Melendres v. Arpaio #1458 Oct 8 2015 TRANSCRIPT - DAY 11 Evidentiary Hearing

8/20/2019 Melendres v. Arpaio #1458 Oct 8 2015 TRANSCRIPT - DAY 11 Evidentiary Hearing

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2471

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 8, 2015

9:03 a.m.

REPORTER'S TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE G. MURRAY SNOW

(Evidentiary Hearing Day 11, Pages 2471-2711)

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, 10/8/15 Evidentiary Hearing 2472

A P P E A R A N C E S

For the Plaintiffs:American Civil Liberties Union Foundation

Immigrants' Rights ProjectBy: Cecillia D. Wang, Esq.39 Drumm Street

San Francisco, California 94111

American Civil Liberties Union Foundation

Immigrants' Rights Project

By: 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 17148

Phoenix, Arizona 85011

Covington & Burling, LLPBy: Tammy Albarran, Esq.

1 Front Street, 35th Floor

San Francisco, California 94111

Covington & Burling, LLP

By: Stanley Young, Esq.

By: Michelle L. Morin, Esq.333 Twin Dolphin Drive, Suite 700

Redwood Shores, California 94065

For the Defendant Maricopa County:

Walker & Peskind, PLLCBy: Richard K. Walker, Esq.

By: Charles W. Jirauch, Esq.SGA Corporate Center

16100 N. 7th Street, Suite 140


For Executive Chief Brian Sands:Lewis, Brisbois, Bisgaard & Smith, LLP

By: Greg S. Como, Esq.

2929 N. Central Avenue, Suite 1700Phoenix, Arizona 85012


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

Iafrate & AssociatesBy: Michele M. Iafrate, Esq.649 N. 2nd Avenue


Jones, Skelton & Hochuli, PLC

By: 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, PC

By: Terrence P. Woods, Esq.P.O. Box 20527


For the Intervenor United States of America:

U.S. Department of Justice - Civil Rights DivisionBy: 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, #5011

Washington, D.C. 20004

For Lieutenant Joseph Sousa:

David Eisenberg, PLCBy: David Eisenberg, Esq.

2702 N. 3rd Street, Suite 4003


For Brian Mackiewicz:Sitton Nash

By: Alexandra Mijares Nash, Esq.

301 W. Warner Road, Suite 133Tempe, Arizona 85284


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Also present:Sheriff Joseph M. Arpaio

Executive Chief Brian SandsChief Deputy Gerard SheridanLieutenant Joseph Sousa

I N D E X

Witness: Page

JOSEPH M. ARPAIO

Direct Examination Continued by Mr. Young 2497Cross-Examination by Mr. Masterson 2504

Redirect Examination by Mr. Young 2536Examination by the Court 2556

JOSEPH SOUSA

Direct Examination by Ms. Wang 2589

Cross-Examination by Mr. Popolizio 2693


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E X H I B I T S

No. Description Admitted

2008 Employee Grievance Response by Chief Deputy 2681

Sheridan, 7/28/2015 (MELC724585-MELC724587)

2555 E-mail from Joseph Sousa to Lisa Allen re 2608

answers to JJ Hensley's questions dated6/7/2012 (MELC830783-830784)

2559B MCSO Memorandum from Joseph Sousa to Chief 2657

Joe Rodriguez, dated 05/19/15, re Grievance

reference discipline received for IA#14-0542(MELC-IA013644 through MELC-IA013648)

2560 MCSO Internal Affairs Investigation Report of 2648Deputy C. Armendariz re missing money fromAmber Marie Murphy's bag dated 5/17/2010

(MELC-IA013516-IA013517)

2561 Memorandum from Joseph Sousa to Edward Lopez 2675re disciplinary action against Sousa for

failure to supervise duties under command in

reference to the proper impounding of evidenceitems dated 6/4/2015 (MELC1337432-1337436)

2837 Video Excerpt from The Joe Show, released 2496

February 26, 2014 dated 2/26/2014

2856 MCSO Memorandum re: ICE LEAR Protocol dated 26158/18/2009 (MELC1397148-MELC1397149)

2898 MCSO Memorandum from Lt. Joseph Sousa to Chief 2660Mike Olson, dated 05-14-15, re: Response to

possible disciplinary action. Pre-DeterminationHearing #14-0542 set for 05-15-15

(MELC-IA013686 through MELC-IA013693)


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P R O C E E D I N G S

THE COURT: Thank you. Please be seated.

THE CLERK: This is civil case number 07-2513,

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

evidentiary hearing.

Counsel, please announce your appearances.

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

and Andre Segura of the ACLU for plaintiffs.

THE COURT: Good morning.

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

Tammy Albarran, and Michelle Morin for plaintiffs, from

Covington & Burling.


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.

MR. MASTERSON: Good morning, Judge Snow. John

Masterson, Joe Popolizio for Sheriff Arpaio and the individual

contemnors, and with us is Holly McGee.


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

on behalf of Maricopa County. And Mr. Jirauch suffered an

injury over the weekend, so I'm not sure whether he'll be


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joining us or not today.

THE COURT: I hope not serious.

MR. WALKER: It could be. Involved a concussion,

so...

THE COURT: Well, send him the best of I'm sure not

just me, but everyone involved.

MR. WALKER: Thank you.

MS. MIJARES NASH: Good morning, Your Honor.

Alexandra Mijares Nash, specially appearing for Brian

Mackiewicz.


MR. McDONALD: Good morning, Judge Snow. Mel McDonald

making a special appearance for Sheriff Joe Arpaio.


MR. COMO: Good morning, Your Honor. Greg Como of

Lewis, Brisbois, Bisgaard & Smith representing retired Chief

Brian Sands.


MR. WOODS: Good morning, Your Honor. Terry Woods

representing nonparties Stutz and Liddy.

MS. IAFRATE: Good morning, Your Honor. Michele

Iafrate on behalf of Sheriff Arpaio and the alleged unnamed

contemnors.


MR. EISENBERG: Good morning, Your Honor. David


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Eisenberg specially appearing on behalf of Lieutenant Sousa.


