Post on 07-Aug-2018
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3971
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Manuel de Jesus Ortega Melendres,et al.,
Plaintiffs,
vs.
Joseph M. Arpaio, et al.,
Defendants.
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No. CV 07-2513-PHX-GMS
Phoenix, Arizona
October 29, 2015
9:06 a.m.
REPORTER'S TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE G. MURRAY SNOW
(Evidentiary Hearing Day 17, Pages 3971-4063)
Court Reporter: Gary Moll
401 W. Washington Street, SPC #38
Phoenix, Arizona 85003(602) 322-7263
Proceedings taken by stenographic court reporterTranscript prepared by computer-aided transcription
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Melendres v. Arpaio, 10/29/15 Evidentiary Hearing 3973
A P P E A R A N C E S
For the Movants Christine Stutz and Thomas P. Liddy:Broening, Oberg, Woods & Wilson, PC
By: Terrence P. Woods, Esq.P.O. Box 20527Phoenix, Arizona 85036
For the Intervenor United States of America:U.S. Department of Justice - Civil Rights Division
By: Paul Killebrew, Esq.
950 Pennsylvania Avenue NW, 5th Floor
Washington, D.C. 20530
U.S. Department of Justice - Civil Rights Division
By: Cynthia Coe, Esq.601 D. Street NW, #5011Washington, D.C. 20004
For Executive Chief Brian Sands:
Lewis, Brisbois, Bisgaard & Smith, LLPBy: M. Craig Murdy, Esq.
2929 N. Central Avenue, Suite 1700
Phoenix, Arizona 85012
Also present:
Sheriff Joseph M. Arpaio
Executive Chief Brian SandsLieutenant Joseph Sousa
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Melendres v. Arpaio, 10/29/15 Evidentiary Hearing 3974
I N D E X
Witness: Page
STEVE BAILEY
Cross-Examination Continued by Mr. Masterson 3978Redirect Examination by Ms. Wang 4022Examination by the Court 4045
E X H I B I T S
No. Description Admitted
2851 Spreadsheet of traffic stops (1 of 2) 4056(MELC413860)
2852 Spreadsheet of traffic stops (2 of 2) 4056
(MELC413861)
2853 HSU 2011 Master Log 4056
2854 HSU 2012 Master Log 4056
2855 HSU 2013 Master Log 4056
2944 CEU Master Log, native file 4056
(MELC1435255 - MELC1435433)
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P R O C E E D I N G S
THE COURT: Please be seated.
THE CLERK: This is CV-07-2513, Melendres, et al., v.
Arpaio, et al., on for continued evidentiary hearing.
Counsel, please announce your appearance.
MS. WANG: Good morning, Your Honor. Cecillia Wang
and Andre Segura for the plaintiffs.
THE COURT: Good morning.
MR. YOUNG: Good morning, Your Honor. Stanley Young,
Michelle Morin, Covington & Burling, for plaintiffs.
THE COURT: Good morning.
MR. KILLEBREW: Good morning, Your Honor. Paul
Killebrew and Cynthia Coe for the United States.
THE COURT: Good morning.
MR. MASTERSON: Good morning, Judge. John Masterson,
Joe Popolizio, for Sheriff Arpaio and the individual
contemnors, and with us is Holly McGee.
THE COURT: Good morning.
MR. WALKER: Good morning, Your Honor. Richard Walker
on behalf of Maricopa County.
THE COURT: Good morning.
MR. WOODS: Good morning, Your Honor. Terry Woods on
behalf of nonparties Stutz and Liddy.
MR. McDONALD: Good morning, Your Honor.
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Melendres v. Arpaio, 10/29/15 Evidentiary Hearing 3976
Mel McDonald on behalf of Sheriff Joe Arpaio, special
appearance.
THE COURT: Good morning.
MR. MURDY: Good morning, Your Honor. Craig Murdy on
behalf of retired Chief Brian Sands.
MS. IAFRATE: Good morning, Your Honor. Michele
Iafrate on behalf of Sheriff Arpaio and the alleged nonparty
contemnors.
THE COURT: Mr. Masterson, were you able to stipulate
to any exhibits today?
MR. MASTERSON: The short answer is no.
THE COURT: Okay.
MR. MASTERSON: But -- and I told Ms. Wang last night
that it's not my intention to -- I don't make people bring down
custodians of records to say: This is a Maricopa County
Sheriff's Office record. It was kept in the regular course,
et cetera, et cetera. I don't intend to do that.
My objections are document specific as to relevance
and Rule 403. And if the Court wishes, I can tell you the
reasons now or we can take that up later.
THE COURT: Why don't we just take that up at the end
of the testimony --
MR. MASTERSON: Okay.
THE COURT: -- and then I can better understand the
context in light of the whole testimony today.
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Melendres v. Arpaio, 10/29/15 Evidentiary Hearing 3977
MR. MASTERSON: But as far as making Ms. Wang or the
plaintiffs bring in some employee of MCSO to lay the
foundational basis for the records, I'm not going to require
that. That's not my objection.
THE COURT: All right. In other words, you're going
to state objections, and then if I overrule the objections
you'll stipulate to the admission with the preservation of your
objection?
MR. MASTERSON: Yes, sir.
THE COURT: Okay.
We had Exhibit 2943 admitted yesterday. It was a list
of Armendariz spin-off investigations. I was disinclined to
have the whole exhibit be under seal, but recognize that you
might have continuing -- ongoing investigations that you wanted
to redact, that you were going to do that.
MR. MASTERSON: I was going to do that, Judge. What I
did was I talked to Captain Bailey about it. Unfortunately,
Captain Bailey told me I needed to talk to Captain Molina about
that. So I have not yet been able to do that, but what I was
going to do is at the lunch break, or it's possible we'll even
be done today by lunch -- anyway, go over and talk to Captain
Molina and see if I can get the necessary information on those,
and then I can provide that to the Court and counsel as soon as
I have it.
THE COURT: All right. Then are you ready? Is there
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anything else that we need to raise before we resume
cross-examination of Captain Bailey?
MS. WANG: Not from plaintiffs, Your Honor.
