Melendres v. Arpaio #1369 Sept 24 2015 TRANSCRIPT - DAY 5 Evidentiary Hearing

8/20/2019 Melendres v. Arpaio #1369 Sept 24 2015 TRANSCRIPT - DAY 5 Evidentiary Hearing

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1036

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Manuel de Jesus Ortega Melendres,et al.,

Plaintiffs,

vs.

Joseph M. Arpaio, et al.,

Defendants.

)))))))))))

No. CV 07-2513-PHX-GMS

Phoenix, ArizonaSeptember 24, 20159:04 a.m.

REPORTER'S TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE G. MURRAY SNOW

(Evidentiary Hearing Day 5, pages 1036-1278)

Court Reporter: Gary Moll401 W. Washington Street, SPC #38Phoenix, Arizona 85003(602) 322-7263

Proceedings taken by stenographic court reporterTranscript prepared by computer-aided transcription


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Melendres v. Arpaio, 9/24/15 Evidentiary Hearing 1037

A P P E A R A N C E S

For the Plaintiffs:American Civil Liberties Union FoundationImmigrants' Rights ProjectBy: Cecillia D. Wang, Esq.39 Drumm StreetSan Francisco, California 94111

American Civil Liberties Union FoundationImmigrants' Rights ProjectBy: Andre Segura, Esq.125 Broad Street, 18th FloorNew York, New York 10004

American Civil Liberties Union of ArizonaBy: Daniel J. Pochoda, Esq.P.O. Box 17148Phoenix, Arizona 85011

Covington & Burling, LLPBy: Tammy Albarran, Esq.By: Lauren E. Pedley, Esq.1 Front Street, 35th FloorSan Francisco, California 94111

Covington & Burling, LLP

By: Stanley Young, Esq.By: Michelle L. Morin, Esq.333 Twin Dolphin Drive, Suite 700Redwood Shores, California 94065

For the Defendant Maricopa County:Walker & Peskind, PLLCBy: Richard K. Walker, Esq.By: Charles W. Jirauch, Esq.SGA Corporate Center16100 N. 7th Street, Suite 140Phoenix, Arizona 85254

For Chief Deputy Gerard Sheridan:Mitchell Stein Carey, PCBy: Lee D. Stein, Esq.1 Renaissance Square2 North Central Avenue, Suite 1900Phoenix, Arizona 85004


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For the Defendant Joseph M. Arpaio and Maricopa CountySheriff's Office:

Iafrate & AssociatesBy: Michele M. Iafrate, Esq.649 N. 2nd AvenuePhoenix, Arizona 85003

Jones, Skelton & Hochuli, PLCBy: A. Melvin McDonald, Jr., Esq.By: John T. Masterson, Esq.By: Joseph T. Popolizio, Esq.2901 N. Central Avenue, Suite 800Phoenix, Arizona 85012

For the Movants Christine Stutz and Thomas P. Liddy:Broening, Oberg, Woods & Wilson, PCBy: Terrence P. Woods, Esq.P.O. Box 20527Phoenix, Arizona 85036

For the Intervenor United States of America:U.S. Department of Justice - Civil Rights DivisionBy: Paul Killebrew, Esq.950 Pennsylvania Avenue NW, 5th FloorWashington, D.C. 20530

U.S. Department of Justice - Civil Rights DivisionBy: Cynthia Coe, Esq.601 D. Street NW, #5011Washington, D.C. 20004

For Deputy Chief Jack MacIntyre:Dickinson Wright, PLLCBy: Gary L. Birnbaum, Esq.1850 North Central Avenue, Suite 1400Phoenix, Arizona 85004

For Executive Chief Brian Sands:Lewis, Brisbois, Bisgaard & Smith, LLPBy: Greg S. Como, Esq.2929 N. Central Avenue, Suite 1700Phoenix, Arizona 85012


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For Timothy J. Casey:Adams & Clark, PCBy: Karen Clark, Esq.520 E. Portland StreetPhoenix, Arizona 85004

Also present:Sheriff Joseph M. ArpaioExecutive Chief Brian SandsChief Deputy Gerard SheridanDeputy Chief Jack MacIntyreLieutenant Joseph Sousa


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I N D E X

Witness: Page

GERARD SHERIDAN

Direct Examination Continued by Ms. Wang 1069

E X H I B I T S

No. Description Admitted

1001 Memorandum, 11/20/14, from D. Tennyson to 1048G. Sheridan, Subject: Found Identification

(Armendariz Search Warrant)

2008 Employee Grievance Response by Chief Deputy 1206Sheridan dated 7/28/2015 (MELC724585-MELC724587)

2062 Documents from IA 15-022 dated 7/2015 1216(MELC680471-MELC680481)

2070 E-mail chain: From Steve Bailey to Larry 1121Farnsworth re HSU portion of op manual dated11/4/2013 (MELC1032200-MELC1032203)

2510 Notice of meeting to discuss the Melendres 1090case dated 4/3/2012 (MELC833475)

2519 Maricopa County Sheriff's Office Administra- 1221tive Investigation of Deputy Richard Lopez(MELC676786-676814)

2520 Maricopa County Sheriff's Office Notice of 1204Findings dated 6/1/2015 (MELC229076-229093)

2521 Maricopa County Sheriff's Office internal 1240affairs investigations, findings, copy ofinitial complaint, transcripts of interviews(MELC820994-MELC821177)

2857A Audio Clip 1 Name Clearing Sheridan, 5/11/2015 1239

2878 Sheridan Presentation on Uninvestigated Sex 1104Crimes; Montgomery Presentation on Melendresand DOJ dated 1/31/2012


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P R O C E E D I N G S

THE CLERK: This is Civil Case No. 07-2513, Melendres,

et al., v. Arpaio, et al., on for continuation of evidentiary

hearing.

THE COURT: Are the parties going to announce, please.

MS. WANG: Yes, Your Honor. Good morning. Cecillia

Wang of the ACLU for the plaintiff.

MR. YOUNG: Good morning, Your Honor. Stanley Young

of Covington & Burling. With me are my colleagues Michelle

Morin, Tammy Albarran, and Lauren Pedley.

THE COURT: Good morning.

MR. SEGURA: Good morning. Andre Segura of the ACLU

for the plaintiffs.

MR. POCHODA: Dan Pochoda of the ACLU of Arizona for

plaintiffs.

