Melendres v. Arpaio #1422 Sept 30 2015 TRANSCRIPT - DAY 8 Evidentiary Hearing

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
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Manuel de Jesus Ortega Melendres,

et al.,
Plaintiffs,
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vs.
Joseph M. Arpaio, et al.,

Defendants.
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(Evidentiary Hearing Day 8, Pages 1735-2006)
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Court Reporter:
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Phoenix, Arizona
September 30, 2015
8:50 a.m.
BEFORE THE HONORABLE G. MURRAY SNOW
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No. CV 07-2513-PHX-GMS
REPORTER'S TRANSCRIPT OF PROCEEDINGS
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Gary Moll
401 W. Washington Street, SPC #38
Phoenix, Arizona 85003
(602) 322-7263
Proceedings taken by stenographic court reporter

Transcript prepared by computer-aided transcription
A P P E A R A N C E S
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For the Plaintiffs:

American Civil Liberties Union Foundation
Immigrants' Rights Project
By: 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 Floor
New York, New York 10004
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American Civil Liberties Union of Arizona

By: Daniel J. Pochoda, Esq.
P.O. Box 17148
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Covington & Burling, LLP

By: Lauren E. Pedley, Esq.
1 Front Street, 35th Floor
San Francisco, California 94111
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Covington & Burling, LLP

By: Stanley Young, Esq.
By: Michelle L. Morin, Esq.
333 Twin Dolphin Drive, Suite 700
Redwood Shores, California 94065
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For the Movants Christine Stutz and Thomas P. Liddy:

Broening, Oberg, Woods & Wilson, PC
By: Terrence P. Woods, Esq.
P.O. Box 20527
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For the Defendant Maricopa County:

Walker & Peskind, PLLC
By: Richard K. Walker, Esq.
By: Charles W. Jirauch, Esq.
SGA Corporate Center
16100 N. 7th Street, Suite 140
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Melendres v. Arpaio, 9/30/15 Evidentiary Hearing
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For the Defendant Joseph M. Arpaio and Maricopa County

Sheriff's Office:
Iafrate & Associates
By: 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 800
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For the Intervenor United States of America:

U.S. Department of Justice - Civil Rights Division
By: Paul Killebrew, Esq.
950 Pennsylvania Avenue NW, 5th Floor
Washington, D.C. 20530
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U.S. Department of Justice - Civil Rights Division

By: Cynthia Coe, Esq.
601 D. Street NW, #5011
Washington, D.C. 20004
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For Executive Chief Brian Sands:

Lewis, Brisbois, Bisgaard & Smith, LLP
By: Greg S. Como, Esq.
2929 N. Central Avenue, Suite 1700
For Timothy J. Casey:
Adams & Clark, PC
By: Karen Clark, Esq.
520 E. Portland Street
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For Deputy Chief Jack MacIntyre:

Dickinson Wright, PLLC
By: Gary L. Birnbaum, Esq.
1850 North Central Avenue, Suite 1400
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Also present:
Sheriff Joseph M. Arpaio
Executive Chief Brian Sands
Chief Deputy Gerard Sheridan
Deputy Chief Jack MacIntyre
Lieutenant Joseph Sousa
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I N D E X
Witness:
Cross-Examination by Mr. Masterson

Cross-Examination by Mr. Como
Cross-Examination by Mr. Walker
Redirect Examination by Ms. Wang
Examination by the Court
Direct Examination by Mr. Pochoda

Cross-Examination by Mr. Popolizio
Redirect Examination by Mr. Pochoda
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Direct Examination by Mr. Young
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JOSEPH M. ARPAIO
FR
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1864
1937
1943
BRIAN SANDS
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1808
1828
1831
1850
JOHN MacINTYRE
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Page
TIMOTHY J. CASEY
Direct Examination by Mr. Young

Cross-Examination by Mr. Popolizio
Cross-Examination by Mr. Como
Examination by the Court
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1947
1968
1971
1978
1982
E X H I B I T S
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No.
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5
6
30
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8
32
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213
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2285
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15
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2536
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FR
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Admitted
Phoenix New Times article by Ray Stern,

1893
Arpaio's Request for Court-Appointed Lawyer
Not What It Seems, Sheriffs Official Says dated
12/2/2014
Arizona Republic article by Daniel Gonzalez,
Federal judge halts Arpaio's worksite raids
dated 1/6/2015
1885
Dkt. 235 - Defendants' Response in Opposition

to Plaintiffs' Motion for Sanctions dated
12/11/2009
1899
Email Chain from J. Sousa to B. Jakowinicz,

et al., re "Melendres Order on Summary
Judgment" dated October 19, 2012
Sousa Depo Exhibit 193
1827
E-mail from Tim Casey to Amy Lake, Jerry

Sheridan, John MacIntyre, David Trombi, Larry
Farnsworth, Russ Skinner copying Eileen Henry,
Alana Borie, Thomas Liddy, Christine Stutz,
and James Williams Re: Melendres - Legal
Question about dated 6/3/2014 (MELC166742)
1845
E-mail from Joseph Sousa to Brett Palmer

1761
copying Tim Casey, Rollie Seebert, Brian Sands,
David Trombi, and Eileen Henry - Putting out
training reference the court order dated
1/11/2012 (CaseySub 000003)
Video Clip 1 DOJ Disk 1 of 2, April 2012 to
July 2012
1994
2829A
Video Clip 1 CBS Evening News, DOJ, Racial

Profiling dated 4/5/2012
1997
2831A
Video Clip 1 Fox News, Follow the Money dated

1/11/2012
1999
Video Clip 2 Newsmaker with John Hook - Fox,

Sheriff comments on Obama Investigation,
Immigration, Reaching out Hispanics, and Posse
dated 1/27/2013
2000
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2828A
Description
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P R O C E E D I N G S
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THE COURT:
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.
THE COURT:
announce as usual.
MS. WANG:
I guess we'll need to have the parties
Please do.
I'm sorry, Your Honor.
Good morning.
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Cecillia Wang of the ACLU, with Andre Segura, for the
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plaintiffs.
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MR. YOUNG:
Good morning, Your Honor.
Michelle Morin, and Lauren Pedley, Covington & Burling, for
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plaintiffs.
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MS. COE:
THE COURT:
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MR. POCHODA:
Good morning.
Dan Pochoda of the ACLU
of Arizona for plaintiffs.

MR. MASTERSON:
Good morning, Judge Snow.
John
Masterson, Joe Popolizio, for Sheriff Arpaio, and with us is
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Holly McGee to assist us.
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08:50:39
Good morning.
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Cynthia Coe and
Paul Killebrew for the United States.
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08:50:27
Stanley Young,
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08:50:13
MR. WALKER:
08:50:49
Richard Walker
appearing on behalf of Maricopa County.

MR. McDONALD:
Good morning, Judge Snow.
Mel McDonald
08:51:03
appearing specially on behalf of Sheriff Joe Arpaio.

THE COURT:
MR. COMO:
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Good morning.
Good morning, Judge.
Greg Como on behalf
of Brian Sands.
MR. BIRNBAUM:
Gary
Birnbaum, special counsel for Deputy Chief MacIntyre.
Mr. MacIntyre will be here for the testimonial part of this
morning.
MS. IAFRATE:
Michele
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Iafrate on behalf of Sheriff Arpaio and the alleged unnamed
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contemnors.
THE COURT:
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08:51:29
I've read defendants' response to the
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motion to quash -- I'm sorry.
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to the motion to quash.
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MR. POPOLIZIO:
I've read plaintiffs' response
Seems pretty reasonable to me.

Plaintiff
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did make several concessions, and there was an admission that
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the wrong subpoena may have been filed with a return date of
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September 30th as opposed to October 5th.
08:51:48
Even with that said, Your Honor, defendant -- excuse
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me, plaintiffs' response reveals something that I think is
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problematic and very important.
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issues that may arise that would give them the right to seek
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08:52:10
They claim that the issue or
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discovery of correspondence, e-mails, even metadata in their
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native format and whatnot, leaving that issue aside for a
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second, arose in April and then in May of 2015.
FR
08:51:13
We're at end
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of September, the very last day, we're in the midst of trial,
and a subpoena was served last Friday.

THE COURT:
What about their argument that you just
informed them that you were going to insist on a separate
subpoena to Mr. Zullo a couple of weeks ago?

MR. POPOLIZIO:
Well, that was a subpoena for his
appearance.
information which the plaintiffs get on these very issues.
they have information.
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So
I think what --
What, monitor requests for information
MR. POPOLIZIO:
I believe that plaintiff has copies of
those also, Your Honor.

THE COURT:
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All right.
MR. POPOLIZIO:
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So I think what the focus should be
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on, Your Honor, is if this did arise, if this was an idea in
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their head in April and May of 2015, the subpoena or any other
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discovery should have been sought earlier.
It wasn't.
deposition of next week, and I know that they say that they had
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moved that deposition.
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hearing that's been ongoing, and this is the first time that
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08:53:14
So now we're basically on the eve of a scheduled
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08:53:06
that the monitor has provided to plaintiffs, you're saying?
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However, there have been monitor requests for
THE COURT:
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08:52:49
08:53:31
We're in the midst of this contempt
they've asked for anything like this.

I think that a motion for protective order is in order
here, Your Honor, and that the subpoena should be quashed.
08:53:48
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THE COURT:
Ms. Morin.
MS. MORIN:
Yes, Your Honor.
THE COURT:
Would you please approach the podium.
MS. MORIN:
Sorry.
Thank you, Your Honor.
First, the --
I apologize for that.
First of all, the information that the e-mail
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production and the production of documents to the monitor was
made at the discretion of the person providing the information.
That revelation was made in September, and the transcript
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excerpt from Sergeant Anglin's deposition is included in our
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response.
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to make sure that all of the relevant and responsive documents
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are produced was known long ago, that's not an accurate
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statement.
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provided until late August, I believe, and early September, and
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only upon review of that does it become clear that the e-mail
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productions by MCSO have not included --
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Cold Case Posse.
MS. MORIN:
-- comprehensively the personal e-mail
08:55:02
So, for example, you can see when you have one copy
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that was sent to an MCSO request from, for example, a
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Detective Mackiewicz -- sorry, to an MCSO e-mail account from a
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Detective Mackiewicz personal e-mail account, if there's not
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08:54:42
accounts of both Posseman Zullo and Detective Mackiewicz.
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THE COURT:
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08:54:23
So that the need for additional discovery requests
Also, the PST production that MCSO made was not
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another copy that is produced, that other personal e-mail
account hasn't been comprehensively searched.
So upon review, it becomes clear -- it has become
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clear more recently that we did need to serve these additional
document requests to make sure that we get all the relevant
documents.
THE COURT:
Thank you.
Mr. Popolizio, do you have any final words?
MR. POPOLIZIO:
No, Your Honor.
I just ask that
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motion be granted.
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hear me.
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argument is that there isn't an official policy with regard to
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the gathering of information, but when they cite information --
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or excuse me, testimony of Detective Anglin, he states that he
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had desired to be thorough.
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they cite.
And I'll step up here so that everybody can
And I would like to bring to light that plaintiffs'
That's the only testimony that
information is that basically, they want discovery on the
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targeting of elected officials, Your Honor.
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there's been discussion --
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THE COURT:
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08:56:06
I know that
08:56:26
Well, I'm not sure that I'm going to admit
that, but I'm not sure that it's not discoverable, if any of it
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08:55:45
The other reason they cite for wanting this
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08:55:34
turns up.
MR. POPOLIZIO:
Well, I would just bring -- I would
just submit to the Court that I don't believe that that's an
08:56:35
issue of this hearing or even any allegation in this case.
What we might be seeing is a morphing of something that was
settled from the --
THE COURT:
Are you saying it's irrelevant?
MR. POPOLIZIO:
THE COURT:
I'm sorry.
08:56:46
Are you saying it's irrelevant with the
broad standard of relevance as it's defined in the Federal
Rules of Evidence?
MR. POPOLIZIO:
THE COURT:
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I am, Your Honor.
And --
What about Ms. Morin's point that the
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tendency in the past to investigate judges and federal
12
officials is probative of whether or not that was done in this
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case?
MR. POPOLIZIO:
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Well, I think it's a little bit too
broad, Your Honor, what they're seeking.

THE COURT:
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And my point being --
I'm sorry.
My point being, Your Honor, this sounds more like an
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allegation from a settled case, the United States versus
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Arpaio, than it does from Melendres versus Arpaio.
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but I don't think that that's an issue in this case.

THE COURT:
All right.
I'm going to deny your motion,
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except for I am going to grant it to the extent that the
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original motion did not include the concessions made by the
FR
08:57:21
So there might be some taint coming in from the DOJ,
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08:57:07
Sorry.
MR. POPOLIZIO:
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08:56:54
08:57:37
defendants in their response.
Defendants -- I'm sorry.
I keep mixing the parties.
When plaintiffs have narrowed the scope of their
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subpoena, I'm going to enforce that narrowed scope of subpoena.

MR. POPOLIZIO:
THE COURT:
THE COURT:
-- enforced, too?
Time lines the same.
MR. POPOLIZIO:
08:58:03
Time line's the same.
MR. POPOLIZIO:
Will the timeline be --
I just want to just -- I know that
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you've denied it, but the burden placed on Mr. Zullo, basically
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even with this extended time limit, it gives him six business
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days.
THE COURT:
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Well, if you're going to respond to me --
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I mean, it seems to me like the request has been pretty
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narrowed to matters that are quite relevant to this lawsuit.
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If you are going to come back and tell me that it involves
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thousands of documents, then I'll consider that.

MR. POPOLIZIO:
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THE COURT:
MS. WANG:
THE COURT:
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you.
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here?
Okay.
Very well, Your Honor.
08:58:19
Thank
Um-hum.
08:58:29

Are we ready to proceed?
Is Mr. Casey
I know --
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He's here.
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(Pause in proceedings.)
FR
08:58:06
All right.
So we can go ahead.
08:58:59
THE COURT:
Who's conducting the cross-examination?
Is that going to be you, Mr. Popolizio?
MR. POPOLIZIO:
THE COURT:
THE COURT:
No, Your Honor.
I'm making room --
Oh, okay.
MR. POPOLIZIO:
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Casey - CX Masterson, 9/30/15 Evidentiary Hearing
-- right now.
Are you doing the cross-examination,
Mr. Masterson?
MR. MASTERSON:
I am, Judge.
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MR. CASEY:
THE COURT:
Good morning.
THE COURT:
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Just to remind you, Mr. Casey, I'm sure I
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don't need to, but I'm going to remind you anyway that the oath
15
that you took yesterday is still effective for the remainder of
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your testimony.
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MR. CASEY:
I understand.
THE COURT:
Mr. Masterson.
MR. MASTERSON:
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TIMOTHY J. CASEY,
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sworn, was examined and testified further as follows:
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recalled as a witness herein, having been previously duly
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BY MR. MASTERSON:
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Q.
09:01:04
Thank you, Judge.
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08:59:49
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08:59:05
CROSS-EXAMINATION
Good morning, Mr. Casey.
09:01:13
A.
Good morning.
Q.
You still have some exhibits up there in front of you?
A.
I do.
Q.
Would you please take a look at Exhibit 187.
A.
I have it.
Q.
And that's an e-mail you sent to various folks at MCSO?
A.
It is.
Q.
And what's the date of that, please?
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09:01:26
MS. CLARK:
Excuse me.
THE COURT:
You remember, we kind of need --
MR. MASTERSON:
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THE COURT:
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I don't have that exhibit.
Oh, yeah.
-- to put them up.
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BY MR. MASTERSON:
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Q.
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various people at MCSO informing them of the preliminary
17
injunction, is that accurate?
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A.
That is.
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Q.
And you sent that to Chief Sands, Chief MacIntyre, Chief
20
Sheridan, and Lieutenant Sousa.
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I think I just asked you whether you sent that to
MS. WANG:
THE COURT:
IEN
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Okay.
DS
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09:01:37
09:02:20
09:02:28
Objection, leading.
I'm going to allow that.
MR. MASTERSON:
Judge, I'm cross-examining, so I think
I can lead all day.

MS. WANG:
I don't think that's right, Your Honor.
09:02:44
THE COURT:
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leeway.
Well, I'm going to allow a fair amount of
THE WITNESS:
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Yes, those are the people I sent it to.
BY MR. MASTERSON:
Q.
You did not send this to Sheriff Arpaio, correct?
A.
No, I did not.
Q.
And you did not send it to his assistant, Amy Lake.
A.
That's correct.
Q.
And I think you told us you sent it to Chief Sands because
10
he was your primary contact.
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A.
That's correct.
12
Q.
You sent it to Chief Sheridan as a courtesy copy?
13
A.
That's correct.
14
Q.
Chief MacIntyre as a courtesy copy?
15
A.
That's also correct.
16
Q.
And Lieutenant Sousa because you were told to do so by
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Chief Sands.
18
A.
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copied him on it.
20
Q.
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Chief Sands, Chief MacIntyre, and Sheriff Arpaio, on the 23rd,
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December 23rd, and told them about the preliminary injunction?
09:03:05
09:03:16
I believe that -- that's my best memory as why I would have
IEN
DS
Now, I think you told us that you believe you spoke with
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A.
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talked to Chief Sands.
25
or Arpaio until I did a document search pursuant to the
FR
09:02:53
09:03:26
As I mentioned yesterday, John, I am -- I know that I

I did not remember talking to MacIntyre
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plaintiffs' subpoena and found the e-mail that was referenced
yesterday between my partner and I.
that I had a -- I must have had a communication with them on
the 23rd, because I wrote the e-mail at 9:26 at night about
their responses to the injunction.
Q.
Okay.
You're right.
And that indicates to me
I recall you saying that now.
And I think you told us -- I don't remember if you
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8
told us in your deposition or whether you told us yesterday
that you -- you believe you talked with Chief Sands first
10
because he would have been your primary contact at that time.
11
A.
It would have been, yes.
12
Q.
And Chief Sands was very supportive and had absolutely no
13
resistance whatsoever to the preliminary injunction.
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A.
MS. WANG:
THE COURT:
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Objection, leading.
BY MR. MASTERSON:
18
Q.
19
and that kind of refreshed your recollection about possibly
20
meeting with some people on December 23rd.
DS
Now, I know you said that you -- you looked at some e-mails
09:05:01
Do you remember that?
I can tell you it wasn't a meeting on December 23rd; I
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A.
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believe this is all done telephonically.
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Q.
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the meeting to Mr. Williams.
FR
09:04:41
I'm going to allow it.
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09:04:27
That's correct.
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09:04:12
Ah, okay.
And your recollection was refreshed when you saw

09:05:17
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A.
Yes.
Q.
But are you still telling me today you don't recall those
telephone conversations?
MS. WANG:
Objection, leading.
THE COURT:
I'm going to allow it.
THE WITNESS:
09:05:32
I do not to this day remember talking to
either Jack MacIntyre or Sheriff Arpaio on the 23rd.
BY MR. MASTERSON:
Q.
And yesterday we looked at Exhibit 2534.
And you don't
10
need to take a look at that; I'm just going to ask you a quick
11
question:
12
any billing entries for December 23rd, 2011, in your billing
13
records that are reflected in Exhibit 2534?
14
A.
15
time.
16
Q.
Christmas spirit?
17
A.
I don't think that was the reason; I just didn't do it, I
18
forgot.
19
Q.
20
little difficult for you, because I think you just told me you
21
really don't remember a telephone call with the sheriff, but
22
I'm going to try to maybe see if I can prod your memory a
Yes.
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FR
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Was it your testimony yesterday that there were not
Yeah, for whatever reason, I did not bill for that
09:06:02
I want to ask you about -- and this may be a
DS
All right.
IEN
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09:05:46
09:06:15
little.
Do you recall talking with us at your deposition about
reporting to the sheriff an adverse ruling from the court?
09:06:32
MS. WANG:
Objection, compound; leading.
THE COURT:
I'll allow it.
THE WITNESS:
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I know at some point I did speak to
Sheriff Arpaio between the 23rd and the beginning of the year.
BY MR. MASTERSON:
Q.
ruling to him?
A.
Yes.
Q.
And I think you told us you don't particularly like
Okay.
09:06:50
Did you report what you characterized as an adverse
Yes.
10
delivering bad news like adverse rulings to clients.
11
A.
12
part of what we have to do, yeah.
13
Q.
14
Sheriff Arpaio's response, correct?
I don't think any lawyer likes to deliver bad news, but's
But in this instance, you were pleasantly by surprised by
MS. WANG:
15
16
Objection, leading; mischaracterizes the
09:07:18
testimony.
MS. COE:
17
18
19
Join, Your Honor.
MS. CLARK:
Objection, mental impressions, Judge.
THE COURT:
Well, let me just deal with the mental
impression first.
21
Masterson can waive any mental impression privilege, can he
22
not?
IEN
DS
20
23
If Masterson's asking the question,
MS. CLARK:
09:07:34
Judge, I would like to make a record on
24
this.
25
asks any questions of Mr. Casey, it waives not only mental
FR
09:07:05
What I would like to assert is that if Mr. Masterson

09:07:48
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impressions, but also attorney-client privilege, work product,
and client confidentiality.
but I needed to make a record on that, Your Honor.

