Court refuses to wipe Arpaio’s contempt verdict after Trump pardon

Former Arizona Sheriff Joe Arpaio speaks Tuesday, May 22, 2018, at the Capitol in Phoenix prior to turning in petition signatures to the Arizona Secretary of State in his bid to appear on the ballot in the race to succeed retiring U.S. Sen. Jeff Flake. The Republican lawman's campaign says it turned in 10,000 signatures on Tuesday so he can compete in the GOP primary on Aug. 28. (AP Photo/Matt York)
Former Arizona Sheriff Joe Arpaio speaks Tuesday, May 22, 2018.  (AP Photo/Matt York)

A federal appeals court has rebuffed the bid by former Maricopa County Sheriff Joe Arpaio to have his criminal conviction formally erased.

In a unanimous ruling Thursday a three-judge panel of the 9th Circuit Court of Appeals acknowledged that Arpaio was found guilty by U.S. District Court Judge Susan Bolton of criminal contempt. That stemmed from her finding that he had willfully violated an injunction issued by another judge prohibiting him from enforcing federal civil immigration laws.

Before he could be sentenced, though, President Trump granted the former sheriff a full and unconditional pardon. And appellate Judge Jay Bybee, writing for the court, said that left them with nothing to consider.

But Jack Wilenchik, Arpaio’s attorney, said he actually sees the ruling as a win.

He said the appeal was filed because Bolton, after considering the effect of the presidential appeal and dismissing the case, refused to vacate the verdict. And Wilenchik said Bolton suggested that conviction could be used against him in some future litigation.

What the 9th Circuit ruled, Wilenchik said, is that is not the case.

And Arpaio, who was sheriff from 1993 through 2016, told Capitol Media Services that’s precisely what he wanted.

“The main issue was I want this off my record,” said Arpaio, who again is running for sheriff this year.

The issue stems from a 2007 lawsuit filed by a group of Hispanic county residents who charged “illegal, discriminatory and unauthorized enforcement of federal immigration laws against Hispanic persons in Maricopa County.” They said that Arpaio and his deputies “engaged in profiling” of Hispanic motorists by detaining people based solely on their ethnicity.

In 2011 U.S. District Court Judge Murray Snow issued a preliminary injunction barring the sheriff and his deputies “from detaining any person based on knowledge, without more, that the person is unlawfully present within the United States.”

Five years later, Snow concluded that Arpaio and his department had intentionally failed to comply with the injunction.

Arpaio conceded his liability for civil contempt. But Snow concluded that the sheriff had “intentionally disobeyed” the order and he “did so based on the notoriety he received for, and the campaign donations he received because of, his immigration enforcement activity.”

The case was then referred to Bolton, with the case prosecuted by the U.S. Department of Justice. That ended with Bolton finding him guilty of criminal contempt of court.

Before he could be sentenced, though, Trump issued the pardon. But Bolton, while dismissing the charges, said that did not “revise the historical facts of the case.”

That led to the appeal.

Bybee, however, said there was really nothing to appeal.

“Arpaio never suffered a final judgment of conviction for criminal contempt,” he wrote, with no final judgment of conviction in the case. “Instead, there was a final judgment of dismissal with prejudice.”

And that, the judge said, means there cannot be “legal consequences” from the verdict, such as being able to use the conviction to enhance his sentence in any future criminal case. Nor can that conviction be used against him in any subsequent civil case.

Juvenile crime plummets — experts at a loss to explain

Before its closure in 2015, Apache County’s juvenile detention center would sit a month, six weeks, maybe more without housing a single kid.

The fully staffed facility was left waiting for the occasional drop-off. According to the Associated Press, the operation cost $800,000 a year, yet it averaged only 1.7 children in its custody at any given time.

The detention center was shut down, and a partnership was formed with Navajo County to house Apache’s juvenile offenders.

But on June 30, Navajo County closed its detention center, too. So did Gila County. And Graham County’s numbers are so low, its leadership is considering using just one detention area, leaving three more vacant and another open for a community program growing in popularity.