MR. KILLEBREW: Good morning, Your Honor. Paul

Killebrew and Cynthia Coe for the United States, plaintiff

intervenors.


MR. MASTERSON: Good morning, Judge Snow. John

Masterson and Joe Popolizio for Sheriff Arpaio and MCSO, and

with us is Holly McGee, who will be assisting us.

THE COURT: All right. Just so we're clear, MCSO is

not a party to this action; Maricopa County is.


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MR. MASTERSON: I understand. I'm just trying to let

you know we represent more folks than just Sheriff Arpaio.

THE COURT: Thank you.

MR. WALKER: Good morning, Your Honor. Richard Walker

and Charles Jirauch on behalf of Maricopa County.

MR. McDONALD: Good morning, Your Honor.

Mel McDonald, special appearance for Sheriff Joe Arpaio.


MR. STEIN: Good morning, Your Honor. Lee Stein

specially appearing for Chief Deputy Sheridan.


MR. COMO: Good morning, Judge. Greg Como

representing retired Chief Brian Sands, who's present today.


MS. IAFRATE: Good morning, Your Honor. Michele

Iafrate on behalf of Sheriff Arpaio and the unnamed contemnors.

And I just want to point out that Lieutenant Sousa is

in the courtroom, his attorney is not present, so I just wanted

to make his presence known.

THE COURT: Well, you are his attorney, are you not?

MS. IAFRATE: I am, but normally --

THE COURT: As well as Mr. Masterson and

Mr. Popolizio?

MS. IAFRATE: That is why --

THE COURT: You're talking about his specially


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appearing attorney.

MS. IAFRATE: Correct.


MR. BIRNBAUM: Good morning, Your Honor. Gary

Birnbaum specially appearing for Department Chief

John MacIntyre, and Chief MacIntyre is in the courtroom as

well.


MS. CLARK: Karen Clark, ethics counsel for Tim Casey.

MR. WOODS: Terrence P. Woods. I represent nonparties

Stutz and Liddy.

THE COURT: Anyone else that wishes to make an

appearance?

All right. We have a few matters to take up before we

begin the hearing just that are housekeeping. We had discussed

not actually a final pretrial order, but something along the

lines of a statement that would direct the parties in terms of

topics and documents.

Have the parties been able to arrive at that yet?

MS. WANG: No, Your Honor, we have not. We did

provide the defendants with all of our exhibits, and we've been

meeting and conferring, basically last night, over whether we

can stipulate to the admission of any of the exhibits. The

County has provided objections to some of them. Mr. Masterson

has joined in those objections, but my understanding from


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Mr. Masterson is they're not prepared at this time to stipulate

to the admission of any exhibits. And we do not have any

stip -- other stipulations on a pretrial order of the sort

you're describing.

THE COURT: Mr. Masterson.

MR. MASTERSON: Judge, we've received the initial list

of witnesses from the plaintiffs which listed nine witnesses

for I think the first two to possibly three to four days of the

hearing, so we have that information.

I requested that they provide information on the

issues that they would be presenting testimony for each

witness, and I was told that -- to basically look at the

depositions, because it's going to involve the issues that were

discussed in the depositions. So that was not much help, but

at least I have that much information.

So last night, I believe, we started getting exhibits,

and we have over a thousand exhibits that have been listed, so

we just have not had time to go through those and select which

ones we can stipulate to. But I assure you that I will not

needlessly object to exhibits when they come to light during

the presentation of plaintiffs' case.

THE COURT: All right. I appreciate that.

We have in the past, or at least the first iteration,

the first part of this contempt hearing, I treated witnesses

pretty much as called by both sides. You may have reviewed the


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transcript and know, for example, that I let plaintiffs ask;

then I let all the defense parties ask; then if I had any

questions, I asked. Then plaintiffs asked redirect and we had

defendants ask redirect so we wouldn't have to be calling

witnesses multiple times.

Is that going to be acceptable to you?

MR. MASTERSON: Well, here's the initial plan, Judge,

and this obviously could evolve as we progress. But I know

that the Court is going to -- well, at the close of plaintiffs'

case we discussed Rule 50 motions. Those will certainly be

made.

Through the course of our status conferences over the

last few months, specially appearing counsel have had

discussions with you. Mr. Birnbaum's discussed with you the

status of Deputy Chief MacIntyre. Mr. Eisenberg has discussed

the status of Joe Sousa. So at the close of plaintiffs' case,

I'm thinking that you're going to be presented with Rule 50

motions, both on civil issues and on criminal issues. At that

point, then, defendants are going to have more guidance on what

exactly the Court's going to be interested in moving forward.

THE COURT: Right. So --

MR. MASTERSON: At this point we're kind of going to

stick to Rule 611(b) and just address issues discussed by the

plaintiffs. Now, if something we obviously know we're going to

get into regardless, we'll do that as well to save time, but we


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may be recalling certain of these witnesses during our case.

THE COURT: All right. Well, then, as plaintiffs have

provided you with a witness list, I would expect you would do

the same for them.

And I want a copy of whatever you gave Mr. Masterson.

Mr. Masterson, I'm going to want a copy of whatever

you've given or what you will give Ms. Wang. And if both -- if

everybody's saying it's not practical to stip -- I would still

appreciate an attempt to stipulate to certain exhibits, and if

you can let me know what those are start of the day tomorrow,

or even afternoon today, that would be helpful.

MR. MASTERSON: Certainly, Judge.

THE COURT: Let me ask you, it occurred to me -- I did

sit through, at the request of the parties, the deposition

of -- or virtually the entire deposition of Mr. Casey. I

assume that you finished it up -- because you didn't call me

back -- without needing me.

And the issues -- as I recall, the issues pertaining

to the May 14, 2014 meetings that may or may not have existed

between your clients and counsel never really were teed up. I

said I was going to -- I was going to deal with them on a

question-by-question basis, and as I recall, I never had to

deal with too many, both because I think you were reasonable in

allowing questions that sort of related to that, and

Ms. Wang -- or whoever was taking the deposition, and I think


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it was Ms. Wang -- didn't push too hard on trying to inquire

into the substance of the May 14, 2014 meeting.

Is advice of counsel going to be a defense on the May

14, 2014 meeting? Can you tell me? If you can't, that's fine.

MR. MASTERSON: I can't at this point, Judge.

THE COURT: All right. And so that may yet be an

issue for trial for me to rule on.

MR. MASTERSON: Yes, Judge.