THE COURT: All right.
STEVE BAILEY,
recalled as a witness herein, having been previously duly
sworn, was examined and testified further as follows:
CROSS-EXAMINATION CONTINUED
BY MR. MASTERSON:
Q. Good morning, Captain Bailey.
A. Good morning.
Q. Yesterday, after a bit we got you up to an assignment in
PSB. Do you remember that?
A. Yes, sir.
Q. Okay. So I'm going to start there this morning.
Could you tell me what your duties and
responsibilities were as a captain at PSB?
A. Primarily, oversee the pace and the direction of PSB cases
to ensure that they were done appropriately and in a timely
manner.
Q. What do you mean by "pace"?
A. On the administrative side, there's a time line of 180 days
in which the cases have to be completed, and it's something
that we're always mindful of in terms of finishing the case
thoroughly, but within the time frames.
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Q. How was it you got to be assigned to PSB?
A. Chief deputy called me into his office one day and told me
he was transferring me to PSB.
Q. Now, when you were discussing this with Ms. Wang a couple
weeks ago, I think you told us that Chief Sheridan wanted it to
move faster and in bigger chunks, is that correct?
A. I did say that.
Q. Why? I mean, explain that to me, please.
A. I think the chief realized that the Armendariz case was
going to be voluminous, and there was going to be a number of
things that were necessary to reconcile all the issues coming
out of Armendariz. I think he didn't feel like it was moving
at a pace that he thought was appropriate, and my experience in
complex and long-term investigations is what he cited as the
reason to put me in PSB.
Q. Was it your intention to do a fast, lousy job?
A. Absolutely not.
Q. Did you intend to conduct thorough investigations on all
the spin-off investigations --
MS. WANG: Objection, leading.
Q. -- connected with Armendariz?
MR. KILLEBREW: Join.
THE COURT: Sustained.
BY MR. MASTERSON:
Q. How many spin-off -- if you know, how many spin-off
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investigations were conducted with the Armendariz matter?
A. I don't know. A lot.
Q. I mean, are we talking dozens? Are we talking hundreds?
Do you know?
A. Couple dozen, at least.
Q. Okay. And you just told us you wanted to move fast, is
that accurate?
A. That's what I said. I don't know how it was ultimately
characterized, but the pace of that investigation needed to be
accelerated.
Q. Did you assign the various investigations to specific
people, or did you leave that up to the staff of PSB?
A. I assigned them.
Q. How did you go about assigning them?
A. The primary case agent on Armendariz was Sergeant Steve
Fax, and many members of PSB assisted him, but he was the
primary case agent that oversaw all of the cases.
Q. What were your expectations on the case officers with
respect to the Armendariz investigations?
A. I selected Sergeant Fax because of his experience, and I
knew he would be well organized and do a thorough job, which he
did. My expectation was that every viable lead be investigated
and explained as it came out of Armendariz, or the activities
of former Deputy Charley Armendariz.
Q. Tell me about Sergeant Fax's experience.
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A. His primary experience in the office has been in
investigations, including homicide, violent crimes, general
investigations.
THE COURT: Let me just ask: Are you talking about
his experience before he came to PSB?
THE WITNESS: Yes, sir.
THE COURT: Okay. Thank you. I just want to make
that clear.
Thank you, Mr. Masterson.
BY MR. MASTERSON:
Q. Can you give me any idea of the number of IAs that are --
that go through PSB every year? And -- well, I'll tell you
what. Let's break it down.
The year you got there, do you know how --
approximately how many IAs were going to go through PSB?
A. I remember having a discussion with the administrative
staff that in 2013 there was about 100 IA numbers pulled, in
2014 there was approximately 450, and the day I left there was
633 IA numbers pulled for investigation.
Q. So between 2013 and 2015, more than six times the number?
A. Yes, sir.
Q. Do you have any explanation as to why that occurred?
A. Yes. Due to policy changes, and what I described earlier
as a cultural shift in the agency, every complaint was to be
given an IA number and investigated to its end. Certain
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categories of offenses were now mandatory to investigate, so it
created a huge increase in IA numbers being pulled.
Q. What do you mean by "cultural change"?
A. At the direction the chief deputy and the sheriff, there
were certain changes that were implemented to maybe address
some past shortcomings in the office in terms of internal
investigations, and how it would ensure that staff was more
accountable.
Q. Did you make changes to PSB while you were a captain at
PSB?
A. Yes, I did.
Q. What changes did you make?
A. One of the primary changes I made was how we briefed cases
with the chief deputy. Traditionally, it was the commander of
PSB only that would brief the cases with him, and I changed it
to more of a committee-style briefing where the investigator,
the investigator's sergeant, and the administrative lieutenant,
along with myself, would brief the case with the chief deputy,
or several cases at a time with the chief deputy.
Q. Why did you do that?
A. I thought it was a more thorough briefing, so the chief
could understand all the complexities or subtleties of the
case. And it gave him a clear understanding of everything in
the case, as opposed to me getting a briefing from the case
agent and trying to do the case justice by telling him all the
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details of the investigation.
Q. What other changes did you make to PSB while you were
there?
A. As a result of Armendariz and a lot of things we went
through, before I left we had put together an educational
component that was to be taught to all supervisors in the
office in terms of how to conduct an Internal Affairs or
PSB-type investigation, so we could gain some consistency
throughout the office and have similar expectations between
districts and divisions and PSB on how cases would be handled.
Q. Do you recall what exactly that educational component
consisted of?
A. Yes. It was -- I don't know what it's turned into since I
left, but it was a one-day -- it was planned to be a one-day
instructional course. The chiefs of their respective bureaus
were going to give us a list of people they wanted trained
first that would be responsible for those investigations. And
it was -- it was designed to be a detailed instructional course
on how to deal with the various complexity: If this happens,
do this; if you come across this, do this. And it was
constructed by members of PSB.
Q. Do you know, was that to be an E-Learning type situation,
or how was that going to work, do you know?