Arizona’s juvenile detention centers are closing because juvenile offender populations are plummeting, and juvenile offender populations are plummeting because kids these days are committing crimes at a rate far below generations before them.

According to the Office of Juvenile Justice and Delinquency Prevention, in the past two decades, the juvenile arrest rate for all offenses nationwide reached its peak in 1996 when nearly 8,500 arrests were made per 100,000 kids between 10 and 17. By 2015, that arrest rate had fallen 68 percent.

Property Crimes
Source: Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention

Between 1980 and 2012, property crime arrests among juveniles between the ages of 15 and 17 fell 57 percent, and violent crime arrest rates in that group dropped 68 percent.

Those trends are representative of what is happening in Arizona, going well beyond juvenile arrests and detention.

According to data from the Arizona Department of Juvenile Corrections, from 2007 to 2014, the number of juvenile offenders referred to the courts dropped by about 45 percent, and the number of juvenile offenders who were ultimately committed to corrections fell 49 percent.

It’s not a bad problem to have – too few kids getting into trouble with the law – but it has left Arizona to rethink its approach to juvenile detention.

Joseph Kelroy, director of Arizona’s Juvenile Justice Services Division, said all counties in the state are using risk and needs assessments to determine whether a juvenile offender belongs in detention and what the child needs to move forward. Eight counties are actively engaged in the rollout of the Juvenile Detention Alternatives Initiative, an effort to develop statewide detention screening guidelines, and all counties have received training from Kids at Hope, a program that turns away from the concept of “bad kids.”

Kelroy said communities have more programs available to keep young people out of trouble and identify those who are struggling early on, leaving detention as a last resort.

“If we can keep them out on the front end and deal with it from a preventative standpoint, I think we’re going to have better results,” he said. “If we can work with people in their communities, in their homes with the families engaged, we’re going to have better opportunities to be successful more often.”

But while services geared toward working out a juvenile’s past traumas, substance abuse or family challenges may help prevent a history of crime, Kelroy said a percentage of young offenders will still require detention for their own safety and that of the public.

As detention populations remain low, the state is looking to the Detention Center Regionalization Task Force to develop solutions by this fall.

Kelroy said developing regional detention centers is an option, though the locations of such facilities raises questions for juveniles coming from more remote parts of the state. The juvenile detention center in Pinal County has already taken on the kids coming from Apache, Gila and Navajo counties.

The task force will also make recommendations for repurposing entire facilities or vacant sections, creating youth centers in their place where kids can move freely as they cool down after a fight with parents or await screening in more severe cases.

Ultimately, Kelroy said the system shouldn’t hurt people. Detention should be a short-term solution, if it is necessary at all. And when a kid does come into contact with the justice system, he said that’s an opportunity to help.

Unfortunately, while the state can restructure detention, no one knows exactly what is behind the drop in juvenile crime.

Dave Byers, director of the Administrative Office of the Courts, said people started joking that kids today are spending far more time on social media than they are out on the streets, but he’s not so sure that’s entirely far-fetched anymore.

Melissa Sickmund, director of the National Center for Juvenile Justice, said there might be something to that theory.

Take violent crimes, for example. Causing physical harm to someone is awfully difficult if you are not face to face, Sickmund pointed out.

She said most violent crimes committed by juveniles fall under assault, the elevated pushing and shoving that may be found in school brawls. It could be that kids are simply taking that violence and projecting it online, something Sickmund said is not being measured well, but it is disappearing from the streets even if communities are not entirely aware of the shift.

Violent Crimes
Source: Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention

Sickmund said young people are also self-correcting – they may not be great decision-makers, but it doesn’t take much to scare them back in line. And the justice system today is more cognizant of how best to do that.

They start thinking about college, about their career goals, about the places they want to go and things they want to do. And they know those things won’t happen if they continuously get into trouble.

They “outgrow that risk-taking behavior” and “grow into being able to see the consequences of our actions,” Sickmund said.

“It’s kind of their job to rebel,”she said. “We don’t want to make that a crime. We just want to train them away from that.”


