Melendres #1750 Bailey Memo Re Criminal Contempt

Case 2:07-cv-02513-GMS Document 1750 Filed 07/20/16 Page 1 of 14
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Barry Mitchell (#13975)

barry@mitchellsteincarey.com
Lee Stein (#12368)
lee@mitchellsteincarey.com
Andrew R. Breavington (#27168)
andrew@mitchellsteincarey.com
MITCHELL | STEIN | CAREY, PC
One Renaissance Square
2 North Central Avenue, Suite 1900
Phoenix, AZ 85004
Telephone: (602) 358-0293
Facsimile: (602) 358-0291
Attorneys for Captain Steve Bailey
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UNITED STATES DISTRICT COURT
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DISTRICT OF ARIZONA
Manuel de Jesus Ortega Melendres, et al., )
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Plaintiffs,
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v.
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Joseph M. Arpaio, et al.,
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Defendants.
)
)
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No. CV-07-2513-PHX-GMS
CAPTAIN STEVE BAILEYS
MEMORANDUM REGARDING
CRIMINAL CONTEMPT
Preliminary Statement
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The Court found that Capt. Steve Bailey knowingly made an untruthful statement
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to the Monitor Team when he responded no on July 20, 2015, to a question from Chief
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Kiyler regarding whether there were any new pending MCSO investigations into IDs.
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(Doc. 1677 at 342). The Court determined that Capt. Bailey did this in knowing
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violation of the Courts orders without a justifiable basis for doing so. (Id. at 348). The
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Court further determined that Capt. Baileys conduct was part of MCSOs intent to
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conceal the existence of the 1459 IDs from the Monitor, the Parties, and the Court. (Id.
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at 330).
Capt. Baileys actions, although not ideal, were not done to thwart this Courts
orders and were understandable given the instructions he received from MCSO counsel
and the attendant circumstances. Capt. Bailey responded no to Chief Kiyler because
MCSOs counsel, Michele Iafrate, told him to respond that way. There is no evidence
that Capt. Bailey did anything to intentionally conceal the existence of the 1459 IDs. To
the contrary, his actions and his testimony, and the testimony of others show that Capt.
Bailey safeguarded the IDs and was standing ready to disclose them when MCSO
counsel or any of his superiors told him MCSO should do so.
Capt. Bailey was certainly aware the Court had issued discovery orders.
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Nevertheless, the discovery of the IDs, and MCSO counsels advice concerning how to
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deal with them, was unlike any aspect of production with which he had previously
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assisted in response to the Monitors requests. While he was generally familiar with the
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Courts orders, he relied on MCSO counsel concerning how the orders applied to the IDs
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and the status of any dealings with the IDs.
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Capt. Bailey acknowledges his reliance on counsels advice was unquestioning
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and in hindsight he should have inquired further with respect to MCSOs obligations to
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the Court after the IDs were discovered. He recognizes he should have better
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familiarized himself with the Courts discovery orders.
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It is clear Capt. Bailey erred in his handling of these matters. Nevertheless, it is
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equally clear that he never intended to disobey the Courts orders. His conduct should be
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viewed against the backdrop of an exemplary career in law enforcement where he has
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consistently displayed honor and integrity. Based on the Courts Findings of Facts, Capt.
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Bailey faces catastrophic civil/administrative consequences. He has served our
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community as an MCSO employee for 19 years and 3 months. Just short of 20 years of
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service, he not only faces the loss of his career, but also the loss of his significant lifetime
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pension benefits. He faces never being able to work in law enforcement, or anything
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related to the law enforcement/legal field, again.
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Factual Background
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On July 7, 2015, Capt. Bailey learned from Sgt. Bone and Lt. Kratzer that Sgt.
Knapp had attempted to turn the 1459 IDs into Property and Evidence for destruction.
(10/28/15 Bailey Testimony, Doc. 1498 at Tr. 3858-59). That same day, Capt. Bailey
made sure the IDs were secured in Professional Standards Bureaus (PSB) offices and
initiated an IA investigation. (Id. at Tr. 3860:24-3861:7).