A. I explained to the chief deputy I didn't think E-Learning
was appropriate on this particular course, that we should do it
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in a more traditional classroom setting so people could ask
questions and we could answer individual questions about what
they were experiencing in the field.
Q. Do you know whether that educational component has been
implemented at this time?
A. I don't.
MS. WANG: Objection, foundation.
THE COURT: I'm going to allow the question because he
only asked him if he knew.
BY MR. MASTERSON:
Q. Do you know?
A. Not since I left, I don't know what has happened to it.
Q. Okay. Now, you mentioned a couple minutes ago that I think
one of the changes -- well, let me stop myself.
Are there any other changes you implemented we haven't
already discussed, while you were at PSB?
A. We changed the format of the case investigations upon my
arrival. Myself and primarily Sergeant Bocchino realized that
the format the cases were written in were very redundant and
took unnecessary time, so we changed the format. Sergeant
Bocchino came up with it, and it seemed to go over well with
the investigators. And off the top of my head, I can't think
of the other changes we made.
Q. Okay. What I was going to ask you just a second ago was
the change to pulling an IA number for every -- every matter,
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every complaint, I guess, was that in place when you got there
or was that a change you implemented? How did that work?
A. That was a change in policy that I was expected to adhere
to, and I think it started shortly after I arrived.
Q. Did you adhere to that policy?
A. Yes, sir.
Q. Explain the policy.
A. So in the past, if, for example, a complaint came in to a
sergeant at a patrol district, based on the complaint he may
have the discretion on whether to consider it a legitimate or
serious complaint that required an investigation. With the
switch in policy, it is now required that the supervisor or the
person taking the complaint take an IA number and the matter's
investigated, both externally and internally.
THE COURT: Can you give me just a second? I want to
review that, just so I make sure I understand it.
MR. MASTERSON: Sure.
(Pause in proceedings.)
THE COURT: Thank you.
BY MR. MASTERSON:
Q. When you use the phrase "every complaint now gets an IA
number," what do you mean by "every complaint"?
A. Every complaint received by the agency, whether it's via
the Internet, a phone call, in person, third party, whatever
the case is, if it's a complaint on an employee in the Maricopa
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County Sheriff's Office, we take an IA number and investigate
it to its end.
Q. What about a situation -- well, let me ask you a prefatory
question first. Is every complaint investigated by PSB?
A. No.
Q. Tell me how that works.
A. Generally, for a case to be accepted by PSB, we have to
have some inclination or belief that it could result in
demotion, dismissal, termination, or suspension.
Q. And if PSB does not handle the complaint, what happens to
the complaint?
A. It's assigned to the district or division that the
complaint was generated from.
Q. So are you telling me that if it's -- if major discipline
is contemplated, it's PSB; if it's lesser discipline, it's
division?
A. Yes.
Q. Are there certain situations where regardless of the
discipline, it could be, or should be, handled by PSB?
A. To some degree, it's at the discretion of the PSB commander
or the chief deputy.
Q. Now, how is the PSB commander, the chief deputy, going to
know what the complaint's about so a decision could be made:
Should we put this at division or should this come to PSB?
A. Typically, the division or district commander will call
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myself or one of the lieutenants and explain that a complaint
came in. And they may ask us if this is something that should
go to PSB or if it should be handled at the district division
level, and we would give that consultation and a decision would
be made.
Q. Okay, I'm not sure I understand. Is there some sort of
briefing that takes place, or --
A. Sometimes they'll come down to the division to talk to us,
or it might be a phone call or an e-mail, some communication
like that.
Q. Okay. I think I need -- what I need to know, then, is I
want you to give me an example. Let's say I call up MCSO and I
make a complaint, and I say: Deputy Jones was rude to me on a
traffic stop yesterday.
What happens? Who does that go through? Tell us how
it moves along through the system.
A. I'll give you the best example I can. A rudeness complaint
would probably be taken by the district or division if it was
just a matter of the deputy not being professional.
If the allegation turned to that the deputy
inappropriately struck or physically handled the person
inappropriately, that would come to PSB, because that could
result in serious discipline.
At the inception of the complaint, the supervisor will
put it in IAPro, a number's given, and the case would be
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assigned to a supervisor, and the subsequent investigation
would start at that point.
Q. Okay. So I make the call, and let's use your example, it's
a claim of excessive force. I assume -- well, who can take the
call at MCSO if I'm the guy calling in saying I want to file a
complaint?
A. By policy, anybody.
Q. And then -- well, let's say I look at the MCSO website, and
it's been so long since I looked at it, I don't know. Maybe
I've got Sheriff Arpaio's phone number up there. If I call,
what happens?
A. There's either an automated line or somebody physically
answers some of the lines and will take a complaint. There's
also a -- a spot on the Internet on the actual web page where
you can write in a complaint to the agency.
Q. Okay. And then after that occurs, then it starts the
process that you just described?
A. Yes.
Q. Okay. Is there any form of audit process of PSB that
happens regularly?
A. Yes, there is.
Q. How does that work?
A. For the districts and divisions, every month a list is
pulled by the administrative staff that shows what numbers are
still active, what IA numbers are still active in the various
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districts and divisions, and what the time frame is left on the
case. That is then sent to the district commander so he's
aware of what numbers he's responsible for in his district or
division.
Q. Okay. What happens then?
A. They're expected to make sure that they come in under the
time frames and the investigation is done in a timely manner.
Q. Who follows up on that to make sure those things happen?
A. PSB commander, one of their lieutenants, and the division
commander that's responsible for those cases.
Q. Okay. Does BIO get involved in any sort of audits of PSB,
or even the divisions, with respect to IA complaints?
A. They certainly could, yes.
Q. How would that work?
A. BIO is responsible for random audits across the entire
agency. So the BIO commander will set some parameters on what
he wants to audit, conduct that audit, and then sends the
results office-wide so everybody's aware of what the audit was
and if there was any shortcomings.
Q. Now, when we were talking about the situation where I call
up and I make a complaint, is there going to be a written
record of that complaint somewhere?
A. By policy, you're supposed to make a recorded -- a
written -- sorry, a written document recording the complaint.
Q. And is there going to be an IA number pulled on my
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complaint?