THE COURT:
4
5
All right.
Well, I am going to rule that
if Mr. Masterson asks the question, any privilege is waived.
MS. CLARK:
Judge, if you prefer me to make the
objections question by question, I will.

THE COURT:
9
10
fit.
11
respect, Ms. Clark.
12
MS. CLARK:
You can make the objections as you deem
I'm not going to give you legal advice, with all due
objections.
14
Mr. Casey's former clients, MCSO and Sheriff Arpaio, that it
15
waives all applicable privileges as well as confidentiality.
But I am asserting that they are questions from
09:08:24
But as you know, Mr. Casey cannot answer questions on
16
17
confidentiality unless ordered by the Court.
18
that order, so I will be objecting on confidentiality.

THE COURT:
19
I haven't heard
Well, if Mr. Masterson asks the question,
I'm going to tell you right now I'm ordering Mr. Casey to
21
respond based on confiden- -- I'm going to overrule any
22
confidentiality objection and direct him to respond if
IEN
DS
20
23
Mr. Masterson asks a question that otherwise waives any
24
arguable privilege or immunity.
FR
09:08:15
All right, Judge, then I'll make the
13
25
09:08:00
Are you then asserting some sort of confidentiality?
So yes, I do think it waives it,
MS. CLARK:
Thank you, Judge.
09:08:44
09:09:03
THE COURT:
MS. WANG:
2
3
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What was the other objection?
I believe it was leading and
mischaracterizes the testimony.

THE COURT:
All right.
Do you know, Ms. Wang, I'm
going to tell you in response to that what I often tell juries:
It's their job to pay close attention, and so they need to pay
close attention.
9
10
I have paid very close attention.
Mr. Masterson can ask whatever he wants.
the testimony.
I remember
I happen to have been there in the deposition,
as you know, and I'm going to allow him to ask the question.
MS. WANG:
11
12
BY MR. MASTERSON:
13
Q.
09:09:31
Yes, Your Honor.
I don't want to mischaracterize your testimony.
Did you tell us in your deposition that to your,
14
15
quote, great pleasure, end quote, quote, there was absolutely
16
no resistance, end quote, to the preliminary injunction from
17
Sheriff Arpaio when you --
18
A.
Yes.
19
Q.
-- first told him about the preliminary injunction?
20
A.
Yes.
21
Q.
But he didn't like losing, right?
22
A.
That's correct.
DS
IEN
09:09:53
09:10:07
23
Q.
24
over -- 26 years, was that it?
25
A.
FR
09:09:14
And in your experience as a lawyer with your clients
This is the 26th year.
I'm starting my 26th; I finished
09:10:23
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25.
Q.
not saying your clients lose all the time.
that happens, do they like it?
A.
civil justice system.
loser.
Q.
tell them they lost a particular issue, whether it be a motion
Based on your experience, do your clients like losing?
I'm
I'm just asking if
No client likes to lose, but it is -- it's why we have this

There will be a winner; there will be a
And do they sometimes express their dismay to you when you
10
or otherwise?
11
A.
They do, it's not unusual.
12
Q.
Now, you sent a copy of the preliminary injunction to
13
Deputy Chief MacIntyre as a courtesy.
14
A.
Yes.
15
Q.
But it was not your expectation that Deputy Chief MacIntyre
16
would do anything about the preliminary injunction.
17
A.
18
no -- to my knowledge, he had absolutely no authority to do
19
anything.
20
lawyer, Cecillia, yesterday.
21
Q.
22
Chief Deputy Sheridan as a courtesy.
That's right.
09:10:53
He was not in the chain of command.
09:11:08
He had
DS
I copied him on the reasons I told the plaintiffs'
09:11:25
IEN
And you also sent a copy of the preliminary injunction to
23
A.
Yes.
24
Q.
And again, you told us yesterday that you had no
25
expectations of Chief Sheridan to do anything about the
FR
09:10:38
09:11:40
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preliminary injunction.
A.
stage in anything to do with the preliminary injunction.
Q.
know the answer to this, but when you -- you recall having
conversations, telephone conversations -- and this is where I
may be muddying it up since I'm still not sure whether you
remember this or not -- but if you remember having telephone
conversations with MCSO folks about the preliminary injunction
Chief Sheridan was -- yes, he was not involved at this
You know, when you -- and maybe you're just not going to
10
on December 23rd, 2011, do you know where you were?
11
A.
Yeah, I was in -- I was in my office.
12
Q.
Okay.
13
A.
Yes.
14
Q.
Did you use your office phone or cell phone?
15
any recollection on that?
16
A.
17
had Brian Sands -- I had almost everyone's cell phone number in
18
my phone so I could call them, and my -- my best estimate here
19
is that it was on my cell phone going to Brian Sands'
20
cell phone.
21
Q.
22
at the time the preliminary injunction came out, is it your
09:12:29
DS
I can't tell you for certain, but I will tell you that I
09:12:48
IEN
At the time -- and we're talking about December 23, 2011 --
testimony that Chief Sheridan was largely an unknown person to
24
you?
FR
09:12:16
Do you have
23
25
09:11:57
And I think yesterday you said an unknown commodity.

Is that accurate?
09:13:08
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A.
It is.
Q.
You never met with Chief Sheridan about the preliminary
injunction.
A.
with Jerry Sheridan about the preliminary injunction.
was not involved at that stage.
Q.
you might have had before December 23, 2011.
yesterday, but do you remember a little bit about that?
I have no memory of that, and I do not believe I ever met
He just
Now, Ms. Wang asked you several questions about meetings

I know it was
10
A.
I do remember that.
11
Q.
Obviously, none of those meetings or conversations would
12
have been about the preliminary injunction because it hadn't
13
happened yet, right?
14
A.
That's correct.
15
Q.
And after December 23, 2011, you do recall talking to the
16
sheriff, and I'm thinking you told us within a couple weeks,
17
maybe?
18
A.
19
it's in these exhibits -- the 26th, the 27th, something like
20
that, for a .4, which is no more than 24 minutes.
21
for certain we talked about the Court's injunction, and I know
22
for certain we talked about the effects of the injunction on
09:13:37
09:13:47
IEN
DS
I have a time record on -- I'm going off of memory; I know
23
the office.
24
Q.
25
absolutely no resistance whatsoever to the order.
FR
09:13:20
And I know
09:14:13
And you know for certain that the sheriff's response was
09:14:33
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A.
Yes.
Q.
Could you please take a look at Exhibit 2534.
A.
2534?
Q.
Yes, sir.
A.
I'm sorry.
I've got the wrong one.
09:15:04
Yes, I have it.
6
7
Q.
Ms. Wang asked you a few questions about -- well, let's
look at the sentence that says:
he feels."
"Arpaio is conflicted on how
Do you see that?
10
09:15:20
11
A.
I do.
12
Q.
Ms. Wang asked you a couple of questions about that
13
yesterday.
14
resistance from Sheriff Arpaio when you told him about the
15
preliminary injunction, right?
16
A.
That's correct.
17
Q.
But he didn't like to lose, right?
18
A.
That's right.
19
Q.
And that was what you were talking about when you said he
20
was conflicted; you weren't talking about him being conflicted
21
over the preliminary injunction.
22
A.
Again, in your deposition you told us there was no
DS
09:15:44
IEN
That's --
23
MS. WANG:
24
THE COURT:
25
THE WITNESS:
FR
09:15:36
Objection, leading.
I'll allow it.
That is my best memory.
That's exactly
09:15:55
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what that's about.
BY MR. MASTERSON:
Q.
asked you if the sheriff was conflicted about the preliminary
injunction.
mischaracterize.
that, end quote.
Yesterday -- or, excuse me, at the deposition Ms. Wang
Your testimony was no -- I don't want to
09:16:06
Your testimony was, quote, No, I can't say
Is that accurate?
8
9
A.
That is accurate.
10
Q.
Yesterday you told us Sheriff Arpaio had no reservations
11
about the preliminary injunction, that he was not conflicted
12
about that, but that he did not like to lose, and that's what
13
he conveyed to you when you told him about the preliminary
14
injunction.
15
A.
16
that is true.
17
Q.
18
A.
Yes, I have it.
19
Q.
Do you recall this particular e-mail?
20
an e-mail from Lieutenant Sousa, you're copied, and the subject
21
is:
It's
DS
You're copied.
09:17:08
You see that?
23
A.
Yes.
24
Q.
Do you recall this e-mail?
25
A.
I did not until I had it pulled up earlier this year when I
FR
09:16:34
"Putting out training reference the court order."
IEN
22
Yes, plus the other things I shared yesterday, but yes,
09:16:18
09:17:18
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was told that this was an issue.
I didn't remember this until
then, but I re -- my memory was jogged when I saw Brett
Palmer's scenarios.
Q.
you mean out of your own e-mail system?
A.
or not I had reviewed scenarios and signed off on scenarios.
And I believe I indicated in my deposition, I think it was Tom
Liddy who shared that there was some finger-pointing, and I
So when you say "I pulled this up earlier this year," do
Yeah.
I got word that there was some issue about whether
10
asked my paralegal to see if we had, since the file was over at
11
Michele Iafrate's office, my original file, if we had anything
12
on the system dated this time period, because Tom had given me
13
some dates.
14
Q.
15
office.
16
A.
Yes.
17
Q.
And I assume you keep e-mails such as this as a regular
18
part of your law practice.
19
A.
Yeah.
20
Q.
And this was an e-mail from Lieutenant Sousa copying you
21
that had to do with Melendres versus Arpaio, correct?
22
A.
Okay.
So you found this in your own e-mail system at your
09:18:14
During the case, yes.
DS
IEN
FR
25
09:17:55
09:18:22
It is.
23
24
09:17:38
MR. MASTERSON:
Move to admit Exhibit 2536, Your
Honor.
MS. WANG:
No objection.
09:18:34
MS. CLARK:
No objection, Your Honor.
MR. WALKER:
MR. COMO:
THE COURT:
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No objection.
No objection.
Admitted.
Exhibit 2536 is admitted.
(Exhibit No. 2536 is admitted into evidence.)
5
6
BY MR. MASTERSON:
Q.
"Putting out training reference the court order."
Now, I already told you about the subject line.
It's
You see that?
9
10
A.
I do.
11
Q.
And in that, Lieutenant Sousa is --
09:18:55
MR. MASTERSON:
12
THE COURT:
13
Could we publish this, please, Judge?
Yes.
14
BY MR. MASTERSON:
15
Q.
16
order"?
17
A.
Yes.
18
Q.
And then the language below says:
19
MCSO from detaining any person based solely on knowledge,
20
without more, that the person is in the country without
21
unlawful authority."
22
A.
Do you see the paragraph that's headed "Judge Snow's
09:19:08
DS
"The Court is enjoining
09:19:21
IEN
I do see that.
23
Q.
24
enjoining MCSO from enforcing valid state laws or detaining
25
individuals when officer" -- probably should say 'officers' --
FR
09:18:45
And then it goes on to say:
"To be clear, the Court is not
09:19:35
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but "when officer have reasonable suspicion that individuals
are violating a state criminal law."

See that?
3
4
A.
I do.
Q.
And I know the order was 40 pages, but does that accurately
reflect at least a part of that order?
A.
e-mail where -- I know they're typos -- but this is right from
the Court's order, because I think this cite is where I got it
Yes.
My memory is this was taken off of my December 23rd
10
from.
11
Q.
Okay.
12
A.
On December 23rd.
13
Q.
And right now, when you take a look at this e-mail of
14
January 11, 2012, what MCSO is trying to do is comply with
15
Judge Snow's order of December 23, 2011.
09:20:09
So this did come from something you sent to MCSO.
MS. COE:
16
MS. COE:
18
Objection; foundation, leading.
Lacks foundation.
THE COURT:
19
BY MR. MASTERSON:
21
Q.
22
of time.
Sustained.
DS
20
09:20:38
IEN
Well, let's talk about what was going on during this period
Did you send information to MCSO that contains the
23
language that's in the paragraph under Judge Snow's order to
24
MCSO?
25
A.
FR
09:20:24
Objection, lack --
MS. WANG:
17
09:19:46
Yes.
That's Exhibit 187 that you showed me earlier.
09:20:53
Q.
it?
A.
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And did you give MCSO any instructions on what to do with
Jerry -- excuse me, I said "Jerry."
I apologize.
Brian Sands and I talked, as I mentioned, I believe,
4
5
yesterday, about things that we thought would be appropriate to
make sure MCSO was in compliance.
right now was one of the things Brian Sands and I talked about.
What's up on the screen
The Court did not order MCSO to undergo voluntary
8
9
training, but if I remember correctly, I recommended that that
10
would be a good thing to do.
11
agreed that it was a good thing to do.
Brian Sands was supportive,
09:21:31
My understanding is that this document that is on the
12
13
screen is in response to Brian Sands' and my communication
14
about going that next extra step of having training.
15
to try to implement that training protocol that I suggested and
16
Brian concurred in and authorized.
17
Q.
18
December 23, 2011 order?
19
A.
Yes, it was.
20
Q.
So within 19 days -- and you might even have an earlier
21
date in mind that I don't know about, and feel free to share
22
it -- but within 18 days, MCSO is attempting to set up some
This was
09:21:49
IEN
DS
And was all of that an effort to comply with Judge Snow's
23
training to comply with Judge Snow's order.
24
A.
25
that, yes.
FR
09:21:11
09:22:13
From December 23rd to January 11, this is the start of

09:22:32
Q.
to 19.
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I think I said 18 -- I think I said 19.
18.
Let's go back
I think that's what the math says, but anyway...
And I think you just told me that you and Chief Sands
3
4
agreed that it would be a prudent thing to do at this point to
get some training going for the troops at MCSO.
A.
Yes.
Q.
And I think you also just told me that Judge Snow did not
order any additional training or any changes to training.
A.
He did not in that preliminary injunction.
10
Q.
I think you characterized it as a prophylactic effort.
11
A.
I'm sorry.
THE COURT:
12
09:23:01
I'm just going to repeat what I believe
13
has been said, which is cell phones need to be turned off.
14
don't know if that was a cell phone or what it was.

MR. McDONALD:
15
16
THE COURT:
question?
20
BY MR. MASTERSON:
21
Q.
DS
19
I was turning
I apologize.
I'm sorry.
Could you repeat your
09:23:50
Probably not, but I'll give it a shot.
IEN
I think what I was saying was:
Did you view this as a
23
prophylactic effort to start the ball rolling with efforts to
24
comply with Judge Snow's order by working with MCSO on
25
training?
FR
09:23:41
All right.
THE WITNESS:
18
22
Your Honor, I apologize.
it off and I hit the wrong button.
17
09:23:18
09:24:05
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A.
I did.
Q.
And you were helping with this process, correct?
A.
I'm not sure what you mean by "helping," but I made the
recommendation.
I did review it, as I discussed yesterday, made corrections
directly with Brett Palmer, so helping in that way, yes.
Q.
with with respect to this issue, correct?
A.
He was that and the sheriff, yes.
10
Q.
And everybody's completely supportive at this time.
11
A.
At this time, absolutely.
12
Q.
All right.
13
this -- and again, refer to 2536 here -- at the time you're
14
starting this training preparation process, everyone at MCSO is
15
on board and supportive.
DS
court reporter.)
THE COURT:
Yes.
We need to have you repeat your
objections individually so we can get them on the record,

please.
24
MS. COE:
25
MS. WANG:
FR
Sustained.
(Off-the-record discussion between the Court and the
IEN
23
Objection, leading, foun --
THE COURT:
19
22
09:25:05
Objection, lack of foundation.
MS. WANG:
18
09:24:43
Everyone at MCSO at the time you're starting
MS. COE:
17
21
09:24:28
Chief Sands, he was the primary person you were working
16
20
I remember that they wanted me to review it.
Yes.
Mine was foundation.
Foundation and leading.
09:25:20
THE COURT:
Sustained.
MR. MASTERSON:
THE COURT:
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Which one?
Foundation.
BY MR. MASTERSON:
Q.
Chief Sands were doing on January 11, 2012, to start the
training process in order to help MCSO comply with Judge Snow's
order?
A.
To your knowledge, did Sheriff Arpaio oppose what you and
I have no information that -- one way or the other on that.
10
I assume that there was absolutely no opposition, because we
11
were going forward with it.
12
Q.
13
probably would forget half the names, but did any of the deputy
14
chiefs resist your efforts to develop training with Chief Sands
15
in order to comply with Judge Snow's order?