Man who wore horns, hat apologizes for storming Capitol

 In this Wednesday, Jan. 6, 2021 file photo, supporters of President Donald Trump, including Jacob Chansley, center with fur hat, are confronted by Capitol Police officers outside the Senate Chamber inside the Capitol in Washington. Chansley’s lawyer says that he reached out White House Chief of Staff Mark Meadows about a possible pardon on behalf of the Arizona man, acknowledging it might be a reach but that “there’s nothing to lose.” (AP Photo/Manuel Balce Ceneta)
In this Wednesday, Jan. 6, 2021 file photo, supporters of President Donald Trump, including Jacob Chansley, center with fur hat, are confronted by Capitol Police officers outside the Senate Chamber inside the Capitol in Washington. (AP Photo/Manuel Balce Ceneta)

An Arizona man who participated in the insurrection at the U.S. Capitol while sporting face paint, no shirt and a furry hat with horns said he regrets storming the building, apologized for causing fear in others and expressed disappointment with former President Trump.

In a statement released late Monday through his attorney, defendant Jacob Chansley said he has re-evaluated his life since being jailed for over a month on charges stemming from the Jan. 6 riot and realizes he shouldn’t have entered the Capitol building. Chansley, who previously said Trump inspired him to be in Washington that day, said Trump “let a lot of peaceful people down.”

Chansley said he’s coming to terms with events leading to the riot and asked people to “be patient with me and other peaceful people who, like me, are having a very difficult time piecing together all that happened to us, around us, and by us. We are good people who care deeply about our country.”

Chansley’s attorney, Al Watkins, released the statement about a half-day before the second impeachment trial of Trump was scheduled to begin in the U.S. Senate.

Watkins, who unsuccessfully sought a pardon on Chansley’s behalf from Trump, said the Senate didn’t take up his offer to have his client testify on how he was incited by the former president.

The defense lawyer said his client’s apology wasn’t self-serving but rather a genuine expression of culpability. Still, he said he doesn’t think it’s right for the government to prosecute people who were incited.

“If you believe the government is correctly prosecuting the (former) president, you can’t at the same time hold criminally culpable those who were incited, because the people incited become victims,” Watkins said in an interview.

Chansley has pleaded not guilty to felony charges of civil disorder and obstructing an official proceeding, plus four other misdemeanor charges.
The U.S. Justice Department declined to comment Tuesday on Chansley’s apology.

Chansley was among hundreds of pro-Trump supporters who charged past outnumbered police officers and stormed the Capitol as Congress was meeting to certify Joe Biden’s electoral win.

Authorities say Chansley was one of the first people in the Capitol building, disobeyed orders by an officer to leave, refused the officer’s request to use Chansley’s bullhorn to tell rioters to leave the Senate chamber, and wrote a note to then-Vice President Mike Pence saying, “It’s only a matter of time, justice is coming.”

Prosecutors said a spear on top of a flagpole carried by Chansley was a weapon, though his attorney has characterized the spear as an ornament.
Since being jailed, Chansley has had two instances in which he wasn’t eating because the detention facilities where he was being held didn’t serve organic food. He lost 20 pounds during the latest starvation episode. Chansley, who calls himself the “QAnon Shaman,” said he has been following such a diet for eight years while practicing Shamanism.

Last week, a judge ordered corrections officials to provide Chansley with organic food. He was later moved to a jail in Virginia after the District of Columbia Department of Corrections said it couldn’t honor the court’s order to feed him organic food.

Opioid manufacturer’s founder steps down from company board

The founder of a Chandler manufacturer of opioids who was indicted last week is stepping down from his seat on the board of directors.

John Kapoor
John Kapoor

“I am confident that I have committed no crimes and believe I will be fully vindicated after trial,” John Kapoor wrote Sunday to members of the board of Insys Therapeutics.

“Nevertheless, I realize that my continued involved with Insys will only serve to draw unnecessary attention to the company and its employees,” he wrote. Kapoor, who has been on the board since its incorporation in 1990 and owns about two thirds of the company’s shares, also said the indictment would “distract the management team from my primary goal when I founded Insys – helping patients.”