All right. We have a couple of matters to take up

before we resume the testimony of Sheriff Arpaio. The first

is, I asked both parties to prepare a joint pretrial -- or

joint pretrial-like statement. I didn't get one. I got

plaintiffs' submission late last evening that has Mr. Como's

suggestions. I got defendants'. You may have filed it last

evening, Mr. Masterson, but I didn't read it till this morning.

I don't view it as compliant as to what I requested at

all, and I'm going to determine whether or not we're going to

recess hearings right now while you hammer out what I'm going

to view as being compliant, or go forward if you can provide me

with a compliant statement.

I do realize that the parties have been working under

some difficulty in light of depositions that you had, I presume

yesterday, don't know. I did discuss with all parties on the

phone -- Mr. Popolizio was representing defendants -- the need

to reschedule some of the subpoena obligations of Mr. Zullo and

that deposition, so I realize that you were working with that

difficulty. I still don't view this as a compliant statement

and I will tell you why.

I realize that it is all parties' rights not to

stipulate to documents if you don't want to, and apparently

there are very few to no stipulations as it pertains to


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documents. And so because -- I guess if the parties aren't

going to arrive at stipulations, I have to take that into

account in determining what time I'm going to allow, because we

have to have the foundation for every document that is out

there, and if we have to do that, we have to do that. I will

allow time for that.

We have no statement as to the defendants as to the

witnesses they wish to call and what they expect those

witnesses to testify to. We do have that statement as to

plaintiffs, but none -- you have identified just witnesses.

You haven't indicated what you anticipate their testimony would

be at all, Mr. Masterson, and it's impossible for me to assess

what kind of time limits I'm going to impose unless you can

tell me what your witnesses will testify to.

The plaintiffs, as I said, did provide that, and I

have a few comments with respect to that, too, that I want to

talk about. But I'm going to require the defendants to provide

that kind of information so that I can give you -- so that we

can know exactly who's going to be called when.

I realize, too, Mr. Masterson, that you may not choose

to call some of your witnesses, and that's fine. You're not

going to get any argument, I think, from anybody at this point.

That's fine. But if you're going to call them, as is the case

always in civil matters, I require you to disclose the topics

of their testimony in a joint pretrial statement, and that


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hasn't been done.

What I generally do in civil trials, which I haven't

done here because discovery was ongoing and apparently still is

ongoing, is I give plaintiffs a certain amount of time and I

give defendants a certain amount of time and I charge against

you the time you spend in direct and cross and all of those

things. I'm going to go back and do my best to reconstruct

that. I have kept some rough notes. But I'm also going to

keep in mind the nature of ongoing discovery in this case.

But one of the things I think Mr. Masterson suggested

that I think is worth taking up -- we're going to have

Lieutenant Sousa in a few minutes; we have Sheriff Arpaio on

the stand right now. I realize that new matters and new -- and

new discovery require that we go over, sometimes, previous

testimony to the extent that that is enlightened by new

discovery. But with respect to the topics that you've

indicated Lieutenant Sousa's going to talk about, he already

talked about a lot of those topics in his previous testimony.

I don't see any need to track over that again unless it's

highlighted by some newfound information.

So you've indicated that you'll take three hours with

Lieutenant Sousa. And I guess I want to know why we're going

to have to take three hours with Lieutenant Sousa. What kind

of new information do we have that's going to take three hours?

And just -- and the only reason I'm doing this, plaintiffs, is


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to demonstrate exactly what I intend to do when I get

defendants' statement of what they're going to do with

witnesses in setting the trial schedule going forward, so we

know roughly who and what we have and when they're going to be

testifying.

Mr. Jirauch, welcome.

MR. JIRAUCH: I'm sorry, Your Honor?

THE COURT: Welcome.

MR. JIRAUCH: Thank you.

THE COURT: Glad to see you here.

MR. JIRAUCH: I'm glad I was able to make it.

THE COURT: So is everybody clear on that?

MS. WANG: Yes, Your Honor.

THE COURT: All right. Let me you ask you first,

Mr. Masterson, when can you give me a single document that will

have your -- I mean, you've put in a lot of things, but I've

indicated what I view as your major deficiency. When can you

give me a single document that's going to tell me what your

witnesses are going to testify to?

MR. MASTERSON: Judge, I think we can probably get

that out tonight. I had put together the -- most of the --

what you got last night over the last couple days. Then I

received plaintiffs' revised edition with the witness testimony

yesterday and did not have time to revise ours and get it to

the Court yesterday, but I can do that -- well, after we get


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done today.

THE COURT: All right. Well, then I'll look at it

way, way, way, late tonight, or early, early, early tomorrow

morning, so that we can have this discussion, I guess,

tomorrow.

Ms. Wang.

MS. WANG: Your Honor, just briefly on defendants'

submission last night, they previously provided us with a list

of witnesses through e-mail, on the fly, as we were all working

during the hearing. But last night they listed three new

witnesses they previously had not disclosed: Lieutenant Molina,

Lieutenant Skinner, and Captain Farnsworth. And plaintiffs

would request that if they will put those witnesses on the

stand, that we have a chance to depose them before that.

I also note, Your Honor, that the deposition of Deputy

Garcia, our request is still pending. I first requested that

deposition on September 16th and followed up again on September

29th, and have not heard from defendants as to when that

deposition can go forward.

THE COURT: Okay. So we have Garcia, Molina,

Farnsworth, and Skinner?

MS. WANG: Correct.

THE COURT: Mr. Masterson?

MR. MASTERSON: Well, Judge, it was a bit difficult

for us to anticipate who all we needed to call. I first got


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witnesses and exhibits shortly before we began a couple weeks

ago, and we've been working diligently since then to put

together what we need to do to respond to what plaintiffs have

presented. So, yeah, there's a couple new witnesses, and there

will be maybe a couple more witnesses that we add.

I will tell you that it should be no surprise to the

plaintiffs as to who these people are. They're people who have

worked on compliance efforts with MCSO, through the monitors

and the Court, and provided substantial assistance to the

monitors and put together significant materials and quarterly

reports to turn over to the monitors which were then forwarded

to the Court. So these were not anybody we've been hiding;

these are folks who have been working with the monitors and the

Court to comply with the Court's previous orders.