MS. WANG:
THE COURT:
17
THE COURT:
I assume you're asking about his personal
I am.
You may answer.
THE WITNESS:
To my personal knowledge, no other chief
23
BY MR. MASTERSON:
24
Q.
25
chiefs opposed this idea?
FR
09:26:33
was involved other than Brian Sands.
IEN
22
Objection, foundation.
MR. MASTERSON:
DS
21
09:26:14
knowledge.
19
20
09:25:54
I'm not going to go through all of them because, frankly, I
16
18
09:25:33
Did you get word in any fashion that any of the other
09:26:45
1767
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A.
No.
Q.
Did you get word in any fashion that anyone in command
staff -- and when I say "command staff," I'm talking sergeants
up.
A.
There was absolutely no resistance to the idea of training.
Q.
Now, could you look further in Exhibit 2536 and do you see
where Lieutenant Sousa is writing to Sergeant Palmer saying:
"Per our phone conversation, write up a couple of scenarios,
right way and wrong way, based on Judge Snow's order to MCSO
10
and your conversation with Tim Casey."
09:27:28
You see that?
11
12
A.
Yeah.
It says plural, "conversations."
13
Q.
Okay.
You're right.
So do my notes.
Tell me about those conversations.
14
A.
My conversations with Joe Sousa and Brett Palmer?
16
Q.
Yes, sir.
17
A.
Well, I'm going off of my memory refreshed based on my time
18
sheets, but I know that I had time entries on several times in
19
between December 23rd and December 31st, '11, involving Joe
20
Sousa, including on December 30th an over one-hour meeting with
21
Chief Sands and Joe Sousa, where we went over -- in my
22
judgment, exhaustively -- what the judge's injunction was; and
IEN
DS
15
23
specifically what MCSO could and could not do under the human
24
smuggling statute, because there's a nuance there on the arrest
25
or release and we talked about that.
FR
09:26:58
09:27:46
09:28:07
09:28:36
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We also went over, I'm sure, about the training,
1
2
although I don't specifically remember.
I think we went over
everything Brian and I had previously discussed.
ended up talking about -- and I do not have time records for
this; I looked for them.
conversations, plural, with Brett Palmer to explain to him,
because he was a sergeant in HSU, what the order allowed and
did not allow; also, what it allowed under the human smuggling
statute.
I eventually
But eventually I did have
Because there -- one of the elements on the human
10
smuggling statute was unlawful presence, and there was a -- one
11
of the nuances I mentioned was you can't use that to justify a,
12
quote-unquote, Terry stop.
Okay?
That's not sufficient.
14
civil violation, and there were some issues in MCSO about
15
whether unlawful presence -- being an illegal alien,
16
undocumented migrant, whatever term you give to it -- whether
17
or not that was a crime or a civil violation.
18
make sure it was clear that it was a civil.
19
just look at unlawful presence and use that as a springboard to
20
do a human smuggling investigation.
So we needed to
DS
And you couldn't
09:30:01
eventually being sent out.
23
Q.
Now, you used the word "nuance" a minute ago.
24
A.
Yeah.
25
Q.
You said there was a nuance.
FR
09:29:43
And then that led to, obviously, the scenarios
IEN
22
09:29:21
Unlawful presence is not a criminal issue, it's a
13
21
09:28:54
09:30:13
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Were you referring to the preliminary injunction?
1
2
A.
Yeah.
I mean, I tried to summarize it, as I said, as AOR,
arrest or release.
think it captured it.
I think it captured -- I mean, my view is I
But there was an issue in the preliminary injunction
5
6
that basically said that if I come across John Masterson
unlawfully in the country, I know, you tell me you're in the
country unlawfully, that is not grounds for reasonable
suspicion, certainly not probable cause, to allow me, under a
10
Terry stop, to start investigating whether or not there's a
11
human smuggling law violation under Arizona law.
09:30:48
Because just being unlawfully present was civil, not
12
13
criminal.
14
other elements, and that's what -- one of the things I drew
15
from the Court's order that MCSO needed to be briefed on as
16
well.
17
Q.
And did you do that briefing?
18
A.
Yeah.
19
talked to Brett Palmer, and I also know that Brian Sands and I
20
talked about it, Joe Sousa and I talked about it, because that
21
was one of the things.
22
down it was arrest or release.
So you had to have some reasonable suspicion on
DS
IEN
09:31:05
I mean, I was not asked to brief anyone, but when I
09:31:18
But when I -- when I boiled everything
23
Q.
24
having some difficulties understanding the nuance, for example,
25
you just mentioned?
FR
09:30:28
Did it seem to you that folks you talked to at MCSO were
09:31:36
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A.
No.
Q.
What about -- you said there was an issue between whether
there's a civil violation or a criminal violation.
some issues -- and I think you said there were some issues
about that.
for me.
A.
for seven years under the Immigration and Naturalization Act,
the term of art used is "illegal alien."
Were there
Could you please describe that a little bit more
Under the INA, as I understand it, as being on this case
And in the public
10
comment you have all sorts of different euphemisms for that
11
term, but the legal term is "illegal alien."
09:32:07
So when you think of illegal, you think crime; you
12
13
don't think of a civil violation.
14
at the time there were some people that held the belief that if
15
you were here illegally, that was a crime.
16
illegal alien for whatever period of time, that was a crime, so
17
that was part of the arrest or release under the human
18
smuggling.
And I believe, my memory is
If you were an
09:32:25
That in itself was not sufficient to launch into a
19
Terry stop investigation on whether the crime -- the state
21
crime of human smuggling existed.
22
parcel, but it was pretty well understood, the law really, in
IEN
DS
20
09:32:42
And that was part and
23
my judgment, didn't become clear until '12, when the Supreme
24
Court issued some things, but the Ninth Circuit had previously
25
come out, so we needed to make sure that was clear.
FR
09:31:49
And it
09:33:03
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was clear.
Q.
discussing the preliminary injunction with the MCSO folks back
during this, I guess I'm going to call it --
Now, were these issues that you encountered when you were
THE COURT REPORTER:
5
6
Mr. Masterson, could you start
your question over?
MR. MASTERSON:
Sure.
I think I'm just going to have
to make up a new question here because I don't remember what I
was saying.
10
BY MR. MASTERSON:
11
Q.
12
referenced in Exhibit 2536, were there issues in MCSO with the
13
criminal versus civil illegal alien unlawful presence crime
14
civil violation, did you have all those discussions, I guess,
15
with MCSO folks during this period of time?
16
A.
17
started rolling out this, this is MCSO rolling out, my job was
18
to assist.
19
previously been a -- I don't want to say it's a dominant
20
thought, but it was a common thought that in my judgment as a
21
lawyer, to do my job I felt that I needed to make sure that
22
they understood that "illegal" did not mean "criminal," it was
09:33:31
At the time you were starting this rollout of training
Let me start off by saying the predicate was, when I
IEN
DS
This was not an issue at the time, but it had
23
civil, so there was no confusion.
24
mean, it is a very common -- I think to lay people, it's a very
25
common misbelief that if you're unlawfully in the country
FR
09:33:50
09:34:13
Because very often -- I
09:34:37
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you've committed a crime, and that's not what the law is.
And sometimes that had permeated, from my genesis or
2
3
my start in the case from '07 until this preliminary injunction
came out, that's what I -- I would find sometimes some people
holding that view at MCSO.
injunction was to make clear that unlawful presence wasn't a
crime, so you can't use it as a springboard for investigating
state crimes.
Q.
And part of the preliminary
Were you still doing battle with that issue with the
10
troops, though, in --
11
A.
Not with the troops, no.
12
Q.
Okay.
13
training that is specific to compliance with Judge Snow's
14
order, correct?
15
A.
Yes.
16
Q.
This is not some general training that you're working on
17
with Brian Sands to give to MCSO; it's specific to comply with
18
Judge Snow's December 23, 2011, preliminary injunction.
19
A.
That is correct.
20
Q.
When you first -- this might not be accurate, so you may
21
have to correct me, because I don't know if it's when you first
22
talked to Sergeant Palmer or not, but at some point when you
IEN
DS
09:35:32
were having discussions with Sergeant Palmer about drafting
24
scenarios, he asked you if the sheriff was on board with this.
FR
09:35:15
And in Exhibit 2536, this -- this references
23
25
09:34:54
09:35:54
09:36:07
1773
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A.
I do remember that.
Q.
And what was your response to Sergeant Palmer?
A.
That absolutely he was on board.
That I personally talked to him after the order came out and it
was not a problem, and I repeated what the sheriff had shared
with me.
Q.
board with this proposed training?
A.
It was not a question.
And were you telling him that the sheriff was absolutely on
I remember it coming up -- I don't remember anything about:
10
Are you sure the sheriff is on board with the training.
11
remember talking to him about that you have to release them.
12
And that's when the question came up:
13
on board with this?
14
He said:
15
any more, ICE, Obama won't take them, so it was in that
16
context.
17
training.
18
in agreement or not.
19
Q.
20
you're going to have to tell me when, about a concern he had
21
about compliance with the order and leaving people in the
22
middle of the desert.
And I said:
09:36:39
Are you sure that he's
Absolutely, I talked to him.
We're not doing saturation patrols, we don't do this
It wasn't:
09:36:59
Are you sure he's on board with the
It wasn't about training and whether the sheriff was
IEN
DS
Now, did the sheriff express to you at some point, and
23
A.
24
preliminary injunction stage or if this was after the permanent
25
injunction was entered, but Sheriff Arpaio indicated -- told
FR
09:36:20
Yeah.
09:37:12
I mentioned that -- I don't know if this was at the
09:37:33
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me:
So you're telling me I've got to leave them in the desert
to die.
somewhere in the file that's at your co-counsel's office
there's actually an opinion letter that I wrote on that in
follow-up.
Q.
What did you tell the sheriff on that issue?
A.
Well, I told the sheriff that I said it -- there is nothing
under Judge Snow's order that prevents you from providing
humanitarian assistance.
And I responded to him on that, and I -- I think
09:37:54
If humanitarian assistance is giving
10
them food, water, shelter, and transportation, that's not an
11
issue.
12
and transportation to ICE, that's gaming the system; that's not
13
going to work.
But if the idea is transportation, food, water, shelter
And my prediction was, and I -- maybe it's
14
15
presumptuous -- but I told him, I said:
16
any other federal judge is going to hold you in contempt for
17
providing humanitarian assistance.
18
said:
19
so you have that as advice of counsel.
Neither Judge Snow or
I will put that in writing in an opinion letter to you
And I believe there is a letter on that, but it's
purely humanitarian; it's not transportation to federal
22
authorities.
IEN
21
23
Q.
And was the sheriff on board with that?
24
A.
He had no -- yeah, he -- as soon as he heard that he could
25
provide humanitarian assistance, he was good with it.
FR
09:38:32
And I think I told him, I
DS
20
09:38:10
09:38:46
09:39:01
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Q.
Now, when you first spoke to Sergeant Palmer in January
2012 about the preliminary injunction, had he already been
briefed by Lieutenant Sousa?
A.
That's what he told me.
Q.
Did you have any discussions with him about the nature of
the briefing, the extent of the briefing, or any of the facts
about the briefing?
A.
We may have, but I don't remember.
Q.
Okay.
So within -- well, let me ask you this first:
Do
10
you know where Sergeant Palmer was assigned at the time?
11
A.
He was at HSU.
12
Q.
How about Lieutenant Sousa?
13
A.
At this time I believe Lieutenant Sousa was still
14
lieutenant in charge of HSU.
15
August, and sometime between -- sometime, I think, in the first
16
quarter, and certainly before the trial, he transferred out of
17
HSU.
18
Q.
19
preliminary injunction coming out, has the word gotten down to
20
HSU?
21
A.
DS
MS. COE:
BY MR. MASTERSON:
24
Q.
FR
We had our trial in July and
09:39:52
09:40:09
What word?
23
25
09:39:32
So within a couple of weeks, two, three weeks of the
IEN
22
09:39:20
Objection, lacking in foundation.
Has the word gotten down to HSU?

MS. COE:
Same objection,
09:40:20
MS. WANG:
I'll join.
THE COURT:
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And the objection is sustained.
Ms. Coe, I would just point out, if you can pull that
3
4
microphone over to you a little closer when you make an
objection it will be easier for the court reporter to hear it.

MS. COE:
BY MR. MASTERSON:
Q.
Sergeant Palmer he had been briefed by Lieutenant Sousa,
Well, you just told me when you first spoke to
correct?
11
A.
That is correct.
12
Q.
And your testimony is that both Sousa and Palmer are in HSU
13
at this time.
14
A.
Yes.
15
Q.
And maybe I'm making an assumption that's not justified,
16
but are we talking about the briefing being about the
17
preliminary injunction?
18
A.
The briefing.
19
Q.
That Sousa gave to Palmer.
20
A.
Oh, yeah.
21
the time I talked to Brett Palmer, he had been briefed sometime
22
earlier by Joe Sousa.
IEN
DS
10
09:40:49
That was about -- yes.
My understanding is by
09:40:56
09:41:09
By the time I talked to Brett, Brett had
23
already told me he had briefed the troops.
24
Q.
25
troops, including HSU, by the time of this e-mail we're looking
FR
09:40:31
So word of the preliminary injunction had gotten to the

09:41:28
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at here in Exhibit 2536.
A.
Yes.
Q.
And -- well, you just told us that Sousa briefed Palmer and
Palmer briefed his people.
about?
A.
Yes, sir.
Q.
And that's HSU.
A.
That is HSU.
Q.
Now, my understanding is that you had not given -- well,
Are those the troops you're talking
09:41:51
10
let me ask you this:
Did you provide to Sergeant Palmer the
11
information that he briefed the troops on?
12
A.
Yes.
13
Q.
How did you convey that information to him?
14
A.
My under- -- well, I have to take the "yes" back because
15
it's been so long.
09:42:28
My understanding is at some point he told me that he
16
17
had already briefed the troops, and I don't remember if that
18
was the first conversation or if it was after we talked, but I
19
just don't remember the specifics now.
20
Q.
21
if you need to take a look at it, I'll grab it for you.
DS
I'm going to ask you about your deposition testimony, and
Oh, you've got it.
IEN
22
09:42:46
Great.
23
A.
Yeah, it's up here.
24
Q.
Can you take a look at page 83, please.
25
A.
Okay.
FR
09:42:06
09:43:02
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Q.
Somewhere around line 7 to 14, do you recall testifying
that you had not been consulted on the substance of the
briefing by Sergeant Palmer to the troops?
A.
Yeah, I see that.
Q.
And I know this is a long time ago, but can you explain
what you do remember about talking with Sergeant Palmer and
briefing him on issues concerning the preliminary --
preliminary injunction --
A.
Yeah --
10
Q.
-- before January 11, 2012, or at least before, in your
11
memory, he provided this briefing to the troops.
12
A.
13
we spoke, that he had already briefed the troops, and the
14
question was whether I had concerns whether that was accurate.
15
Q.
16
whether Sergeant Palmer understood the injunction and/or what
17
you told him.
18
A.
Yes.
19
Q.
Now -- well, let's do it this way.
20
first hit your mind?
21
A.
22
scenarios.
Yeah.
And there was a time when you became concerned about
09:44:05
When did that concern
09:44:25
IEN
Well, my memory was refreshed when I looked at the

When I got the scenarios and read them is when I
23
thought -- I became frustrated, because we had spent some time.
24
And then I remember what I described as 50 percent of the
25
scenarios being incorrect.
FR
09:43:44
I mean, my testimony was that the initial time that
DS
Okay.
09:43:27
09:44:47
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Really, it's 25 percent were incorrect, and then the
1
2
other 25 percent needed more -- more detail.
Q.
provide training to MCSO law enforcement officers to comply
with Judge Snow's order, correct?
A.
sure that the troops had training about it, yes, that's
correct.
Q.
Okay.
But he is drafting scenarios in an attempt to
09:45:12
The judge didn't order it, but he -- but in order to make
You're right.
And I understand that Judge Snow did not
10
order the training, but at the time Sergeant Palmer gave you
11
the scenarios, even though there were -- there was information
12
in the scenarios that was wrong, this was all a part of trying
13
to comply with Judge Snow's order.

MS. WANG:
14
MS. COE:
15
17
THE COURT:
BY MR. MASTERSON:
22
Q.
FR
25
Whose
Well, certainly Sergeant Palmer, and
I'm going to sustain the objection, then.
09:45:58
Do you have any knowledge as to what was going to be done
IEN
24
09:45:39
MCSO as a whole.
21
23
Well, who are you talking about?
MR. MASTERSON:
DS
20
Same objection, Your Honor.
attempts to comply with the order?
18
19
Objection, foundation; leading.
THE COURT:
16
09:45:24
with this training after it was completed?

And when I say "completed," I don't mean completed
with everybody in MCSO gets the training; I mean the scenarios,
09:46:09
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a training syllabus, or whatever was in the works here, when
that was completed, do you have any idea what was to happen to
it?
A.
I do know.
Q.
Tell us, please.
A.
My memory, my understanding is what they were going to do
is put together the scenarios and have -- I forget what the
term was, but it's basically online training.
E Learning, they call it, at MCSO, and first it was going to
What were they going to do with it?
09:46:23
I think it's
10
start off with the -- what I describe as the tip of the spear,
11
HSU undergoing that, and then it was going to go out
12
patrol-wise.
13
be required to do it.
14
Q.
15
personnel who were engaged in law enforcement/traffic stops?
16
A.
On the patrol side, not detention, yes.
17
Q.
Okay.
18
funsies; they were doing it to comply with Judge Snow's order.
19
A.
Yes.
20
Q.
So at this time when these training scenarios are being
21
prepared and passed on to you, in your opinion, was MCSO
22
ignoring Judge Snow's order?
Anyone that can make a traffic stop was going to
So it was going to go MCSO-wide at least to those
Yes.
IEN
23
MS. COE:
24
MS. WANG:
I'll object on foundation grounds as well.
25
THE COURT:
I'm going to sus- -- well, he's asked him
FR
09:46:59
So they weren't doing this training just for
DS
Okay.
09:46:41
09:47:22
Objection, Your Honor, irrelevant.
09:47:50
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about his opinion, I assume he has foundation to know his
opinion, and I'm going to overrule the relevance objection.

THE WITNESS:
3
4
Could you repeat it?
apologize.
MR. MASTERSON:
5
6
I'm sorry.
Actually, Mr. Moll, can you read that
question back, please?

THE COURT:
Yes.
(The record was read as follows:
So at this time when
these training scenarios are being prepared and passed on to
10
you, in your opinion, was MCSO ignoring Judge Snow's order?)

THE WITNESS:
11
12
the judge's order.
13
BY MR. MASTERSON:
14
Q.
15
the order.
Objection, Your Honor.
Calls for
speculation; irrelevant; 403; leading; foundation.

MS. COE:
Join, Your Honor.
Calls for expert
testimony.
THE COURT:
DS
20
They were not ignoring judge order --
09:48:39
MS. WANG:
18
19
Well, I'm going to overrule the objection
because it only asks for Mr. Casey's opinion.
22
perfectly well how to evaluate somebody's opinion and the
IEN
21
limits of somebody's personal opinion, so the objection is
24
overruled for whatever value it has.
FR
THE WITNESS:
09:48:52
And I know
23
25
09:47:30
In fact, in your opinion, they were trying to comply with
16
17
09:48:03
MCSO was trying to comply with the court
09:49:12
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order.
BY MR. MASTERSON:
Q.
concern about Sergeant Palmer's knowledge or understanding when
you got the draft scenarios, is that correct?
A.
That's true.
Q.
And when you saw the scenarios, you were concerned that
Sergeant Palmer did not understand the Court's order.
A.
Yes, and he did not understand what I had shared with him.
10
Q.
My next question.
11
Sergeant Palmer, correct?
12
A.
Yes.
13
Q.
And when you saw the scenarios, it became clear to you that
14
it didn't sink in.
15
A.
Yes.
16
Q.
Do you see in Exhibit 2536 the paragraph, or sentence, that
17
says:
18
Sands sign off on that"?
19
A.
I do see that.
20
Q.
Tell me about that.
21
that mean?
22
A.
Now, you've mentioned just a minute ago that you had some
09:49:41
You had explained the court order to
09:50:11
DS
"I will have Tim review what you write up and have Chief
What is that talking about?
What's
09:50:41
IEN
My understanding is that whatever Brett was to write up,
23
they wanted me to look at, make sure it was accurate, because
24
you don't want to have bad training; and that in order for it
25
to actually go into -- in order for it to go into E Learning,
FR
09:49:57
09:51:00
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it has to be approved by the command structure.
Q.
a second ago, and possibly just now -- that once that was done,
it was going to go out on E Learning?
A.
Yes, sir.
Q.
You might not know this, but do you know what E Learning
is?
A.
I did at one time, but I do not remember now.
Q.
Okay.
And the intent was, I think -- and I think you just told us
09:51:31
So was it your understanding that you were going to
10
provide input into the training scenarios; then it was going to
11
go to Chief Sands, he was going to sign off, and then to
12
E Learning?
13
A.
14
understanding is that Brian Sands had to sign off on it after I
15
reviewed it.
16
Q.
17
command staff interfering with this effort at training for
18
compliance with Judge Snow's order?
19
A.
No.
20
Q.
21
A.
I have it.
22
Q.
Do you recall this e-mail?
Was that how it was to work, or do you remember?
Generally, it had to be approved by the command.
My
09:52:12
IEN
DS
At this point, to your knowledge, was anyone in MCSO
23
A.
Excuse me.
24
Q.
Is this the e-mail that that has Sergeant Palmer's draft
25
training scenarios?
FR
09:51:49
09:52:30
Yes.
09:53:01
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A.
screen, but the January 19th Brett Palmer scenarios, the
e-mail.
Q.
please.
A.
Yes, I did during the depo.
Q.
Okay.
wrong with some of them.
A.
Yes.
10
Q.
-- with the scenarios.
11
A.
I'm not going to re -- unless I'm told to, I don't think I
12
need to review these again, but I believe scenario 1 was fine;
13
scenario 2 was fine; scenario 3 was a problem.
14
basically:
15
something like that, then you can do it, and that is not what
16
the order allowed.
17
authority to do that.
18
certainly contrary to what I conveyed.
19
on number 3.
Okay.
Can you take a look at the scenarios themselves,
09:53:18
You've already told us that there was something

Can you tell us what's wrong --
09:53:27
It was
If ICE says "hold them and take them in," or
You cannot do that.
That was contrary to the order.
It was
And that was the issue
As you can see, there's some discussions there about
getting overtime to drive people to Florence, but there's no
22
authority under the order, under the law, to detain someone to
IEN
21
23
deliver them to the federal authorities.
24
detention under the order.
FR
25
09:53:51
There's no lawful
DS
20
The January -- at the end of this, it's not shown on the
09:54:08
That's an unlawful
Quite frankly, it's probably an unlawful detention if
09:54:26
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any police authority does it.
But then scenario number 4, my memory is that when I
2
3
was -- my memory was refreshed, is that I did not believe there
were enough facts in here to be a meaningful exercise.
needed to be more facts to support either reasonable suspicion
or probable cause.
Q.
court order or what you're telling him, right?
A.
That was my conclusion.
10
Q.
Did you ever come to the conclusion that he was attempting
11
to violate the court order?
12
A.
13
never came to that conclusion.
14
Q.
15
he just didn't understand the order and you?
16
A.
I think that is it.
17
Q.
Is Sergeant Palmer, in Exhibit 2538, I think he says that
18
it's imperative that Tim Casey review this and any training
19
material I'm asked to create.
Oh, no.
No.
There was -- Brett Palmer?
09:55:01
No, there's -- I
Did you come to the conclusion he was doing his best, but
You see that?
A.
Yes.
22
Q.
And you were reviewing the training material he created,
IEN
21
23
correct?
24
A.
25
other than these scenarios on this exhibit.
FR
09:54:44
So clearly, at this point Sergeant Palmer's not getting the
DS
20
There
09:55:18
09:55:42
I only remember seeing -- I don't remember seeing anything