Capt. Bailey told Chief Deputy Sheridan about the IDs that same day and
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recommended that Sgt. Knapp be interviewed. (Doc. 1498 at Tr. 3861-62). Capt. Bailey
understood there were various ways the IDs could have originally gotten into Property.
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(Id. at Tr. 3925:9-3928:21). He was not aware of any evidence that any of the IDs had
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been unlawfully seized. (Id. at Tr. 3928:22-3929:1). He also didnt know how any of the
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IDs came to be in Property before they were removed by Sgt. Knapp. (Id. at Tr. 3930:2-
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4).
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After Sgt. Knapp was interviewed, Chief Deputy Sheridan told Capt. Bailey to
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suspend the IA investigation for now. (Doc 1498 at Tr. 3935:6-10). Capt. Bailey
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understood Chief Deputy Sheridan planned to convey the information received from Sgt.
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Knapp to counsel. (Id. at Tr. 3865:12-17). Capt. Bailey understood the investigation was
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to be suspended until he heard further from Chief Deputy Sheridan or Ms. Iafrate. (Id. at
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Tr. 3935:6-23). He had assigned an IA number to initiate an investigation and locked up
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the IDs to create a record of the handling of the IDs and to preserve the IDs until such
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time as he received further instruction. (Id. at Tr. 3921:20-3922:1).
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On July 17, 2015, PSB met to prepare for an upcoming Monitor site visit; such
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rehearsal meetings were typical. Capt. Bailey wanted to be sure that his team was
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prepared for the meeting with the Monitor Team and that they would be in a position to
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answer whatever questions the Monitor Team might have. (Doc. 1498 at Tr. 3866:21-
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3867:6). Court orders pertaining to disclosure of IDs were not discussed at this meeting.
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(Id. at 3867:7-17). During the July 17, 2015 rehearsal meeting, everyone agreed that the
1459 IDs would be disclosed to the Monitor at some point.1

Lt. Seagraves brought up the topic of the IDs at this meeting and asked what the
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response should be if the Monitors asked about any other IDs or licenses. (Doc. 1455 at
Tr. 2168:22-2169:8). Ms. Iafrate said the answer should be no. (Id. at 2169:9-21).
According to Lt. Seagraves, Ms. Iafrate believed the IDs didnt fall within the Courts
order, and was going to confirm her view with research. (Id. at Tr. 2239:25-2240:7). Ms.
Iafrate said she would let MCSO know what her research determined, but to respond in
the negative in the meantime to any questions from the Monitor Team about IDs. (Id. at
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Tr. 2240:7-8). At no time during the rehearsal meeting did anyone suggest or order the
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destruction of the 1459 IDs. (Id. at Tr. 2242:5-15). Nor did anyone suggest the 1459 IDs
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should not be disclosed to the Monitor Team or the Court. (Id. at Tr. 2242:19-2243:1).
Directly after the meeting, Capt. Bailey met with Chief Deputy Sheridan and Ms.
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Iafrate. (Doc. 1498 at Tr. 3867:20-3868:2). He told Ms. Iafrate that an IA number had
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been assigned to investigate the IDs. (Id. at Tr. 3868:4-6). Ms. Iafrate told him she was
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going to do something to the effect of look into or do some research into the Courts
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orders as they applied to the IDs. (Id. at Tr. 3868:7-10). Ms. Iafrate told Capt. Bailey not
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to disclose the IDs to the Monitor Team until Ms. Iafrate got back to him. (Id. at Tr.
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3868:11-13). Capt. Bailey recalled Ms. Iafrate said she was going to give MCSO the
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best advice possible in regard to whether the IDs were responsive to the Courts
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discovery orders. (Id. at Tr. 3934:1-13).

Capt. Bailey testified that during the July 20, 2015 meeting with the Monitor
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Team, Chief Kiyler asked him whether there were any other pending investigations
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regarding IDs and he responded no. (Id. at Tr. 3935:24-3836:6.) Capt. Bailey testified
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that I was asked the question, and I just glanced at [Ms. Iafrate], and she looked at me
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and said no. (Id. at Tr. 3936:16-22). His response no was a result of him looking to
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Ms. Iafrate for advice, her giving him advice, and him following that advice. (Id. at Tr.
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See Relevant Excerpts of Steve Bailey, attached as Exhibit 1, at 232:22-233:5.

