Puente Arizona et al v. Arpaio et al

Filing 431

ORDER re discovery conference call of 1/20/2016. Signed by Judge David G Campbell on 2/19/2016. (DGC, nvo)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Puente Arizona, et al.,
Plaintiffs,

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No. CV-14-01356-PHX-DGC
ORDER

v.
Joseph M. Arpaio, Sheriff of Maricopa
County, Arizona, in his official capacity, et
al.,
Defendants.

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The Court held a discovery conference call with the parties on January 20, 2016.

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Doc. 370. Defendants raised concerns regarding invocations of the Fifth Amendment

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during the depositions of the two Expungement Plaintiffs, Sara Edith Cervantes Arreola

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and Elia Estrada Fernandez.

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addressed on a question-by-question basis, the Court directed the parties to submit a

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matrix which set forth each question, each Fifth Amendment refusal to answer,

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Defendants’ arguments as to why the invocation was improper, and Plaintiffs’ arguments

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as to why the Fifth Amendment was properly invoked. Doc. 373.

Because assertions of the Fifth Amendment must be

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The parties submitted the matrix on January 29, 2016. Doc. 398. The Court has

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conducted a question-by-question review, and has also read the questions and answers in

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the context of the deposition transcripts which the Court later required the parties to file.

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Docs. 424; 424-1. The Court concludes that the Fifth Amendment privilege against self-

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incrimination was properly invoked by the Expungement Plaintiffs with respect to

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virtually all of the questions.

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A.

Legal Standard.

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The Fifth Amendment provides that “[n]o person . . . shall be compelled in any

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criminal case to be a witness against himself.” U.S. Const. amend. V. The Fifth

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Amendment’s protections apply to civil proceedings. Doe v. Glanzer, 232 F.3d 1258,

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1263 (9th Cir. 2000). In the civil context “the invocation of the privilege is limited to

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those circumstances in which the person invoking the privilege reasonably believes that

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his disclosures could be used in a criminal prosecution, or could lead to other evidence

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that could be used in that manner.”

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incrimination does not depend upon the likelihood, but upon the possibility of prosecution

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and also covers those circumstances where the disclosures would not be directly

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incriminating, but could provide an indirect link to incriminating evidence.”

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(emphasis in original; quotation marks and citation omitted).

Id.

“Therefore, the privilege against self-

Id.

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B.

Analysis.

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Virtually all of the questions at issue concern the Expungement Plaintiffs’ use of

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falsified documents to obtain employment. There were many questions about social

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security numbers, including whether certain social security numbers belonged to the

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Expungement Plaintiffs (see Docs. 424 at 56; 424-1 at 18-19, 36-37, 102-03), whether

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they had used these social security numbers to obtain employment (see Docs. 424 at 43-

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44, 49, 53; 424-1 at 16-19, 36-37, 96-98, 103-04, 106-08), and how they had initially

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obtained these social security numbers (see Docs. 424 at 36; 424-1 at 102-03). There

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were also a number of questions about tax documents, including whether the

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Expungement Plaintiffs had signed certain forms, such as IRS Form W-4 (see Doc. 424 at

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37-38, 41-43) and Arizona Form A-4 (see id. at 44), whether they had filed tax returns

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(see Docs. 424 at 57; 424-1 at 27), and whether information on certain tax documents

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was accurate (see Doc. 424 at 44).

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immigration document, a Permanent Resident Card, was hers. See id. at 53-54. Ms.

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Estrada Fernandez was asked about using a false name on her employment paperwork.

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See Doc. 424-1 at 32-33.

Ms. Cervantes Arreola was asked whether an

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Defendants argue that the Fifth Amendment was not properly invoked in response

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to these questions because the Expungement Plaintiffs admit they were previously

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convicted under Arizona identity theft statutes for using false identifications to obtain

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employment, the convictions were based on the Expungement Plaintiffs’ guilty pleas, the

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prosecutions in which the Expungement Plaintiffs pled guilty were based on the very

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documents presented to them in their depositions, three years have now passed without

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any evidence of a federal investigation or federal prosecution based on the same

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documents and information, and the Expungement Plaintiffs therefore have not shown

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any substantial or real threat of prosecution. For several reasons, the Court is not

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persuaded by these arguments.

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First, although it is true that the Expungement Plaintiffs have admitted that they

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were convicted of violating Arizona identity theft laws, they are not basing their current

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Fifth Amendment assertions on those laws. Instead, they base their invocations of the

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Fifth Amendment on federal statutes prohibiting the making or use of false statements on

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tax documents (26 U.S.C. § 7206(1)), fraud or misuse of immigration or other documents

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(18 U.S.C. § 1546(a), (b)), social security fraud (18 U.S.C. § 408(a)(7)(c)), the making of

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false statements (18 U.S.C. § 1001(a)), perjury (18 U.S.C. § 1621), and tax evasion (26

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U.S.C. § 7201)). The fact that the Expungement Plaintiffs were previously convicted of

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violating Arizona identity theft laws does not prohibit their prosecution under these

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federal statutes.

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Second, Defendants assert that prosecution of the Expungement Plaintiffs under

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the federal statutes is highly unlikely given that three years have passed since they

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entered guilty pleas in the state case.

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Plaintiffs identify no instances where similar prosecutions have occurred. All of this may

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be true, but Defendants have not shown that prosecutions based on the above-cited

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federal statutes would be barred by the statute of limitations, double jeopardy, or some

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form of immunity. Thus, there appears to be no legal bar to the prosecution of the

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Expungement Plaintiffs for violating these laws.