THE COURT: Well, I assume if you're going to add new

witnesses, you're going to do your very best to put them on

tonight so we can discuss them tomorrow.

MR. MASTERSON: Absolutely.

THE COURT: Do you have any issue, since we're

about -- we've got today and tomorrow, then we have Tuesday and

Wednesday, then we have a week and a half off. Do you have any

issue with plaintiffs taking the depositions in that week and a

half off, of witnesses that you just noticed?

MR. MASTERSON: I don't. I don't. I'd prefer not to

see these seven-hour marathons --


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THE COURT: I would prefer that, too. I don't blame

you.

Ms. Wang.

MS. WANG: Your Honor, I have just one concern based

on what Mr. Masterson just said. If defendants' intent is to

elicit testimony about MCSO's efforts to comply with other

court orders than the ones that are at issue in this case, or

subject matters other than MCSO's internal accountability

systems, plaintiffs' position would be that that testimony

would not be relevant to this civil contempt hearing and the

remedies that are at issue.

THE COURT: Well, I guess I get that, Ms. Wang.

Do you want to say something, Mr. Masterson?

MR. MASTERSON: I do, Judge. We've spent many hours,

if not days, in depositions, and certainly many hours in trial,

going over testimony and issues concerning Dennis Montgomery

and the Seattle investigation because plaintiffs contend --

THE COURT: Clearly, to me, if you want to introduce

information about Montgomery and the Seattle investigation,

that's fine.

MR. MASTERSON: I don't. But what I want to do is

plaintiffs contend that this shows the attitude of the sheriff

or MCSO. My contention is what really shows the attitude of

MCSO is everything they have done to comply with the court

orders, rather than what some guy in Seattle did.


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THE COURT: Well, I'll tell you what my inclination

is. My inclination is to give you at least limited leeway to

do that; I think that's fair game. If it goes too far afield,

I may tell you it's time to stop this.

As I said, Friday, I've got no interest in stretching

this thing on through November and December. But as I've also

indicated to the parties, if you've got factual matters that

you want to argue, I want to do factual -- I want to do all the

factual testimony in this hearing here and now. And then, as I

believe I indicated, I'll give -- I'm trying to keep track of

it all. I'm not sure I'm going to succeed, but I am trying.

And what I would like to do is within a few days after

the end of this hearing I'm going to give you a chance to argue

your positions, and then I'm going to make findings of fact.

And then, in light of the findings of fact, we'll determine

whether or not there are any factual issues outstanding at all;

or, B, if we need to, and if we do, the extent to which we need

to have experts on Internal Affairs remediation. I think

that's what we've all agreed to, isn't that correct?

MR. MASTERSON: I believe so, yes.

THE COURT: Ms. Wang?

MS. WANG: Yes, Your Honor.

THE COURT: All right. So ultimately, I will allow

you some leeway to talk to me about efforts at compliance that

don't really relate to the matters in contempt. But it's not


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going to be unlimited leeway, and it would be one of those

things I would appreciate it. Apparently, you know, you don't

want to stipulate, and again, that's everybody's right, you

don't have to stipulate to documents. But I would suspect that

some -- that you might at least try to stipulate with the

parties the extent to which there has been compliance.

I have already stated on the record, and I don't

suppose that anybody's going to tell me that I can't talk about

matters that are in the record, even if they aren't part of

this hearing. But I've already stated on the record that I

attended, for example, unannounced, the initial training of

MCSO personnel and I found that training to be impressive. I

did note that I came unannounced, and I don't have any reason

to believe that Chief Deputy Sheridan knew I was coming, and

yet I attended the training in which he himself was. I

complimented him for that.

So there have been some things that, while I have been

very discouraged at a number of things, there certainly have

been things that I've placed on the record that I've noted

constituted what I thought to be at least good faith attempts

to comply with my order.

But I also don't think that we need to review what the

monitor has already done in terms of his quarterly assessments

and the extent to which he assesses that MCSO's in compliance.

And I'm not going to open up a whole bunch of arguments about


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whether or not the monitor's assessments in his normal

quarterly reports are accurate, because there's a procedure by

which you can contest those, and as far as I'm aware, you have

never contested any of those on relevant issues.

So I'd suggest that you go back, look at those monitor

reports, look at areas where I've indicated that I've noted

compliance, look at areas where I've noted noncompliance, and

maybe you can stipulate to a lot of that stuff.

Does that sound reasonable to you, Mr. Masterson?

MR. MASTERSON: It does, Judge.

THE COURT: All right. But if you can, can you try

and pull that together tonight? I gathered from some sort of

e-mail message that Mr. Young sent everybody yesterday and

copied my office there's a possibility there might be some dead

time tomorrow. I hate dead time. And so maybe we can use it

to sort of shore up the rest of this schedule so we know what

we're doing.

Does that make sense, too?

MR. MASTERSON: That makes a lot of sense.

THE COURT: All right. Ms. Wang, did you have --

MS. WANG: Your Honor, as to that point, we've done

our best to rearrange with defendants to avoid dead time

tomorrow. The issue was that Captain Bailey and Mr. Vogel both

had scheduling issues and cannot go until next week, so we

tried to move up the subsequent witnesses and tried to work


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with defendants to make them available tomorrow to try to avoid

running out of witnesses.

THE COURT: All right.

MR. MASTERSON: And I just want to point out, Judge,

that we're going to do our best. We scheduled the witnesses in

the order that we were given yesterday and the day before, and

then I got another shift or move of the witnesses this morning

when I got in. Although I think it was sent yesterday

afternoon, I didn't get it until this morning. So we're trying

now to see if we can move people around, and we'll do our best.

THE COURT: I'd appreciate that.

To the extent that we do have time, let's use it

productively on other matters. It seems like we do have

matters that we can take up and maybe use some time

productively.

Do we want to now discuss what we anticipate that

schedule to be, so everybody knows what we're talking about?

Today we have Sheriff Arpaio, obviously; and then I

gather you're going to call Lieutenant Sousa.