09:55:53
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Q.
Okay.
scenarios you just described for us, and you described the
errors --
A.
Yes, sir.
Q.
-- in those training scenarios?
A.
Yes, sir.
Q.
And those are pretty significant errors, correct?
A.
Certainly as to number 3, that was -- that was a
fundamental problem.
09:56:06
10
Q.
And when you got those scenarios, you had concerns
11
that things had gotten lost in conveying the word down the
12
chain.
13
A.
Yes.
14
Q.
But you do not remember ever having a discussion with
15
Chief Sands, Lieutenant Sousa, or Sergeant Palmer, to make sure
16
that everyone had the same understanding of the preliminary
17
injunction order.
18
A.
We never sat down, the three of us, and made sure of that.
19
Q.
You might have already answered this; I just forget,
20
because I think I asked it a little differently.
21
asked the question, just let me know.
22
Sergeant Palmer what scenarios to address?
IEN
DS
Okay.
And that's the exhibit -- that's the training
And if I
09:56:38
09:57:06
But did you ever tell
23
A.
I did not.
24
Q.
Did you ever tell him how to write the scenarios?
25
A.
I did not.
FR
09:56:17
09:57:19
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Q.
Did you ever discuss the content of the training -- I'm
going to call it "compliance training."
discussion here?
A.
I think broadly you could use that phrase.
Q.
Okay.
training with Sergeant Palmer or anybody else?
A.
Brett Palmer to correct these things.
conversation, I think we mentioned either in my depo or
Is that fair for our
Did you ever discuss the content of the compliance

At MCSO.
The only person I spoke to on this is I went directly to

I knew we also had a
10
yesterday, where I wanted to make sure that the briefing was
11
not his scenario number 3, it was what we talked about.
09:58:08
I don't know if that answers your question, but --
12
13
Q.
14
talked about -- or excuse me.
15
about the contents of the compliance training was
16
Sergeant Palmer?
17
A.
18
to someone else my concerns about, first, that Brett Palmer was
19
involved in doing it.
20
frustration that after spending time with him in conversations,
21
I get back this scenario number 3 which is a 180-degree
22
opposite misunderstanding of everything I've said in the
Well, I guess are you telling me that the only person you
The only person you talked with
09:58:31
I directly went with him, but I also know that I conveyed
IEN
DS
And I also remember conveying my
23
Court's order.
24
Q.
Do you know who that other person was?
25
A.
It was one of two people.
FR
09:57:39
09:58:51
09:59:13
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Q.
Lieutenant Sousa or?
A.
Brian Sands.
Q.
Would you agree with me that training on this issue --
well, let's ask it this way:
you agree with me that you thought training with respect to the
preliminary injunction was important to the folks at MCSO?
A.
I thought it was -- I thought it was important.
Q.
And the content of that training would also be important.
It had to be accurate, right?
At this time, back in 2012, would
10
A.
11
practice.
12
Q.
13
Palmer?
14
A.
I'm not sure I did leave them up to Brett Palmer.
15
Q.
Could you take a look -- well, tell me why you say that
16
first; then we'll see if we have to go to your deposition.
17
A.
18
don't have their experience.
19
that they're encountering.
10:00:15
It would not be -- I'm not law enforcement; I'm not HSU; I

They know what are the scenarios
Joe Sousa instructed -- my memory is he has instructed
Palmer to come up with scenarios, right and wrong, for training
22
purposes, and based on what they're commonly experiencing out
IEN
21
23
in the field.
24
to it to make sure that MCSO's response to those scenarios does
25
not violate the injunction.
FR
09:59:48
Why did you leave the training scenarios up to Brett
DS
20
Bad practice equals bad play, so you have to have good
09:59:29
10:00:37
And then we have to apply the judge's injunction
10:01:01
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It would be, in my judgment, imprudent for me -- I
1
2
would think it would be presumptuous for me, not being law
enforcement, specializing in HSU, to try to draft up scenarios
for them.
was not asked to draft scenarios, and if I was, I would have
said that wouldn't -- I don't recommend that approach.
the better one was for them to come up with it and for me to
review them.
Q.
So that was not what I did.
Okay.
They drafted up -- I
I think
I follow you now.
So you wanted Sergeant Palmer to draft the factual
10
11
part of the scenario, and then you would take a look at it and
12
go, Okay, does this now comply with the law and Judge Snow's
13
order?
14
A.
That was the way it was supposed to work.
15
Q.
Okay.
16
A.
No, not based on the scenario number 3.
17
Q.
And I think you told us that here, communication was a
18
two-way street, and it just failed.
19
A.
Yes.
20
Q.
I see in 2538 that Lieutenant Sousa sent an e-mail to you
21
that said:
22
the scenarios."
But it didn't work.
DS
IEN
10:01:36
Is that how it was to work?
23
"Hi, Tim.
10:01:54
10:02:16
Give me a call once you have received
Do you see that?
24
A.
I do.
25
Q.
You did not call Lieutenant Sousa after you got that
FR
10:01:22
10:02:31
e-mail, correct?
A.
I did not.
Q.
And you did not respond to Lieutenant Sousa's e-mail,
correct?
A.
I did not.
Q.
You had one phone call with Sergeant Palmer about the
scenarios, right?
A.
Yes.
Q.
And you told him what was wrong with the scenarios?
10
A.
I did.
11
Q.
But you didn't do a red line version?
12
A.
No, I --
13
Q.
Do you know what I mean by "red line"?
14
A.
Yeah.
15
document or a WordPerfect.
16
e-mail format.
17
e-mail, but I'm not familiar with it, so I just called him
18
directly.
19
was a better approach to cut out a middleman.
20
what had already transpired with the disconnect.
21
Q.
22
there were some problems with his scenario.
I went directly to Brett Palmer.
10:02:40
10:02:50
Red lines, to my knowledge, are usually on a Word
My memory is this came to me in an
10:03:00
Maybe there's a red line ability to do on
DS
And as I explained during the depo, I thought that
Especially after
10:03:19
IEN
So you had the one phone call with him and you told him
23
A.
Yeah.
24
Q.
Scenarios.
25
A.
Yes.
FR
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10:03:31
1791
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Q.
And then you thought it was a done deal after that.
A.
Yes, because Brett told me that he understood -- I think he
was saying something -- it was so long ago, that he was
relying, kind of falling back on practice.
remembered.
He got it.
He
He'll make these changes.
I suggested he add some more fact to scenario
6
7
number 4, gonna make it.
him:
scenario number 3 -- not training.
I do remember at that time asking
Well, what about the training?
Did they get your
When he had previously told
10
me or at some point he told me he had briefed the troops, I
11
said:
12
and that is your scenario number 3, or did you tell them what
13
the order says and what we talked about about arrest or
14
release?
10:04:06
Did you brief them on your fall-back history position,
And I can't tell you specifically, but I remember
15
16
being assured -- reassured, whatever the term is -- that he
17
understood and conveyed that it was arrest or release; you
18
couldn't turn them over to the feds.
19
Q.
20
about that?
21
A.
Yes.
22
Q.
Who?
10:04:23
IEN
DS
Did you ever talk to any of Sergeant Palmer's superiors
23
A.
It was one of the two gentlemen I shared with you before.
24
Q.
Lieutenant Sousa or Chief Sands?
25
A.
Yes.
FR
10:03:46
10:04:41
10:04:48
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Q.
Did you tell them about the incorrect scenarios, and that
you had had a phone call with Sergeant Palmer and asked him to
correct those scenarios?
A.
Yes.
Q.
Do you recall when that was?
A.
It would have been -- you know, I thought I -- I hopped on
this right away, because I try to be quick, but I saw an e-mail
where there was a follow-up like 30 days later, or whatever it
was, where Joe Sousa sent a reminder to me to look at it, so it
10:04:57
10
would have been after I looked at it.
11
of that e-mail it would have been after that, but it was
12
certainly the first quarter of the year.
13
Q.
14
received the draft training scenarios from Palmer on January
15
19, 2012, and you realized it appeared he did not understand
16
the court order, you never took any steps to check whether
17
Sousa, Sands, MacIntyre, or Arpaio similarly were under the
18
wrong impression about what the order required, is that
19
accurate?
20
A.
That is accurate.
THE COURT:
question?
IEN
22
10:05:38
10:05:56
Who were all the persons who were in that
MacIntyre, Sousa --
23
MR. MASTERSON:
24
THE COURT:
25
MR. MASTERSON:
FR
10:05:19
At the time of your deposition, you told us that when you
DS
21
So whatever the date is
I'll go back.
Ah, I can go back.
Let's see.
No problem.
Sousa, Sands, MacIntyre, Arpaio.
10:06:22
THE COURT:
1
2
BY MR. MASTERSON:
Q.
Thank you.
Mr. Casey, could you take a look at Exhibit 2540, please.

I'm looking at I think the second e-mail down on
4
5
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Exhibit 25 -- well, before we do that, let --
Could you go back to the top, please.
Have you ever seen this?
7
8
A.
Yes.
Q.
Do you recall ever seeing this before your deposition?
10
A.
No.
11
but I just don't remember.
12
Q.
I think I saw it at my deposition.
I mean, I don't doubt that it's authentic, all that,
10:07:20
Now could you scroll up?
Do you recall at the time these training scenarios
13
14
were going between you and Sergeant Palmer whether you were to,
15
quote, sign off, end quote, on the scenarios?
16
A.
17
document approving it, but to go over it, correct it, or make
18
sure it was correct, and then it would be going in the chain of
19
command.
20
Q.
21
correct?
22
A.
That was my understanding.
10:07:46
I mean, not literally sign a
DS
And this process was going on during early 2012, is that
10:08:03
IEN
It was.
23
Q.
24
about something about doing stuff in the first quarter, but not
25
sure exactly when.
FR
10:06:58
Did you testify -- I got a bit confused in your testimony
10:08:16
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A.
Yeah.
three months of the year.
things so it doesn't fall through the cracks from my end.
I thought that I handled everything in the first quarter for
sure of this year, and I see the e-mail here where Joe is
following up on February 27th to me about:
chance?
I try to operate quickly on these
And I write back a day later:
But
Did you ever get a
No, but I will.
I also see that there's a March 27th e-mail, he says:
Once Tim
10
signs off on the scenarios.
11
have been done by the end of March; that's my memory.
12
Q.
13
is from you to Lieutenant Sousa, correct?
14
A.
It is, in response to his e-mail following up with me.
15
Q.
Do you recall sending that e-mail?
16
A.
No.
17
Q.
Do you have any reason to doubt that you sent that e-mail?
18
A.
No.
19
Q.
And again, this is an e-mail that would have been kept by
20
you in the regular course of your law practice?
21
A.
It would be in the case file.
22
Q.
And it involves this case, Melendres versus Arpaio, and in
Okay.
But I will tell you that it would
DS
IEN
10:09:22
I mean, that's -- I have no reason to doubt that.
particular, the scenarios drafted by Sergeant Palmer and
24
reviewed by you.
25
A.
Yes.
10:09:06
So the e-mail down there at the bottom of the screen
23
FR
10:08:34
So I'm confident that it was after February 28th, but
8
9
Well, the first quarter, what, is the first, what,
10:09:35
10:09:52
MR. MASTERSON:
MS. COE:
MS. COE:
-- as to the top two e-mails.
MS. WANG:
THE COURT:
Move for the admission of 2540, Judge.
Objection, Your Honor --
MS. WANG:
Same objection.
Mr. Casey said about that.
foundation as to the top two e-mails.

MR. MASTERSON:
10
please.
THE COURT:
12
e-mail.
THE COURT:
15
e-mail.
18
19
21
Oh, okay.
MS. McGEE:
You want me to go back to that first page
MR. MASTERSON:
10:10:20
No, I meant the other way.
10:10:44
Yes.
Can you go to the next one, please.
Okay, thanks.
23
BY MR. MASTERSON:
24
Q.
25
interaction with Chief Trombi on these training scenarios?
FR
10:10:14
I'm sorry?
and go up?
IEN
22
Can we scroll down a little,
THE COURT:
DS
20
Okay.
I think you're already at the bottom
MR. MASTERSON:
17
I don't think there's adequate
I think you're already there at the bottom
MR. MASTERSON:
14
16
10:10:02
Sustained.
13
Foundation.
I will take into account the bottom e-mail and what
11
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Did you have any conversations with Chief Sands about

10:11:02
1796
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A.
No.
Q.
Did you have any further infor- -- discussions with
Chief Sands about the process of getting these scenarios or
training materials out on E Learning?
A.
I don't remember that.
Q.
Okay.
I understand not physically sign your name on anything, but
finally approve the training scenarios, and then the hope was
to get that out to the troops through E Learning?
But you do recall you were supposed to sign off, and
MS. WANG:
10
10:11:17
Objection, mischaracterizes the testimony.
11
BY MR. MASTERSON:
12
Q.
13
were going to do.
14
A.
15
scenarios, provide corrections that need to be corrected, if
16
any, and there were.
17
I didn't go back to Joe Sousa.
18
comfortable with the response that I got.
Well, I'll tell you what:
Why don't you tell me what you
My memory is that my role was to review Brett Palmer's
I conveyed that directly to Brett Palmer.

Made the corrections.
Was
briefing to the troops was not consistent with his scenario
21
number 3; it was consistent with what we had previously
22
discussed.
IEN
DS
20
That he would make those changes.
23
change.
24
my deposition, it was a done deal.
FR
10:11:50
I also got a response that his -- that Brett Palmer's
19
25
10:11:36
Add some more facts.
10:12:11
It was an easy
And it was a, as I described in

It was done.
So if that was sign-off, that's my sign-off.
10:12:31
1797
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Q.
Did you ever see a final edition of the scenarios?
A.
I never did.
Q.
So you never signed off on any final edition.
A.
I told him it was done from my perspective.
Q.
Okay.
it was done from your perspective?
A.
supposedly I didn't do that, but I -- other than this thing
from Joe Sousa, I never got a phone call; never got an e-mail;
10
never received -- if I was the holdup, I never got anything to
11
say I was the holdup and this is the sole reason we can't get
12
this out.
No.
Did you do any further follow-up after you told him
In fact, I mean, I've heard in this matter that
10:13:06
And we had worked closely enough together and were, I
13
14
think, very cooperatively.
15
with Sergeant Palmer, but we still worked together well.
16
if that was the issue, I'm -- I don't understand why there
17
wasn't a follow-up.
I was not particularly comfortable
That
10:13:27
Now, I've got this follow-up from Joe Sousa, I see my
18
19
response, but if I'm the hang-up, I don't understand it, but...
20
Q.
21
important, correct?
22
A.
DS
But by the same token, you know that the Court's order was
10:13:47
IEN
Absolutely.
23
Q.
24
was important.
25
A.
FR
10:12:46
And you told me you felt the training on the Court's order
Yes.
10:13:56
Q.
And the scenarios were important.
A.
To have good training, yeah.
Q.
And you saw some lousy scenarios, correct?
A.
I saw one lousy scenario and one less-than-fulsome
scenario.
Q.
the lousy scenario, correct?
A.
I did.
Q.
And then you never followed up on that.
10
A.
I did not.
11
Q.
10:14:08
And you then had one phone call with Sergeant Palmer about
THE COURT:
12
10:14:16
Do you know, Mr. Masterson, I don't mind
13
going for another 15 minutes or so if you want, but I am
14
looking for a break sometime and -MR. MASTERSON:
15
THE COURT:
16
17
THE COURT:
Why don't we do 15 minutes.
Thank you.
Please be seated.
DS
MR. MASTERSON:
10:36:44
Thank you, Judge.
BY MR. MASTERSON:
23
Q.
24
don't have to look at it, though, I don't think.
25
you this question first.
FR
We'll
Please, Mr. Masterson, whenever you're ready.
IEN
22
Okay.
10:14:26
(Recess taken.)
19
21
This is a good transition, Judge.
be back at 10:30.
18
20
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I want to back up, Mr. Casey, to Exhibit 2536 -- well, you

Let me ask
10:37:09
1799
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It occurred to me that you told us that
1
2
Sergeant Palmer's scenarios were half wrong.
testimony?
A.
So originally I said 50 percent wrong, but that's inaccurate.
Q.
Sergeant Palmer to draft up scenarios and give a right way and
a wrong way?
A.
No.
10
Q.
Okay.
11
A.
Joe Sousa did.
12
Q.
Okay.
13
do you know today whether that was Sergeant Palmer's attempt to
14
go right way and wrong way, or were those all supposed to be
15
the right way, do you know?
16
A.
17
there were no wrong ways.
18
Q.
19
Exhibit 2512.
20
A.
I have it.
21
Q.
Could you tell us what that is, please.
22
A.
Which part?
Actually, number 3 was wrong; number 4 needed more detail.
10:37:28
The reason I'm asking the question is didn't you tell
Do you know if anyone did that?
10:37:49
Well, that's what I'm just trying to figure out is
10:38:10
My memory is those were all supposed to be the right way;
Now, sir, could you please take a look at
IEN
DS
Okay.
23
Q.
24
let's move to the letter from the ACLU.
25
A.
FR
Was that correct
10:38:30
Well, did -- you can skip the bold-face e-mail part, and
Okay.
10:38:51
1800
OF
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Q.
It's dated October 11, 2012, correct?
A.
That's right.
Q.
What did that tell you when you got that?
A.
That it was a letter dated October 11, 2012.
Q.
And what information did it convey to you?
A.
Accusations that they say that it appears that Maricopa
County's office is detaining and transporting individuals in
violation of the Court's injunction prohibiting that --
Q.
Now, you sent --
10
A.
-- solely on race.
11
Q.
You sent that to MCSO, correct?
12
A.
I did.
13
Q.
And one thing you said when you sent it over was the
14
plaintiffs are using the attached letter as a springboard for
15
electrical negative -- electoral negative press.
10:39:04
10:39:21
10:39:35
Do you see that?
16
A.
I do see that.
18
Q.
Why did you say that?
19
A.
Because I had not gotten to the facts yet, and this was
20
less than 30 days before the election, and this case has always
21
been, in my judgment, an interesting intersection between law
22
and politics.
IEN
DS
17
And before we knew about the facts, we didn't
23
know if this was to be generated -- to generate anti-Arpaio
24
sentiments for the media, or whether it was legitimate.
25
that's why I believe I included that.
FR
10:39:49
So
10:40:15
1801
OF
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Q.
Okay.
Now, I think you testified yesterday that -- well,
let's take a look at it -- let's go at it this way.
Did you do some follow-up after you got this letter
3
4
with MCSO to determine what had happened?
A.
Yes.
Q.
With whom did you do that follow-up?
A.
First with Brian Sands.
Q.
Who else?
A.
Brian Sands my memory is directed me to Joe Sousa's
10:40:35
10
replacement over at HSU, the lieutenant there.
11
Q.
Is that lieutenant --
12
A.
Brian J.
13
Q.
Jakowinicz?
14
A.
Jakowinicz, right.
15
Q.
Did you follow up with Lieutenant Jakowinicz?
16
A.
I don't specifically remember, but I do know that I ended
17
up getting documents and getting information about it, and I
18
end -- I know we ended up producing it to -- on the 18th of
19
October to the plaintiffs.
20
Q.
21
going to use your words -- you thought it likely the actions
22
described in the ACLU letter of October 11 violated the
10:40:53
IEN
DS
Now, you testified earlier that you thought -- and I'm
23
injunction but you didn't think that definitively.
24
accurate?
25
A.
FR
10:40:44
That is definitive, yes.
10:41:07
Is that
Yes, that was my phrase.
10:41:24
1802
OF
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Q.
Why did you use those two words?
A.
I don't remember when we got the details of it, but based
on the press releases, based on preliminary discussions with
Brian Sands, it looked like -- and I know I eventually reached
the conclusion -- that if push came to shove and it goes before
this Court, it's likely a violation.
Now, when I talked to Sheriff Arpaio, his position was
7
8
that:
take these people in.
Wait a second.
We're being told by a federal agency to
We're being ordered/directed.
And that
10
is the something more that we -- that we thought could be a
11
good faith argument, that I thought could be a good faith
12
argument.
13
that my private advice to the sheriff was that this, in all
14
likelihood, was a violation.
15
Q.
16
that all of the allegations in the ACLU letter of October 11,
17
2012, did not show a violation of Judge Snow's December 23,
18
2011 order.
19
A.
20
Whether it would ever prevail was what I told my client what I
21
thought the odds of that were, but we did.
22
Q.
10:42:13
So it wasn't definitive, but the bottom line was
But you did have a good faith argument that it was not;
10:42:30
DS
We had, I believe, what would satisfy a Rule 11 argument.
10:42:53
IEN
But you did some follow-up after you got Mr. Segura's
23
letter.
24
A.
Yes, sir.
25
Q.
You followed up with Lieutenant Sousa, correct?
FR
10:41:47
And that's Exhibit 2512?
2512.
10:43:09
1803
OF
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A.
No.
Q.
Oh, I'm sorry.
A.
I don't remember -- I mean -- I don't remember details, but
I do remember that right away, Brian Sands and I talked, and we
communicated that this con -- if this was accurate, this was a
problem for the sheriff, and that we needed to get our arms
around the facts, and he directed me to Brian J. in order to
get the facts.
Lieutenant Jakowinicz.
And I remember that -- I don't know what time -- this
9
10
was 4 o'clock, but I'm pretty confident we got Andre Segura's
11
letter at 4:00.
12
confident that I was already in communication that evening with
13
Brian Jakowinicz to try to get in motion the documents that we
14
needed.
15
thing.
16
Q.
So to you it was an important thing, correct?
17
A.
It should be important to everybody, yeah.
18
Q.
And Mr. Segura was making, in your mind, serious
19
allegations, correct?
20
A.
That's correct.
21
Q.
And you followed up and did an investigation --
22
A.
Yes.
I sent it over at 4:39.
And I'm pretty
DS
IEN
10:43:44
Because this was a -- again, this was an important
23
Q.
24
what had in fact occurred, correct?
25
A.
FR
10:43:27
10:44:09
10:44:22
-- with Chief Sands, Lieutenant Jakowinicz, to find out
Yes.
10:44:33
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Q.
And then you wrote a letter back to the ACLU seven days
later on October 18, 2012?
A.
Right, a week later.
Q.
Is that Exhibit 2514?
A.
That is.
Q.
Can you look at the first page of that letter, please.
A.
Yes, I see it.
Q.
You say:
raises questions concerning three Maricopa County Sheriff's
Or contained within 2514?
10:44:58
"Dear Andre.
Your letter dated October 11, 2012,
10
Office news releases pertaining to three events.
It also
11
accuses my clients of apparent violations of the Court's
12
December 23, 2011 injunction."