A. Yes.
Q. Have you heard of the early warning system?
A. Early intervention system?
Q. Yeah, EIS. I don't know why I said "warning."
A. Same difference.
Q. Yes, that's my question. What is that?
A. It's a database designed to take the data that's put into
BlueTeam and/or IAPro, that may show a spike of an
employee's --
THE COURT REPORTER: May show a what?
THE WITNESS: Show an employee's.
BY MR. MASTERSON:
Q. Show a spike in employees, is that correct?
A. Yes. So let's say over the course of a year a particular
deputy gets several complaints. It would show EIS that there
has been an increase in complaints on this person, and just
allows the supervisor to keep an eye on the employee to see if
it continues, or to have a sit-down counseling session with him
to explain to him that they've kind of come up on the radar,
they need to adjust their behavior, or ask the employee what's
going on.
Q. Okay. You used another phrase in there, and I want to ask
you about that. You said BlueTeam. What's that?
A. BlueTeam is a database that records supervisor notes across
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the entire agency. For example, in Special Investigations, if
I have a sergeant that does particularly good work, I'll --
I'll make sure that there's an entry put under his profile that
he accomplished this case.
Conversely, if you're having a problem with an
employee where you had a sit-down discussion about their work
product, or something personal that they had with another
employee, you'd record that as well.
Q. Okay. So I think you've explained a little bit about my
next question, but my next question is: Generally, then, how
does EIS and BlueTeam relate to -- well, interrelate with PSB?
A. Well, everything that happens with an employee, whether it
be positive or negative, is recorded, and PSB would have access
to those records to see if they've previously been talked to
about their conduct, let's say.
EIS is a program designed to give us, as it's
dictated, an early warning of potential behavior that's
unacceptable by an employee, and PSB would have access to that
as well.
Q. Now, when you say "unacceptable behavior," are we talking
policy violations?
A. Could be anything. Policy violations, if it's recorded
that they're, you know, personality-wise they're not getting
along with employees, or making inappropriate comments, it
would include any of that.
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Q. I guess what I'm wondering is if this could consist of
something that's not a policy violation but may be somehow
generally concerning to you or to someone, to PSB in general,
does that then come into -- can that be a part of EIS and
BlueTeam?
A. Yes, sir.
Q. And then what happens?
Let's say a deputy is engaging in behavior which falls
short of policy violations, falls short of violations of law,
but -- and I'm going to use you personally. In your opinion,
are just unprofessional or something you don't want to see your
deputies doing. What do you do about that if you find out
about it?
MS. WANG: Objection, foundation.
THE COURT: I think I'm going to allow that question.
THE WITNESS: By its nature, let's say a deputy is
getting continual rudeness complaints where it doesn't really
rise to -- or what we have, the information we have doesn't
rise to a policy violation but it's showing a continued pattern
of behavior, it would allow the supervisor to intervene at its
earliest point and try and correct the behavior with the
employee.
BY MR. MASTERSON:
Q. Is there a system or a means by which you can do that in
PSB by utilizing EIS and BlueTeam?
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A. EIS is actually independent of PSB, but we could have
access to it and we could act upon what we were seeing.
Q. Okay. What would you do in that situation?
THE COURT: EIS is really for supervisors, isn't it?
THE WITNESS: Yes, sir.
THE COURT: So it's up to the supervisor to access
EIS, correct, and to benefit from its information in the
supervision of his or her deputies?
THE WITNESS: That's the way it's designed, sir.
THE COURT: So how would PSB -- I mean, you can access
EIS information, but you really would typically only have
access if you were doing some sort of an investigation of the
supervisor for the adequacy of his or her supervision, or to
the extent that that information might relate to an ongoing
investigation.
THE WITNESS: That's correct, sir, or the supervisor
calls us.
THE COURT: But in terms of actually regulating a
deputy's behavior, that's going to be up to the supervisor,
generally, right?
THE WITNESS: Generally, yes, sir.
THE COURT: And that's why EIS exists, right?
THE WITNESS: Yes, sir.
THE COURT: Same for BlueTeam, correct?
THE WITNESS: Yes.
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THE COURT: Thanks.
BY MR. MASTERSON:
Q. But the supervisor can utilize that information to provide
feedback and/or discipline to the employee, is that correct?
MR. KILLEBREW: Objection, leading.
THE COURT: I think it's appropriate, in light of my
question. I'm going to allow it.
THE WITNESS: Yes, sir.
BY MR. MASTERSON:
Q. And if a complaint is made, I think you already told us
that an IA number is going to be pulled, correct?
A. Yes.
Q. So PSB --
THE COURT: Well, let me just ask about that. If you
don't mind, Mr. Masterson.
MR. MASTERSON: No, sir.
THE COURT: If a complaint is made, how does somebody
know to distinguish whether or not they're going to put it on
EIS or whether or not this is a PSB complaint?
THE WITNESS: Well, every complaint would generate an
IA number, which would go -- we record it in PSB, if I'm
answering your question correctly. As it goes into BlueTeam,
it's also captured by EIS. So they're interrelated but
independent systems.
THE COURT: All right. I call.
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THE WITNESS: Yes, sir.
THE COURT: I call -- well, let's say that I'm
stopped. I'm stopped by Officer Smith. I think
Officer Smith's very discourteous. I tell Officer Smith: I
think you're very discourteous, and I want to make a complaint
right now concerning you.
Is Officer Smith obliged to take my complaint?
THE WITNESS: He's obliged to contact a supervisor so
they can take the complaint.
THE COURT: Okay. And then is the supervisor supposed
to call me?
THE WITNESS: Yes, sir.
THE COURT: And then the supervisor does what?
THE WITNESS: He would enter it into IAPro and obtain
an IA number for investigation.
THE COURT: All right. Thank you.
THE WITNESS: Yes, sir.
BY MR. MASTERSON:
Q. And in Judge Snow's example does policy compel the deputy
to contact the supervisor?
A. Yes, it does.
Q. And does policy compel the supervisor to have the IA
number pulled and to contact PSB?
