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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    1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Puente Arizona, et al., Plaintiffs, 10 11 12 13 14 No. CV-14-01356-PHX-DGC ORDER v. Joseph M. Arpaio, Sheriff of Maricopa County, Arizona, in his official capacity, et al., Defendants. 15 The Court held a discovery conference call with the parties on January 20, 2016. 16 Doc. 370. Defendants raised concerns regarding invocations of the Fifth Amendment 17 during the depositions of the two Expungement Plaintiffs, Sara Edith Cervantes Arreola 18 and Elia Estrada Fernandez. 19 addressed on a question-by-question basis, the Court directed the parties to submit a 20 matrix which set forth each question, each Fifth Amendment refusal to answer, 21 Defendants’ arguments as to why the invocation was improper, and Plaintiffs’ arguments 22 as to why the Fifth Amendment was properly invoked. Doc. 373. Because assertions of the Fifth Amendment must be 23 The parties submitted the matrix on January 29, 2016. Doc. 398. The Court has 24 conducted a question-by-question review, and has also read the questions and answers in 25 the context of the deposition transcripts which the Court later required the parties to file. 26 Docs. 424; 424-1. The Court concludes that the Fifth Amendment privilege against self- 27 incrimination was properly invoked by the Expungement Plaintiffs with respect to 28 virtually all of the questions.     1 A. Legal Standard. 2 The Fifth Amendment provides that “[n]o person . . . shall be compelled in any 3 criminal case to be a witness against himself.” U.S. Const. amend. V. The Fifth 4 Amendment’s protections apply to civil proceedings. Doe v. Glanzer, 232 F.3d 1258, 5 1263 (9th Cir. 2000). In the civil context “the invocation of the privilege is limited to 6 those circumstances in which the person invoking the privilege reasonably believes that 7 his disclosures could be used in a criminal prosecution, or could lead to other evidence 8 that could be used in that manner.” 9 incrimination does not depend upon the likelihood, but upon the possibility of prosecution 10 and also covers those circumstances where the disclosures would not be directly 11 incriminating, but could provide an indirect link to incriminating evidence.” 12 (emphasis in original; quotation marks and citation omitted). Id. “Therefore, the privilege against self- Id. 13 B. Analysis. 14 Virtually all of the questions at issue concern the Expungement Plaintiffs’ use of 15 falsified documents to obtain employment. There were many questions about social 16 security numbers, including whether certain social security numbers belonged to the 17 Expungement Plaintiffs (see Docs. 424 at 56; 424-1 at 18-19, 36-37, 102-03), whether 18 they had used these social security numbers to obtain employment (see Docs. 424 at 43- 19 44, 49, 53; 424-1 at 16-19, 36-37, 96-98, 103-04, 106-08), and how they had initially 20 obtained these social security numbers (see Docs. 424 at 36; 424-1 at 102-03). There 21 were also a number of questions about tax documents, including whether the 22 Expungement Plaintiffs had signed certain forms, such as IRS Form W-4 (see Doc. 424 at 23 37-38, 41-43) and Arizona Form A-4 (see id. at 44), whether they had filed tax returns 24 (see Docs. 424 at 57; 424-1 at 27), and whether information on certain tax documents 25 was accurate (see Doc. 424 at 44). 26 immigration document, a Permanent Resident Card, was hers. See id. at 53-54. Ms. 27 Estrada Fernandez was asked about using a false name on her employment paperwork. 28 See Doc. 424-1 at 32-33. Ms. Cervantes Arreola was asked whether an -2-     1 Defendants argue that the Fifth Amendment was not properly invoked in response 2 to these questions because the Expungement Plaintiffs admit they were previously 3 convicted under Arizona identity theft statutes for using false identifications to obtain 4 employment, the convictions were based on the Expungement Plaintiffs’ guilty pleas, the 5 prosecutions in which the Expungement Plaintiffs pled guilty were based on the very 6 documents presented to them in their depositions, three years have now passed without 7 any evidence of a federal investigation or federal prosecution based on the same 8 documents and information, and the Expungement Plaintiffs therefore have not shown 9 any substantial or real threat of prosecution. For several reasons, the Court is not 10 persuaded by these arguments. 11 First, although it is true that the Expungement Plaintiffs have admitted that they 12 were convicted of violating Arizona identity theft laws, they are not basing their current 13 Fifth Amendment assertions on those laws. Instead, they base their invocations of the 14 Fifth Amendment on federal statutes prohibiting the making or use of false statements on 15 tax documents (26 U.S.C. § 7206(1)), fraud or misuse of immigration or other documents 16 (18 U.S.C. § 1546(a), (b)), social security fraud (18 U.S.C. § 408(a)(7)(c)), the making of 17 false statements (18 U.S.C. § 1001(a)), perjury (18 U.S.C. § 1621), and tax evasion (26 18 U.S.C. § 7201)). The fact that the Expungement Plaintiffs were previously convicted of 19 violating Arizona identity theft laws does not prohibit their prosecution under these 20 federal statutes. 