MS. WANG: Yes, Your Honor. And then after

Lieutenant Sousa we are prepared to go forward with

Sergeant Tennyson; and then we will skip to Chief Olson, if he

is available, and Sergeant Anglin.

THE COURT: All right. It looked to me like your

estimates for Tennyson and Olson were reasonable, given --


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given that, so I don't have any issue with your time estimates

on Tennyson and Olson and Anglin.

Are those the witnesses you anticipate for rest of the

week, or are there others?

MS. WANG: I believe that's it, Your Honor.


We now probably need to take up -- I did receive a

filing under seal from Mr. Conrad. If nobody objects to my

accepting the filing under seal, I'm going to do that.

MS. WANG: Your Honor, plaintiffs do not have that

document.

THE COURT: Hmm.

MS. WANG: I do not know what it is.

THE COURT: On the motion to seal pleading filed by

Mr. Conrad, he shows it being sent to Iafrate, Masterson,

Young, Pedley, Pochoda, Wang, Segura, Lai, Castillo, Walker,

McDonald, Birnbaum, Stein, Mitchell, Wilenchik, Como,

Eisenberg, Rapp, Woods, Clark, Killebrew, Nash.

Did you not receive it?

MS. WANG: We have a copy of the motion; we do not

have a copy of any document that --

THE COURT: All right. So he not only filed it under

seal, he filed it ex parte?

MS. WANG: That appears to be the case, unless it is

in the mail.


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THE COURT: Mr. Masterson, did you receive it?

MR. MASTERSON: Well, we received -- at least to my

knowledge, we received what Ms. Wang received.

THE COURT: All right. But you didn't receive the

substance of his explanation?

MR. MASTERSON: No.

THE COURT: All right. Well, then, I will inform the

parties that he has apparently filed something, a motion that

is ex parte as well as under seal. And I will also inform the

parties that I have read that motion, not understanding that it

was filed ex parte and not merely under seal.

I don't really think that is appropriate. However, I

can understand him not necessarily wanting Ms. Nash to see

everything that he said.

But I will tell you what my upshot is. He's not here.

Ms. Iafrate, I think, contacted him and indicated she had, and

that we would give them until today to set forth any case that

they thought why matters should be under seal.

I'm going to say that my inclination is to do two

things. First, it is to show what Mr. Conrad has filed to all

the parties so that it is not an ex parte motion. And by all

parties, I guess I only mean all parties in this context, and

not necessarily specially appearing parties, including

Ms. Nash.

But I will also tell you -- and in fact, if I need to


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show it to you right now, I will show it to you right now --

that in that motion he does acknowledge that the -- there seems

to have been quite a bit of public dissemination of the fact

that Mr. -- or that Detective Mackiewicz is under a criminal

investigation. He does not believe that that is the basis for

things to be under seal. He does express some concerns. And,

course, he expresses what I view as a rather general preference

to not have anybody know anything about criminal investigations

that are ongoing.

As I indicated to Ms. Iafrate on Friday, however, that

generalized concern does not seem to me to weigh, when I have

to balance matters in which there is a public interest against

any law enforcement privilege which requires a balancing.

So I will tell you that it would be my inclination, to

the extent that matters pertaining to items that have already

been admitted into evidence in this matter, or matters that are

the topics of investigation that everybody knows that

detective -- or everybody has testified that

Detective Mackiewicz is already -- or Mackiewicz is already

aware of, if you have questions that relate to that, to those

topics, and don't go any further for Sheriff Arpaio, I'm

inclined to allow you to ask them.

However, on a question-by-question basis, or if the

parties want to review that now and express generalized concern

so that any sort of privilege that they may -- or any sort of


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concern they may have about impairing investigations is raised

and not -- raised before it's raised in on court, I'll hear you

now.

Mr. Masterson.

MR. MASTERSON: I believe I'd like to see the

document, please, Judge.

THE COURT: Sure.

Ms. Wang?

MS. WANG: We'd like to see it, too.

THE COURT: Mr. Como?

MR. COMO: It's not really necessary for me to see it,

Your Honor.

THE COURT: And Mr. Walker?

MR. WALKER: I'd like to see it, Your Honor.

THE COURT: All right. Well, why don't you parties

come to sidebar and I will show you my copy of the document.

I've only got one, and actually, unfortunately, it contains

some of my notes, but I guess, without waiving any privilege --

Well, can you print off a copy for me from the docket?

THE CLERK: What is it?

THE COURT: It is docket document 1443 lodged under

seal.

THE CLERK: Do you want the entire thing printed?

THE COURT: I'm sorry?

THE CLERK: The entire thing?


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THE COURT: It's the document that's entitled Response

to Court's Inquiry of the Arizona Attorney General.

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

clerk.)

(Pause in proceedings.)

THE COURT: If the parties want to take -- and I'm

just talking parties now -- if the parties want to take a

minute, review that rather brief pleading, then I'll discuss it

with you at sidebar if you wish.

(Off-the-record discussion between counsel.)

THE COURT: The parties ready to discuss this at

sidebar if they wish to?

MS. WANG: Yes.

(Bench conference on the record.)

(Page 2493, line 15, through page 2495, line 6, sealed

by order of the Court.)


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(Bench conference concluded.)

THE COURT: Mr. Young.

Good morning, Sheriff.

SHERIFF ARPAIO: Good morning, sir.

THE COURT: I just remind you you're under oath, even

though we've had an intervening weekend. I'll remind you

you're under oath, and I'll remind you -- let's find one of

those headsets that works for you right now.

SHERIFF ARPAIO: Thank you.

THE COURT: I'll give you a test, make sure you can

hear.

SHERIFF ARPAIO: Right.

THE COURT: Can you hear this all right?

SHERIFF ARPAIO: Yes.

THE COURT: Would you, Mr. Masterson, speak so that we

can make sure Sheriff Arpaio can hear you?

MR. MASTERSON: Objection, argumentative.

THE COURT: Can you hear that, Mr. -- can you hear

that, Sheriff Arpaio?


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SHERIFF ARPAIO: Yes, sir.

THE COURT: All right. Are they comfortable?

SHERIFF ARPAIO: Yes.


Mr. Young.