A. Yes, it does.
THE COURT: And if the supervisor tells the -- if it's
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a complaint that the division then investigates, what will the
supervisor do? Or how will the division understand that this
is a complaint, this is an IA complaint that the division is
going to investigate?
THE WITNESS: What's your question, sir? I'm sorry.
THE COURT: How will the division come to know that
this is a complaint, an IA complaint that the division is
charged with investigating?
THE WITNESS: The supervisor should advise his chain
of command that the complaint came in, and based on what the
complaint is -- for example, a rudeness complaint -- it would
be handled by the division.
And that division commander would probably have
contacted me or the PSB commander to explain -- or through
e-mail -- that this complaint came in, a number was assigned,
and that they were going to handle it at the division level.
THE COURT: All right. And then you would let them
handle it at the division level.
THE WITNESS: Yes, sir.
THE COURT: But there would be an IA number.
THE WITNESS: Yes, sir.
THE COURT: Then let's say the division commander
directs the person who's doing the investigation in the
division: I want you to suspend your investigation into this
matter. And you call to find out about what the status of this
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IA number is. Do you consider -- and the officer then says:
There is no IA number here.
Is that something you're going to accept?
THE WITNESS: Depending on the situation, I would
accept the division commander's explanation, if it made sense.
THE COURT: Well, he didn't terminate the
investigation; he suspended the investigation. And then you
call the IA investigator and say, "What's the status of this IA
investigation?" and he says, "There is no IA investigation."
Does that make sense to you?
THE WITNESS: It would depend on what his commander
said to him and the reasons why he stopped the investigation.
But the investigation could be stopped at any time if -- if the
commander had good reason to do so.
THE COURT: All right. Thank you.
THE WITNESS: Yes, sir.
BY MR. MASTERSON:
Q. Let me ask you this question. Actually, I'm going to ask
you a couple of specific questions.
Judge Snow just asked you a question about if the
investigation was suspended and then the commander were asked a
question -- I'm probably paraphrasing, I know I'm paraphrasing,
I'm not going to get this question right, but I've got someone
here who can correct me.
The commander is asked, "Is there an ongoing
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investigation?" and the answer is "no" because the
investigation was suspended; is that an accurate answer?
A. Certainly could be, yes.
Q. Now, what if the question was, "Well, has there ever been
an IA number pulled, and has there ever been an IA
investigation into this incident?" and the answer was "no"; is
that an accurate response?
A. No, it wouldn't, if a nember -- number had been pulled.
Q. Okay.
THE COURT: But it wouldn't -- if the commander is
going to suspend the investigation, it wouldn't suspend the
administrative time limits, would it?
THE WITNESS: No, sir.
THE COURT: And it wouldn't suspend the existence of
an IA investigation.
THE WITNESS: No, sir, it wouldn't.
THE COURT: The IA investigation would still be in
existence.
THE WITNESS: Yes, it certainly could be.
THE COURT: All right. So if he said, "Is this an IA
inves- -- IA investigation in existence?" the appropriate
answer would be "yes."
THE WITNESS: Yes, sir.
BY MR. MASTERSON:
Q. So the answer to that question is -- the answer to that
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question is very question specific. In other words, if the
question is asked, "Is there an ongoing investigation?" you
could give one answer; if the question is, "Was there ever an
investigation?" the appropriate answer is entirely different.
A. Yes, and every number that's pulled, the expectation is
that that complaint, or whatever caused that number to be
pulled, that that case or the complaint will be reconciled one
way or the other.
Q. Okay.
THE COURT: So a case either has to be closed or it's
open.
THE WITNESS: Or -- or stopped in the interim. After
a number's been pulled, you could stop the case for a
particular reason.
THE COURT: So a division could manipulate an IA
investigation by merely suspending it.
MR. MASTERSON: Objection, argumentative.
THE COURT: Overruled.
THE WITNESS: Your Honor, I --
THE COURT: Well, let me just put it this way: A
division --
I'll grant your objection.
-- a division wouldn't have to report to you an IA
investigation that was ongoing -- or an IA investigation that
was suspended. They could say, "There's no IA investigation
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here."
THE WITNESS: After the number is pulled, you can't
say, "There's no IA investigation."
THE COURT: Thank you.
THE WITNESS: Yes, sir.
BY MR. MASTERSON:
Q. How does PSB keep track of open IAs?
A. Similar to how we do it with the divisions. Every month,
out of IAPro, the profile of open cases is pulled and the
sergeants are given that list -- I'm sorry, the lieutenants are
given that list so they can see the time frames on various
cases as they've progressed.
Q. And my next question was: How about IAs at the division
level? How does PSB keep track of those?
A. Same way. A list of numbers going out that's -- so when a
number's pulled from a particular division, it's the
division -- it actually becomes the division commander's
responsibility to look after that case and the progression of
those numbers. And they're sent a report every month that
shows them what cases and what IA numbers they're responsible
for.
Q. You talked with Ms. Wang a little bit about conflicts.
How do you deal with potential conflicts at PSB? Or
how did you deal with potential conflicts at PSB when you were
there?
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A. If an obvious conflict of interest arised, I would go to
the chief deputy and explain it, and we might have another
division do the investigation, or source it out to another
agency to do the investigation.
Q. Was anyone at PSB specifically charged with looking at
whether there was a potential for a conflict?
A. The lieutenants would generally look at the cases as they
came in and they would sit down with me -- at least this is how
it was done when I was there -- they would sit down with me and
talk about the various cases if they were -- especially if they
were serious in nature, of who made the complaint, who the
complaint was on, and what information we had, and at that
point we would attempt to identify any conflicts.
Q. Why is it the lieutenants would be sitting down with you?
A. That's part of their role is overseeing the supervisors
that are conducting the investigations.
Q. Does that happen with every IA that's investigated by PSB?
A. For the most part, yes.
Q. Well, is this -- is this a briefing process that takes
place, or what exactly is this?
A. It's a briefing process. I would usually have a staff
meeting once a week and we would discuss cases that have come
into the division, the status of particular cases, or any
issues that are arising out of the investigations.