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3937: 18-24). When asked whether the IDs should have been disclosed to the Monitor,
Lt. Seagraves, the only other MCSO person present at the July 20, 2015 Monitor meeting
to testify during the evidentiary hearing, testified: Im not sure that theythey wouldnt
have been, but at that moment in time, based on legal advice, they were not disclosed.
(Doc. 1455 at 2174:14-18).
We anticipate Ms. Iafrate will acknowledge she instructed Captain Bailey to
respond no to Chief Kiyler. Lt. Seagraves deposition testimony also shows the
interaction between MCSO counsel and Capt. Bailey. Lt. Seagraves was not explicitly
asked at the evidentiary hearing whether Capt. Bailey responded no to Chief Kiyler
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because he received direct advice from Ms. Iafrate to respond that way. However, the
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question did arise during her deposition and her response corroborates Capt. Baileys
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testimony:
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Q.
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whether there were any other IDs?
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A.
Yes.
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Q.
And why is that?
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Do you know why Captain Bailey answered no to the question of
Mr. POPOLIZIO: Same Instruction

THE WITNESS: I cant answer that.
BY MR. SEGURA:
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Q.
And you cant answer that because it involves attorneyclient privilege?
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A.
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Correct.
See Relevant Excerpts of Deposition of Kimberly Seagraves, attached as Exhibit 2, at