THE COURT: All right. Very well. I will keep that

in mind.

I did review yesterday, tried to briefly review the

testimony -- the previous testimony of Chief Deputy Sheridan

because I assumed he would be up today. And in the course of

that review I noted that I never moved to admit Exhibit 1001,

which was an exhibit that Chief Deputy Sheridan identified as

one that he had received from Sergeant Tennyson, and on which

he had made written notations.

I do have a copy of that testimony, in case you wanted

to look at it to see if you felt like an adequate foundation

was made, that I'm happy to give to you if you'd like to see it

and any other parties, but I just wondered if we could

stipulate to the admission of that, since I had previously

neglected to do that.

Do you want to see the testimony, the relevant

testimony?


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MR. MASTERSON: I do not yet, Judge.

MS. WANG: Your Honor, plaintiffs would so stipulate

and we'd move for the admission of Exhibit 1001.

(Pause in proceedings.)

MR. MASTERSON: No objection, Judge.

THE COURT: Mr. Como?

MR. COMO: I have no objection.

THE COURT: All right. Exhibit 1001 --

MR. JIRAUCH: Your Honor, Maricopa County has no

objections.

THE COURT: All right. Let me just say I do have

pending from Maricopa County a question about its participation

as a full party participant. I haven't ruled on it yet.

But for your guidance, Mr. Jirauch and Mr. Walker,

you're here because the Ninth Circuit has directed your

reintroduction into this matter as the jural entity to be sued,

since Maricopa County Sheriff's Office is not a jural entity.

That is how I'm going to treat you, as the jural entity that

encompasses Maricopa County Sheriff's Office. And I will

review the full motions and make a ruling if that's -- if there

are any issues that are outstanding other than that.

But Exhibit 1001 is admitted.

(Exhibit No. 1001 is admitted into evidence.)

THE COURT: To the extent that Maricopa County or

Mr. Como want to participate in that pretrial-like statement,


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I'm going to require you also to exchange witnesses and topics

of testimony, at least generally, as well as documents, and to

stipulate to them. Because even though in light of the fact of

late-provided discovery, I indicated I will give plaintiffs

some leeway if they can convince me that they've -- they didn't

have time to process what they had, I would -- I would give

some leeway in terms of allowing topics and questions that

weren't in the -- this pretrial-like statement.

I am going to pretty much govern this trial by what is

disclosed in that statement. And if you're going to try and

move beyond it, and I mean any party's going to try and move

beyond it, they're going to have to convince me that there's a

justification in light of late discovery or for some other

reason to introduce other topics.

Is everyone clear on that? Does anyone have any

concerns about it?

MR. YOUNG: Your Honor, I do have one issue with

respect to late discovery, and it also relates to the order of

questioning witnesses.

We had asked for the depositions of Detective

Mackiewicz and Mr. Zullo prior to the hearing that's starting

today. We were not able to manage that.

We understand from Mr. Masterson's office that both of

them are available for a deposition on October 7. We are

hoping to do that, although I also understand that


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Mr. Masterson -- well, actually, Mr. Masterson has asked us to

serve Mr. Zullo personally rather than through his office, so

how he responds to that we're not yet certain.

I want to raise the issue because as to witnesses,

over the next two days and over next week we'll be calling

witnesses without having first had a chance to depose Mr. Zullo

and Detective Mackiewicz. It may be, as a result of that late

discovery, which we tried to get but weren't able to schedule

before today, that we will need to call back some of the

witnesses we call over the next six days. And I just want to

make sure that Your Honor is aware of that fact.

THE COURT: I am aware of the fact that you've

attempted to get Mr. Zullo and Mr. Mackiewicz prior to this

hearing, that they are now scheduled at sort of one of the

interim days.

MR. YOUNG: October 7, Your Honor.

THE COURT: All right. Are there going to be any

issues, Mr. Masterson? I guess I'll ask you, and maybe this

isn't a necessary question. I haven't --

I'm not going to ignore you, Mr. Jirauch.

Are there going to be any issues as it relates to

advice of counsel defense and May 14, 2014? I mean,

everybody's had a chance to depose those witnesses, but if

you're going to really invoke that as a defense, I want to make

sure you had a full opportunity to depose counsel's witnesses.


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Counsel has witnesses on that issue if you want it.

MR. MASTERSON: I want to take a close look at that

issue, Judge, and I'll probably have some more information on

that to you this afternoon.


Mr. Jirauch.

MR. JIRAUCH: Thank you, Your Honor. Just for

purposes of the record, I would note that the defendants,

Maricopa County and the sheriff's office, the sheriff, have

given responses to all of the exhibits that plaintiff has

identified that they intend to use. Some of the exhibits,

probably about 20 percent of them, we're not able to at this

point in time evaluate as to how they will use them. But as to

the rest, they were given responses yesterday evening. It was

an informal response through an e-mail, but it covered every

document that they have identified.

THE COURT: All right. Thank you.

MR. JIRAUCH: And we can provide Your Honor a copy.

THE COURT: Can you not hear me?

MS. WANG: I couldn't hear what you just said, Your

Honor. I think it was just because Mr. Jirauch was also

speaking.

THE COURT: All right. Well, I assume that the

parties realize I want this statement and that you'll get it

done, including stipulations to exhibits.


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MS. WANG: Yes, Your Honor.

Just for the record, we gave defendants the vast

majority of our exhibits on Tuesday, which was the date that

the Court had directed. We did continue to provide some of the

late-breaking exhibits through yesterday. And we appreciate

that Mr. Jirauch did get back to us with his agreement on some

of them, and we did seek to enter into those stipulations.

We do have a number of other issues relating to the

exhibits, and to evidence generally, that I wanted to raise.

Over the course of the depositions over the last two weeks, a

number of new documents came to light through witness

testimony. There are 13 documents or categories of documents

that we requested of defendants over the course of the

depositions that are still outstanding. They did give us some

of the documents requested, but there are still 13 outstanding.

There's a 14th category, Your Honor, which is that in

the deposition of Tim Casey, it appeared to me that the

redacted copy that we have through the -- through Mr. Vogel's

exhibits to the 14543 investigation are more heavily redacted

than comports with the Court's ruling on the attorney-client

privilege.

I, frankly, do not recall whether I asked for a

less-redacted version from Mr. Casey but we would request that

at this time. But there are 13 categories of documents teed up

already that -- on which we are still waiting for a document


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from the defendants.