MS. WANG: Thank you, Your Honor. I do have, on

further reflection, a few more questions for Sheriff Arpaio.

Actually, I have one housekeeping matter as well. On

Friday, we discussed and viewed, and Your Honor admitted, a

video exhibit which is an excerpt from the movie The Joe Show,

and I believe that the transcript reflects that as

Exhibit 2837A. I've actually realized that there's no A suffix

to that, so it's actually Exhibit 2837 with no letter suffix,

and I would ask that the record be clarified to reflect the

admission of that exhibit.

THE COURT: Any problem with that?

MR. MASTERSON: No, Judge.

MR. WALKER: No objection.

THE COURT: The record will be reflected to admit

Exhibit 2837.

(Exhibit No. 2837 is admitted into evidence.)

MR. YOUNG: Thank you, Your Honor.


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Arpaio - DX Young, 10/8/15 Evidentiary Hearing 2497

JOSEPH M. ARPAIO,

recalled as a witness herein, having been previously duly

sworn, was examined and testified further as follows:

DIRECT EXAMINATION CONTINUED

BY MR. YOUNG:

Q. Sheriff, you testified last week about reading an article

in the newspaper about the fact that Senator Jon Kyle, former

Senator Jon Kyle, joined Covington & Burling. And you said

something, I believe, to the effect that you had read that

relatively recently within the last couple months.

I'm going to show you a newspaper article from the

Associated Press from March 2013, if Mr. Klein can show that.

I ask whether that refreshes your recollection that, in fact,

it wasn't within the last couple months but it was actually

prior to November 2013 that you first read that Senator Kyle

had join Covington & Burling?

A. Well, excuse me, first of all, I don't recall saying that I

first read the article you're referring to. I was referring to

an article recently from The Arizona Republic where they

mentioned Senator Kyle's involvement with that law firm, and he

was a consultant for many firms, so that's what I was

remembering. That was about two months ago.

Q. In November 2013 you knew that Senator Kyle was with

Covington & Burling, correct?

A. Well, it's a little confusing, because I'm not sure, once


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you leave office, it takes two years to join a law firm, so I'm

not sure it has the time element. It could be.

Q. Sheriff Arpaio, I'm going to ask you some questions now

about the issue of legal advice and lawyers with respect to the

injunction. You do not recall any lawyer affirmatively telling

you that under the injunction you were allowed to take illegal

immigrants to the Border Patrol, correct?

A. I don't recall anyone saying you can't do it.

Q. Well, my question, Sheriff, is: Do you recall any lawyer

saying that you could do that?

A. I remember asking that question, and I didn't get a

negative or a positive.

Q. Sheriff, I'm going to have you look at a portion of your

deposition from September 18. It's page 643, line 3, to page

644, line 6, and it is clip number 67.

(Deposition video clip played as follows:)

"Question: Can you tell me everything that either

Mr. Casey or any other attorney has told you about that issue?

"Answer: Well, the main thing was when I made that

statement that we were going to use the Border Patrol to

replace ICE since ICE had a policy not to do it anymore, and

since we work closely with the Border Patrol on drugs and

everything else, that I didn't seem to have any pressure not to

do it when I said that's what I was going to do.

"Question: Did any lawyer affirmatively tell you that


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that was permitted under the preliminary injunction?

"I'm not asking about silence or acquiescence. I'm

asking whether any lawyer actually affirmatively told you,

'Yes. You can do this'?

"Answer: Well, I don't recall any lawyer, but if I do

recall, other agencies were doing it.

"Question: Okay.

"Answer: And still are probably, but I know that

doesn't resolve the Judge's issue we're working under his --

his decisions, but I don't remember anybody saying you can't do

it."

(Deposition video clip concluded.)

BY MR. YOUNG:

Q. Sheriff, was that testimony accurate when you gave it on

September 18?

A. Yes.

Q. Now --

MR. MASTERSON: Your Honor, excuse me. Under 106,

could we also read through line 20 on page 644?

Excuse me, through line 25 on page 644.

MR. YOUNG: Well, can I ask the question first and

then I'll reread the rest of it, or would --

THE COURT: It's your examination.

MR. YOUNG: Yeah.

BY MR. YOUNG:


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Q. Well, Sheriff, the part that you just saw, was that

accurate?

A. To the best of my knowledge.

MR. YOUNG: Now I'm going to read the rest of it:

"Question: Okay. Well, I understand that."

MR. MASTERSON: Excuse me. I don't know if we have it

on video or not, but we heard it the first time on video; if we

could hear the remainder on video.

THE COURT: If you have that capability, we should do

that.

MR. YOUNG: So Mr. Klein, if you could play page 644,

starting at line 7, going down to line 25.


"Answer: -- his decisions, but I don't remember

anybody saying you can't do it.

"Question: Okay. Well, I understand that. My

question is: Do you remember any lawyer telling you that you

could do that, that is, take people to the Border Patrol after

ICE was refusing that?

"MR. MASTERSON: Form, foundation.

"Question: Did anyone affirmatively and positively

tell you, 'This is okay under the injunction'?

"MR. MASTERSON: Form, foundation.

"Answer: I don't recall other than I believe what

Casey when the matter came up, and he never said you can't do


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it. So I don't know how you would take that. I took it like

it was okay to do because I wanted some advice before I did it.

"Question: Did Casey tell you, 'Yes, you can do that

and it complies with the injunction'?

"Answer: I don't recall him either way. I recall him

not having a problem with it.

"Question: Okay."


BY MR. YOUNG:

Q. Sheriff, you now have heard that Mr. Casey wrote a letter

back in October 2012 to plaintiffs, responding to questions

raised by plaintiffs about whether your backup plan for taking

people to the Border Patrol violated the preliminary

injunction, correct?

A. Yes.

Q. Okay. You do not recall ever reading that letter, correct?

A. Well, I read it recently, but I may have read it way back,

I'm not sure.

Q. Sheriff, on your September 17, 2015 deposition, I'm going

to play for you page 391, lines 12 through 16.

That is clip number 9.


"Question: So you never read a letter from Mr. Casey

on the issue of whether your office was violating the

injunction; is that right?