Q. Would you consider conflicts as a part of that briefing
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process?
A. If one was identified, I certainly would.
Q. Do you have Exhibit 2881 up there?
A. Yes, sir.
MR. MASTERSON: Could we have the control of this,
please?
THE CLERK: Over there, or did you want the
document --
MR. MASTERSON: Here, please. Thank you.
BY MR. MASTERSON:
Q. Could you, Captain Bailey, please turn to -- and I'm going
to refer you down to the Bates number down on the bottom, MELC.
Do you see that number down there?
A. Yes, sir.
Q. Look at 1306918, please.
A. Okay.
Q. What I'm looking for is under the Procedures paragraph
there, paragraph 1. Do you see that?
A. Yes.
Q. And we've talked a little bit about this so far with
respect to me making a phone call; Judge Snow making a phone
call. Will there be a written document that shows that those
phone calls were made?
A. Phone calls between who? I'm sorry.
Q. Making a complaint. If I call up and make a complaint,
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whether I call a main MCSO number, whether I call a complaint
line, is there going to be a written document?
A. Yes, there should be.
Q. Is this the policy that deals with that?
A. Yes.
THE COURT: This is Exhibit 2881?
MR. MASTERSON: 2881.
THE COURT: Is it already in evidence?
MR. MASTERSON: Yes, sir.
THE COURT: Thank you.
BY MR. MASTERSON:
Q. Now, Ms. Wang asked you a couple of questions about the
second sentence in that first paragraph: "When a third party
registers a complaint on behalf of another individual, every
reasonable effort shall be made to contact the alleged offended
individual to verify the complaint."
Do you see that?
A. Yes, sir.
Q. And it says: "An investigation will be conducted when the
first party agrees with the complaint or the first party cannot
be contacted."
Do you see that?
A. Yes, sir.
Q. Regardless of whether the first party is contacted or
agrees with the complaint, will the complaint be documented,
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investigated as appropriate, and a written record made of the
findings and resolution?
A. Yes, sir.
Q. Now, Ms. Wang gave you an example that you contact this
person and are told that this person fears retaliation by MCSO,
I guess, or afraid of MCSO, I guess.
Are you still going to document the complaint?
A. Yes.
Q. Are you still going to investigate the complaint?
A. Yes, sir.
Q. And a written record's going to be made of the findings and
resolution?
A. Yes, sir.
Q. What if you contact -- you get a contact by a third party
telling you some other person made a complaint. And then you
go contact this third -- this third person, you're told:
"Well, that third party's an anti-police activist and is
lying." Are you still going to document the complaint?
A. Yes, sir.
Q. You going to investigate as appropriate?
A. Yes.
Q. Are you going to make a record of the findings and
resolution?
A. Yes.
Q. Does PSB maintain a complaint log?
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A. Yes, sir.
Q. What is that?
A. It's a written -- documented record of all the complaints
that come into PSB.
Q. How is that kept?
A. Electronically; the administrative staff keeps track of
that.
Q. Now, does this happen when -- we've talked many times about
for every complaint, an IA number is pulled. Does then, bang,
that goes onto the complaint log?
A. Yes.
Q. Okay. What's the purpose of that complaint log?
A. To keep track of the initial complaint and the time frame
in which the number was pulled, so it dictates when your 180
days start on an administrative investigation.
Q. Does that aid PSB commanders or supervisors in following
up, I guess, the status of PSB investigations?
A. Yes.
Q. Can it also be used to follow up division investigations?
A. Yes, sir.
Q. Now, Ms. Wang asked you a couple questions about employees
making complaints, and she seemed to be expressing concerns
about a Garrity warning being given.
So let me ask you this: If an employee comes to you
with a complaint about another employee, do you pull an IA
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number?
A. Yes.
Q. If you're going to interview the employee making the
complaint, do you give that person a Garrity warning?
A. The notice of investigation and Garrity warnings, yes.
Q. Why?
A. It explains their rights in the case and what the
expectation is of them during the investigation, to maintain
the integrity of the case so they don't talk about the case to
anybody else.
Q. In your opinion, is it important for an employee making a
complaint about another employee to tell the truth?
A. Absolutely.
Q. Do you consider it a serious matter when an employee makes
a complaint against another employee?
A. Yes, I do.
Q. Can a complaint against an employee have a significant
impact on the other employee's career?
A. Certainly could.
Q. Is truth important in PSB investigations of complaints made
by employees?
A. Yes, it is.
Q. Now I want to talk a little bit about the Deputy Armendariz
situation, and it's because you testified that there were
failures to deal with Charley Armendariz with respect to
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Bailey - CX Masterson, 10/29/15 Melendres v. Arpaio 4007
citizen complaints.
Do you remember that?
A. Yes, sir.
Q. What do you mean by that?
A. There's a number -- over time, as I read or we conducted
the Armendariz investigation, there were several instances
where first-line supervisors had discussions with Deputy
Armendariz to correct his behavior, and on certain occasions
went through the chain of command and in certain occasions it
wasn't handled, for lack of a better term, aggressively enough.
Q. Does the EIS system that we talked about a few minutes ago
have an impact on -- or would it have had an impact on the
Charley Armendariz situation?
MS. WANG: Objection, calls for speculation.
THE COURT: Sustained.
BY MR. MASTERSON:
Q. Did Charley Armendariz have a number of citizen complaints
in his file?
A. Yes.
Q. What would the EIS system do with those complaints?
MS. WANG: Objection, calls for speculation.
THE COURT: I'm going to allow that.
THE WITNESS: It would have allowed the individual
supervisors to see that spike in his behavior, based on the
complaints, and take more corrective action, and it would have
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Bailey - CX Masterson, 10/29/15 Melendres v. Arpaio 4008
had those complaints recorded.
BY MR. MASTERSON:
Q. We already talked about the situation where a supervisor
could intervene even if there weren't policy violations
involved. I'm going to ask a little bit different question
now, and it's because you mentioned something about a fitness
for duty evaluation.
What is that?
