cv-02513-GMS Document 1752 Filed 07/20/16 Page 1 of 18

Lewis Roca Rothgerber Christie LLP

UNITED STATES DISTRICT COURT

201 East Washington Street, Suite 1200

Manuel de Jesus Ortega Melendres, on

Case 2:07-cv-02513-GMS Document 1752 Filed 07/20/16 Page 2 of 18

201 East Washington Street, Suite 1200

Case 2:07-cv-02513-GMS Document 1752 Filed 07/20/16 Page 3 of 18

If the Court is nevertheless persuaded that Ms. Iafrates conduct needs to be

July 17, 2015 and July 20, 2015 Meetings

There apparently is no recording or transcript of the Monitor team meeting with

201 East Washington Street, Suite 1200

13 of identification documents seized by MCSO personnel from apparent (emphasis

The record reflects the following general recollection of Lieutenant Seagraves

201 East Washington Street, Suite 1200

Case 2:07-cv-02513-GMS Document 1752 Filed 07/20/16 Page 4 of 18

identifications during that meeting, is that right?

I believe so, from my memory, yes.

And you brought it up because you thought its something that

the monitors might ask about?

And you asked the question during that meeting, If were

should be no, is that correct?

It was more to it than just that.

to the monitors, correct?

She didnt yes, but she elaborated on the reason.

18 (Exhibit B, Doc. 1455, October 1, 2015 Evidentiary Hearing Transcript, p.

Defendants counsel on recross-examination, however, did ask Lieutenant

Now, we also heard some testimony from you this morning

meeting in which those IDs we discussed.

201 East Washington Street, Suite 1200

Case 2:07-cv-02513-GMS Document 1752 Filed 07/20/16 Page 5 of 18

made some statements during that meeting, right?

Do you recall that you also testified that Ms. Iafrate

She said more than just the word no?

Iafrate comment something to the effect that It must be determined

Okay. Now, in your testimony you stated that Ms. Iafrate

MR. SEGURA: Objection, leading.

-- met the element of the order?

MR. KILLEBREW: Objection, leading.

THE COURT: Sustained.

Do you recall what Ms. Iafrate said in that meeting with

regard to the court order?

And what was that?

opinion, and she was going to do some additional research to

26 (Id., pp. 2239, ln. 2 2240, ln. 8)

Case 2:07-cv-02513-GMS Document 1752 Filed 07/20/16 Page 6 of 18

Nevertheless, whatever Lieutenant Seagraves understood to be Ms. Iafrates

201 East Washington Street, Suite 1200

8 Office, p. 20, ln. 4 27, ln. 4)

While Ms. Iafrates

July 22, 2015 Monitor Interview of Lieutenant Swingle

Case 2:07-cv-02513-GMS Document 1752 Filed 07/20/16 Page 7 of 18

2 questions and received the following answers from Lieutenant Swingle:

any other IDs that have been found?

LIEUTENANT SWINGLE: Yes.

MS. KIYLER: Can you tell me about that?

LIEUTENANT SWINGLE: Well, that was I should

201 East Washington Street, Suite 1200

MR. ANDERS: Sorry. Whats the response?

MS. SAUER: Can we have a moment?

MR. ANDERS: Sure, thats fine.

MS. KIYLER: Do you want to step out or do you want us to

MS. SAUER: Well step out.

MR. ANDERS: The time is approximately 12:43. Were