You see that?
13
14
A.
I do see that.
15
Q.
And then you say in the next sentence:
16
lacks merit.
17
indicates no violation of the Court's December 23, 2011
18
injunction," correct?
19
A.
That's correct.
20
Q.
And you had a good basis -- good faith basis to send the
21
letter making that statement or you would not have sent it to
22
Mr. Segura, correct?
"The accusation
DS
IEN
10:45:23
My investigation and review of the three events
23
A.
That's correct.
24
Q.
Now, yesterday you described a heated discussion you had
25
with the sheriff.
FR
10:45:11
10:45:36
10:46:10
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A.
I do.
Q.
Was that discussion after you got Mr. Segura's letter?
A.
Yes, it was.
Q.
Was it about Mr. Segura's letter?
A.
Yes, it was.
Q.
And I think during this heated discussion you testified
that the sheriff told you it was a mistake.
A.
word, but that's my paraphrase of what ultimately it was.
10:46:19
That's my paraphrase.
Is that accurate?
I don't remember if he said that
10
Q.
Did he still tell you he thought his backup plan was okay,
11
but he agreed to stop, anyway?
12
A.
13
lawyers, that the backup plan was legal.
14
the other lawyers were, or the other people.
15
getting it from defense counsel, either me, Tom Liddy, or my
16
colleague, I can guaranty that.
17
Q.
But he still agreed to stop.
18
A.
He did tell me:
19
mentioned yesterday, to my knowledge, by the time Judge Snow
20
released me in November of '14, it had not occurred again.
21
Q.
22
you're not aware of it happening again.
He told me that he had been told, either by others or other

And I don't know who
He was not
10:47:00
And as I
DS
Yes, this won't happen again.
10:47:20
IEN
And that's when you told us yesterday that to his credit,
23
A.
24
knowledge, it did not happen again by the time I left.
25
Q.
FR
10:46:40
I don't know if I said "to his credit," but it did -- to my
Okay.
Well, I wrote down in quotation marks that you said
10:47:36
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to his credit, you're not aware of it happening again, but I
don't have yesterday's transcript, so we can check that and
talk about it --
A.
Whatever I --
Q.
-- on down the road somewhere.
A.
Whatever I said, I said.
Q.
All right.
make that statement for political purposes.
A.
But the sheriff did tell you that he did not
I heard from -- I heard from Sands
10
a very different story.
11
Q.
12
that the sheriff told you he did not say this for political
13
purposes, I'm wrong?
14
A.
15
reasons he sent out the press releases and why the event
16
happened.
17
skipped over the politics of it.
18
Q.
19
he would stop.
20
A.
Yes.
21
Q.
Regardless of whatever that other advice was, and who it
22
came from.
My memory is that we never addressed -- addressed the
And the end result was he said it was a mistake and
DS
Okay.
IEN
10:48:17
We addressed that it was a violation of the law; we
A.
Yes.
24
Q.
Can you look at Exhibit 103, please.
FR
10:48:01
So if I recall -- if I recall from your testimony yesterday
23
25
10:47:48
Do you see --
10:48:35
10:49:00
A.
Hold on.
I've got things messed up.
Okay.
1807
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Go ahead.
Q.
It's a one-pager, a Briefing Board.
A.
Yes, sir.
Q.
Are you familiar with that?
A.
Am I familiar with this document?
Q.
Yes, sir.
A.
Yeah.
after the Court's May 24, 2013 findings of facts, conclusions
10:49:10
I mean, I know that it happened during my tenure
10
of law, came out.
11
Q.
12
do you know?
13
A.
14
time I was trying to have as much on -- transition more to
15
James Williams on compliance issues.
16
sure that James, if he did this, he ran it by me, because
17
that's the way we operated on this.
18
Q.
It's a pretty short Briefing Board, correct?
19
A.
Yes.
20
Q.
With that first paragraph, does that pretty much tell you
21
what you need to know about the judge's preliminary injunction?
22
A.
10:49:28
Do you recall whether you played any part in drafting this,
I'm sure that I did or my colleague did, because at this
DS
I'm sure that I did, I'm
10:50:02
IEN
I think it covers, based -- based on the problems that we
23
had, I think it could be -- it could have -- you know,
24
hindsight is 20/20.
25
later.
FR
10:49:47
Now we're sitting here over two years
I think it could have been expanded a bit, excluding
10:50:27
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Casey - CX Como, 9/30/15 Evidentiary Hearing
ICE and saying "to any federal authorities."
hindsight, John.
Q.
hindsight, if this had gone out on December 23, 2011, maybe we
wouldn't be here today.
A.
out.
True.
And you're right, it's 20/20.
It may have been.
And using that same
10:50:45
I don't know why the MCSO didn't put it
MR. MASTERSON:
But that's with
Thank you, Mr. Casey.
CROSS-EXAMINATION
9
10
BY MR. COMO:
11
Q.
12
A.
13
Q.
There's only one judge in the courtroom.

THE COURT:
14
10:51:08
I'll hold you both for contempt.
15
BY MR. COMO:
16
Q.
17
that was issued on December 23.
18
A.
It was.
19
Q.
Would you agree that it had numerous citations to statutes
20
and case law?
21
A.
It did.
22
Q.
Would you agree that that's not the type of document that
10:51:25
Let's talk first about the preliminary injunction order
IEN
DS
That was a 40-page order?
most police officers are used to reading as part of their job?
24
A.
I agree, based on my experience.
25
Q.
When the order was issued, you sent the e-mail that we've
FR
23
10:51:44
10:51:56
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all seen where you quoted part of the order that dealt
specifically with the preliminary injunctive relief?
A.
Yes.
Q.
And you did in fact actually quote from the judge's order,
correct?
A.
I believe -- yes, I'm confident I did.
Q.
You didn't paraphrase the order or try to simplify or dumb
it down at all.
A.
Not at that time I did not.
10
Q.
Okay.
11
you know, the last few days, as well as in your deposition, as
12
a way of simplifying what the judge's order was getting at on
13
that preliminary injunctive relief, right?
14
A.
That was my effort with that phrase.
15
Q.
In all of your written communications with the Sheriff's
16
Office about the preliminary injunctive order, do you see
17
anywhere that you ever used that phrase, "arrest or release"?
18
A.
19
was December 23rd.
20
Q.
21
them all, but there were various times when you sent that,
22
forwarded that December 23 e-mail to various people.
10:52:16
You've used the phrase "arrest or release" today,
10:52:44
No, because I think the only communication I had in writing
IEN
DS
Well, there were -- and I don't think we need to go through
10:53:01
For
23
example, when the training scenarios were being put together,
24
that was forwarded, I think, by Lieutenant Sousa, perhaps in
25
October 2012 you forwarded that prior e-mail.
FR
10:52:27
10:53:22
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1
2
A.
Right, in response to the Segura problem.
Q.
Correct.
A.
Yes.
Q.
And in each of those cases, essentially what you were doing
was quoting the judge's order.
A.
Yes.
Q.
Now, there was some nuance to compliance with that order
beyond simply arrest or release.
Would you agree with me?
10
10:53:46
A.
I do.
12
Q.
For example, we talked about in your deposition a situation
13
where a deputy pulled someone over for a traffic violation, or
14
an apparent traffic violation, they had a reasonable suspicion
15
to believe that a traffic law had been violated, and I think
16
you agreed that in that scenario, it would be appropriate for
17
the deputy to contact ICE if they had a reasonable suspicion
18
that the person was in the country illegally, and as long as
19
ICE responded within the time frame of a routine traffic stop,
20
in your opinion, that would not violate the Court's order.
21
A.
DS
11
23
24
FR
25
10:54:03
10:54:26
Yes --
MS. CLARK:
IEN
22
10:53:30
Objection, Judge.
Calls for mental
impressions and attorney-client privileged communications.

MR. COMO:
This relates to the preliminary injunction
order, Judge, and he's already testified to it in his
10:54:39
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deposition.
THE COURT:
I'm going to sustain the objection.
BY MR. COMO:
Q.
order to MCSO, the various people -- Lieutenant Sousa,
Sergeant Palmer -- that you discussed the order with, did you
tell them that, in fact, that scenario where there's a traffic
stop, there's reasonable suspicion that the person is in the
country illegally, that it would not be a violation of the
Mr. Casey, when you explained the preliminary injunction
10
Court's order to contact ICE, as long as ICE responded within
11
the time frame of a routine traffic stop?
10:55:17
Did you communicate that to them?
12
13
A.
I did.
14
Q.
And that was based on your reading of the order, correct?
15
A.
That was my also familiarity and my understanding of the
16
decisional law on the case.
17
prolonged, it could not be artificially extended to wait for
18
ICE.
19
Q.
20
stop?
21
A.
22
explained to you at the deposition, in theory, that sounds like
10:55:31
As long as the stop was not
And could that be up to 15 to 20 minutes, a routine traffic
DS
10:55:56
IEN
I think it was less than that, but there -- I think I
23
it gives MCSO an option.
24
on this case, and this was even before the trial, it was, as a
25
practical matter, impossible for the federal authorities to
FR
10:54:57
But based on the evidence that I saw
10:56:21
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come to a normal -- normal extended -- not "extended," but a
normal duration traffic stop.
didn't have the manpower or the ability to do it.
They couldn't do it.
They
So if you told them, yes, you could call and they show
4
5
up within the 14 minutes of a normal traffic stop, they could
do whatever they want.
enforcement for the feds.
happen.
It's their decision now as law
But as a reality, it will not
So the nuances, in my judgment, respectfully, did not
9
10
help advise the client about the reality.
11
arrest or release.
12
exception and would swallow the rule, and in my judgment the
13
client liked to focus on exceptions instead of the general
14
rule, so let's focus on the general rule.
15
Q.
16
you did advise Lieutenant Sousa and Sergeant Palmer that it
17
would not be a violation of the order to contact ICE, and as
18
long as they showed up within the time period of a routine
19
traffic stop, that they could then take custody of someone,
20
correct?
21
A.
Yes.
22
Q.
That's what I meant to say.
The simplest way was
DS
But in terms of strict compliance with the Court's order,
IEN
10:56:54
And the nuances I thought were the
10:57:16
10:57:35
That ICE could take custody, not MCSO.
23
A.
Yes, sir.
24
Q.
You've talked at length about Mr. Sands, and I'm not going
25
to repeat everything that's been said already, but you did have
FR
10:56:39
10:57:51
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several discussions with Mr. Sands between the time that the
preliminary injunction order came down and when he retired in
July of 2013 about the preliminary injunction order, correct?
A.
Yes.
Q.
And he was involved in initiating the training sessions, or
training scenarios, that you were also involved in, correct?
A.
Yes.
Q.
At any point in time did Mr. Sands, Chief Sands, ever
express any reluctance to comply with the Court's preliminary
10
injunction order?
11
A.
12
remember, Joe Sousa and others -- because they never liked
13
turning anyone over to ICE.
14
ability to say:
15
that.
16
Q.
17
about putting out training to the deputies on the Court's
18
order?
19
A.
Yes, he was very supportive.
20
Q.
Was he supportive of putting out the training throughout
21
the organization?
22
A.
None.
10:58:26
And he actually had expressed relief -- as did, I
So now they had internally the
We're following the Court's order in not doing
10:58:46
Is it fair to say that Chief Sands appeared enthusiastic
10:58:57
DS
IEN
Yeah.
And again, it was a long time ago but I believe I
23
came up with the idea of training, but he came up and said:
24
need to send it to Patrol.
25
to focus on HSU, and he's the one that actually said:
FR
10:58:06
We
Because it's very easy in this case

We need
10:59:12
to expand it.
Q.
about the preliminary injunction order that he was always
committed to doing the right thing as far as complying with
that order?
A.
Did you feel throughout your interactions with Chief Sands
Yes.
10:59:28
MS. CLARK:
7
8
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fast enough.
9
10
MR. COMO:
Let's talk about the steps.
THE COURT:
Well, are you going to --
THE COURT:
12
MR. COMO:
13
THE COURT:
14
15
16
17
18
19
Sorry, didn't get it
Objection on mental impressions and privilege.
MR. COMO:
11
Objection, Judge.
I'm sorry.
-- let me rule?
MR. COMO:
Let's --
MS. WANG:
Your Honor, move to strike the testimony.
THE COURT:
The testimony's stricken.
MS. CLARK:
I'm sorry?
THE COURT:
It was Ms. Wang that moved to strike.
BY MR. COMO:
21
Q.
22
discussion with Chief Sands and the plan that the two of you
DS
20
10:59:44
11:00:02
IEN
One of the things you've testified to is your early
23
came up with to implement the Court's order, to get the word
24
out about it, correct?
25
A.
FR
10:59:38
Yes.
11:00:18
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Q.
And there were a few different steps on that, I'm going to
get to that in a minute, but one of the things that Chief Sands
has testified to in this case is that he believed that the
saturation patrols needed to end as part of complying with the
Court's order.
Does that sound consistent with your memory?
MS. WANG:
MS. COE:
Join, Your Honor.
THE COURT:
MR. COMO:
THE COURT:
10
Ms. Coe joined.
I can restate the question, Your Honor.

Please do.
11:00:52
11
BY MR. COMO:
12
Q.
13
occasionally implemented part of the Melendres lawsuit?
14
A.
Yes.
15
Q.
They were one of the things that the plaintiffs' class was
16
complaining about?
17
A.
Yes.
18
Q.
And I believe they were mentioned at least briefly in the
19
Court's preliminary injunction order.
20
A.
21
it was mentioned.
22
Q.
Were the saturation patrols that the Sheriff's Office
11:01:03
Do you recall that?
DS
It was mentioned in so many orders I couldn't tell you, but
11:01:16
IEN
Fair enough.
23
If Chief Sands was of the impression that one of the
24
things that the preliminary injunction order sought to do was
25
put an end to the saturation patrols would you dispute that --
FR
11:00:32
11:01:34
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that impression?
MS. WANG:
MS. COE:
3
4
5
MS. CLARK:
Objection, mental impressions.
THE COURT:
Sustained.
BY MR. COMO:
Q.
the preliminary injunction order would have on whether they
could do saturation patrols?
Do you recall discussing with Chief Sands the impact that
10
A.
Yes.
11
Q.
What was your rec -- what is your recollection of that?
12
A.
There were no saturation patrols, because previously, if my
13
memory's not mistaken, the last saturation patrol was done by
14
MCSO at the end of 2009, maybe '10, beginning of '10.
11:01:56
And Brian Sands and I -- I think he may be confusing
15
16
dates, he's substantively accurate, because we agreed that the
17
MCSO would be best served by not doing saturation patrols any
18
longer, and I recommended that they stop that, and I had his
19
complete support.
20
got his concurrence, so saturation patrols ended at, as the
21
plaintiffs define them, at least large scale, at the end of
22
'09, beginning of '10, and did not resume again until sometime
DS
IEN
in 2013.
24
Q.
25
and Chief Sands discussed in that early phone call about how to
Okay.
11:02:18
And obviously we went up to the sheriff and
23
FR
11:01:45
11:02:40
Let's talk, then, about the other things that you

11:03:00
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implement the order.
One of them, I believe, was to get the
word out immediately to HSU deputies.
A.
Correct.
Q.
And you had a conversation with Sergeant Palmer within
approximately two weeks or three weeks of that order being
issued in which he indicated that he, in fact, had briefed the
HSU deputies on the preliminary injunction order.
A.
Sousa.
Yes, and that he had also been briefed already by Joe
Q.
So that item that you and Chief Sands had discussed
11
appeared to have been complied with within three weeks?
12
A.
Yes, I think that's fair.
13
Q.
Another issue that -- step that the two of you discussed
14
was the development of training to be put out office-wide,
15
correct?
16
A.
Correct.
17
Q.
And we've seen already through the discussion that training
18
scenarios were in fact prepared by Sergeant Palmer and reviewed
19
by you.
20
A.
Yes.
21
Q.
And that was consistent with this step that you and
22
Chief Sands and agreed on.
IEN
DS
10
23
A.
That is consistent, right.
24
Q.
Would you agree that Chief Sands' role in this -- in the
25
development of the training scenarios was to get you together
FR
11:03:18
11:03:34
11:03:54
11:04:05
11:04:19
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with the right people to help prepare those, and that he was
not really involved in the nitty-gritty of developing the
training scenarios?
MS. WANG:
MS. COE:
Objection, leading and compound.
THE COURT:
Sustained.
BY MR. COMO:
Q.
observations and discussions -- let's just limit it to your
What was your understanding of -- based on your
10
discussions with Chief Sands, as well as the e-mails that we've
11
been looking at here, about what Chief Sands' role was in
12
getting these training scenarios put out?
13
A.
14
military, never had the privilege of serving or been in law
15
enforcement, so everything has to have an order to be
16
initiated.
17
This will get done.
18
happened.
11:05:01
Chief Sands was to initiate the process by saying:

And my understanding is that obviously
The next thing is eventually he would come back into
the loop eventually somehow, was my understanding, in getting
21
the order, once the scenario was approved, he had to approve it
22
to go up to E Learning.
IEN
DS
20
23
Q.
24
already in evidence.
FR
11:04:44
I told you at the deposition I've never been in the
19
25
11:04:33
11:05:17
Let's take a look at, please, at Exhibit 2538, which is
This is one of the e-mail strings about these training
11:05:46
scenarios.
If you look --
MR. MASTERSON:
2
3
put it up for them.
THE COURT:
Excuse me, Your Honor.
We're going to
It's just going to take us a minute to.