A. Fitness for duty evaluation is called for when a particular
supervisor does what we refer to as a memorandum of concern,
based on the observations of an employee's conduct or behavior
that is so out of the norm that they are to go to a third-party
physician, and they go through an examination to determine
whether or not they're fit to be a deputy sheriff and return to
the course of their duties.
Q. Now, how exactly -- how does it come about? How can that
happen, that someone makes the decision, We gotta send this
person to a fitness for duty evaluation?
A. I can give you the example of Deputy Armendariz.
He'd threatened to commit suicide several times, and
the supervisors in HSU wrote a memorandum of concern and he was
ultimately evaluated at some point.
Q. What about some lesser circumstance than threatening
suicide, could you still get a fitness for duty evaluation?
A. You could. You could certainly file the memo through the
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chain of command and the human resources director would make
that determination.
Q. Okay. Now, outside something to the level of a fitness for
duty evaluation -- and I want to again give you the example of
we're not dealing with policy violations but we're dealing
with, say, multiple complaints on a particular deputy.
Does PSB have the ability to act in a
consultation-type capacity for deputies that may be having a
lot of problems with complaints?
A. Initially, PSB would contact their chain of command and
expect them to do it if it didn't rise to an alarming level.
Let's say it was rudeness.
THE COURT: If I can, is there any -- does PSB just
monitor EIS?
THE WITNESS: Yes, sir, for the most part.
THE COURT: So if a supervisor doesn't do his job or
her job, which would be figuring that out on the first end, PSB
will call the supervisor?
THE WITNESS: If we are made aware of it, that the
corrective action wasn't taken in the division or district, we
could call them and say, "What have you done with this
particular deputy? Have you done anything to satisfy these
complaints?"
THE COURT: Sure, if you're made aware of it, but how
would you be made aware of it?
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THE WITNESS: Somebody from EIS calling us and seeing
the corrective action hadn't been taken; say, notes weren't put
in the BlueTeam that said, "I had a consultation with Deputy
Jones on this date and we discussed it."
THE COURT: Wouldn't it be the normal procedure for
somebody from EIS to call the supervisor?
THE WITNESS: They could do that as well, sir.
THE COURT: Wouldn't that be more appropriate?
THE WITNESS: That's traditionally how it goes.
THE COURT: Thank you.
THE WITNESS: Yes, sir.
BY MR. MASTERSON:
Q. Ms. Wang also asked you several questions and she was using
the word "potential." And she used it in asking you a question
along the lines of: You found some purses in the HSU building;
could that be evidence of a potential theft?
Do you remember that?
A. Yes, sir.
Q. And your answer was, "Yeah, sure," or "Yes"; is that
accurate?
A. Could be.
Q. Did you find any evidence at all that some deputy sheriff
or somebody at MCSO stole those purses?
A. No, it was determined it was a mishandling of evidence.
Q. She talked about some TVs, and I think we used "potential"
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Bailey - CX Masterson, 10/29/15 Melendres v. Arpaio 4011
again. Did you find any evidence that an MCSO employee stole a
TV?
A. No, sir.
Q. Could you please take a look at Exhibit 2017. And
particularly, I'm going to refer you down to that MELC
number again, 1611093.
Could you take a look at that page, please,
Captain Bailey?
A. Yes, sir. Give me one second.
What Bates number? I'm sorry.
Q. Hang on. 1611093.
A. Yes, sir.
Q. Do you recall seeing this document -- I know it was two
weeks ago, so you might not, but do you recall this particular
incident?
A. Yes.
Q. Do you see on this page where the subject -- well, Deputy
Armendariz -- I can point you to this.
See the very last paragraph that says, "Deputy
Armendariz spends the next several minutes speaking"?
A. Yes.
Q. Now, I want you to move up from that maybe six lines or so.
Do you see: "Deputy Armendariz proceeds to look into the
vehicle and asks the subject how much money he has"?
Do you see that?
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Bailey - CX Masterson, 10/29/15 Melendres v. Arpaio 4012
A. Yes.
Q. Now, Ms. Wang asked you questions about this. "The subject
responds that he believes he has about $1100."
Do you see that?
A. Yes, sir.
Q. Then Ms. Wang asked you -- she either read it to you or she
asked you to read it, I don't remember -- "Deputy Armendariz
counts the money in front of the subject but not in view of the
camera and tells him he has $900."
See that?
A. Yes.
Q. Now, she left out the next line. Can you read that for me?
A. "The driver does not dispute the amount."
Q. Okay. Now I want to talk a little bit about the criminal
IA that was one of the Armendariz spin-offs or --
That was a spin-off, is that right?
A. This here?
Q. No, no. I'm talking about the 40 some-odd, 40, 50 deputies
that were interviewed in a criminal IA by Sergeant Tennyson.
A. Yes, sir.
Q. Do you remember that situation?
Whose idea was it to start a criminal IA on those
folks?
A. I ordered it.
Q. Did you consult with anyone else before you ordered it,
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Bailey - CX Masterson, 10/29/15 Melendres v. Arpaio 4013
ordered that IA?
A. I don't believe I did. I advised the chief deputy after I
gave that order.
Q. Did the chief deputy tell you not to do that?
A. No, sir.
Q. Why did you decide you needed to start a criminal IA on
those deputies?
A. For a couple of reasons. One, Perez's statements give the
indication or make the allegation that somebody stole a TV, or
that they were removing items inappropriately out of houses.
And by all accounts, that could be a theft, so I ordered a
criminal investigation on a potential theft.
Q. And what was the result of the investigation?
A. There's no evidence that members of HSU were stealing
anything from the houses.
Q. And you were asked a question: Do you stand by the
findings of the Cisco Perez criminal investigation? Remember
that?
A. That and the -- and the subsequent turndown from the County
Attorney's Office, who told us there was no value to those
items and there was no evidence of a theft.
Q. No evidence of theft?
A. Yes, sir.
Q. Did the monitor criticize you for that investigation?
A. Yes, sir.
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Bailey - CX Masterson, 10/29/15 Melendres v. Arpaio 4014
Q. Do you know why?
A. My understanding was they didn't think a criminal
investigation was warranted.