The news comes as the company announced Monday it is awaiting regulatory approval to resume trading of its stock.

In a release, Insys reported that trading was placed on hold after the close of the market on Thursday.

That followed the indictment of John Kapoor, a Scottsdale resident, by a federal grand jury on various felony charges related to how the company has marketed its fentanyl spray. Other former Insys officials also are charged with various crimes.

The news release says the company received a “series of questions” from NASDAQ but did not provide specifics. Insys said only that the questions “have been addressed.”

“The company is awaiting response from NASDAQ regarding the resumption of trading,” it says.

In the meantime, the company stock, which had been trading close to the $15 range less than six months ago, ended up at $5.74 before trading was suspended.

Kapoor, 74, and the others are charged with overly aggressive and illegal marketing of Subsys, the company’s spray form of fentanyl, a opioid narcotic many times more powerful than heroin.

According to the indictment, the executives used bribes and kickbacks to get doctors to issue new prescriptions for Subsys, which at the moment is one of the company’s two available products. They also are charged with using speaker fees, food and entertainment to get doctors to increase not only the number of prescriptions they were writing but also to write prescriptions at higher doses than appropriate.

Kapoor, in his letter, said he will continue to have a long-term commitment to the company as a stockholder, though he is putting his shares in a trust “to be controlled independently.”

In yet another release this weekend, the company provided investors with a glance of what it thinks a separate U.S. Department of Justice civil investigation will end up costing.

According to that release, the company had accrued $150 million in reserves by the end of September. It said that figure “represents the company’s best estimate of the minimum liability exposure the company expects to pay over five years in connection with this matter.”

“This estimate reflects a minimum exposure at which management has determined a willingness to settle these matters,” the release states. “The Department of Justice has not accepted management’s offer, and there can be no assurance that future discussions with the government to resolve these matters will be successful.”

More to the point, it says “the ultimate amount of potential liability may materially exceed the $150 million accrual the company has established.”

In yet another announcement Sunday, Insys said Patrick Fourteau had resigned from the board for “personal reasons.” He has been on the board since 2011.

Among the allegations against Kapoor and others is that they were actively trying to get doctors to prescribe the drug for purposes for which it was not intended.

The very powerful narcotic, which is administered by spraying it under the tongue, was approved by the U.S. Food and Drug Administration for “breakthrough pain” like that being suffered by those who have cancer.

What Insys was doing, the indictment charges, is getting insurers into approving payment

for the drug by misleading them into believing that was what the patient needed. In fact, the legal papers charge, both the doctors who were allegedly getting the kickbacks and bribes and Insys employees knew the patient’s actual condition was something less serious.

William Weinreb, the acting U.S. Attorney for Massachusetts who brought the indictment, acknowledged that once the FDA has approved a drug for one use, it’s not a crime for doctors to have “off-label” uses, prescribing it for any other use.

But Weinreb told Capitol Media Services that has to be “in the normal course of their medical practice and according to their medical judgment.” He said that’s not what happened here.

“It is illegal for a company to distribute the drug for an unapproved use,” Weinreb said. “And it’s illegal for doctors to prescribe it not because patients need it but simply to line their own pockets.”

Kapoor was released from custody Friday after posting $1 million cash bond. A federal magistrate in Phoenix also ordered him to wear a location-monitoring device and forbid him from leaving Maricopa County except to go to his arraignment next month in federal court in Boston.

Senate ethics chairs tosses Finchem’s complaint

Wearing a face covering and sitting among socially-distanced plexiglass, Rep. Mark Finchem, R-Oro Valley, sits at his desk during the opening of the Arizona Legislature at the state Capitol, Monday, Jan. 11, 2021, in Phoenix. (AP Photo/Ross D. Franklin, Pool)
Wearing a face covering and sitting among socially-distanced plexiglass, Rep. Mark Finchem, R-Oro Valley, sits at his desk during the opening of the Arizona Legislature at the state Capitol, Monday, Jan. 11, 2021, in Phoenix. (AP Photo/Ross D. Franklin, Pool)

It doesn’t look like Rep. Mark Finchem will get an investigation into the conduct of Democratic lawmakers who asked the FBI to investigate him.