Defendants also note that the Expungement

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Third, Defendants note that the various documents presented during the

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depositions were the same documents at issue in the Expungement Plaintiffs’ violation of

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Arizona identity theft laws. But Defendants have not shown where the Expungement

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Plaintiffs admitted the facts asked about in their depositions. The parties have provided

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the Court with the transcript of Ms. Cervantes Arreola’s guilty plea in state court, and the

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plea colloquy contains nothing more than a simple admission of guilt. See Doc. 398-1 at

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10 (admitting that “on or about July 8, 2010 and within Maricopa County, Ms. Cervantes

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possessed or used personal identifying information of another person, including a

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fictitious person, with the intent to obtain employment”). It did not address any of the

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documents presented during Ms. Cervantes Arreola’s deposition, and did not include her

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admission to any of the facts about which she was asked in the deposition. Thus, even

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though the documents may have been at issue in the state court prosecutions, Defendants

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cannot show that the Expungement Plaintiffs previously made admissions with respect to

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those specific documents. Answers to the questions posited by the Defendants would

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therefore be new admissions.

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Fourth, the Court is not persuaded that it can overrule the Expungement Plaintiffs’

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Fifth Amendment assertions merely because prosecution under the relevant federal

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statutes appears unlikely. It is true that the law on this subject is somewhat ambiguous,

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providing helpful quotations for both sides. The Supreme Court has stated that the Fifth

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Amendment applies only when a person is faced with “substantial and ‘real,’ and not

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merely trifling or imaginary, hazards of incrimination.” Marchetti v. United States, 390

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U.S. 39, 53 (1968) (citations omitted).

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emphasized, as quoted above, that the “privilege against self-incrimination does not

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depend upon the likelihood, but upon the possibility of prosecution.” Glanzer, 232 F.3d

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at 1263 (citing United Liquor Co. v. Gard (In Re Seper), 705 F.2d 1499, 1501 (9th Cir.

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1983)).

It is also true, however, that courts have

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The Court finds helpful guidance in the Supreme Court’s seminal decision of

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Hoffman v. United States, 341 U.S. 479 (1951). The high court made clear that the
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privilege against self-incrimination “not only extends to answers that would in

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themselves support a conviction under a federal criminal statute but likewise embraces

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those which would furnish a link in the chain of evidence needed to prosecute the

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claimant for a federal crime.” Id. at 486 (citation omitted). The court clarified that “this

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protection must be confined to instances where the witness has reasonable cause to

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apprehend danger from a direct answer.” Id. (citation omitted). The court also stated that

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“[t]o sustain the privilege, it need only be evident from the implications of the question,

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in the setting in which it is asked, that a responsive answer to the question or an

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explanation of why it cannot be answered might be dangerous because injurious

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disclosure could result.” Id. at 486-87.

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The Court has reviewed each of the federal statutes cited by the Expungement

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Plaintiffs and concludes that the questions asked by Defendants would assist a prosecutor

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in proving some element of the crimes set forth in those statutes. They would, as

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Hoffman notes, “furnish a link in the chain of evidence” needed to prosecute the

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Expungement Plaintiffs for a federal crime. And when the Court considers the questions

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in the setting in which they were asked, as Hoffman directs, the Court concludes that the

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Expungement Plaintiffs have reasonable cause to apprehend danger from answering the

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questions. The Expungement Plaintiffs admit they are undocumented immigrants. They

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have previously admitted to violating state identity theft statutes. Their responses to

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questions posed by Defendants could provide evidence upon which a federal prosecutor

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might rely in prosecuting them for various federal crimes. Defendants have identified no

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legal impediment to such a prosecution. Given these circumstances, the Court finds that

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the Expungement Plaintiffs have reasonable cause to apprehend danger from the

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questions posed by Defendants.

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True, three years have passed since the Expungement Plaintiffs admitted to state

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identity theft. Also true, the Expungement Plaintiffs have not cited examples of similar

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prosecutions. But the Court can find no case holding that the Fifth Amendment was

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improperly invoked merely because the person asserting the privilege was unable to
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prove an imminent threat of prosecution. Clearly, the possibility of prosecution exists

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here, and answers to the questions could provide evidence for such a prosecution. This is

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sufficient to sustain the Expungement Plaintiffs’ invocation of the Fifth Amendment. See

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Glanzer, 232 F.3d at 1263; see also United States v. Jones, 703 F.2d 473, 478 (10th Cir.

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1983) (“Once the court determines that the answers requested would tend to incriminate

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the witness, it should not attempt to speculate whether the witness will in fact be

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prosecuted.”) (collecting cases); United States v. Edgerton, 734 F.2d 913, 921 (2d Cir.

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1984) (same).

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C.

Conclusion.

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The Court concludes that the Fifth Amendment was properly invoked with respect

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to questions 1-3, 5-9, 11, and 14-17 in the Cervantes Arreola deposition. These numbers

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correspond to numbers in the parties’ matrix. See Doc. 398. The Court finds that

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questions 4, 10, 12-13, and 18 were ultimately answered by Ms. Cervantes Arreola and

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therefore present no Fifth Amendment issue. The Fifth Amendment was also properly

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invoked in response to questions 2-9 and 11-21 in the Estrada Fernandez deposition.

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Questions 1 and 10 were ultimately answered by Ms. Estrada Fernandez and therefore do

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not present a Fifth Amendment issue.

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Because each of the questions either invoked a proper Fifth Amendment objection

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or was ultimately answered, the Court concludes that no basis exists for Defendants to

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conduct further depositions of the Expungement Plaintiffs on the matters addressed in

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this order.

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Dated this 19th day of February, 2016.

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