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"Answer: I don't recall."


BY MR. YOUNG:

Q. That testimony was accurate when you gave it, correct?

A. Yes.

Q. And in fact, until September 16, 2015, just a few weeks

ago, you had never even heard about Mr. Casey writing such a

letter, is that correct?

A. I said before I may I have read the letters, but I don't

recall the time frame.

Q. Well, Sheriff, I'm going to now go to page 391 of your

deposition, from line 18 of that page to line 20 of page 392.

MR. MASTERSON: What page, please?

MR. YOUNG: Yeah, page 391, starting at line 18, going

to page 392, starting at line 20.

It is clip number 10.


"Question: Well, how did you hear about a letter that

Mr. Casey wrote as you described a few minutes ago on the issue

of whether your office was violating the injunction?

"Answer: Well, I think in passing, the chief deputy

may have mentioned something like that which surprised me. I

never saw anything.

"Question: What did Mr. -- strike that. Sorry.

"What did Chief Sheridan tell you about Mr. Casey's


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letter?

"Answer: I just -- just a brief comment, and I don't

know about the letter, what was in it.

"Question: When did Chief Sheridan make this brief

comment to you about Mr. Casey's letter?

"Answer: I think it was in passing yesterday.

"Question: Before Chief Sheridan made the brief

comment about Mr. Casey's letter to you yesterday, had you ever

heard about Mr. Casey's letter before?

"Answer: No."


BY MR. YOUNG:

Q. Sheriff, did you testify accurately, as we just saw, on

September 17, 2015?

A. Yes. Actually, I didn't know what letter he was talking

about.

Q. Other than Mr. Casey, you never discussed your backup plan

with any other lawyer, correct?

A. Not that I can recall. I think it was Mr. Casey.

MR. YOUNG: Sheriff, I may have some more questions

for you after your attorney has asked his questions, but for

now I'm out of questions. Thank you very much.

THE WITNESS: Thank you.

THE COURT: Mr. Masterson. You or Mr. Popolizio?

MR. MASTERSON: Me.


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Arpaio - CX Masterson, 10/8/15 Evidentiary Hearing 2504

THE COURT: Okay.

CROSS-EXAMINATION

BY MR. MASTERSON:

Q. Good morning, Sheriff. How are you this morning?

A. Okay.

Q. Can you hear me okay up here?

A. Loud and clear.

Q. Okay.

A. It's my fault if I mess up.

Q. Well, I sometimes talk low, too, so I'll try to stay close

to the microphone here.

I want to start with talking about the first time you

mentioned you met with Mr. Blixseth. Mr. Young asked you some

questions last week about that very first meeting.

Could you tell me when you recall -- if you do -- when

you first met with Mr. Blixseth?

A. I believe it was around October, November of '13.

Q. Of 2013?

A. Yes.

Q. And did Mr. Blixseth come here?

A. Yes.

Q. What do you recall occurring at that meeting?

A. Well, he had some information about banking, people going

into bank accounts, stealing ID and financial statements.

Q. Did he tell you where he got that information?


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A. I'm not sure whether he said he received it from the

source, Montgomery.

Q. Did he mention Mr. Montgomery at that time?

A. He may have.

Q. Did he mention the man's first name, Dennis Montgomery?

A. If he mentioned Montgomery, I'm sure the first name came

out.

Q. When you first met with Mr. Blixseth in October, November

2013, did he tell you anything about Judge Snow?

A. No.

Q. Did you ask him anything about Judge Snow?

A. No.

Q. Sheriff, I want to look at Exhibit 2074A, and I think it

should be somewhere in that massive pile in front of you there.

A. 2074?

Q. 2074A.

A. I'll get there.

Q. And to help you, it's the one that we've been calling, I

think, a time line. It says DOJ/Arpaio.

A. Yes.

Q. Do you have that document, sir?

A. Yes.

Q. Do you recall when you got that document?

A. I know what the date is, but I don't recall.

Q. Okay. What's the date on it up at the top?


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A. It's November 5, 2013.

Q. Okay. Did you ask Dennis Montgomery to give you that

document, or anything like that document?

A. No.

Q. Did you ask Mr. Blixseth to tell Dennis Montgomery to give

you this document or anything like that document?

A. No.

Q. Did you ask anyone at MCSO, whether it be

Detective Mackiewicz or Posseman Mike Zullo, to have Dennis

Montgomery give you that document or some document like that?

A. No.

Q. Did you, prior to November 5, 2013, ask Dennis Montgomery

to do anything at all to look into Judge Snow or anything about

Judge Snow?

A. No.

Q. Did you ask Detective Mackiewicz or Posseman Mike Zullo to

have Dennis Montgomery do anything to investigate Judge Snow

prior to --

MR. YOUNG: Objection, ambiguous.

THE COURT: Overruled.

BY MR. MASTERSON:

Q. Did you ask Detective Mackiewicz or Posseman Mike Zullo to

do anything, or ask Dennis Montgomery to provide information

like Exhibit 2074A to you, or to look into or investigate

Judge Snow?


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A. No.

Q. I think you told Mr. Young you recall meeting with Dennis

Montgomery at some point?

A. Yes.

Q. And I thought you said something maybe at a hotel? Do you

remember that?

A. Yes.

Q. Do you recall when that was?

A. I'm not sure whether it was the first part of 2014. Could

be.

Q. Do you recall what you talked about with Dennis Montgomery?

A. I believe we were talking about the banking fraud.

Q. Did you ever see any list of banking information while you

were meeting with Dennis Montgomery?

A. No.

Q. While you were meeting with Dennis Montgomery, did you ever

discuss Judge Snow at all?

A. No.

Q. Did you ask Mr. -- Dennis Montgomery to provide you or --

investi -- provide you with any information about Judge Snow?

A. No.

Q. Did you ask Dennis Montgomery to investigate Judge Snow?

A. No.

Q. Do you recall any information that Mr. Montgomery provided

to you about this banking information at that meeting?


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A. I don't believe at that meeting.

Q. Do you recall in general, and I'm not asking you for any

specifics at this point, but do you recall in general any

information that was provided to you about what that banking

information supposedly consisted of?