THE COURT: All right. Can you try to work those out

in the interstices between testimony as well?

MS. WANG: We will do our best, Your Honor.

THE COURT: And then we'll just raise them; we'll

raise them and I'll deal with them. I mean, I've got days with

interspersed dates, and if we have to do more, we will do more;

and if we don't have to do more, we're not going to do any more

than we have to do.

MS. WANG: That would be our hope as well.

One other issue, Your Honor, is that there were a

great number of documents disclosed with the designation

"attorneys' eyes only." Some of the documents bear that

designation on their face. Many of the documents were produced

with a cover letter that said these are attorneys' eyes only,

which plaintiffs believe is contrary to the terms of the

protective order and put a burden on us to figure out whether

any given document in a voluminous production was attorneys'

eyes only.

I will say plaintiffs' view is that as to Internal

Affairs files where the investigation is closed, that those

documents should not be attorneys' eyes only. If there is any

information contained within those documents, such as personal

identifying information, we would request that defendants

provide a redacted copy that could become part of the record in


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this case. But we are ready to proceed today, and we would ask

that we not be required to submit those documents for closed IA

investigations under seal.

THE COURT: All right.

Mr. Masterson, anything from you?

MR. MASTERSON: Well, I guess the only thing I have to

say about that, Judge, is I'd be more than happy to look at the

documents that are marked attorneys' eyes only, but I'm going

to request that plaintiffs, they pare it down from a thousand,

I'll take a look. But I don't think I need to look through 900

if they're not going to introduce them. So if they want to

introduce one, I'll take a look at it and make a decision and

tell you we can take off the eyes only, or it can be for public

consumption.

THE COURT: You know, Ms. Wang, I will say that -- and

I don't know that you practice this way, but safe practitioners

often mark many more documents than actually get introduced at

trial. And it does seem to me that it's not fair, really, to

ask Mr. Masterson to just review all of the documents, unless

you really believe that you may be introducing them at trial.

So if you could give him a tighter designation on that, and

then as to the others that may only become necessary, it may be

shorter just to deal with them if and when they come up.

MS. WANG: I can tell him right now that my suggestion

would be to start with exhibits that were introduced during


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depositions.

THE COURT: All right. But can you give him that

list?

MS. WANG: I can, yes.

THE COURT: All right. Thank you. It also --

Ms. Clark. I'm going to require you to approach a

microphone.

I have your request for reconsideration. Is that what

you're up about?

MS. CLARK: No, it's not.

THE COURT: Okay.

MS. CLARK: I was up because of the statement by

Ms. Wang that she would be seeking the document, whose number I

did not catch from Casey, and as the Court is aware, you've

previously ordered Mr. Casey's client file went to defendants'

attorneys, the new counsel, in December last year, so he -- but

by your previous orders, those requests from Ms. Wang are

directed to the defendants to produce, and I just wanted to get

that on the record.

THE COURT: Thank you. Stay right there, Ms. Clark.

Ms. Clark filed a motion for reconsideration. Parties

don't respond unless I invite them to respond. I'm not going

to invite them to respond because I'm not going to reconsider

my order. Mr. Casey's going to have to come. He's going to

have to be present. He's going to have to testify.


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You, of course, are authorized, as his counsel, under

the circumstances, to be present and to interpose objections

that may be separate from those that may be interposed by the

defendants or the plaintiffs.

I will suggest, though, in order to -- and I'm going

to allow you to make whatever objections you feel you need to

make to protect your client, but I would suggest that any

objections I directed the defendant -- or not the defendant,

that I directed Mr. Casey to answer over a 1.6 objection at his

deposition I am similarly going to order him to answer here in

open court.

If that provides you any guidance, I'm not going to

prevent you from making those objections, but I'm going to tell

you that the 1.6 objections will be overruled if they were

overruled in the deposition.

MS. CLARK: I understand, Judge. Because the

depositions, you ruled it was a question-by-question basis, the

only way for me to know that you --

THE COURT: Well, oftentimes even with that general

statement, I recognize oftentimes there is questions that

require parsing.

MS. CLARK: Exactly, Judge. And if the question is

worded exactly the same as it was at the deposition, then that

creates a problem as well. So I very much appreciate your

ruling on my motion.


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It also seems to me, Ms. Wang, I did notice that last

evening --

You can go, Ms. Clark, unless somebody else has

anything for you.

Oh, Mr. Woods.

MR. WOODS: Thank you, Your Honor.

THE COURT: Please.

MR. WOODS: Your Honor, would I be correct in

expecting that the rules as to my participation would be

identical, if and when my clients testify?

THE COURT: You would be correct. But I will say,

just -- and I was present briefly telephonically for some of

Ms. Stutz's deposition; I was not present for Mr. Liddy's

deposition. But I will say that some of -- that the trial may

be more involved, depending upon whether Mr. Masterson is going

to assert an advice of counsel defense as to those May 14, 2014

meetings. I think that would involve you more directly. It

may also involve Mr. Casey, depending upon what his testimony

is at that time.

So you may want to consider that as well.

MR. WOODS: Thank you, Your Honor.


Anyone else specially appearing wants to be heard? We

might actually get to testimony by this afternoon.


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MR. KILLEBREW: Your Honor, I just wanted to seek

clarification on the pretrial statement. As you know, the

United States intends to call an expert if the Court permits

it.

THE COURT: Yes.

MR. KILLEBREW: We have not identified that expert to

the defendants yet, and we would seek the Court's permission to

wait to identify that expert until we know whether the Court

will permit us to put the expert on.

THE COURT: I think that's okay.

Is that all right with you, Mr. Masterson?

MR. MASTERSON: It is, Judge.


You have any problem with that, Mr. Como?

MR. COMO: No, Your Honor.

THE COURT: That will be fine.

MR. KILLEBREW: Thank you, Judge.

THE COURT: Mr. Walker.

MR. WALKER: Your Honor, just one very brief

housekeeping matter that doesn't have directly to do with

anything we're here about today.

The County has received and has been holding, awaiting

the Court's review and approval of the monitor's bill, I think

from July, and I just wanted to make the Court aware of the

fact that we're awaiting the Court's direction on it.


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THE COURT: Well, I appreciate you bringing that up.

I thought I probably had approved it. If I haven't, I will do

my best to look and let you know.

MR. WALKER: Thank you.