113:17-114:1. The only reasonable inference to draw from this exchange is that Lt.
Seagraves invoked the attorney-client privilege to refrain from divulging that Capt.
Bailey responded no because Ms. Iafrate gave him a direct instruction to respond that
way during the meeting. There is no evidence to the contrary.
During the evidentiary hearing, Plaintiffs counsel read to Capt. Bailey portions of
the Courts orders which pertain to the disclosure of IDs and MCSOs obligations to
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facilitate the Monitors investigations. Id. at Tr. 3872:5-3873:21 (reading 11/20/14 Order
[Ex. 2067] and 2/12/15 Order [Ex. 2003]). When Capt. Bailey was read part of the
Courts 11/20/14 Order [Ex. 2067], which states the Court should decide the matter if
MCSO believes it is protected from disclosing certain information to the Monitor,
counsel attempted to establish that at the relevant time frame, Capt. Bailey was aware of
the contents of this order and MCSOs obligations thereunder. He was asked: So you
understood, sir, as of July 20th 2015, that MCSO had an obligation, if it did not want to
provide information to the monitor, to take that up with the Court, correct? (Id. at Tr.
3874:6-8). Capt. Baileys response made it clear that he did not have any such
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understanding of the specific language of the Courts order at that time. He testified:
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I dont know I specifically remember reading this, but now that I read it, it makes sense
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and I understand it. (Id. at Tr. 3874: 12-14).
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Capt. Bailey was aware that MCSO could not unilaterally withhold information
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from the Monitor Team and would expect that [MCSO] wouldnt . . . [withhold
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information in such a manner] (Id. at Tr. 3874:16-21). He believed at some point the
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Monitor Team would be advised of the existence of the IDs. (Id. at Tr. 3937:25-
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3938:19).
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Legal Framework
Only the least possible power of the court adequate to the end proposed should be
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used in contempt cases. United States v. Powers, 629 F.2d 619, 625 (9th Cir. 1980)
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(citation omitted). A court should resort to criminal sanctions only after it determines, for
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good reason, that a civil remedy is inappropriate. Shillitani v. United States, 384 U.S.
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364, 371, n.1 (1966). Criminal contempt is punitive and is for the purpose of vindicating
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the authority of the court. Lasar v. Ford Motor Co., 399 F.3d 1101, 1110 (9th Cir. 2005).
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Criminal contempt is appropriate only where there is a clear and definite court
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order, the contemnor knows of the order, and he or she willfully disobeys it. United
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States v. Rose, 806 F.2d 931, 933 (9th Cir.1986) (emphasis added). To punish someone
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for criminal contempt, the terms of the order must be clear and specific and leave no
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doubt or uncertainty in the minds of those to whom it is addressed. United States. v.
Joyce, 498 F.2d 592, 596 (7th Cir. 1974); see also United States v. Fleischman, 339 U.S.
349, 370-371 (1950) (Failure to take action required by an order can be punished only if
the action is clearly, specifically, and unequivocally commanded by the order).
A court should not make a criminal referral unless probable cause exists to believe
the alleged contemnor has willfully violated a court order. See United States v. Masselli,
638 F. Supp. 206, 210, n. 14 (S.D.N.Y. 1986) (showing of probable cause required before
criminal contempt may be prosecuted); U.S. ex rel. Vuitton Et Fils S.A. v. Karen Bags,
Inc., 592 F. Supp. 734, 749 (S.D.N.Y. 1984) (court has discretion to require a showing of
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probable cause after order to show cause why a party should not be held in criminal
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contempt and before referral for criminal contempt proceedings), aff'd sub nom. U.S. ex
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rel. Vuitton et Fils S.A. v. Klayminc, 780 F.2d 179 (2d Cir. 1985) rev'd on other grounds
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sub nom. Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987); In re United
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Corporation, 166 F. Supp. 343, 345 (D. Del 1958) (court deemed it proper exercise of
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judicial discretion to insist on showing of probable cause before entertaining application
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for appointment of counsel to prosecute for criminal contempt); United States v. Kelsey-
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Hayes Co., 476 F.2d 265, 266 (6th Cir. 1973) (dismissing criminal contempt proceedings
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after order to show cause on the basis of courts determination of a lack of probable cause
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and that there was no willful violation of the relevant order).
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Willfulness for purposes of criminal contempt means a deliberate or intended
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violation of the courts order. Clement v. U.S., 766 F.2d 1358, 1367 (9th Cir. 1985). It
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implies a deliberate or intended violation, as distinguished from an accidental,
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inadvertent, or negligent violation of an order. United States v. Armstrong, 781 F.2d
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700, 706 (9th Cir. 1986).
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A party may defend against criminal contempt on the basis of good faith reliance
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upon the advice of counsel. United States v. Snyder, 428 F.2d 520, 523 (9th Cir. 1970);
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see also In re Walters, 868 F.2d 665, 668 (4th Cir. 1989) (Advice of counsel may be a
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defense in a criminal contempt proceeding because it negates the element of willfulness);
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In re Eskay, 122 F.2d 819, 822 (3d Cir. 1941) (defense that the contemnor acted in good
faith upon advice of counsel is a defense in criminal, but not civil contempt,
proceedings).
Argument
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A. Capt. Bailey Did Not Fully Appreciate the Specifics of the Relevant Court
Orders on July 20, 2015
There is insufficient evidence to refer Capt. Bailey for criminal contempt
proceedings. First, Capt. Bailey did not have clear and specific knowledge of the terms
of the Courts orders he is accused of violating. Such a showing is necessary for him to
face criminal contempt sanctions. See Rose, 806 F.2d at 933; Joyce, 498 F.2d at 596.
Further, Capt. Bailey understandably relied on direction from MCSO counsel
rather than his lay or general understanding of the orders. Capt. Bailey was generally
aware at the time he was informed of the IDs that there were court orders requiring
disclosure of identification documents to the plaintiff class. (Doc. 1498 at Tr. 3866:812). For specific application of those orders, he relied on MCSO counsel. When
Plaintiffs counsel questioned him about the various orders, it was clear that although he
understood them as they were read to him, he did not recall having read them before. (Id.
at Tr. 3874:6-14).
At the time the IDs were discovered, Capt. Bailey was not focused on nor did he
appreciate the specifics of the Courts discovery orders in this matter. For example,
there is no evidence that Capt. Bailey knew MCSO had to bring before the Court the
matter of whether MCSO had to disclose certain documents to the Monitor Team. Capt.
Bailey could not have deliberately and willfully disobeyed this Courts orders if he did
not understand and appreciate the contents of those orders. See Rose, 806 F.2d at 933;
Joyce, 498 F.2d at 596.
Capt. Bailey is a non-lawyer and is used to relying on the direction of counsel.
His accepting at face value the propriety of MCSO counsel taking the time to double
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check the nature and extent of the applicability of the Courts orders to the IDs is
understandable.
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B. Capt. Bailey Followed MCSO Counsels Instructions When He Responded