Sen. Sine Kerr, R-Buckeye, who chairs the Senate Ethics Committee, has concluded that the allegations of the Oro Valley Republican against the senators “do not constitute ‘conduct alleged to be unethical’ under the committee’s rules,” according to Chris Kleminich, an attorney for the Senate.

Her finding, released Monday, is similar to one last week by Rep. Becky Nutt, R-Clifton, who chairs the House Ethics Committee. She said his complaint about House Democrats also did not fit in the role of her committee, saying it involves essentially political matters.

Strictly speaking, Kerr’s response does not end the matter.

Senate rules allow a complaint to go forward if at least two of the other lawmakers on the five-member panel want to go further. But she has given them only until this coming Monday March 1 to respond.

Finchem’s complaint is that the Democratic lawmakers acted improperly by asking both the FBI and the U.S. Department of Justice to look into his activities leading up to the Jan. 6 insurrection at the U.S. Capitol as well as what he did in Washington that day. The Democrats charged that Finchem “supported the violent overthrow of our government” and that he participated in the attack on the Capitol.

He has denied those charges.

The Democrats said all they have heard back from the federal agencies is that they got the request.

Finchem said Monday he had no comment “other than 100% of the Democratic senator signed onto a fallacious criminal referral and they can’t have an ethics committee because they have all committed the same violation.”

And what of the fact that the people who chair both ethics panels are Republicans?

“You’ll know when I’m ready to move,” Finchem responded.

Trump administration says Brnovich has no right to sue California

In this Oct. 4, 2018 photo, the U.S. Supreme Court is seen at sunset in Washington. The Supreme Court is refusing a new invitation to rule on gun rights, leaving in place California restrictions on carrying concealed handguns in public. The justices on Monday rejected an appeal from Sacramento residents who argued that they were unfairly denied permits to be armed in public.(AP Photo/Manuel Balce Ceneta)
In this Oct. 4, 2018 photo, the U.S. Supreme Court is seen at sunset in Washington. (AP Photo/Manuel Balce Ceneta)

The Trump administration is siding against Arizona Attorney General Mark Brnovich in his effort to get the U.S. Supreme Court to rule that California is illegally imposing its taxes on Arizona residents and businesses.

In a 28-page legal brief filed 9, Noel Francisco, the solicitor general for the U.S. Department of Justice told the court that the state, and Brnovich in particular, has no real standing to seek Supreme Court review of the tax practices of California.

Francisco said that if there is some illegality it is up to the firms that are affected to file suit. More to the point, he said any legal claims they have can be handled through the regular court process, all without involving the justices.

The court filing does not necessarily mean the justices won’t take up the case.

Arizona Attorney General Mark Brnovich (Photo by Katie Campbell/Arizona Capitol Times)
Arizona Attorney General Mark Brnovich (Photo by Katie Campbell/Arizona Capitol Times)

But they specifically asked Francisco for his views on the dispute. And that indicates they are likely to take his advice.

There was no immediate response from Brnovich.

The fight involves a franchise tax that California imposes on all firms “doing business” in that state.

That is defined under California law as “actively engaging in any transaction for the purpose of financial or pecuniary gain or profit.” It also includes the purchase and sale of stocks or bonds.

The minimum levy is $800 a year.

Brnovich said the problem is that California imposes that levy on limited liability companies that he said have “purely passive investments in California companies.”

He said that affects more than 13,300 Arizona-based LLC who pay about $10.6 million a year to California under what he claims is an illegal scheme.

Noel Francisco
Noel Francisco

Brnovich said these companies don’t sue themselves because that $800 may be too little for affected Arizonans to challenge the law. So he is going to court on their behalf.

But the attorney general said the state, too, has an interest.

He estimated that Arizona investors are paying a total of about $10.6 million a year to California under what he contends is an illegal tax scheme.

But any money paid by an Arizona-based LLC generally is considered a deductible business expense under Arizona law. And he figures Arizona loses about $484,000 a year.