I did receive late last night, and I don't mean late,

late last night, but before I went home I checked the record

and found two motions in limine filed by the defendants

regarding the Montgomery investigation and testimony of Don

Vogel, and IA 542 and 543.

Do you wish to address those at this point?

MR. YOUNG: Yes, we do, Your Honor.

First with respect to the motion as to Mr. Vogel,

Federal Rule 701 does allow opinion testimony by lay witnesses

under certain circumstances. It's unclear whether the motion

is designed to prohibit Mr. Vogel from testifying at all or

prohibiting certain questions. I think if you look at the very

end of the motion it's unclear.

But it's undisputed that Mr. Vogel has relevant facts

going to the 542 investigation internally done by the MCSO as

to lack of supervision of Deputy Armendariz, and to the 543

internal investigation relating to the violation of the

preliminary injunction.

It is our claim that the Internal Affairs procedure

and process within the MCSO is in dire need of reform and


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additional injunctive relief, and the facts of what happened

during that investigation, which Mr. Vogel conducted, are

highly relevant to that issue.

If he testifies to what he did and what he thought

during the course of that investigation, I think that's highly

relevant and should not be prohibited. If the objection to a

particular question is that it calls for expert testimony, and

Mr. Vogel is deemed not to be an expert for which that

testimony would be appropriate, then an objection can be made

and I would suggest that Your Honor simply deal with those on a

question-by-question basis as they come up. But the motion as

phrased should be denied.

THE COURT: All right. I am going to --

Mr. Masterson, anything you want to be heard on that at all? I

mean, you did file the motion, and I don't usually hear replies

on motions in limine, but I'll let you say something briefly.

MR. MASTERSON: I just want to make it clear, to

alleviate some concern Mr. Young has, is we're not saying that

Mr. Vogel can't testify at all; just that he can't offer expert

opinions and opine about, well, what they should have done.

He can testify as to all the facts he determined

during his investigation, but his opinions of maybe what they

should have done, he's not an expert witness, he wasn't

designated an expert witness, he wasn't disclosed as an expert

witness, there's no expert witness report under 26(a)(2)(B), so


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any of those opinions should be excluded from evidence.

THE COURT: Well, I'm going to wait until -- I'm not

going to grant your motion in limine. I will rule on

individual objections during the testimony of Mr. Vogel, and

you can raise those objections at that time.

MR. MASTERSON: Thank you, Judge.

THE COURT: Montgomery investigation.

MR. YOUNG: Yes, Your Honor. I would like to offer

Your Honor something in the nature of an offer of proof with

respect to the relevance of the Montgomery investigation. And

the state of mind of the alleged contemnors is obviously

important in determining the nature of the remedy and the other

questions that Your Honor has posed. The state of mind as of

the time of the May 14, 2014 violation of this Court's orders

is highly relevant, and the state of mind and the general

nature of the defendants' responses to adverse Court rulings is

relevant to the other violations that are listed in the OSC.

So what I'd like to do -- and this may take a few

moments, and we're going to go through some documents, Your

Honor -- is show how the Montgomery investigation is a direct

response, both at its outset and up to the present point, to

this Court's rulings and to this Court's contempt proceeding.

So I would start, if Mr. Klein, our technical person,

can pull up Exhibit 2283, we have a June 28, 2012 article

relating to the issue of whether Your Honor should recuse


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himself due to the fact that his brother-in-law works at my law

firm.

MR. MASTERSON: Is this document in evidence?

MR. YOUNG: Well, nothing is in evidence yet. It is a

marked exhibit. It was at a deposition.

MR. MASTERSON: Well, I'm not sure we should be

reading from unmarked -- excuse me, unadmitted exhibits or

letting the trier-of-fact see unadmitted exhibits at this

point.

THE COURT: That will be fine. I don't want to see

the exhibits.

MR. YOUNG: All right. Well, let me describe for you

what we intend to show during the testimony. As of that time,

as Your Honor has previously described, Sheriff Arpaio

stipulated to Your Honor serving on the case and going through

the trial that was then about to take place. The trial did

take place. Your Honor took several months to come to a

ruling, ruled in May 2013; in October 2013 issued a

supplemental injunction in which Your Honor announced that you

would appoint a monitor in the case.

That very month, October 2013, Sheriff Arpaio met with

Mr. Zullo, Detective Mackiewicz, and another man, Timothy

Blixeth, during which a discussion arose as to an individual

employed by a federal intelligence agency who ended up being

Mr. Montgomery.


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Then we have on November 5, 2013, just about a month

after Your Honor's supplemental injunction, a document faxed

from Bellevue, Washington, to Sheriff Arpaio, received by and

reviewed by Sheriff Arpaio. We know that because his

handwriting is on that document. And that document is entitled

DOJ/Arpaio. It is a timeline of the DOJ investigation with

references to members of the Department of Justice, and refers

to the Melendres case which is before Your Honor.

The next page of that exhibit, although it's not clear

exactly when it was prepared, is a typewritten document by

Sheriff Arpaio. This is November 6. It actually refers to a

November 6, 2013, telephone call received by the sheriff.

THE COURT: Mr. Masterson.

MR. MASTERSON: Well, again, Judge, we're --

THE COURT: You know what? I do think we can shortcut

a lot of this. I think I've already explained on the record

why I believe the Montgomery investigation is relevant. I did

that, I don't -- I don't think you were in the case yet,

Mr. Masterson, but when I first got the document productions, I

indicated on the record why I thought that these matters might

be relevant.

I grant you that they are not directly relevant as it

pertains to liability, but it does seem to me that they're

relevant as it pertains to remedies, and they're also relevant

as it pertains to the credibility of the witnesses in this


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case.

So I think if we can save you going through a whole

lot more, I'll invite you to respond, if you wish to,

Mr. Masterson.

MR. YOUNG: If Your Honor is inclined to deny the

motion, then I should actually sit down. But I'll reserve the

right to respond to Mr. Masterson if he comes up with anything.

THE COURT: I will give you that right.

MR. MASTERSON: Since Mr. Young wisely chose to sit

down, I'm going to pretty much do the same, except to ask for a

limitation. And I understand what the Court's saying with

respect to previous statements you've made on the record about

the relevance, minimal as it might be, the potential for

relevance of the Montgomery issues.

But I'm going to refer the Court to an August 21, 2015

status conference in which we discussed this issue. And

Mr. Young, I raised the potential of the talk that the Court

had with me about the expenditures on the Montgomery

investigation, and the Court's concern that possibly moneys

were being spent on investigations rather than being spent on

compliance. And we had a discussion about that.