Okay.
MR. MASTERSON:
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Thank you.
You bet.
11:06:14
BY MR. COMO:
Q.
e-mail from Brett Palmer to Joe Sousa which attaches the
training scenarios, correct?
If you look at the bottom of the first page on 2538 is the
10
A.
Yes.
11
Q.
And you were copied on that e-mail as well as Michael
12
Trowbridge?
13
A.
14
in HSU.
15
Q.
16
correct?
17
A.
It's not listed there, no.
18
Q.
Is that consistent with the notion that his role was to get
19
the training scenarios initiated rather than to specifically
20
review them in process?
Yeah, I see Trowbridge.
MS. WANG:
THE COURT:
BY MR. COMO:
24
Q.
FR
I think he's
I'm sure I met him, but I -- I couldn't match him.
23
25
I remember the name.
And Chief Sands was not copied on this particular e-mail,
IEN
22
If you look at the second page of the e-mail.
DS
21
11:06:35
11:06:48
11:07:03
Objection, leading; foundation.

Sustained.
Let's look at the next e-mail right above that on page 1.

Lieutenant Sousa forwards the training scenarios to
11:07:17
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you on January 24th of 2012, correct?
A.
True.
Q.
And then I believe it's the same day, the very top e-mail,
you forward those training scenarios to Tom Liddy, true?
A.
That's correct.
Q.
And who is Mr. Liddy?
A.
Tom Liddy is a deputy Maricopa County Attorney.
co-counsel on this case at the time.
Q.
11:07:35
What role did he play in this case?

He was my
And you were asking Mr. Liddy to provide his revisions and
10
feedback on the scenarios?
11
A.
Yes.
12
Q.
And Mr. Sands, Chief Sands was not copied on your e-mail to
13
Mr. Liddy, correct?
14
A.
Correct.
15
Q.
Do you know if Mr. Liddy ever got back to you with any
16
comments on the training scenarios?
17
A.
18
document search, since I don't have my original file, I did not
19
come across anything I still had electronically in my firm from
20
him.
21
Q.
22
this case, you realized that Lieutenant Sousa later followed up
I do not remember one way or the other.
11:07:52
When I did a
DS
11:08:20
IEN
You testified that in looking at the various documents in
23
approximately one month after these e-mails to ask you if you'd
24
reviewed the scenarios.
25
A.
FR
11:08:01
Yes.

11:08:35
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Q.
If you could look at Exhibit 2540, please.
A.
I'm going to apologize, because I think I have butchered
the order of everything here.
Is 2540 up on the screen?
4
5
Q.
It is.
A.
Okay.
Greg.
Q.
11:09:04
I'll just go off of that, if it's agreeable to you,
That's fine with me.
If we could just scroll down to the --
One e-mail below that.
10
page.
And this e-mail is not in evidence, but is this the
13
one that refreshed your memory about the fact that you had
15
actually -- that Lieutenant Sousa had followed up with you
16
approximately a month later to see if you looked at the
17
training scenarios?
18
A.
Yes.
19
Q.
Now, do you know whether Chief Sands was copied on that
20
follow-up e-mail?
21
A.
He's not listed on this.
22
Q.
Okay.
IEN
DS
14
Lieutenant Sousa, which is provided on the first page of that
24
exhibit.
FR
11:09:35
11:09:46
Let's go to the response, then, that you provided to
23
25
11:09:16
The second -- I guess it would actually be the second
11
12
If you could show it, yeah.
When you responded to Lieutenant Sousa about reviewing
11:10:04
the scenarios, did you copy Chief Sands?
A.
No.
Q.
You don't know whether the training scenarios were ever
presented to Chief Sands for final review, correct?

MS. WANG:
Objection, leading; foundation.
THE COURT:
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Sustained.
BY MR. COMO:
Q.
Brett Palmer were ever presented to Chief Sands for his final
Do you know whether the training scenarios prepared by
10
review?
11
A.
I do not know.
12
Q.
Let's move to the October 2012 time frame when Mr. Segura
13
sent his letter to you alleging violations of the preliminary
14
injunctive order.
15
strong possibility that the plaintiffs would in fact move the
16
Court for a finding of contempt, correct?
At that time, you believed there was a
Mental
Sustained.
MS. CLARK:
Work product to the extent it applies.
DS
THE COURT:
21
BY MR. COMO:
22
Q.
11:11:13
IEN
Did you advise MCSO in your October 18, 2012 e-mail where
23
you attached your response letter to Mr. Segura, did you advise
24
MCSO in that e-mail that you thought that it was likely that
25
the plaintiffs would move for contempt?
FR
11:11:02
impressions.
19
20
11:10:37
MS. CLARK:
17
18
11:10:27
11:11:34
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A.
I either did it then or I certainly did orally, because that
was what I thought would happen.
Q.
Now, that was almost three years ago, correct?
A.
Yeah, it was almost three years ago this -- we're almost
approaching the three-year mark.
Q.
that issue to the Court's attention three years ago, that these
events that we've been discussing over the last few days would
10
I either did there -- I don't have it right in front of me.
And is it fair to say that if the plaintiffs had brought
have been much clearer in your -- in your memory?

MS. WANG:
11
MS. COE:
12
MS. WANG:
13
MS. COE:
14
THE COURT:
15
Join, Your Honor.
Incomplete hypothetical.
Join, Your Honor.

I'll allow it.
Yes.
11:12:17
It certainly would be closer in
17
time.
18
BY MR. COMO:
19
Q.
20
of these events over the last few days, but there are certain
21
things that you don't have a perfect memory of.
DS
And to your credit, you've given us your best recollection
11:12:27
IEN
Would you agree with that?
23
A.
I do agree.
24
Q.
For example, one of the things that you testified to
25
several weeks ago in your deposition was that you didn't recall
FR
11:12:07
Objection, calls for speculation.
THE WITNESS:
16
22
11:11:47
11:12:37
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whether Chief Sands was actually present for the meeting that
you had with Sheriff Arpaio after Andre Segura's letter was
received.
A.
I clarified in your questioning was the meeting was three
people:
No, I don't think that's an accurate summary.
What I think
It was Joe Arpaio, Brian Sands, and me.
And when -- as I shared with you during the
7
8
deposition, I needed to deliver certain news to the sheriff,
and Brian Sands stepped out because he had -- it was prudent
10
for the reasons I set forth in the deposition that he step out
11
so it was just the sheriff and me.
12
Q.
13
point in the same deposition you testified that you weren't
14
sure if Mr. Sands was even there for the meeting at all, true?
15
A.
Can you show me in the deposition where I said that?
16
Q.
Sure.
17
yourself first on page 146.
18
we're going to discuss.
19
A.
146?
20
Q.
Yes.
21
yourself lines 11 through page 147, line 6.
Sheriff and I.
If you look at page 147.
11:13:36
You might want to read to
It provides the time frame that
DS
If you'll look, please, at page 146.
Just read to
11:13:57
You can just read that to yourself, and then I'll pick
23
up with the question after that.
24
A.
25
assume so, but I don't remember."
FR
11:13:20
And you did testify to that, Mr. Casey, but at an earlier
IEN
22
11:12:56
I've read what you said.
You're right, I did say, "I

But I think I also, later on
11:14:34
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in response to your questioning, indicated that it was the
split, three people then two.
Q.
your memory on that meeting is not perfect.
A.
I will be the first one to tell you it's not perfect.
Q.
You did not even recall initially being involved in
reviewing the training scenarios until those documents came up
and were provided to you, correct?
A.
You did so testify, and all I'm trying to establish is that
I did not remember them until January of this year when
10
Mr. Liddy kind of gave me a heads-up, that's correct.
11
Q.
12
the preliminary injunction order that you would recall much
13
more clearly had this issue been raised three years ago.
15
A.
I would agree.
16
Q.
After your meeting with the sheriff in October 2012, it was
17
your understanding that the Sheriff's Office was going --
18
intended to comply with the Court's preliminary injunction
19
order, correct?
11:15:30
Objection -- sorry, Judge -- mental
MR. COMO:
I'll rephrase it.
23
BY MR. COMO:
24
Q.
25
you that the office would comply with the preliminary
FR
11:15:54
impressions.
IEN
22
MS. CLARK:
DS
21
11:15:09
And there were other meetings and conversations regarding
14
20
11:14:53
After the October 2012 meeting with the sheriff, he told

11:16:03
injunction order, correct?
A.
The sheriff did.
Q.
Okay.
should be in front of you.
A.
I have it.
Q.
This is --
Can you please take a look at Exhibit 213.
MS. CLARK:
7
8
BY MR. COMO:
Q.
That
11:16:18
Mr. Como, could you just wait one moment.
I'm focusing on that top e-mail on page -No, I'm sorry.
10
11
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You have the wrong exhibit up.
It
should be 213, two one three.
The top e-mail there in that chain dated Friday,
12
13
October 19, 2012, that shows you as having received a copy of
14
it?
15
A.
Yes.
16
Q.
And to put this e-mail in context, this would be a day
17
after you sent your response letter to Andre Segura?
18
A.
Yes.
19
Q.
Do you recall receiving this letter?
20
A.
I don't remember receiving it, but I do remember the
21
circumstances about this, because I think we went over this in
22
my deposition.
11:16:59
IEN
DS
This e-mail?
23
Q.
24
were copied on the e-mail, do you -- do you believe that in
25
fact you received it?
FR
11:16:36
11:17:11
And having -- since the document shows that you actually
11:17:30
A.
Oh, yeah.
Your Honor, I move for the admission of
Exhibit 213.
THE COURT:
4
5
I'm sure I did.
MR. COMO:
The exhibit is admitted in the absence of
any objection.
11:17:39
MS. WANG:
7
8
BY MR. COMO:
Q.
No objection.
Does this exhibit indicate that Lieutenant Sousa was asking
10
Lieutenant Jakowinicz to put together a Briefing Board on
11
compliance with the preliminary injunction order?

MS. WANG:
12
13
BY MR. COMO:
14
Q.
THE COURT:
16
BY MR. COMO:
17
Q.
18
just based on the language of the e-mail itself?

MS. WANG:
DS
THE COURT:
Objection, relevance.
Overruled.
THE WITNESS:
This was in response to the meeting that
23
just Arpaio and myself, Sheriff Arpaio, to make sure that what
24
happened was not going to happen again.
FR
25
11:18:25
we -- that Chief Sands and I then just had with Arpaio and then
IEN
22
11:18:12
What's your understanding of what this e-mail is asking,
19
21
11:17:56
Is that what the e-mail says?
15
20
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So here it is, 10 months after the preliminary
11:18:45
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Casey - CX Walker, 9/30/15 Evidentiary Hearing
injunction.
doing 10 months earlier.
corrective action.
BY MR. COMO:
Q.
Lieutenant Sousa to forward a copy of the preliminary
injunction order to Lieutenant Jakowinicz to prepare a
Briefing Board, correct?
A.
That's right.
10
Q.
Was that consistent with what you had seen from Chief Sands
11
throughout the time that he was involved in the Melendres case,
12
that he wanted to see compliance with the Court's orders?
13
A.
14
Lieutenant Sousa's no longer with HSU, but obviously Chief
15
Sands reached out to him and asked him to take the lead in
16
working with his replacement, Brian Jakowinicz, to make sure
17
this happens.
Yes.
21
MR. COMO:
MS. WANG:
Thank you, Mr. Casey.
11:19:51
I have no further
I have some redirect, Your Honor.
11:20:08
Oh, it's Mr. Walker.

MR. WALKER:
23
24
BY MR. WALKER:
25
Q.
FR
11:19:26
questions.
IEN
22
11:19:07
And the extraordinary thing about it is
DS
20
So this was, I guess you could say, a
And the e-mail indicates that Chief Sands had asked
18
19
I thought we were redoing everything that we were
I have some questions, Your Honor.

CROSS-EXAMINATION
Mr. Casey, you were counsel in this case in the fall of
11:20:22
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2009?
A.
I was.
Q.
And the record reflects there was a motion to dismiss the
claims against the County in that time frame.

Do you have a recollection of that?
5
6
A.
I -- vaguely.
Q.
And the basis for the motion was that the County was
unnecessary for the plaintiffs to obtain full relief?

MS. CLARK:
MS. COE:
10
Objection, Your Honor, to relevance.
13
hearing?
15
It goes, Your Honor, to the --
THE COURT:
What does it have to do with this contempt
MR. WALKER:
Well, the hearing is ultimately going to
16
result in this Court making decisions about an appropriate
17
remedy.
THE COURT:
18
21
THE COURT:
23
24
FR
25
11:21:14
Okay, and I think the -- as I've said
probably 47 times, that may be a slight exaggeration, I think
IEN
22
And the question is whether my client can
be held responsible --
DS
20
11:20:59
Yes.
MR. WALKER:
19
11:20:50
What is the relevance?
MR. WALKER:
12
14
I'm sorry, I'm --
THE COURT:
11
11:20:37
the Ninth Circuit has already made that legal ruling.

You have sought for them to reconsider that; they
haven't reconsidered it.
Would you agree with me that I'm
11:21:30
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bound by the Ninth Circuit?

MR. WALKER:
I agree that the Court is bound by the
decision of the Ninth Circuit.
make a factual record.

THE COURT:
I'm just trying very briefly to
You can make an offer of proof again if
you want, but it isn't relevant any more to this hearing, in
light of the Ninth Circuit's ruling.
circumstance you're in, I want to be respectful, but it doesn't
seem to me that it's any longer relevant.

MR. WALKER:
10
Okay.
I appreciate the
The proffer, Your Honor, would be
11
that the County was dismissed out of the case on the ground
12
that it was not necessary for the plaintiffs to obtain full
13
relief, and that from that point -THE COURT:
14
county could be returned to the case any time it was determined
16
to be necessary.
MR. WALKER:
Agreed.
point, from the time the County was dismissed out of the case
20
until Mr. Casey's departure from the case, no party suggested
21
or proposed that the County's reentry into the case was
22
necessary.
IEN
DS
19
24
FR
25
11:22:21
And the other part of the proffer is that from that
18
23
11:22:02
And the stipulation required that the
15
17
11:21:46
THE COURT:
11:22:33
I think that's consistent with my
recollection.
I would note, though, that it is also my recollection
11:22:49
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Casey - RDX Wang, 9/30/15 Evidentiary Hearing
that Mr. Casey departed from the case because there arose a
conflict because earlier in the case, or for most of that case
up to that point, Mr. Casey had represented both the County and
the Sheriff's Office.

MR. WALKER:
5
6
THE COURT:
That doesn't matter; it's not relevant.
You've made your -- you have made your offer of proof.
Thank you.
Anything else?
10
MR. WALKER:
11
No.
11:23:18
That's it.
Thank you.
REDIRECT EXAMINATION
12
BY MS. WANG:
14
Q.
15
A.
Good morning.
16
Q.
Sir, you testified in response to questioning by
17
Mr. Masterson that after your heated discussion with the
18
sheriff in October of 2012, you did not find out about any
19
subsequent violations of the preliminary injunction order,
20
correct?
21
A.
22
time I got out because of the videos.
DS
13
11:23:30
11:23:53
IEN
That is correct, I -- it was still an open issue by the
23
Q.
24
October of 2012 where you found out that there were additional
25
violations of the preliminary injunction order, correct?
FR
11:23:07
Honor, I think --
Based on his deposition testimony, Your
Okay.
And to clarify on that, there did come a time after
11:24:12
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A.
Yeah.
I mean, during the trial we heard the testimony, I
don't know when it occurred, when those events occurred, but
yes, you're correct.
Q.
video recordings of traffic stops came to light, did you find
out about additional violations of the preliminary injunction
order at that time?
A.
the dates that the events were occurring, but whether or not
I'm actually referring to later in 2014, after the
I will tell you that I never felt satisfied about knowing
10
the videos predated discovery cutoff, when they occurred, I
11
know there were some dates that -- I remember a stop called
12
Beeline involving the late Charley Armendariz that I think we
13
found out actually predated the preliminary injunction.
14
was a problem but it was not a violation of the court order,
15
because the court order wasn't issued it.
11:24:48
So it
11:25:14
The long-winded Irish explanation to your question is
16
17
by the time I got out, I could not tell you if there were
18
definitively violations of the preliminary injunction order, or
19
what was then permanent.
20
Q.
21
2012, there came a time where you got information that was new
22
to you about potential violations of the preliminary injunction
IEN
DS
I think understand.
I guess my question is:
23
order, correct?
24
A.
25
remember the trial, having that testimony.
FR
11:24:32
Yes.
After October
11:25:29
Actually, I don't remember -- I don't remember -- I

Then I remember
11:25:54
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after the trial, the fall of '12.
But I don't remember
anything in '13.
memory on, I would appreciate it, but I don't remember that.
Q.
Sure.
A.
Yes.
Q.
I'm just asking you:
the traffic stops came to light, did you look at any stops that
may have violated the preliminary injunction order?
If there is something you can refresh my
I'm setting aside the date of the stops.
11:26:14
In 2014, once the video recordings of
For example, do you recall any discussion about the
9
10
so-called Korean stop?
11
A.
Yes.
Yes.
Yes.
12
11:26:30
Thank you.
I was very concerned that there was going to be
13
a lot -- there was going to be evidence that indicated that
14
there were violations, yes.
15
Q.
16
you did again participate in discussions about potential
17
violations of the preliminary injunction order, setting aside
18
when those happened?
19
A.
20
the videos was May 12.
21
what was the story, and we were trying to get the story.
22
Q.
All right.
And so just to be clear, after October of 2012,
DS
Well, the first we learned, my co-counsel and I learned of

It was from May on that we wondered
11:27:06
IEN
And that was May 12, 2014?
23
A.
May 12, 2014.
24
Q.
All right.
25
a number of questions about something they referred to as
FR
11:26:50
That was two days before the hearing.
Now, both Mr. Masterson and Mr. Como asked you

11:27:25
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"nuance" --
A.
Um-hum.
Q.
-- in the preliminary injunction order.