And Brnovich said that makes the issue a dispute between two states, something that permits him to take the case directly to the nation’s high court and bypass all those intermediate steps.

But Francisco told the justices that bringing a case directly to them without going through lower courts is, and should be, a rare occurrence.

For example, he said, there is a precedent for them to step in when there are fights between states concerning boundaries and the manner and use of waters in interstate lakes and rivers. And Francisco said Supreme Court intervention is appropriate when one state seeks to enforce financial obligations of another state.

“Arizona’s asserted interests do not fall into any of those categories,” he wrote.

Nor was Francisco convinced by other Brnovich arguments, including that when Arizonans refuse to pay California is filing orders requiring banks in Arizona to make the payments from the customer’s account. And then California adds various fees and charges.

And Arizona’s lost tax revenues? Francisco said that results not from direct activities by California but instead by a decision by the Arizona Legislature to offer credits here for income taxes paid to other states.

Francisco also sniffed at Brnovich’s claim that Arizona has a “quasi-sovereign interest” in the economic well-being of its residents.

“Arizona has not, however, demonstrated that any economic injury to Arizona taxpayers affects its general population in a substantial way,” he wrote. And Francisco questioned whether Brnovich’s claim of more than 13,300 affected firm is even accurate.

The bottom line, Francisco said, is that that there is a legal procedure in place for affected Arizonans to seek relief.

“Taxpayers who are subject to California’s doing-business tax based on their investments in California LLCs may challenge those taxes through state administrative procedures and, if unsuccessful, bring refund actions in California state court,” he said, where they can assert the same constitutional claims that Brnovich is raising.

“Private suits are the proper way to vindicate such interests,” Francisco said. And he said the ability of multiple taxpayers to join together to file class-action lawsuits undermines Brnovich’s claim that individual taxpayers have no effective legal remedy.

Francisco’s filing comes within days of the Supreme Court rejecting another Brnovich plea to accept a case that had not gone through the regular court process. The justices without comment refused to hear his bid to allow him to go after the assets of the Sackler family that owns opioid manufacturer Purdue Pharma to settle claims he has in an Arizona lawsuit alleging the company violated its promise not to promote and market its painkillers in deceptive ways.


U.S. Supreme Court to decide on border shooting case

 In this April 10, 2018, file photo, the International border cuts through Nogales, Sonora, Mexico, rear, as seen from Nogales, Ariz. Federal court records say a Border Patrol agent in Arizona sent texts referring to migrants as "savages" and "subhuman" the month before allegedly knocking over a Guatemalan man with his patrol vehicle. The filings in U.S. District Court in Tucson earlier in May 2019 say Agent Matthew Bowen sent the text messages in November 2017, weeks before allegedly knocking down the migrant. He goes on trial Aug. 13. He has pleaded not guilty to depriving the migrant of his rights and falsifying records. (AP Photo/Matt York, File)
In this April 10, 2018, file photo, the International border cuts through Nogales, Sonora, Mexico, rear, as seen from Nogales, Ariz. (AP Photo/Matt York, File)

The U.S. Supreme Court agreed Tuesday to decide whether Border Patrol agents can be sued by the survivors of those who they shoot and kill on the other side of the border.

In a brief order, the justices said they want to hear arguments about whether federal courts can wade in on cases where the death occurred outside the United States – cases in which courts generally have no jurisdiction – if there are allegations that a “rogue” federal law enforcement officer violated the victim’s rights and there is no other legal remedy available to the family.

Officially, the case the justices are using to decide the issue involves a 2010 incident where Jesus Mesa Jr., a Border Patrol agent, shot and killed 15-year-old Sergio Andrian Hernandez Guereca. Mesa was on the United States side of the border in El Paso; Hernandez was on the other side of a culvert in Mexico.