to Chief Kiyler
Capt. Baileys reliance on counsels interpretation of whether an investigation was
pending is similarly understandable. The Court stated that Capt. Bailey was not justified
in answering no to Chief Kiylers question regardless of whether his answer was at
MCSO counsels direction. (Doc. 1677 at 346). Nevertheless, Capt. Baileys reliance
on the instruction of counsel demonstrates he did not intentionally defy this Court. See
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Snyder, 428 F.2d at 523; In re Walters, 868 F.2d at 668; In re Eskay, 122 F.2d at 822
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(advice of counsel defense is available to negate the element of willfulness in criminal
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contempt proceedings).
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Capt. Bailey did not follow the advice of Ms. Iafrate in a vacuum and without
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context. Lt. Seagraves confirmed Ms. Iafrate told MCSO staff, including Capt. Bailey,
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during the rehearsal meeting that in her opinion the 1459 IDs were not responsive to the
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Courts orders and that she was going to research whether the IDs fell within the
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parameters of the Courts orders. (Doc. 1455 at Tr. 2239:25-2240:7). Lt. Seagraves
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testified that Ms. Iafrate told MCSO staff present at that meeting, including Capt. Bailey,
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that until she completed that research, MCSO should respond negatively if the Monitor
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Team asked about newly discovered IDs. (Id. at Tr. 2240:7-8).
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Ms. Iafrate repeated this advice (that Capt. Bailey should respond in the negative
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if asked about additional IDs until she had completed her research) in the second meeting
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between himself, Chief Deputy Sheridan and Ms. Iafrate that took place directly after the
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rehearsal meeting. (Doc. 1498 at Tr. 3867-68.) Capt. Bailey also expected MCSO would
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produce the documents if Ms. Iafrate determined they were responsive to the Courts
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orders. (Id. at Tr. 3937:25-3938:19).
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Capt. Bailey was told by MCSO counsel not to disclose the existence of the
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documents until she had conducted some research and could provide him with guidance;
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he did not perceive this as an instruction to lie or disobey Court orders. Capt. Bailey has
spent his professional life respecting orders and adhering to the chain of command. He
had worked closely with Ms. Iafrate and knew and trusted her as the person MCSO relied
on to interpret the Courts requirements and accordingly advise MCSO. He
understandably deferred to her instructions.
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C. Capt. Bailey Did Not Attempt to Conceal the Existence of the IDs from the
Monitor Team
Capt. Bailey acted swiftly to preserve the IDs until MCSO knew what it was going
to do with them. Capt. Bailey assigned an IA number as soon as he learned of the IDs
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and secured them in PSBs offices because he believed there would be an investigation
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and wanted to preserve the evidence. (Doc. 1498 at Tr. 3860:24-3861:7). He locked the
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IDs in a special drawer in a PSB room for which only he and Sgt. Bone had the key. It
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was his idea to interview Sgt. Knapp. (Id. at 3862:5-18). He knew the Monitor Team
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would be interested in the IDs, took every effort to preserve the evidence, expected the
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IDs to be disclosed if Ms. Iafrate determined they fell within the Courts orders, and
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expected the suspended IA investigation to be resumed. (Id.at Tr. 3860:24-3861:7;
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3866:13-16; 3865:12-17; 3921:20-3922:13937:25-3938:19). Opening an investigation,
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assigning an IA number and preserving evidence were actions that demonstrated
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complete transparency.
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D. The Civil Contempt Remedies Are More than Adequate Here

Capt. Bailey faces devastating personal and professional consequences as a result
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of the Courts Findings of Facts. The civil/administrative consequences he faces as a
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result of the Courts Findings sufficiently address his conduct as the Court perceives it.
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Capt. Baileys conduct will become subject to an IA investigation. The Court has found
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him to be untruthful. An equivalent finding in an IA setting would subject him to

termination from MCSO. He will lose significant lifetime pension benefits. His stellar
reputation and career built during almost two decades of dedication, good work and
service to the community will be destroyed.
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Conclusion
In making the determination of whether to refer Capt. Bailey to be prosecuted for
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criminal contempt, we ask the Court to consider the additional facts discussed in this
memorandum and the context they provide for Capt. Baileys decisions and actions here.
He relied on the advice of MCSOs counsel. Perhaps in retrospect he should not have,
but he did and he did so in good faith.

An understanding of Capt. Baileys career as a law enforcement professional and
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as a person supports the conclusion that his actions here were, at worst, honest mistakes
and not willful defiance of this Courts orders. We have attached a small number of
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character reference letters from Capt. Baileys friends and colleagues to illustrate this
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point.2 These letters attest to his good reputation in the community, and his integrity and
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honor. We ask the Court to take these letters into account, as well as Capt. Baileys
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distinguished career, as an additional means of putting in context his conduct concerning
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the IDs. Below are excerpts of the attached letters:
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One of our daughters was a student at Arizona State University when
she was viciously raped in her apartment by an unknown man. In the
following weeks she began to question her decision to report the crime.
Then she met Steve Bailey and his team.
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Captain Baileys sense of justice and compassion gave her strength and
hope at a time when she had neither. He put his heart and soul into our
familys serious drama. His calm and determined presence and action
allowed us all to move forward with faith in our system of justice.
Captain Bailey and his team helped her to once again begin to feel safe;
to once again begin to trust people at a time when so much of her work
was shattered. His promise that he would never give up ensuring that
justice would be done gave her the resolve to move forward with her
life . . . .
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See Letters written in support of Steve Bailey Deposition, attached as Exhibit 3.