Do you recall those questions?
4
5
A.
I do.
Q.
All right.
to be very clear about what you communicated with your clients
versus --
A.
Right.
10
Q.
-- what you're thinking about here on the stand today --
11
A.
Sure.
12
Q.
-- okay?
11:27:32
I want to ask you about those, because I want
Now, in response to Mr. Masterson's questions about
13
14
this so-called nuance, you mentioned the Immigration and
15
Nationality Act, is that right?
16
A.
Yes.
17
Q.
Did you ever discuss the Immigration and Nationality Act in
18
your discussions with your clients on the preliminary
19
injunction order?
20
A.
21
would say, Hey, the INA.
22
Does illegal mean illegal?
11:27:52
IEN
DS
I can't tell you, because it was so long ago, whether I
11:28:01
But there were discussions about:

And the response is illegal doesn't
23
mean criminally illegal.
24
the Congress who wrote it used the word "illegal" but it's only
25
a civil violation.
FR
11:27:40
I mean -- it's a civil.
Of course,
So there were -- there were discussions
11:28:24
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that illegal is not what Jane and John Doe in the citizen
believes "illegal" means.
It's a term of art, but it's
actually a civil offense.
And that was part of the discussion.
Q.
about the preliminary injunction order in late December of 2011
and early January of 2011?
A.
Yes.
Q.
All right.
to your clients that illegal presence in the United States is
And specifically the discussion you had with your clients
And following up on that, did you communicate
10
not a crime?
11
A.
Yes.
12
Q.
You made that clear?
13
A.
That was -- in my judgment, that is at the heart of one of
14
the issues in the preliminary injunction.
15
The Ninth Circuit, my memory, came out with something fairly
16
definitive.
17
then there was another case that came out that said, Hey, maybe
18
police officers might misunderstand.
11:28:59
It is not a crime.
11:29:15
I'm not going to say the name of the case, but
Let's clarify it.
And then it wasn't until the Brewer case in 2012 that
19
came out from the United States Supreme Court that made it
21
absolutely clear for everybody that civil -- it's a civil
22
violation to be unlawfully present.
IEN
DS
20
predated that somewhat in two decisions, I think in '10 and
24
'11.
25
Q.
Okay.
11:29:35
But the Ninth Circuit had
23
FR
11:28:41
So this is part of what I want to clarify.
11:29:49
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A.
Yes.
Q.
When you talked to your clients in December of 2011 and
January of 2012, did you go on with them about these court
cases in the Ninth Circuit and a 2012 decision by the Supreme
Court?
A.
'12, but in the beginning of '11 -- in the beginning of '11,
that was a key part of it, because, including with the sheriff,
is you had to combat, I believe, the MCSO had to combat the
11:30:03
No.
The decision in the Supreme Court didn't happen until
10
idea of "illegal" meant a crime.
11
that.
12
Q.
So it was important to convey
That was the nuance.
Did you convey -- so let me just clarify to make sure.
In discussing the preliminary injunction order with
13
your clients in the aftermath of the preliminary injunction
15
order issuing, did you make it crystal clear to them that
16
illegal presence in the United States is not a crime?
17
A.
I believe I did.
18
Q.
And did you make it clear that that was not a basis to
19
detain someone?
20
A.
Yes.
21
Q.
Based on Judge Snow's preliminary injunction order,
22
correct?
IEN
DS
14
23
A.
24
remember he cited Medina, Molina, something like that, the case
25
out of the Ninth Circuit.
FR
11:30:20
11:30:38
11:30:51
That set forth, it made it very abundantly clear, and I
11:31:04
1837
OF
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Q.
Right.
discussions?
A.
wanted to read it.
the bottom line is, at least in my practice, you give as much
detail as they want.
they should have.
Q.
judge's preliminary injunction order?
No.
Did you cite case law to your clients in those
They received a copy of the 40-page order if they

They should read it for the analysis.
But
You certainly give them what you think
And did you give them a clear and simple explanation of the
10
A.
Yeah, that's where the AOR came in.
11
Q.
Right.
12
formulation?
13
A.
Yes.
14
Q.
Okay.
15
referred to as nuance with the preliminary injunction order,
16
and that is the hypothetical situation where ICE may arrive at
17
the scene of a traffic stop --
18
A.
Yes.
19
Q.
-- during the ordinary course of the stop.
Now, Mr. Como asked you about one aspect of what he
Do you recall that?
A.
I do.
22
Q.
Okay.
IEN
21
11:31:43
11:31:59
And you said that, correct me if I'm wrong, I think
23
your testimony was that in theory, MCSO could have -- wait for
24
ICE to show up on the scene of a traffic stop, as long as ICE
25
showed up during the normal time period the traffic stop would
FR
11:31:30
And that refers to your arrest or release
DS
20
11:31:15
11:32:15
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take.
Is that accurate?
A.
I'm going to change one thing in your question and that --
Q.
All right.
A.
-- is "wait."
on the law, is that if Cecillia Wang pulls over someone and you
call ICE for whatever reason, and your traffic stop ends at 12
minutes, you could have 16 people in the back of the car.
can all the tell you, We're here illegally, give you some sort
of hand gesture saying, We're defying you, and there's not a
My advice to them, I believe it is correct,
They
10
darn thing that you can do.
11
detain them; if ICE doesn't show up they're gone, it's a
12
release.
13
Q.
14
this situation you just described would be an exception to the
15
general rule that you don't detain for ICE, is that right?
16
A.
Yes.
17
Q.
All right.
18
well, let me ask you this:
19
these discussions of the preliminary injunction order in
20
December 2011 and January of 2012 whether they should instruct
21
their deputies about that exception to the rule?
22
A.
You cannot hold them; you cannot
11:32:48
You referred in your testimony with Mr. Como, you said that
11:33:09
I think during your deposition you said --
DS
Did you advise your clients during
11:33:23
IEN
I told them they should not, because as a practical effect,
23
it was never going to happen.
24
Q.
25
be "borrowing trouble" --
FR
11:32:27
It invited trouble.
I think the phrase you used during your deposition is you'd

11:33:42
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A.
Yes.
Q.
-- to make that instruction, is that right?
A.
You're borrowing trouble.
Q.
What do you mean by that?
you conveyed it to your clients?
A.
one of the things that are incumbent upon all the lawyers in
this room is you have to recognize you're -- you're trying to
be of service.
What did you mean by that when
11:33:52
One, I think it was Mr. Como, asked one of the -- I think
It's no good to give them just the law; you
10
have to give them something that they can try to understand.
11
And the law for us, there are nuances and there are
12
exceptions as lawyers.
13
arrest or release swallowing their arrest or release rule.
14
Because of my experience in this case, I thought that was a
15
legitimate concern.
16
simple.
17
Q.
18
individuals you spoke to at MCSO after the preliminary
19
injunction order issued?
20
A.
23
24
FR
25
So keep it simple, and I thought it was
Yes.
MR. COMO:
THE COURT:
IEN
22
But I wanted to avoid any exception to
11:34:35
And was that the consistent advice you gave to the various
DS
21
11:34:10
11:34:52
Objection, leading.
One second, please.
I wasn't listening to
the question as carefully as I should have.

BY MS. WANG:
11:35:06
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Q.
Mr. Casey, you spoke to a number of individuals at MCSO
after the preliminary injunction?
A.
I did.
Q.
Sheriff Arpaio was one?
A.
Yes.
Q.
Well, tell me who you spoke to during the January -- the
December 2011 to January 2012 time frame.
A.
Arpaio, Jack MacIntyre, Joe Sousa, Brett Palmer.
11:35:16
Based on the records, based on my memory, Brian Sands, Joe
10
Q.
Did you tell any of those individuals anything different
11
from what you just described?
12
A.
No.
13
Q.
And was it clear to all of them?
14
A.
From my impression, it was clear.

MR. MASTERSON:
15
MR. COMO:
16
THE COURT:
17
MS. WANG:
18
I'm going to sustain that.
All right.
BY MS. WANG:
20
Q.
21
you to think they did not understand?
22
A.
DS
Did any of them say anything to you, Mr. Casey, that led
IEN
No one said anything.
11:35:57
The only problem I had was with
23
Sergeant Palmer's scenarios that told me there was a disconnect
24
between our communication and his writing of the scenarios.
25
Q.
FR
11:35:45
I'll join that.
19
All right.
11:35:35
Going to that briefly, you said that once you
11:36:13
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got the scenarios, they gave you -- gave rise to a concern that
perhaps Palmer had not understood your directions to him about
the preliminary injunction order, is that right?
A.
Yes.
Q.
All right.
Palmer --
A.
Yes.
Q.
-- to have further conversation, is that correct?
A.
It is.
10
Q.
And what was -- tell me about that discussion.
11
make it clear to him?
12
A.
13
reason I remember it after seeing the scenarios is I remember
14
the frustration.
15
even before that date, and it is -- it was just frustrating to
16
be -- you keep asking me the same question and you think it's
17
very understand.
18
write something back to Cecillia Wang and say complete
19
opposite.
Did you
I say:
I understand.
I understand.
11:36:56
And I
It was that type of frustration.
So I don't know how else to answer it other than
that's -- that's why I remember the frustration level and what
22
I told him.
IEN
11:36:39
Because we had a history with Sergeant Palmer
21
But getting to your question was:
23
over this.
24
holding for ICE.
25
That's -- we can't do that, right.
FR
11:36:32
And the reason I -- it was so long ago, but the
DS
20
Yes.
And then you said you then went back to Brett
Went over arrest or release.
11:37:21
Hey, we went
Now you've got people
Oh, yeah, yeah, yeah, yeah, yeah, right.

11:37:47
Well, tell me what -- why'd you include it in there?
I don't know, it's just habit or practice or whatnot.
2
3
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I gin these up quickly.
You know, something like that.
And then we'd follow -- I followed up with him, I'd
4
5
say:
Well, all right.
Did you tell the troops about scenario 3 or did you tell the
troops about what we talked about?
Q.
was yesterday, that Palmer told you yesterday that he had
All right.
Well, what did you the tell the troops?
And you mentioned in your testimony, perhaps it
10
briefed his troops, is that right?
11
A.
Yes.
12
Q.
Did Brett Palmer, as a sergeant, supervise all of HSU, or
13
just part of HSU?
14
A.
15
responsibilities.
16
he was actively responsible for the people under his command,
17
and -- but I understand that if you were in the other group, if
18
your sergeant wasn't available you'd go to him, so...
19
Q.
Do you know whether Sergeant Palmer briefed all of HSU?
20
A.
I don't know if he talked about all of HSU or just the
21
people under his command.
22
Q.
11:38:22
DS
My understanding is it was a division -- a division of
IEN
All right.
You had a lieutenant and two sergeants.
And
called, you said in response to Mr. Como, I think, that your
24
client like to focus on the exception rather than the rule.
FR
11:38:37
11:38:54
Going back to the nuance issue, as it was
23
25
11:38:03
Do you recall that testimony?
11:39:18
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A.
Yes.
Q.
And that was when you were discussing why you told your
client:
stop, ICE showing up at a traffic stop, correct?
A.
That's correct.
Q.
Let me turn to another issue that came up I think in
response to Mr. Masterson's questions about so-called nuance
with the preliminary injunction order.
Don't instruct about the exception with the traffic
11:39:34
Now, I think you testified that you instructed your
9
10
clients, after the preliminary injunction order issued, that
11
the order forbade using illegal presence in the United States
12
as reasonable suspicion to justify a Terry stop.

Did you instruct them that way?
13
14
A.
I did.
15
Q.
All right.
16
A.
I think that was in Judge Snow's order.
17
violation; therefore, Terry stops are to determine whether
18
criminal activity's afoot.
19
Q.
20
that you spoke to about the preliminary injunction order?
21
A.
Yes.
22
Q.
All right.
And that was clear --
11:40:14
It's a civil
IEN
DS
And did you make that clear to all the individuals at MCSO
11:40:28
You mentioned that at one point you had a
23
discussion with the sheriff about a hypothetical where MCSO
24
deputies would encounter people out in the desert, and the
25
question from the sheriff, I believe you said, was:
FR
11:39:59
Are you
11:40:59
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saying we have to leave people out in the desert to die under
the order?
A.
I do.
Q.
And you said that you wrote up an opinion letter for the
sheriff on that point, is that right?
A.
case file that's at my successor counsel, there is an opinion
letter.
MS. WANG:
All right.
I would like to ask that
Ms. Zoratti hand the witness Exhibit 2285.

THE CLERK:
11
11:41:28
(Handing).
THE WITNESS:
12
Thank you.
13
BY MS. WANG:
14
Q.
15
dated June 3rd, 2014.
16
A.
Could I read this real quick?
17
Q.
Yes, please.
18
A.
I see this.
19
Q.
All right.
20
June 3rd, 2014, to Amy Lake, Jerry Sheridan, John MacIntyre,
21
David Trombi, Larry Farnsworth, and Russ Skinner, correct?
22
A.
Sir, Exhibit 2285 appears to be an e-mail from you
11:42:08
Thank you.
DS
And Exhibit 2285 is an e-mail from you dated
11:42:55
IEN
Correct.
23
Q.
Is this the opinion letter you were referring to earlier?
24
A.
I think this is a second one?
25
Q.
All right.
FR
11:41:13
I can't swear absolutely, but I believe there is in the
9
10
Do you recall that testimony?
I believe
11:43:10
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A.
-- there was one much earlier in the case that was actually
on firm letterhead, you know, a hard copy letter, not just an
e-mail letter.
Q.
Do you recall when the earlier e-mail was?
A.
I think it was closer in time to -- I can't swear to you,
Cecillia, that this -- I thought there were two: this one and
another one.
Q.
concerning transportation for humanitarian purposes, was that
All right.
Do you recall whether the earlier e-mail
10
before or after Mr. Segura's letter in October 2012?
11
A.
I don't remember.
12
Q.
All right.
13
A.
I'd have to look at the letter.

MS. WANG:
14
15
MR. MASTERSON:
MR. WALKER:
17
MR. COMO:
18
THE COURT:
19
21
No objection.
No objection.
2285 is admitted.
Thank you.
23
Q.
24
your testimony earlier about conversations on the provision of
25
humanitarian aid, I believe you said that -- let me withdraw
FR
11:43:55
BY MS. WANG:
IEN
22
MS. WANG:
11:43:47
No objection.
DS
20
11:43:38
Well, in any event, Your Honor, I'd move
the admission of Exhibit 2285.
16
11:43:22
Mr. Casey, in response to Mr. Masterson's questions and
11:44:12
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all that.
Did you have a conversation where the sheriff was
2
3
asking you:
Can I transport people for humanitarian purposes
out of the desert?
A.
Yes.
Q.
All right.
the sheriff, Yes, you can do that for humanitarian purposes?
A.
Yes.
Q.
And did you also tell him, But you can't use that as an
11:44:24
And do you recall your testimony that you told
10
excuse to game the system?
11
A.
Yes.
12
Q.
And you learned at other points during your representation
13
of the sheriff that he held people for ICE for political
14
purposes, correct?
15
A.
16
Sands, that he found out that that was done to generate
17
publicity.
18
Q.
19
when you initially spoke to the sheriff about the preliminary
20
injunction order in December of 2011, he did not express any
21
resistance to the order, is that right?
22
A.
11:44:39
From the Segura letter, that's what I was told by Brian
DS
In response to questioning by Mr. Masterson, you said that
IEN
No, he said it would be very easy to comply with.
23
going to change anything.
24
Q.
And --
25
A.
The second being delivering people to ICE.
FR
11:44:58
11:45:21
It's not
We don't do the two things any more.
11:45:34
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Q.
And before he gave you that assurance that he would not
resist the order, you had explained the order fully to him,
correct?
MR. MASTERSON:
4
5
BY MS. WANG:
Q.
Objection, leading.
11:45:49
Did you explain the order -- withdrawn.
Did you explain the order to him before he gave you
7
8
that assurance?
A.
I made sure -- yes, but I made sure, because I remember
10
there was being the foul up.
11
Q.
Yes, I do.
12
A.
Okay.
13
crass, but the analogy I wanted to have sink in, if you're
14
telling me A and you're telling me B, B being you're not taking
15
him to the federals, to ICE, then you are correct, it doesn't
16
change anything.
17
not -- and the response was:
18
don't do that.
They won't do it even if we wanted.
19
Q.
And when you referred to -- withdrawn.
11:46:01
I'm an old football player, so sometimes they're
All right.
Obama is not taking them.
We
In response to questioning by Mr. Masterson about
Andre Segura's letter in October of 2012, you said that you
22
told the sheriff that you believed the activities described in
IEN
21
23
the news release likely violated the preliminary injunction
24
order, correct?
25
A.
FR
11:46:17
If that's what you're telling me, that's
DS
20
Remember my dress analogy?
That's what I told the sheriff.
11:46:37
11:47:18
1848
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Q.
And but you did advise the sheriff during that conversation
that he should stop that activity, correct?
A.
Yes.
Q.
All right.
letter in response on October 18, 2012, in good faith, correct?
A.
believed there was at least a good faith argument that, you
know, non-lawyers don't understand, but sometimes good faith
arguments can even be loser arguments.
You told Mr. Masterson that you sent your
Yeah, I would not -- I would not have sent it unless I
10
Q.
11
argument in the letter to Andre Segura, that you met the
12
Rule 11 standard?
13
A.
14
that.
15
Q.
16
for making a frivolous argument, is that right?
17
A.
18
be based on either law or the facts, and a good faith extension
19
of those, and -- so yes.
20
Q.
21
your advice privately to Sheriff Arpaio that you did believe
22
the activities violated the preliminary injunction, correct?
And you said you satisfied yourself that in making that
Oh, absolutely.
And that standard is merely that you wouldn't be sanctioned
That, plus more.
11:48:04
I mean, it has to be good faith; has to
DS
But you also told Mr. Masterson that you had already given
IEN
11:47:51
I would not have sent it unless I did
23
A.
24
if it went before this judge -- before any judge, based on that
25
ruling -- the likelihood of that argument being successful was
FR
11:47:33
11:48:26
I want to clarify it that I believed that it likely, that
11:48:47
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improbable.
Q.
the sheriff's agreement that he would stop the activity,
correct?
A.
Yes.
Q.
Mr. Casey, when you told your client that they could not
use humanitarian purposes as an excuse to game the system, you
had a reason for telling them that, right?
A.
Yes.
10
Q.
And when you told your clients -- when you testified that
11
your clients liked to focus on the exception rather than the
12
rule, that was based on your experience dealing with your
13
clients, correct?
And at the end of that heated discussion you had secured
11:49:02
MR. MASTERSON:
14
THE COURT:
15
Objection, leading; and --
Sustained.
11:49:43
16
BY MS. WANG:
17
Q.
18
liked to focus on the exception rather than the rule?
19
A.
20
privilege, work product, and client confidentiality.
I'm sorry, I'm going to have to invoke the attorney-client
MR. MASTERSON:
23
24
FR
25
11:49:55
I'll join in the objection asserted by
Mr. Casey.
IEN
22
Why did you say in your testimony today that your clients
DS
21
11:49:26
THE COURT:
him to answer.
The objection's been waived.
You allowed
I'm going to direct him to respond.
MS. CLARK:
Judge, is that an order under ER 1.6?
11:50:09
THE COURT:
It is an order under 1.6.
MR. MASTERSON:
2
3
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Casey - X Court, 9/30/15 Evidentiary Hearing
These are his mental processes,
though, Judge.
THE COURT:
You still waived it.
THE WITNESS:
THE COURT:
11:50:24
You are.
THE WITNESS:
I'm ordered, Your Honor?
It was my experience that the chief
decision maker tended to like to focus on exceptions to
accomplish whatever it is the goal was to accomplish.
10
BY MS. WANG:
11
Q.
And who was the chief decision maker?
12
A.
Sheriff Arpaio.
MS. WANG:
13
THE COURT:
14
11:50:39
Thank you.
Nothing further.
Mr. Casey, I indicated at the start that
if I had questions, I was going to ask them after all parties
16
were complete, and then I was going to allow Mr. Masterson and
17
the defense parties to ask questions and Ms. Wang.
18
desire to do justice, and so while I'm trying to ask as few
19
questions as possible, if I really have questions, I'm asking
20
them.
21
THE WITNESS:
IEN
22
DS
15
It is my
11:51:10
Yes, sir.
EXAMINATION
23
BY THE COURT:
24
Q.
25
late July and early August of 2012?
FR
11:50:48
Do you recall the trial that took place in this action in

11:51:21
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A.
I do.
Q.
And I think you indicated that during the course of that
trial you became aware that your client might be violating the
preliminary injunction.
Am I accurately stating your testimony?
5
6
A.
Yes, sir.
Q.
Whose testimony gave rise to that concern?
A.
I don't remember now.
may have been Armendariz.
It may have been Brett Palmer; it
I think there was two fellows or
10
three fellows that said that.
11
Q.
12
the authority to continue to depose -- to arrest people, or to
13
stop people and if he had no state charge, to deliver them to
14
ICE, would that have caused you concern?
15
A.
11:51:49
If Sheriff Arpaio testified during that trial that he had
It did cause --
MS. CLARK:
16
17
11:52:08
Judge, I just need to object on privilege
and confidentiality.
18
19
THE COURT:
Overruled.
Thank you.
MS. CLARK:
And I'm going to instruct the witness that
if you're asking him a question that is synonymous with an
21
order to answer under ER 1.6 and overruling any privilege
22
objections.
IEN
DS
20
23
THE COURT:
11:52:17
That is true, except it doesn't prevent
24
you from making any other objection that you wish to make and
25
putting it on record.
FR
11:51:34
11:52:30
MS. CLARK:
Okay.
THE WITNESS:
THE COURT:
1852
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Thank you, Judge.
In fact, it did.
I'm sorry.
I forgot my question now.
BY THE COURT:
Q.
Arpaio that did cause you concern?
A.
follows: that he could do a LEAR policy.
Q.
And did you have a reaction to that testimony?
10
A.
I did.
11
Q.
What did you do about it?
12
A.
That was the first time that I'd heard him say that, and we
13
talked about it after the trial; we talked about it afterwards
14
that that was not the advice, that was not the ruling that you
15
gave in your preliminary injunction.
So are you telling me that you recall testimony by Sheriff
Yes.
I remember him something not -- I'll summarize it as
11:53:04
11:53:19
We also dealt with at some point the other deputies,
16
and that's when I and my co-counsel pulled Brian Sands into the
18
witness room and said:
19
handle as counsel the issue with Joe Arpaio, but we needed to
20
find out what was the disconnect with the other deputies that
21
testified that.
22
Q.
DS
17
We need to figure out this.
We would
11:53:39
It wasn't all in one day.
IEN
Did you have any communications with Sheriff Arpaio after
23
that?
24
A.
I did.
25
Q.
How come you haven't shared them with us earlier?
FR
11:52:48
11:53:49
1853
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A.
Shared with what who earlier?
Q.
Shared conversations that you had with Sheriff Arpaio about
his trial testimony earlier.
A.
I thought I did.
Q.
Okay.
Arpaio about his trial testimony?
A.
THE COURT:
Excuse me.
MR. MASTERSON:
Object.
This is prior to -- are you
asking him in reference to the preliminary injunction?