 In this July 29, 2014, file photo, Araceli Rodriguez handles a rosary during a news conference in Nogales, Mexico, that belonged to her son Jose Antonio Elena Rodriguez, pictured behind her, who was shot and killed by a U.S. Border Patrol agent in October 2012. Border Patrol agent Lonnie Swartz will face a second trial Tuesday, Oct. 23, 2018, in the killing of 16-year-old Elena Rodriguez across the international border. Swartz was acquitted of second-degree murder in Tucson earlier in 2018 and now will be tried on voluntary and involuntary manslaughter charges. (Kelly Presnell/Arizona Daily Star via AP, File)
In this July 29, 2014, file photo, Araceli Rodriguez handles a rosary during a news conference in Nogales, Mexico, that belonged to her son Jose Antonio Elena Rodriguez, pictured behind her, who was shot and killed by a U.S. Border Patrol agent in October 2012.  (Kelly Presnell/Arizona Daily Star via AP, File)

But whatever the justices rule also will determine whether Aracelli Rodriguez can pursue her claim in federal court in Arizona following the 2012 shooting death of her son, Jose Antonio Elena Rodriguez.

As in the Texas case, the teen, 16 at the time, was in Mexico when Border Patrol agent Lonnie Swartz shot him by firing through the fence at Nogales.

Evidence presented in that case shows that the teen was hit 10 times in the back. Swartz also reloaded, firing a total of 16 shots.

In the Texas case, a federal appeals court ruled against the survivors. But the majority of a three-judge panel at the 9th Circuit Court of Appeals, hearing the Arizona case, reached a different conclusion.

“We have a compelling interest in regulating our own government agents’ conduct on our own soil,” wrote Judge Andrew Kleinfeld for himself and Edward Korman. He said that gives federal courts jurisdiction here.

“Applying the Constitution in this case would simply say that American officers must not shoot innocent, non-threatening people for no reason,” the judge wrote. “Enforcing that rule would not unduly restrict what the United States could do either here or abroad.”

Kleinfeld also suggested the U.S. Department of Justice was being inconsistent in filing its own legal briefs on Swartz’s behalf arguing against civil liability in this case. The judge pointed out that the same agency was at the time using its criminal laws to prosecute Swartz in federal court on charges related to the same cross-border shooting incident.

In that criminal case, a jury acquitted Swartz of charges of second degree murder but deadlocked on the lesser charges of manslaughter, eventually resulting in prosecutors dismissing the case.

But appellate Judge Milan Smith Jr., in his dissent on the right to sue in the civil case, said federal courts have no authority to hear a Fourth Amendment claim of illegal seizure – in this case, a life – when the incident occurs outside the country.

Kleinfeld, in his majority decision, acknowledged there are limits on the reach of federal courts in incidents that occur in other countries.

But he said that, given the facts in this case, there is no reason to bar a Fourth Amendment claim, what with the lawsuit is based on actions taken by Swartz in the United States.

Anyway, the judge said, there is no way that Swartz could have known that the teen was not a U.S. citizen, calling the agent’s claim of immunity on that basis “bizarre.”

“For all Swartz knew, Jose Antonio was an American citizen with families and activities on both side of the border,” he said.

Kleinfeld dismissed claims that allowing Rodriguez to sue could undermine “national security concerns.”

“We recognize that Border Patrol agents protect the United States from unlawful entries and terrorist threats,” he wrote.

“Those activities help guarantee our national security,” Kleinfeld continued. “But no one suggests that national security involves shooting people who are just walking down a street in Mexico.”

Kleinfeld also said Rodriguez would be left without a meaningful remedy if she cannot sue for wrongful death in federal courts, citing federal laws that preclude other claims.

No date has been set for the high court to hear arguments.


Woman who changed AZ law to begin fraud trial

In this April 6, 2015, photo, Gov. Doug Ducey hands a pen to Rep. Heather Carter, R- Cave Creek, after he signed legislation to make it easier for Theranos to market its services. Behind Ducey from left are Elizabeth Holmes, founder of Theranos, and Rep. Eric Meyer. (Photo by Howard Fischer/Capitol Media Services)
In this April 6, 2015, photo, Gov. Doug Ducey hands a pen to Rep. Heather Carter, R- Cave Creek, after he signed legislation to make it easier for Theranos to market its services. Behind Ducey from left are Elizabeth Holmes, founder of Theranos, and Rep. Eric Meyer. (Photo by Howard Fischer/Capitol Media Services)

Elizabeth Holmes, who got state lawmakers and Gov. Doug Ducey to change Arizona law in 2015 to financially benefit her company, goes on trial this week on criminal charges of fraud and conspiracy.