21 Second, Defendants assert that prosecution of the Expungement Plaintiffs under 22 the federal statutes is highly unlikely given that three years have passed since they 23 entered guilty pleas in the state case. 24 Plaintiffs identify no instances where similar prosecutions have occurred. All of this may 25 be true, but Defendants have not shown that prosecutions based on the above-cited 26 federal statutes would be barred by the statute of limitations, double jeopardy, or some 27 form of immunity. Thus, there appears to be no legal bar to the prosecution of the 28 Expungement Plaintiffs for violating these laws. Defendants also note that the Expungement -3-     1 Third, Defendants note that the various documents presented during the 2 depositions were the same documents at issue in the Expungement Plaintiffs’ violation of 3 Arizona identity theft laws. But Defendants have not shown where the Expungement 4 Plaintiffs admitted the facts asked about in their depositions. The parties have provided 5 the Court with the transcript of Ms. Cervantes Arreola’s guilty plea in state court, and the 6 plea colloquy contains nothing more than a simple admission of guilt. See Doc. 398-1 at 7 10 (admitting that “on or about July 8, 2010 and within Maricopa County, Ms. Cervantes 8 possessed or used personal identifying information of another person, including a 9 fictitious person, with the intent to obtain employment”). It did not address any of the 10 documents presented during Ms. Cervantes Arreola’s deposition, and did not include her 11 admission to any of the facts about which she was asked in the deposition. Thus, even 12 though the documents may have been at issue in the state court prosecutions, Defendants 13 cannot show that the Expungement Plaintiffs previously made admissions with respect to 14 those specific documents. Answers to the questions posited by the Defendants would 15 therefore be new admissions. 16 Fourth, the Court is not persuaded that it can overrule the Expungement Plaintiffs’ 17 Fifth Amendment assertions merely because prosecution under the relevant federal 18 statutes appears unlikely. It is true that the law on this subject is somewhat ambiguous, 19 providing helpful quotations for both sides. The Supreme Court has stated that the Fifth 20 Amendment applies only when a person is faced with “substantial and ‘real,’ and not 21 merely trifling or imaginary, hazards of incrimination.” Marchetti v. United States, 390 22 U.S. 39, 53 (1968) (citations omitted). 23 emphasized, as quoted above, that the “privilege against self-incrimination does not 24 depend upon the likelihood, but upon the possibility of prosecution.” Glanzer, 232 F.3d 25 at 1263 (citing United Liquor Co. v. Gard (In Re Seper), 705 F.2d 1499, 1501 (9th Cir. 26 1983)). It is also true, however, that courts have 27 The Court finds helpful guidance in the Supreme Court’s seminal decision of 28 Hoffman v. United States, 341 U.S. 479 (1951). The high court made clear that the -4-     1 privilege against self-incrimination “not only extends to answers that would in 2 themselves support a conviction under a federal criminal statute but likewise embraces 3 those which would furnish a link in the chain of evidence needed to prosecute the 4 claimant for a federal crime.” Id. at 486 (citation omitted). The court clarified that “this 5 protection must be confined to instances where the witness has reasonable cause to 6 apprehend danger from a direct answer.” Id. (citation omitted). The court also stated that 7 “[t]o sustain the privilege, it need only be evident from the implications of the question, 8 in the setting in which it is asked, that a responsive answer to the question or an 9 explanation of why it cannot be answered might be dangerous because injurious 10 disclosure could result.” Id. at 486-87. 11 The Court has reviewed each of the federal statutes cited by the Expungement 12 Plaintiffs and concludes that the questions asked by Defendants would assist a prosecutor 13 in proving some element of the crimes set forth in those statutes. They would, as 14 Hoffman notes, “furnish a link in the chain of evidence” needed to prosecute the 15 Expungement Plaintiffs for a federal crime. And when the Court considers the questions 16 in the setting in which they were asked, as Hoffman directs, the Court concludes that the 17 Expungement Plaintiffs have reasonable cause to apprehend danger from answering the 18 questions. The Expungement Plaintiffs admit they are undocumented immigrants. They 19 have previously admitted to violating state identity theft statutes. Their responses to 20 questions posed by Defendants could provide evidence upon which a federal prosecutor 21 might rely in prosecuting them for various federal crimes. Defendants have identified no 22 legal impediment to such a prosecution. Given these circumstances, the Court finds that 23 the Expungement Plaintiffs have reasonable cause to apprehend danger from the 24 questions posed by Defendants. 25 True, three years have passed since the Expungement Plaintiffs admitted to state 26 identity theft. Also true, the Expungement Plaintiffs have not cited examples of similar 27 prosecutions. But the Court can find no case holding that the Fifth Amendment was 28 improperly invoked merely because the person asserting the privilege was unable to -5-     1 prove an imminent threat of prosecution. Clearly, the possibility of prosecution exists 2 here, and answers to the questions could provide evidence for such a prosecution. This is 3 sufficient to sustain the Expungement Plaintiffs’ invocation of the Fifth Amendment. See 4 Glanzer, 232 F.3d at 1263; see also United States v. Jones, 703 F.2d 473, 478 (10th Cir. 5 1983) (“Once the court determines that the answers requested would tend to incriminate 6 the witness, it should not attempt to speculate whether the witness will in fact be 7 prosecuted.”) (collecting cases); United States v. Edgerton, 734 F.2d 913, 921 (2d Cir. 8 1984) (same). 9 C. Conclusion. 10 The Court concludes that the Fifth Amendment was properly invoked with respect 11 to questions 1-3, 5-9, 11, and 14-17 in the Cervantes Arreola deposition. These numbers 12 correspond to numbers in the parties’ matrix. See Doc. 398. The Court finds that 13 questions 4, 10, 12-13, and 18 were ultimately answered by Ms. Cervantes Arreola and 14 therefore present no Fifth Amendment issue. The Fifth Amendment was also properly 15 invoked in response to questions 2-9 and 11-21 in the Estrada Fernandez deposition. 16 Questions 1 and 10 were ultimately answered by Ms. Estrada Fernandez and therefore do 17 not present a Fifth Amendment issue. 18 Because each of the questions either invoked a proper Fifth Amendment objection 19 or was ultimately answered, the Court concludes that no basis exists for Defendants to 20 conduct further depositions of the Expungement Plaintiffs on the matters addressed in 21 this order. 22 Dated this 19th day of February, 2016. 23 24 25 26 27 28 -6-

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