Mr. Young said at page 57: Actually, I don't know

that the expenditure of funds is going to be at issue. He

said: I don't think we are planning to ask questions about it

or make much of an issue about it with respect to the


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proceedings going forward.

The Court then on page 58 said: I'm not concerned

about expenditures.

So what I do want to do, then, is limit the testimony

with respect to Mr. Montgomery, because we spent an awful lot

of time in depositions over the last couple weeks going over

expenses and expenditures made on the Montgomery investigation,

and the Court's already indicated that it doesn't want to hear

about it. And Mr. Young told the Court he doesn't intend to

get into it. It kind of surprised me at the depositions when

it came up again, so I thought I'd bring that to the Court's

attention, ask that we not get into that going forward in these

proceedings.

THE COURT: Well, let me just say I'm going to deny

the motion because the motion is based completely on anything

relating to the Montgomery investigation, so I'm denying the

motion.

As it pertains to expenditures, I'm not sure that the

amount spent by Sheriff Arpaio is going to be super relevant to

my considerations about -- even about remedies, although it

does seem to me that the amount -- the process of expenditure

may reveal things as to times and persons involved and other

things that may be relevant.

So I can't rule absolutely at this point that I'm not

going to allow in information that relates to expenditures to


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the extent that it may inform those other considerations. But

I would tend to agree that the, you know, the total amount

spent is not something that I'm super interested in unless you

can convince me it's relevant.

Mr. Young.

MS. WANG: Well, it is relevant, Your Honor, and

actually, since that status conference there's been subsequent

discovery. And we do believe that the impropriety of some of

the expenditures is an issue now that we did not know about

then, and it does make at least the impropriety of the

expenditure an issue, perhaps not the precise amounts, but

certainly the nature of the funds that were used during that

investigation will be an issue.

THE COURT: All right. Well, we can take those up one

by one and see if they're relevant, and I'll just rule on them

at that time, because I don't have enough information right now

to determine one way or the other.

Certainly, I'm not sure that the amount of expenditure

makes a lot of difference to me. I mean, it may make a

difference -- it may make a difference to other people in

others contexts. But I can't say that the issues will be

completely unrelated, so I can't really give you much guidance

on your request for limitation, other than to say I'll welcome

you raising it at the appropriate moment.



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THE COURT: Are we ready, then, to proceed?

MS. WANG: We are, Your Honor. Plaintiffs call Gerard

Sheridan.

THE COURT: Chief Deputy Sheridan, I know it was a

long time ago, but you were already placed under oath in April.

You're still under oath.

You understand that?

CHIEF DEPUTY SHERIDAN: Yes, sir.

MS. WANG: I'm sorry, Your Honor. If I could have a

moment.

THE COURT: Yes..


MS. WANG: Your Honor, may we e-mail a copy of the

list of exhibits I'll use with this witness to Ms. Zoratti? We

apologize. I thought it had been.

THE COURT: All right. Somebody's waving at you in

the back.

MS. WANG: I may be able to locate it.

MR. YOUNG: (Handing).

MS. WANG: I apologize.

MR. MASTERSON: Judge, could we get a copy of that,

please?

THE COURT: Do you have an extra copy?

MS. WANG: I do not, Your Honor.



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Kathleen, I'm sorry to do this to you, but if you

would be so kind as to run back and copy it.

How many copies?

We need at least three copies.


MS. WANG: Should I proceed, Your Honor, or wait for

Ms. Zoratti?

THE COURT: Well, are you going to be using any

exhibits?

MS. WANG: Pretty soon, I think.

THE COURT: Why don't we wait for Ms. Zoratti, then.

MS. WANG: Okay. I apologize.


MS. WANG: In the meantime, Your Honor, I may be

referring to Chief Sheridan's previous deposition testimony or

his testimony from April 24th. Perhaps to save time I can hand

up a copy of those transcripts to him so they'll be available.

THE COURT: Yes, you may do that.

MS. WANG: (Handing).

May I proceed, Your Honor?

THE COURT: One moment.


THE COURT: All right. When we ended the testimony in

April, as I recall and am reminded, I was asking questions like

I normally do prior to redirect. Ms. Wang had indicated that


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Sheridan - Direct, 9/24/15 Evidentiary Hearing 1069

she didn't ask all the questions that she intended to ask on

direct anyway, because she realized that we would need to

resume questioning at a later date, which we then thought to be

June. And so since there's apparently some direct and some

redirect, I just propose that we treat this as direct.

Any objection to that, Mr. Masterson?

MR. MASTERSON: No objection, Judge.

MR. WALKER: No objection, Your Honor.

MR. COMO: None.


(Off-the-record discussion between the Court and the

clerk.)

THE COURT: Apparently there's enough to get started

on.

MS. WANG: All right. Thank you, Your Honor. And I

appreciate Ms. Zoratti's patience with me. Thank you.

GERARD SHERIDAN,

recalled as a witness herein, having been previously duly

sworn, was examined and testified further as follows:

DIRECT EXAMINATION CONTINUED

BY MS. WANG:

Q. Good morning, Chief Sheridan.

A. Good morning.

Q. Chief, I'm going to start with the charge of contempt

relating to MCSO's violations of the preliminary injunction


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order. You're familiar with that topic?

A. Yes, ma'am.

Q. Now, the last time you sat in that chair on April 24th of

this year, your counsel, Ms. Iafrate, asked you whether you had

had meetings with the attorneys regarding the Melendres

litigation prior to trial.

Do you recall that?

A. Yes.

Q. And you answered, and I'll quote from the transcript of

that testimony at 950, lines 11 through 15:

"No. In fact, I did not even talk to Tim Casey until

the end of the trial in August of 2012. I knew who he was, but

I don't ever recall having a conversation with him even once,"

end quote.

Sir, do you stand by that testimony today?

A. I do.

Q. Ms. Iafrate also asked you whether you talked to the

attorneys in this case in preparation for trial.

Do you recall that?

A. I'm sorry, I was reading this. Can you repeat that?

Q. Sure. Do you recall that Ms. Iafrate asked you, when you

were on the stand previously, whether you talked to the

attorneys in order to prepare for the trial in this case?

Do you recall that?

I'll direct you to page 953 of the April 24th


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transcript.