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Captain Bailey is a man of strength, purpose and compassion. Over the

past thirteen years I have come to know his wife and sons and see his
devotion to them. Captain Bailey is personable, honorable, competent,
and truly focused to make a difference for those he represents and
protects.
Mary Spence, Mother of Crime Victim
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I had the opportunity to work with Steve on a professional and personal

level during the 256th session of the FBI National Academy . . . As far
as his professional skills, Steve showed a willingness to take a very
critical look at his own skills. Steve prepared two papers for the class
which required deep introspection and was able to synthesize learning
points into actionable items that he could use to improve himself as
leader. Steve was very passionate in the course and was committed to
honesty and integrity. When doing projects for the course, Steve
showed the ability to empathize as well as to be compassionate as
needed. From what I was able to observe, Steve was well-liked by all
of his instructors and his National Academy colleagues.
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Michael Bret Hood, Supervisory FBI Special Agent
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Steve, first and foremost, is a family man who is dedicated to raising

his family and being engaged with their day to day activities. Second,
he is a person who takes his job very seriously and understands the oath
he took when he signed on to the job. Steve and I have had leadership
conversations over the years and discussed how important values, such
as trust and integrity, are paramount to being an effective leader. I have
had nothing but positive contacts with Steve and he has displayed
integrity, honesty and honor in all of our interactions.
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Larry Hall, Chief of Police, Buckeye Police Department
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I have always answered his call to support his compassion to his fellow
officers. I hold Steve in high regard as a friend. He was always been
consistent in his integrity and honesty as an individual. I would trust
Steve not only with my life, but also the lives of my children.
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Todd Peterson, friend and co-worker
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I met Officer Bailey working in the operating room at Scottsdale

Memorial Hospital, a level one trauma center, where we formed a
lifelong friendship . . . . In every circumstance Steve worked as part of
that team, exemplifying the highest degree of values, beliefs and
morals, treating each person and patient as he himself would like to be
treated . . Steve is a person of integrity because he has lived through
the experiences that allow him the perspective to see this first hand. It
is in these circumstances, when no one is looking, and life or death
hangs in the balance, that I would most want Officer Bailey by my side.
Shawn Dewane, friend
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I first met Captain Bailey in 2005 during a customer feedback meeting

on a new line of products that we were developing. Since then, Captain
Bailey has always been a reliable source for honest, direct and practical
feedback. He always seems to help generate a solution to the problem
or task at hand. I hold Captain Bailey in the highest regard for his
personal character, honor and integrity. He is an inspiration to me for
my continued work in the public safety products and distribution
business. I often think back to conversations with Captain Bailey . . .
I am glad to know that there are people like Captain Bailey that put on
body armor, a duty belt and go out to protect our safety every day and
night. He is a good man.
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Robert Denny, 5.11 Tactical
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RESPECTFULLY SUBMITTED July 20, 2016.

MITCHELL | STEIN | CAREY, PC
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By:
s:/ Barry Mitchell

Barry Mitchell
Lee Stein
Andrew Breavington
Attorneys for Captain Steve Bailey
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CERTIFICATE OF SERVICE
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I hereby certify that on July 20, 2016, I electronically transmitted the attached document
using the CM/ECF system for filing, and which will be sent electronically to all
registered participants as identified on the Notice of Electronic Filing, and paper copies
will be sent to those indicated as non-registered participants.
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s:/ B. Wolcott
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Case 2:07-cv-02513-GMS Document 1750-1 Filed 07/20/16 Page 1 of 4
Exhibit | 1
Exhibit | 2
Exhibit | 3

Melendres #1750 Bailey Memo Re Criminal Contempt

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Melendres #1750 Bailey Memo Re Criminal Contempt

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Case 2:07-cv-02513-GMS Document 1750 Filed 07/20/16 Page 1 of 14

Barry Mitchell (#13975)

Case 2:07-cv-02513-GMS Document 1750 Filed 07/20/16 Page 2 of 14

counsel or any of his superiors told him MCSO should do so.

and the status of any dealings with the IDs.