A. Well, I remember the information I got was about 150,000

people living in Maricopa County were victims, and I believe

the maybe 300, 350,000 outside of Maricopa County but in

Arizona.

Q. And how did you receive that information?

A. I believe I received it from the investigators.

Q. Would that be Detective Mackiewicz or Mike Zullo?

A. Yes.

Q. Did you ever see a list itself, or any computerized

document, of banking information from folks here in Maricopa

County?

A. No.

Q. Did you ever receive information that Judge Snow's name was

in that banking information?

A. Yes.

Q. Tell me about that. What did you learn about that or what

did you hear about that?

A. Well, I heard that there was not just Judge Snow, but other

judges across the nation, plus many businesses, plus my name.

My wife was in that situation.


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Q. You learned that information from Detective Mackiewicz or

Mike Zullo? Is that how that happened?

A. I'm not sure which one, but it was one of them.

Q. Did they tell you that Judge Snow's personal information

was in the banking information supposedly provided by Dennis

Montgomery?

A. Yes. I think they mentioned a few with the same name was

in there, including the judge, I believe.

Q. Was this information they saw -- and if you know; if you

don't know, that's fine, just tell me. Do you know whether

they saw this banking information with Judge Snow's name in it,

or is this something that Dennis Montgomery is telling them?

A. I don't know. I don't know whether they saw it themselves.

Q. So you don't know whether they saw Judge Snow's name on a

list, or whether Dennis Montgomery told them that Judge Snow's

name was on the list, is that correct?

A. No. I mean, the point is they could have seen it, but I

don't recall if they said they physically or visually saw it

themselves.

Q. And I think you just told me -- or were you told that your

personal information and your wife's personal information was

on the list?

A. Yes.

Q. And again, who told you that?

A. One of the investigators.


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Q. Either Detective Mackiewicz or Mike Zullo?

A. Yes.

Q. Do you still have 2074A up there in front of you?

A. Yes.

Q. Does that exhibit -- and I actually don't know whether you

have a redacted version or not, but does that exhibit have your

personal cell phone number on it?

A. Yes.

Q. Do you know, does it have Chief Sheridan's personal

cell phone number on it?

A. Yes.

Q. And are the personal cell phones that are listed in

Exhibit 2074A, are those next to the -- rather, are those on

the lines that are delineated DOJ wiretap and then a number?

A. Yes.

Q. Did that cause you any concern at this point when you saw

DOJ wiretap number and then your personal cell phone number?

A. Yes.

Q. Tell me about why that might have given you some concern at

that point.

A. Well, you know -- excuse me. You know, after being a top

federal law enforcement official for many, many years, and the

possibility that the government agency is tapping my lines is a

little concerning.

Q. And that document is dated November 5, 2013, correct?


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A. Yes.

Q. Now, I want to talk about November 6, 2013, the very next

day. Do you recall talking with Mr. Young about a phone call

with someone named JC?

A. Yes.

Q. Do you recall that as you're sitting here today, that phone

call and what you were told during that phone call?

A. Well, in general terms, I believe he received information

from a person, a journalist, that my wife's telephone home

number was being tapped. And of course, that concerned me

also. Here I get two different stories about my telephone

line.

Q. Was this by two entirely different people?

A. Yes.

Q. Did both of them -- well, I understand that you didn't talk

to Dennis Montgomery when you saw Exhibit 2074A, but that

document does refer to DOJ wiretaps, is that correct?

A. Yes.

Q. And then I think you just told us that the very next day

when you talked with this JC person, did that person tell you

that your phones were being tapped by the feds?

A. Well, I don't know, excuse me, what agency; could have been

CIA or whatever.

Q. Do you recall if CIA was mentioned to you on November 6,

2013?


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A. I believe it may have been.

Q. Now, let me ask you this: On November 5, 2013, the day

before, or before that, were you told that Dennis Montgomery

was somehow involved with the CIA? Or did you know that yet?

A. I don't think I knew that.

Q. Okay. So on November 5 and November 6, 2013, two entirely

different sources were telling you that your personal phone is

being tapped by someone in the federal government.

MR. YOUNG: Objection, leading.

THE COURT: Sustained.

BY MR. MASTERSON:

Q. Were you told on November 5 and November 6 by two different

people that your phones were tapped?


THE COURT: Sustained.

BY MR. MASTERSON:

Q. Well, Sheriff, take a look at Exhibit 2074A, please, and

look at the line September 28, 2009. You see that?

A. Yes.

Q. What does it say right next to that?

A. It says "DOJ wiretap" and then a number.

Q. Do you have an opinion as to what the initials "DOJ" stand

for?

A. I would imagine the "Department of Justice."

Q. And under that on the line May 28, 2010, do you see that?


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A. Yes.

Q. What does that line say right next to that?

A. "DOJ wiretap" plus a number.

Q. "DOJ." Who would that be, in your opinion?

A. I believe it's the chief deputy.

Q. No, what does the "DOJ" stand for?

A. Department of Justice.

Q. Is the Department of Justice part of the federal

government?

A. Yes.

Q. The very next day on November 6th --

THE COURT: Do you know, Mr. Masterson, could I

interrupt here? I just want one more point of clarification.

MR. MASTERSON: Certainly, Judge.

THE COURT: If you can, Sheriff, just by referring to

the DOJ wiretap number, which one of those was you and which

one was Chief Deputy Sheridan? Or did you believe to be you,

and which one did you believe to be of Chief Deputy Sheridan?

THE WITNESS: Your Honor, excuse me. I go by the

phone number.

THE COURT: Sure.

THE WITNESS: It's my phone number.

THE COURT: Yeah. And you don't have to tell me your

phone number, but you'll see that the one that has your phone

number has a DOJ wiretap number associated with it?


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THE WITNESS: Yes.

THE COURT: Could you tell me the DOJ wiretap

number that is associated with your phone number.

THE WITNESS: Well, I can give it out, but I don't

know if it's --

THE COURT: Yeah, I don't think it hurts if you give

out the wiretap number; don't give out your phone number.

THE WITNESS: It's 56990-34.