A. Okay. Okay.

Q. Do you see that, sir?

A. Yes, ma'am.

Q. All right. And your answer was, quote: "I'd never talked

to either Tim Casey or Tom Liddy about the Melendres case until

after it was concluded."

Do you stand by that testimony?

A. Yes, ma'am.

Q. And you also testified on April 24th that you did not know

about the Court's preliminary injunction order in this case

until March 27th, 2014, during your deposition in the United

States versus Maricopa County case.

Do you recall that testimony?

MR. MASTERSON: Excuse me, Judge.

THE COURT: Yes.

MR. MASTERSON: I kind of prefer to go on a

question-and-answer format rather than Ms. Wang reading

testimony from the previous hearing and then asking the witness

if he agrees with that testimony.

Can we just have some questions rather than reading

from testimony?

THE COURT: What's your objection?

MR. MASTERSON: 403.

THE COURT: Overruled.


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MS. WANG: Thank you, Your Honor.

BY MS. WANG:

Q. Do you recall that the testimony, sir?

A. I do.

Q. Do you stand by that testimony today?

A. Yes, ma'am.

Q. All right. Sir, plaintiffs have received some new

documents from the defendants since last time you sat in that

chair, and I'm going to ask you about those today. All right?

A. Okay.

Q. I've asked you about some of them during your deposition.

Do you recall that?

A. I recall a lot of questions.

Q. All right. Now, you are aware sitting here today that

defendants filed an immediate appeal from Judge Snow's

preliminary injunction order, correct?

A. I'm aware of that now, yes.

Q. But you contend that you were not aware of that appeal at

the time it was filed, is that correct?

A. That's correct.

Q. And sitting here today you are aware that the U.S. Court of

Appeals for the Ninth Circuit decided defendants' appeal on the

preliminary injunction order in September of 2012.

You're aware of that today, correct?

A. Yes, ma'am.


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Q. But you contend that you were not aware of that ruling from

the federal appeals court at the time it issued in September of

2012, is that correct?

A. Yes.

Q. All right. And that's an appellate ruling, you understand

now, in which MCSO lost. Do you know that now?

A. I'm aware of it, yes.

Q. Okay. I'm going to have you take a look at Plaintiffs'

Exhibit 2511, which should be in front of you there, I hope.

Do you have it there?

A. Yes, I do.

Q. Okay. Sir, Exhibit 2511 appears to be an e-mail from Tim

Casey dated September 25th, 2012, sent to John MacIntyre,

Gerard Sheridan, Brian Sands, and Amy Lake.

Do you see that?

A. I do.

Q. This is not yet in evidence. If you look at what Mr. Casey

writes, he says: "Folks, I have not yet read the opinion but

the Ninth Circuit just affirmed Judge Snow's December 23rd,

2011 ruling on the Fourth Amendment detention of Mr. Melendres

and the preliminary injunction."

MR. MASTERSON: Excuse me. Objection, Judge, counsel

reading from document not in evidence.

MS. WANG: Your Honor, I just want to -- it's not in

evidence. I want to ask Mr. Sheridan if he received and opened


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the e-mail.

THE COURT: All right. You can do that.

MS. WANG: I'll do that now.

BY MS. WANG:

Q. Sir, do you recall receiving this e-mail on September 25th,

2012?

A. I do not recall this e-mail.

Q. Okay. Have you reviewed it since then, either with your

counsel or during a deposition in this case?

A. Yes.

Q. And do you understand that this document has been produced

by the Maricopa County Attorney's Office in the litigation in

this case?

A. Yes.

Q. Do you have any reason to believe that it is not an

authentic record from the Maricopa County Attorney's Office?

MR. MASTERSON: Objection, foundation.

THE COURT: Sustained.

THE WITNESS: From the Maricopa County Attorney's

Office or Sheriff's Office?

BY MS. WANG:

Q. From the Maricopa County Attorney's Office.

A. I would have no reason to doubt it.

THE COURT: Chief Deputy, when I sustain an objection,

it means you don't have to answer.


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THE WITNESS: Oh, sorry.

THE COURT: And in fact, it means you shouldn't

answer.

MS. WANG: Thank you, Your Honor.

BY MS. WANG:

Q. Sir, have you reviewed a copy of this e-mail that was given

to you by counsel for the Sheriff's Office or for the sheriff

in his official capacity?

A. I'm sorry, I'm a little bit confused now since the judge

talked to me.

Can you repeat that?

Q. Sir, do you have an understanding of whether the same

e-mail, as sent to you and others at MCSO, was also found in

MCSO's e-mail archives?

A. I don't know where the e-mail came from.

Q. All right. Fair enough, sir.

So you're aware sitting here today that on September

25th, 2012, Tim Casey sent you, John MacIntyre, Brian Sands,

and Amy Lake a copy of the Ninth Circuit's ruling on MCSO's

appeal from Judge Snow's preliminary injunction order, correct?

A. Yes, ma'am.

Q. And is it your contention that you did not pay attention to

that e-mail at the time you received it on September 25th,

2012?

A. It is.


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Q. Now, one of the recipients of the e-mail, which is not in

evidence, is Amy Lake.

Do you see that?

A. I do.

Q. Amy Lake is Sheriff Arpaio's assistant, correct?

A. Yes, ma'am.

Q. And you're familiar with Sheriff Arpaio's regular practices

in terms of communicating via e-mail or otherwise, is that

right?

A. I am.

Q. You work closely with the sheriff, correct?

A. Very closely.

Q. And are you familiar with the fact that the sheriff --

well, do you know whether the sheriff personally uses e-mail?

A. He does not.

Q. And if you want to send something to the sheriff via an

e-mail, would you send it to Amy Lake?

A. Yes, ma'am.

Q. Thank you. Now, again, you contend that you were not aware

of Judge Snow's preliminary injunction order until March 27,

2014, correct?

A. I am.

Q. Okay. Take a look at Exhibit 2512.

Do you have it in front of you, sir?

A. I do.


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Q. Okay. Exhibit 2512, if you go to the -- I want to call

your attention to the second e-mail on the page. That's an

e-mail from Tim Casey dated October 11, 2012, addressed to

Gerard Sheridan, John MacIntyre, and Brian Sands, and the

subject line reads "Injunction Compliance - Melendres Ortega v.

Arpaio."

Do you see that, sir?