Holmes, the founder and former CEO of Theranos, is accused of knowingly misrepresenting the capability of her finger-prick blood testing technology. The company, which already settled consumer fraud charges in Arizona, went out of business after a Wall Street Journal investigation questioning her claims.

Now she faces a potential 20-year prison term and fines of up to $250,000 on various charges of federal wire fraud.

But it was a different Elizabeth Holmes who showed up in Arizona years earlier and convinced lawmakers and Ducey to alter state statutes to allow people to order more types of blood tests without needing a doctor’s permission. That, in turn, paved the way for Theranos to promote its testing to individuals and some pharmacies.

In a ceremony signing the bill at the company’s Scottsdale offices, the governor said he was “proud to sign” legislation for “reducing burdensome barriers and red tape.”

But two years later, after the company was forced to refund $4.6 million to Arizonans who got her company’s tests and may have been defrauded, an aide to the governor said Ducey had no second thoughts.

“The governor has always said it’s up to any new business models and companies to prove themselves,” said Daniel Scarpinato. “He is pleased the attorney general was able to reach a settlement on this issue.”

Holmes founded Theranos in 2003, at age 19, saying she wanted to change the practice which has forced people to have vials of blood taken for testing. She claimed to have developed technology that would allow accurate tests with just a few drops.

At the 2015 signing ceremony with Ducey, Holmes said she thinks the new law actually would lead to better health. She said anywhere from 40% to 60% of people who get lab orders from their doctors do not bother to follow through.

Holmes said this puts people in control to decide what tests to have. And once they have the results, she said they will take the paperwork and go see a doctor if they have questions.

Two years later, Theranos signed a consent degree with Attorney General Mark Brnovich.

Company lawyers denied Theranos violated the state’s Consumer Fraud Act in selling blood tests where the results were not always accurate. They conceded, though, that more than one out of every 10 of the tests results given to Arizonans by the company were “ultimately voided or corrected.”

The company agreed to provide full reimbursement to anyone in Arizona who got the tests during a three-year period, a figure calculated at $4.6 million. It also agreed to $200,000 in civil penalties, $25,000 in legal fees and to pick up the cost of someone to find the customers and distribute the refunds.

At the same time, Theranos announced a deal with the Centers for Medicare and Medicaid Services to stay out of the blood-testing business for at least two years. Holmes had previously been banned by federal regulators from owning or operating a testing facility for two years.

A year later, Theranos and Holmes settled with the federal Securities and Exchange Commission over charges that she had raised more than $700 million while making it appear the company had successfully developed a portable blood analyzer that could perform a full range of laboratory tests from a small sample.

Holmes agreed to pay a $500,000 fine, relinquish control of the firm, and be ineligible to serve as a director or officer of a publicly traded company for 10 years. She also agreed to return about 19 million shares of Theranos she obtained during the fraud.

Theranos was separately sued by Walgreens, which had allowed the company to make its tests available to its customers at 40 of its Arizona stores. That case was settled out of court and the terms were not disclosed.

All this directly relates to the criminal case that will unfold in a San Jose, Calif. courtroom over what could take months.

The heart of the case by the U.S. Department of Justice goes to those claims by Holmes that Theranos could run a host of clinical tests with just that finger prick of blood even though the technology was never fully developed.

Among the more than 250 witnesses the government expects to call are high-profile members of the Theranos board, including former Secretary of State Henry Kissinger and James Mattis, who later would become defense secretary. The witness list also includes individuals who are expected to say they were affected by inaccurate test results and doctors whose patients were affected.

Also charged in the case is Ramesh Balwani, a former business partner and ex-boyfriend. Holmes already has tried to put blame on him, saying they had “an abusive intimate-partner relationship” in which he exercised psychological and emotional control over her.

Balwani, through his attorneys, has denied any abuse.