THE COURT: All right. And what is the DOJ wiretap

number that is supposedly associated with Chief Deputy

Sheridan's phone number?

THE WITNESS: It's 64402-03.

THE COURT: Thank you.

Thank you, Mr. Masterson.

BY MR. MASTERSON:

Q. Now, on the very next day on November 6th, 2013, did anyone

tell you your phones were being tapped?

A. Yes.

Q. Were you told who was tapping your phones?

A. I think the mention was the CIA.

Q. Was the November 6th information completely from a

different source than November 5 information?

A. That I know of, yes.

Q. When Mr. Young was asking you questions you used the word

"bizarre." Can you tell me what you meant by that?


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A. Well, it is bizarre when you look at my situation. I do

know that I was a little concerned. I believe around June of

that year someone sent me a, personally to me a bomb, and the

FBI postal inspector spent a year to catch the guy. He was

convicted in federal court here and also in Oklahoma.

And three months later, another e-mail comes to kill

my wife and my grandkids, and the threats continued. I think

that person is now in court. So I had a little concern. It

seems that it was a pretty rough six months with these alleged

wiretaps and threats.

Q. Were you curious about what was going on if somebody from

the federal government was tapping your phones?

A. If it was true, yes, I would be concerned.

Q. Did you want to look into that and see if you could find

out what was going on?

A. Well, my main objective was to get more information. I

believe our detectives or Montgomery had mentioned that

Montgomery could get a voice sample of those telephone calls.

I'm not an expert, I don't know if they can or they can't, but

that's what I was told.

Q. Tell me a little bit about that. Were you trying to get

Mr. Montgomery to come up with, I guess, a recording of the

wiretap on you? Is that what you're telling me?

A. Well, that's one reason, and another is to verify his

liability, whether this is all garbage or not.


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Q. Do you recall -- and I think you talked about it with

Mr. Young a little bit -- a meeting at your office, and I don't

want to put words on your -- in your mouth, but I think you

testified that Detective Mackiewicz or Mike Zullo or both of

them were on the phone.

Do you recall that?

A. Yes.

Q. Can you tell -- tell us what you recall learning at that

meeting.

A. Well -- excuse me. One thing that concerned me was the

government or someone infiltrating my office and the County

Attorney's Office, and even the -- my law firm.

Q. Now, when you say your law firm, what do you mean?

A. That's the law firm I'm using that you're representing.

Q. Okay. My law firm.

A. Yes.

Q. Okay. You just said you were concerned about your office

and the County Attorney's Office and my law firm.

Can you tell me why you were concerned about that?

A. Well, I think that's a big security breach when people are

going into the sensitive information of a government agency and

also a law firm.

Q. What were you told about a possible breach of your agency,

the Maricopa County Attorney's Office, or my law firm?

A. Well, the main thing was that they were going into it. I


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didn't get all the information if they got anything or not. I

do know the law firm triggered my interest because it was

mentioned that one of the lawyers' kid was going to play

soccer, and how would anybody know that if they didn't get into

those e-mails of that law firm.

Q. Now, did you learn this at that meeting that you were

talking about with Mr. Young?

A. I believe that I heard that at that meeting.

Q. Do you recall who was on the phone? In other words, who

was providing you -- well, let me stop and just ask it again.

Who was providing that information to you during that

meeting about the intrusion, or hack, into your office, MCAO,

Maricopa County Attorney's Office, and my law firm? Who was

giving you that information?

A. I believe that the -- Detective Mackiewicz and Zullo were

there on the phone --

Q. Okay.

A. -- not in person.

Q. Did you bring up Judge Snow at that time?

A. No.

Q. Did you ask Detective Mackiewicz to investigate Judge Snow?

A. No.

Q. Did you ask Mike Zullo to investigate Judge Snow?

A. No.

Q. Did either of those two gentlemen provide any information


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to you about Judge Snow on that phone call, that you recall?

A. Not that I can recall.

Q. Do you know whether you had Exhibit 2074A while you were on

that phone call?

A. No. I don't believe I had.

Q. Well, let me ask you -- well, let me ask again: Are you

telling me you don't think you had it or you don't recall

whether you had it?

A. I don't recall if I had it in my hand or heard about it.

Q. Okay. During that meeting were you concerned about

Maricopa County Sheriff's Office computers possibly having been

hacked?

A. Very concerned.

Q. Were you concerned about the Maricopa County Attorney's

computers supposedly been hacked?


THE COURT: I'm going to allow it.

THE WITNESS: Yes, I was concerned.

BY MR. MASTERSON:

Q. Were you concerned about your private attorneys', my law

firm's computers being hacked?

A. Yes.

Q. At that point, tell me -- tell me at that point what --

well, did you think it was important to follow up on that, or

did you think this was all, what we've heard before, garbage or


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junk? Did you know at that time what you were dealing with

here?

A. No.

Q. Did you think it was important to follow up?

A. Yes.

Q. Why?

A. Well, I think when you have a -- two law enforcement

officials, their lines are tapped, if it was true, that's

important; and also government agencies infiltrated.

Q. Did MCSO follow up on some of the information provided by

Dennis Montgomery with respect to the banking information or

the identity theft issues, do you know?

A. I believe so.

Q. Do you know what was done?

A. I believe the chief deputy assigned some detectives to

follow up on it.

Q. And do you know what those detectives found?

A. I'm not sure all the details, but I believe they found some

evidence, some connection that somewhat verified the -- the

bank accounts.

Q. So are you telling me that the detectives who followed up

did verify certain of the information that was provided them

was accurate?

A. Yes.

Q. Could you look at Exhibit 2531, Sheriff, please.


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A. 2531?

Q. Yes, sir. Do you have it there, sir?

A. Yes.

Q. Do you -- do you remember that document?

A. I don't know -- remember reading it at the time, but --

Q. Well, do you remember being told at some point that the

opinion was that Mr. Mo

Melendres v. Arpaio #1458 Oct 8 2015 TRANSCRIPT - DAY 11 Evidentiary Hearing

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Transcript of Melendres v. Arpaio #1458 Oct 8 2015 TRANSCRIPT - DAY 11 Evidentiary Hearing