A. I do.

Q. Sitting here today, sir, you're aware that on that date,

October 11, 2012, Tim Casey sent you, John MacIntyre, and Brian

Sands an e-mail communicating that the plaintiffs in this case,

the Melendres versus Arpaio case, had accused MCSO of violating

Judge Snow's preliminary injunction order.

You're aware of that sitting here today, correct?

A. I am.

Q. And you're also aware sitting here today that in his

e-mail, Tim Casey mentioned the fact that the sheriff was up

for reelection soon, was that right?

A. I haven't read the e-mail, so is that in there somewhere?

Q. Yes. Go ahead and take the time you need to read that.

And we did go over this during your previous

depositions over the last couple of weeks.

A. Okay. Could you repeat the question, please.

Q. Sure. Are you aware sitting here today that in his e-mail

of October 11, 2012, Tim Casey was advising you, John


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MacIntyre, and Brian Sands, that he was concerned that

plaintiffs might try to use these allegations about violations

of the preliminary injunction order to hurt the sheriff's

reelection campaign?

Are you aware of that sitting here now?

A. Yes.

Q. All right. And, sir, do you contend that you do not recall

getting this e-mail from Tim Casey on October 11 of 2012?

A. I do.

Q. Now, at that time, October 11 of 2012, you were aware that

the sheriff was up for reelection, correct?

A. Yes.

Q. And you were also aware that the sheriff was, at that time,

under heavy criticism about allegations of racial profiling,

correct?

A. Yes.

Q. And there were protesters outside your office and his

office, the MCSO headquarters, relating to allegations of

racial profiling, correct?

A. Yes.

Q. And at that time you personally were very engaged in

working on the United States versus Maricopa County case which

related to racial profiling allegations, correct?

A. I was.

Q. Sir, do you agree that it is a serious matter for attorneys


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to write to you with allegations that MCSO has violated a

federal court order?

A. I do.

Q. That is something that the chief deputy should pay

attention to, is it not?

A. I do.

Q. You agree with that statement?

A. Yes, I do.

Q. And yet you contend that you do not recall getting this

e-mail at the time?

A. That's exactly what I contend.

Q. And you contend that nobody else called the matters in this

e-mail to your attention in October of 2012?

A. Yes, ma'am.

Q. Now, by then it was October of 2012 -- well, withdrawn.

You have testified, sir, that you did begin paying

attention to the Melendres versus Arpaio case after the trial,

is that correct?

A. I don't believe that's exactly correct, no.

Q. Well, you do admit that, and you have admitted, that you

spoke with Tim Casey about this case after or during the trial,

correct?

A. Yes. It was either at the very end of the case or after

the -- sometime shortly after the trial ended in August of

2012.


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Q. So fair to say that after the trial in this case ended in

August of 2012, the case was on your radar, so to speak, is

that right?

A. Yes, ma'am.

Q. And October of 2012 was after you had the Melendres case on

your radar, is that right?

A. Yes.

Q. But you contend still that you were not aware of these

allegations that the plaintiffs in this case made as to

violations of the preliminary injunction order when Tim Casey

sent this e-mail in October of 2012?

A. I contend that it was not something that I considered to be

something that demanded much of my attention.

Q. And you contend that plaintiffs' allegations of violations

of the preliminary injunction order, which were conveyed by Tim

Casey via e-mail on October 11, 2012, did not command any of

your attention at the time. Is that your testimony?

A. I wasn't aware of them, so no.

Q. Despite the fact that you apparently received this e-mail

on October 11, 2012?

A. I don't ever recall reading it. I assume I received it

because my name was on the e-mail. But as I've testified

before, I did not historically open those e-mails. They were

delegated to an executive chief, and I did not, as the chief

deputy, spend much time on those issues since they were


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delegated to someone else.

Q. But you testified a moment ago that if plaintiffs in a

lawsuit are accusing MCSO of violating a federal court order,

that is something the chief deputy should pay attention to,

correct?

A. I'm saying right now sitting here today that is something

that the chief deputy should have done, but that is not what I

did.

Q. Thank you, sir.

I want you to turn on -- within the same exhibit,

number 2512, to the page that is marked MCAO00034. This is the

second page of an MCSO news release dated September 21st, 2012.

Let me know when you get there, please.

A. I'm sorry. Which --

Q. It's the same exhibit you had in front of you. 2012 --

2512.

A. And can you repeat the page, please.

Q. Sure. It's MCAO34. And if it helps you, it's a -- there

are news releases from MCSO attached to this document, the

e-mail, and this is the news release dated September 21st,

2012.

A. Oh, I'm there.

Q. You see that?

A. Yes.

Q. Okay. If you look at page MCAO34, there is a quote from


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the sheriff in about the middle of the page.

A. I see that.

Q. Which reads -- it reads: I expected --

MR. MASTERSON: Objection again, Your Honor.

Counsel's again reading from a document not in evidence.

MS. WANG: Your Honor, I need to ask the chief deputy

whether he was aware of information in this document at the

time.

THE COURT: Well, you can ask him that without reading

from the document.

MS. WANG: Yes, sir.

BY MS. WANG:

Q. Sir, can you look at the quote attributed to Sheriff Arpaio

in the middle of the page referring to a backup plan?

Do you see that?

A. Yes, ma'am.

Q. Okay. Sir, at the time that this news release was issued,

or as of September 21st, 2012, you were aware of what's

referred to there as the sheriff's backup plan, correct?

A. I'm not sure.

Q. Okay. Let me see if I can give you something that will

refresh your recollection. Do you recall that I deposed you on

September 15th just a couple of weeks ago?

A. Yes.

Q. You should have the deposition transcript in front of you


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there, the September 15th, 2015 --

A. I do.

Q. -- transcript.

Please turn to page 384, starting at line 4.

Here is the question and answer from your deposition

of September 15th, 2015.

"Question: As of the beginning of October 2012, were

you aware of the sheriff's backup plan to deal with suspects

arrested by MCSO who did not have state charges against them,

but who were suspected of being illegal immigrants?"

Your answer was: "Vaguely."

Was that your testimony?

A. Yes, ma'am.

Q. And was that correct?

A. Yes, ma'am.

Q. Sir, w

Melendres v. Arpaio #1369 Sept 24 2015 TRANSCRIPT - DAY 5 Evidentiary Hearing

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Transcript of Melendres v. Arpaio #1369 Sept 24 2015 TRANSCRIPT - DAY 5 Evidentiary Hearing