Capt. Bailey acknowledges his reliance on counsels advice was unquestioning

familiarized himself with the Courts discovery orders.

It is clear Capt. Bailey erred in his handling of these matters. Nevertheless, it is

Bailey faces catastrophic civil/administrative consequences. He has served our

related to the law enforcement/legal field, again.

Case 2:07-cv-02513-GMS Document 1750 Filed 07/20/16 Page 3 of 14

initiated an IA investigation. (Id. at Tr. 3860:24-3861:7).

Tr. 3935:6-23). He had assigned an IA number to initiate an investigation and locked up

time as he received further instruction. (Id. at Tr. 3921:20-3922:1).

Case 2:07-cv-02513-GMS Document 1750 Filed 07/20/16 Page 4 of 14

1459 IDs would be disclosed to the Monitor at some point.1

discovery orders. (Id. at Tr. 3934:1-13).

See Relevant Excerpts of Steve Bailey, attached as Exhibit 1, at 232:22-233:5.

Case 2:07-cv-02513-GMS Document 1750 Filed 07/20/16 Page 5 of 14

(Doc. 1455 at 2174:14-18).

We anticipate Ms. Iafrate will acknowledge she instructed Captain Bailey to

whether there were any other IDs?

And why is that?

Do you know why Captain Bailey answered no to the question of

Mr. POPOLIZIO: Same Instruction

See Relevant Excerpts of Deposition of Kimberly Seagraves, attached as Exhibit 2, at

Case 2:07-cv-02513-GMS Document 1750 Filed 07/20/16 Page 6 of 14

MCSO believes it is protected from disclosing certain information to the Monitor,

and I understand it. (Id. at Tr. 3874: 12-14).

Case 2:07-cv-02513-GMS Document 1750 Filed 07/20/16 Page 7 of 14

doubt or uncertainty in the minds of those to whom it is addressed. United States. v.

the action is clearly, specifically, and unequivocally commanded by the order).

judicial discretion to insist on showing of probable cause before entertaining application

and that there was no willful violation of the relevant order).

Willfulness for purposes of criminal contempt means a deliberate or intended

implies a deliberate or intended violation, as distinguished from an accidental,

inadvertent, or negligent violation of an order. United States v. Armstrong, 781 F.2d

700, 706 (9th Cir. 1986).

defense in a criminal contempt proceeding because it negates the element of willfulness);

Case 2:07-cv-02513-GMS Document 1750 Filed 07/20/16 Page 8 of 14

Case 2:07-cv-02513-GMS Document 1750 Filed 07/20/16 Page 9 of 14

B. Capt. Bailey Followed MCSO Counsels Instructions When He Responded

Capt. Baileys reliance on counsels interpretation of whether an investigation was

in answering no to Chief Kiylers question regardless of whether his answer was at

(advice of counsel defense is available to negate the element of willfulness in criminal

Team asked about newly discovered IDs. (Id. at Tr. 2240:7-8).

orders. (Id. at Tr. 3937:25-3938:19).

Case 2:07-cv-02513-GMS Document 1750 Filed 07/20/16 Page 10 of 14

on to interpret the Courts requirements and accordingly advise MCSO. He

understandably deferred to her instructions.

expected the suspended IA investigation to be resumed. (Id.at Tr. 3860:24-3861:7;

3866:13-16; 3865:12-17; 3921:20-3922:13937:25-3938:19). Opening an investigation,

assigning an IA number and preserving evidence were actions that demonstrated

D. The Civil Contempt Remedies Are More than Adequate Here

of the Courts Findings of Facts. The civil/administrative consequences he faces as a

him to be untruthful. An equivalent finding in an IA setting would subject him to

Case 2:07-cv-02513-GMS Document 1750 Filed 07/20/16 Page 11 of 14

In making the determination of whether to refer Capt. Bailey to be prosecuted for

but he did and he did so in good faith.

distinguished career, as an additional means of putting in context his conduct concerning

the IDs. Below are excerpts of the attached letters:

See Letters written in support of Steve Bailey Deposition, attached as Exhibit 3.

Case 2:07-cv-02513-GMS Document 1750 Filed 07/20/16 Page 12 of 14

Captain Bailey is a man of strength, purpose and compassion. Over the