Q. Did you review Sergeant Tennyson's investigation of the
Cisco Perez allegations?
A. Yes.
Q. Did you have some problems with how he conducted the
investigation?
A. Some minor issues came up, yes.
Q. Did you talk with him about those issues?
A. I did.
Q. Do you recall what issues you talked with him about?
A. There was an original document that he initially gave to me
that had his findings and then some discussion he had had with
the monitors, and it was all one document. It was a draft. I
looked at it, read it, and I told him to take the monitor
comments out and just let the information about the
investigation stand on its own.
Q. How about his interviewing methods, did you have any
problem with that?
A. I wouldn't say I had a problem with it. It's not the way I
would have done it, but everybody has a different style when
they do interviews.
Q. Now, Ms. Wang asked you some questions about -- I think she
used the word "apologetic," that he appeared apologetic in
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Bailey - CX Masterson, 10/29/15 Melendres v. Arpaio 4015
asking questions. Did you have any conversations with
Sergeant Tennyson about that?
A. After the interviews were over, yeah, I did.
Q. What did you tell him?
A. That he doesn't have to be apologetic in terms of how we do
our cases. We're the finders of fact, and he's just merely to
ask the questions and get the best response and the best
information possible.
Q. Now I want to talk for just a couple minutes about the time
when PSB was going to review Armendariz videos.
Do you remember that?
A. Yes, sir.
Q. Was there a plan developed on how you guys were going to go
about doing that?
A. Yes, sir.
Q. How was that -- how was that done?
A. Sergeant Fax came up with a, for lack of better term, a
lesson plan, or a document that instructed the reviewers on
what to look for, policy violations versus legal violations, to
document the date and time and give a brief summary on what
their findings were.
The instruction was: If you see problematic behavior,
we need a summary written about it so we can investigate it
later.
Q. Did you re -- well, was a protocol prepared for reviewing
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the videos?
A. That's a better word for it; yes, there was.
Q. Okay. Is that what you were talking about?
A. Yes.
Q. All right. Now, I understood you to testify that there
were lieutenants involved in this review, and I'd just like you
to explain how exactly that happened.
A. We selected a number of lieutenants throughout the office
to come down to PSB -- actually, it was in the -- primarily in
the second floor, where there was a number of computers and
they could view videos independently and make their findings
after reviewing the videos.
Q. Do you have any recollection of how long this all took?
A. Months.
Q. How many lieutenants did you recruit to look at these
videos?
A. At various times, I think between 30 and 50.
Q. Now, I just have a couple of questions on the spin-off
investigations from Armendariz. Did I understand you to say --
well, I think I understood you to say, while I've been talking
with you up here, that there were a large number of Armendariz
spin-off investigations, is that correct?
A. Yes, sir.
Q. Now, what I want to ask you about is I didn't understand,
and you talked about it a little bit, but when there were
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sometimes separate IAs and sometimes you consolidated IAs, I'd
just like to understand better how it is and why you did that.
A. Some of the things we found at Armendariz's house where we
couldn't tie them being associated with Armendariz but
potentially with another deputy, I believe Sergeant Fax kept
them under one IA number.
Q. Okay.
THE COURT: May I follow up on that, Mr. Masterson?
MR. MASTERSON: I'm sorry?
THE COURT: I'm not sure I understood the answer.
Can I ask a follow-up on that?
MR. MASTERSON: Certainly.
THE COURT: When you say if Fax found items in
Armendariz's house that couldn't be tied to Armendariz, but
with another deputy, he kept them under one IA number, what do
you mean by that?
THE WITNESS: He kept them under the -- I believe he
kept them under the 221 IA number, because they couldn't be
associated with Armendariz but they weren't necessarily
associated with another deputy. So he didn't pull an
independent number if he couldn't reconcile it.
THE COURT: And so Armendariz is the only topic under
221.
THE WITNESS: Yes, sir.
THE COURT: Or the only subject under 221.
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THE WITNESS: If I remember correctly, yes.
THE COURT: But any other items that were also
associated with another deputy that couldn't be tied to
Armendariz are under 221?
THE WITNESS: Well, they couldn't necessarily be tied
to another deputy. We couldn't say they were from a case that
Armendariz did. There was no DR; there was no CAD entry; there
was no evidence that Deputy Armendariz was responsible for
those items; but we couldn't find another deputy, either, that
was responsible for it, Sergeant Fax kept them under the 221
number.
THE COURT: All right. So you kept under the 221
things that were not associated with Armendariz, and that you
could not -- you couldn't tie to any other deputy.
THE WITNESS: Yes, sir.
THE COURT: And does 221 have the efforts that you
made to tie those items to other personnel?
THE WITNESS: Yes, sir.
THE COURT: Thank you.
THE WITNESS: Yes, sir.
THE COURT: Thank you, Mr. Masterson.
MR. MASTERSON: Trying to figure out whether I have it
straight now.
THE COURT: Okay. Did I --
MR. MASTERSON: No, I -- I think you did it, but I
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just have one question.
BY MR. MASTERSON:
Q. But if you could tie it to another deputy, then a new IA
number would be pulled and that would be investigated.
A. That's how Sergeant Fax did it, yes.
Q. Okay. Then I think I got it.
All right. Now, I'm making a big jump. We're going
to Seattle.
A. Yes, sir.
Q. Were you involved in the actual Seattle investigation?
A. No.
Q. Do you know all of the information that Dennis Montgomery
provided to the investigators during the Seattle investigation?
A. A very cursory knowledge of it, but not all of it, no.
Q. Did you ever meet with Dennis Montgomery?
A. No.
Q. Other than that, I'm not sure what to call it, graph or --
it was the thing that you looked at that had the circles and
arrows and boxes and all those sorts of things. Other than
that, did you see any other documents associated with the
Seattle investigation?
A. Early on, Detective Mackiewicz showed me a page or
page-and-a-half document that he obtained from Montgomery.
Q. Was that a time line document?
A. No, it was a -- more of a bullet-pointed sheet of
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information.
Q. Okay. Other than those two documents, did you see any
other documents associated with the Seattle investigation?
A. Other than what I