THE COURT:
11
I certainly am.
testimony that occurred at trial which was after the
13
preliminary injunction, which caused him to believe, based on
14
Sheriff Arpaio's testimony, that Sheriff Arpaio was violating
15
the preliminary injunction.

MR. MASTERSON:
16
THE COURT:
17
11:54:30
Thank you.
Thank you for allowing me to clarify if it
wasn't clear.
THE WITNESS:
19
What was the basis for you saying that
at trial after everything that we've talked about?
21
BY THE COURT:
22
Q.
DS
20
11:54:38
IEN
And when did you have this communication with him?
23
A.
24
occurred; I don't remember specifically.
25
Q.
FR
11:54:14
But I am asking him about
12
18
11:53:59
What is the basis for you --
10
What were the conversations you had with Sheriff
It probably was in a debriefing after the very day it
And where was it?
11:54:48
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A.
I don't remember if they had -- I don't think they had
moved into the new building yet, but it would have been in his
office.
Q.
And what did he say?

MS. CLARK:
5
6
Objection, attorney-client privilege;
confidentiality.
7
8
9
THE COURT:
Overruled.
MS. CLARK:
Is that an order to answer?
THE COURT:
Yes, it is.
THE WITNESS:
10
My memory was a response that sort of
11
went:
12
up to HSU and Brian Sands.
13
level of detail."
14
BY THE COURT:
15
Q.
16
A.
17
the same discussion that we had in the fall of '12.
18
understand that there is no transportation whatsoever to the
19
federal authorities, that you cannot hold?"
21
I don't know -- I don't know that
Kind of a nonresponse response.
11:55:31
"Do you understand, Sheriff, that you cannot --" almost

"Do you
"I do understand that."
11:55:48
And -- yes.
Q.
Do you remember anything else about that conversation?
23
A.
No.
24
Q.
Do you remember if you had a conversation with anybody
25
else, any of the other chiefs, based on your concern about what
FR
11:55:16
What I know I leave it
What did you do after that?
IEN
22
"I don't get into the details.
DS
20
11:55:04
As I sit here, I do not, Your Honor.
11:56:01
Sheriff Arpaio had said?

MS. CLARK:
2
3
5
record.
THE COURT:
Overruled.
MS. CLARK:
Just a continuing objection for the
THE COURT:
You have it.
THE WITNESS:
8
9
Same objections, Judge, confidentiality
and privilege.
1855
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Yes.
BY THE COURT:
10
Q.
And what were those conversations?
11
A.
With Chief Brian Sands that we have a problem.
12
getting it.
13
problem.
11:56:16
He's testified that he can do this.
He's not
This is a
Brian Sands said that he would also talk to him.
I will share with you that after the preliminary
14
15
injunction came out not only did I talk to him, but I was
16
specifically informed that Brian Sands had conveyed the order,
17
your order, to the sheriff, and the arrest or release was made
18
clear by Brian Sands to him.
19
same, according to what Jack MacIntyre had told me.
So all of a sudden at trial we get testimony that
basically is completely different than everything that we've
22
been told and that we have told him.
IEN
21
Q.
24
Anyone?
25
A.
FR
23
11:56:34
That Jack MacIntyre had some the
DS
20
11:56:12
So did you follow up with MacIntyre?
Sands?
No, Jerry Sheridan wasn't involved in this.
11:56:55
Sheridan?
Not with Jack
11:57:07
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MacIntyre.
Liddy, and we talked to the sheriff, and that's when I got the
response that I received.
Q.
Which was?
A.
"I don't know all the details.
responsible for everything.
because I'm not out there doing it."
Q.
in operations that violated the preliminary injunction?
10
A.
I left it with Brian Sands and myself and Tom
I delegate.
I'm not
You know, I don't know this,
Did you satisfy yourself that MCSO was not in fact engaged
No --
11
12
11:57:44
MS. CLARK:
Objection, Judge.
Mental impressions.
THE COURT:
I'm going to sustain the objection to my
13
own question.
14
BY THE COURT:
15
Q.
16
MCSO was not violating the terms of my preliminary injunction?
Did you take any action with MCSO to assure yourself that
17
18
THE COURT:
Overruled.
MS. CLARK:
THE COURT:
23
Yes.
Continuing objection to the line of
11:58:12
Overruled.
THE WITNESS:
24
BY THE COURT:
25
Q.
FR
11:57:54
questioning.
IEN
22
Objection on work product, Judge.
DS
21
MS. CLARK:
THE WITNESS:
19
20
11:57:21
Yes.
And what did you do?
11:58:16
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A.
I think I mentioned to it or -- already, either in my
deposition or this, is afterwards we spoke individually to each
one of the deputies that testified that they could still detain
people, and spoke with them personally.
new head of the HSU, Lieutenant Jakowinicz, and made sure that
he understood that.
reminded him -- there is nothing that I found in writing where
we sent that out again, but we spoke with each one of them and
made sure that there -- that this has to stop.
We also spoke with the
We spoke with Arpaio in that meeting and
Brian Sands and I were working on that with my
10
11
co-counsel, but we went to each one of those people who said
12
that.
13
told everyone at HSU that was now under his command that there
14
was no LEAR.
15
So that's what we did.
16
Q.
17
system-wide information thing like the bulletin board we've
18
seen in Exhibit 103 to inform all of its deputies that there
19
was no LEAR?
20
A.
Yes.
21
Q.
And what was the answer that you got?
22
A.
That it was.
11:58:51
Brian Jakowinicz also assured us that he had already
You couldn't call any of the federal authorities.
11:59:12
Did you inquire as to whether or not MCSO had set out a
11:59:32
DS
IEN
23
Q.
And who gave you that answer?
24
A.
My understanding is it was Brett Palmer.
25
Palmer and Brian Sands.
FR
11:58:32
Actually, Brett
11:59:43
1858
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Q.
Told you what?
A.
That there was a -- there was something internal to MCSO
that went out to all of HSU letting them know that there was no
LEAR enforcement.
Q.
letting them know?
A.
I don't know.
Q.
All right.
Sands?
All right.
Was there anything sent to all MCSO deputies
When did you have this meeting with Palmer and
10
A.
11
after, because it was a surprise, the testimony.
12
Q.
13
conversations you took with MCSO in light of Sheriff Arpaio's
14
trial testimony and/or the trial testimony of anyone else that
15
concerned you about whether or not the preliminary injunction
16
was being violated?
17
MS. CLARK:
18
It would have been at the time of the trial or shortly
THE COURT:
Overruled.
Your question is about the trial the
12:00:33
testimony?
THE COURT:
23
Yes.
THE WITNESS:
24
did.
25
BY THE COURT:
FR
Continuing objection: attorney-client
THE WITNESS:
IEN
22
12:00:23
privilege, confidentiality, and work product.
DS
21
12:00:04
Do you have any other recollection of any other actions or
19
20
11:59:57
I think I've described everything that I
12:00:38
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Q.
Have you had any other communications that you have not
identified with any person at MCSO related to the violation or
the enforcement of the preliminary injunction?
A.
but I cannot tell you absolutely telling them that we have a
problem.
trial that Chief Sands gave that did not sit well with the --
with the sheriff.
between the two of them after that.
I may have elicited support from some of the other chiefs,
The reason I say that is there was some testimony at
And there was a problem, in my judgment,
And so I probably, but I cannot tell you for certain,
10
11
tried to elicit support that, We've gotta drill this down, to
12
my phrase, concrete, to make sure that this is not occurring in
13
the field, because there is a -- there is a disconnect.
14
Q.
15
trial that's related to the enforcement or lack of enforcement
16
of the preliminary injunction?
17
A.
18
testimony.
19
testimony where he talked about the sheriff's --
20
Q.
Go ahead.
21
A.
I remember the problem being the sheriff's not being on top
22
of things, not being familiar with what's going on in the
12:01:24
Is there anything related to Chief Sands' testimony at
12:01:41
I don't -- I did not review it in preparation for my

I do remember there was
DS
IEN
23
field.
24
Q.
25
do have one.
FR
12:01:03
12:01:57
I really don't have a whole lot of other questions, but I

12:02:14
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A.
Yes, sir.
Q.
And I have not looked at this document and I'm not sure
that it's been admitted in evidence, so please track me here
and if you need to object, object.
But I think there has been some discussion of a letter
5
6
you wrote back to Andre Segura in response to the allegations
that the preliminary injunction had been violated and attaching
the sheriff's backup plan.
Do you know what I'm talking about?
9
A.
You're talking about his letter attaching the press
11
release?
12
Q.
Actually --
13
A.
My letter?
14
Q.
-- I'm talking about your letter back to him.
15
A.
Yes.
16
Q.
And I believe the testimony has been that in your letter
17
you took the view -- or you took the response, or you made the
18
response on behalf of your client that when a federal agency
19
requests or instructs someone to deposit persons who are
20
illegal, or not authorized to be in the country, that that
21
would somehow change my order or make it acceptable under my
22
order.
IEN
DS
10
23
A.
24
was the something more.
25
Q.
FR
12:02:24
12:02:40
12:02:48
12:03:05
That was the argument that I made in the letter that that
In your research -- and again, I'm sorry, I haven't read
12:03:17
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that letter.
But in your research before you drafted that
letter, did you ever find any evidence that Border Patrol had
directed the MCSO to deposit persons that they came across that
were not authorized with them and to drive them there or
whatever?
A.
directed them, that's what I was told, and I don't remember
what the paperwork shows, but that's what was represented to me
is that they were actually told.
12:03:37
I was told that the M -- that actually Border Patrol
It wasn't just a call saying:
10
Would you take them?
11
Q.
Well, who was it that told you that?
12
A.
Brian Jakowinicz.
13
was just relying on the same information I was, and that was
14
Brian Jakowinicz.
15
Q.
16
federal agency to MCSO to deliver to them persons that were not
17
authorized to be in the country and for whom they had no state
18
charge?
19
A.
20
paperwork.
Not from the federal government.
THE COURT:
23
24
FR
25
But I think he
12:04:07
All I saw was the MCSO
12:04:25
All right.
I believe those are my
questions.
IEN
22
I believe Brian Sands.
Did you ever see any paperwork that was a direction by a
DS
21
12:03:54
Mr. Masterson, should we give you lunch before I allow
you to ask any questions based on mine?

MR. MASTERSON:
I'm always better after lunch.
12:04:38
THE COURT:
1
2
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Okay.
Why don't we take a lunch break and
we'll be back here -- do you need more than 1:15?

We'll be back at 1:15, then.
Thank you.
(Lunch taken.)
THE COURT:
Please be seated.
Whenever you're ready, Mr. Masterson.
MR. MASTERSON:
Well, Judge, lunch is good for the
mind, because over lunch I decided I will ask no more questions
of Mr. Casey.
THE COURT:
10
MR. COMO:
11
All right.
MS. WANG:
13
Thank you.
Ms. Wang.
Your Honor, I have no further examination
14
of the witness, but I do have an issue with one of the exhibits
15
that we admitted yesterday.
16
the court copy that was shown to the witness is a
17
black-and-white version of that document, but the version that
18
has been produced to the Court and the parties electronically
19
is in color, and I'd ask permission to substitute in the color
20
version.
DS
13:21:50
13:22:11
I have no objection to that
substitution, Judge.
23
THE COURT:
24
MR. WALKER:
25
MR. COMO:
FR
I understand that on Exhibit 2072,
It is more legible than the black-and-white version.
MR. MASTERSON:
IEN
22
13:21:39
I have no further questions, Your Honor.
THE COURT:
12
21
13:21:24
Anybody else have an objection?

No objection.
13:22:21
THE COURT:
MS. WANG:
2
3
THE COURT:
May I hand it up to
Yes.
Ms. Coe, do you have any questions?
MS. COE:
Does anybody have any questions, or can
Mr. Casey go?
MR. WALKER:
MR. COMO:
10
THE COURT:
11
No questions, Your Honor.
No questions.
13:22:50
You may step down, Mr. Casey.
THE WITNESS:
12
Thank you.
That means I'm officially
released from the subpoena, Your Honor?

THE COURT:
14
Is he released from the subpoena?
Was Mr. Casey subpoenaed?
15
MS. WANG:
16
He was.
Honor.
18
subject to recall, depending on the testimony of other
19
witnesses who will appear going forward.
IEN
22
He's released -- well, we would ask that Mr. Casey be
THE COURT:
DS
21
All right.
13:23:18
You may step down, Mr. Casey.

THE WITNESS:
Thank you.
23
THE COURT:
24
MS. WANG:
Your Honor, plaintiffs call John MacIntyre.
25
THE CLERK:
Can you please state and spell your first
FR
13:23:02
He's subject to our subpoena, Your
17
20
13:22:40
THE COURT:
13
All right.
Ms. Zoratti?
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Next witness.
13:23:46
and last name for the record.

THE WITNESS:
2
3
J-o-h-n,
(John MacIntyre is duly sworn as a witness.)
5
6
7
MR. POCHODA:
Good afternoon, Chief MacIntyre.
THE WITNESS:
Good afternoon.
MR. POCHODA:
Judge, may I approach to give the
THE COURT:
Yes.
MR. POCHODA:
10
Those are depositions from March and
13:24:54
September of this year.
JOHN MacINTYRE,
12
13
called as a witness herein, having been duly sworn, was
14
examined and testified as follows:
DIRECT EXAMINATION
15
BY MR. POCHODA:
17
Q.
Chief MacIntyre, you are an attorney?
18
A.
I am.
19
Q.
A graduate of ASU Law School?
20
A.
Yes, sir.
21
Q.
And what year did you graduate?
22
A.
1980.
IEN
DS
16
23
Q.
24
Arizona?
25
A.
FR
13:24:36
witness two depositions?
11
My name is John MacIntyre.
capital M-a-c, capital I-n-t-y-r-e.
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MacIntyre - DX Pochoda, 9/30/15 Evidentiary Hearing
13:25:10
And when did you become a member of the bar of the state of
1980.
The fall of 1980.
13:25:20
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Q.
And following your graduation you practiced law in Phoenix,
Arizona?
A.
That's correct.
Q.
You were -- excuse me -- a civil litigator in a private
firm?
A.
Yes, sir.
Q.
At some point you joined the Maricopa County Attorney's
Office?
A.
Yes, sir.
10
Q.
When was that?
11
A.
Mid '80s.
12
Q.
1986-1987?
13
A.
Yes.
14
Q.
And what was your assignment at the MCSO?
15
A.
I was in the civil section of the Maricopa County
16
Attorney's Office representing various Maricopa County
17
governmental entities.
18
Q.
19
brought by other persons?
20
A.
Yes, sir.
21
Q.
And was one of those entities the MCSO, the Maricopa County
22
Sheriff's Office?
13:25:35
Late '80s?
Mid- to early '80s, yes.
13:26:03
IEN
DS
You would defend governmental entities against litigation
23
A.
Yes, sir.
24
Q.
And at some point Mr. Arpaio became the sheriff?
25
A.
Yes.
FR
13:25:41
13:26:21
13:26:31
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Q.
When was that?
A.
I believe it was 1992.
Q.
And so you represented Sheriff Arpaio and the MCSO for a
number of years after that while at the MCAO, is that correct?
A.
Yes, sir.
Q.
And this would have been cases that were brought that were
litigating the MCSO as a defendant, is that right?
A.
Among other County agencies, yes, sir.
Q.
And at some point you joined the Sheriff's Office itself as
13:26:47
10
an employee, correct?
11
A.
Yes, sir.
12
Q.
Was that in 1996?
13
A.
I believe it was November of 1996, late -- very late in the
14
year.
15
Q.
16
Arpaio?
17
A.
I was asked by the chief deputy.
18
Q.
But you have no doubt that the offer was made from the
19
sheriff himself, is that -- is that fair to say?
21
MR. Popolizio:
THE COURT:
13:27:29
I'll withdraw the question.
23
BY MR. POCHODA:
24
Q.
25
before you started work there?
FR
13:27:14
One moment, please.
MR. POCHODA:
IEN
22
And you were asked to do that by the sheriff, Sheriff
DS
20
13:27:03
Had you discussed working at the MCSO with the sheriff

13:27:47
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A.
I don't remember that I did.
Q.
Your position at the MCSO was a new position created for
you, that's right?
A.
It was a new position, correct.
Q.
And do you have any idea how that was done, who was
involved in creating that position or seeking that position for
you?
A.
I think it was the then-chief of administration.
Q.
And when is the first time you spoke to the sheriff about
that job at the MCSO?
If you recall.
11
A.
It would have to have been before November of 1996.
12
Q.
And did you discuss with him whether you would accept that
13
position?
14
A.
I believe I had already accepted it.
15
Q.
And you yourself had not had any prior experience in law
16
enforcement, is that right?
17
A.
Correct.
18
Q.
You had never worked in a sheriff's department or police
19
agency of any type?
20
A.
That's correct.
21
Q.
And you had had no prior experience in the correctional
22
field, is that right?
IEN
DS
10
A.
Other than representing individuals, that's correct.
24
Q.
You had never yourself worked at a jail or a prison, had
25
you?
FR
23
13:28:00
13:28:18
13:28:40
13:28:47
13:28:59
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A.
That's correct, sir.
Q.
And you had never supervised a jail or a prison, had you?
A.
No, sir.
Q.
And this new position enabled you to provide internal legal
advice to the sheriff and others at MCSO, correct?
A.
Among other things.
Q.
Among other things, yes.
responsibilities.
A.
I believe so.
10
Q.
Let me turn to -- were you here for Mr. Casey's testimony?
11
A.
Yes, sir.
12
Q.
Let me just take a look at -- if I could ask you for
13
your -- let me back up a bit.
But that was part of your
13:29:19
You knew Mr. Casey before today, is that correct?
14
A.
Yes, sir.
16
Q.
You were aware that he had been, for most of the last five
17
years, the lead counsel defending the sheriff and the MCSO in
18
the Ortega Melendres litigation?
19
A.
I think it was longer than that, but yes, sir.
20
Q.
And you on occasion would meet with Mr. Casey or confer
21
with Mr. Casey about matters involving the Ortega Melendres
22
case, is that correct?
IEN
DS
15
23
A.
Sometimes, yes.
24
Q.
And did you have a good relation with Mr. Casey?
25
A.
I believe so.
FR
13:29:10
13:29:37
13:29:50
13:30:05
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Q.
Did you find him to be a credible person?
A.
Yes.
Q.
Let me ask your reaction.
Mr. Casey's testimony on 9-29-15, page 1634, starting at line
23, and the question that was asked by Ms. Wang:
This is from the transcript of
"Did you have any particular reason you thought
6
7
Chief MacIntyre should get the preliminary injunction order?"
That was the question asked of Mr. Casey.
And his answer, continuing on page 1635, line 4,
9
10
Mr. Casey states:
11
executive staff, in my judgment, for the sheriff."
"Jack MacIntyre was a trusted member of the
the daily copy with you.
I'll read it slowly.
14
15
A.
Okay.
16
Q.
"He happened to be a lawyer by training.
17
practicing law, but it was my impression that very often the
18
sheriff liked to get second opinions, at least bounce it by
19
Jack MacIntyre, because he had a lot of outside counsel on
20
various cases.
21
might ask Jack MacIntyre what's his -- what's his thought on
22
this?"
13:30:58
DS
IEN
23
He was not
So it's not uncommon, in my experience, that he
13:31:14
Do you recall that testimony from Mr. Casey?
24
A.
No, I don't.
25
Q.
Would you agree, though, that it's an accurate description
FR
13:30:44
I don't know if you have -- I don't believe you have
12
13
13:30:24
13:31:27
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of some aspects of your relationship to the sheriff?
A.
testified to.
Q.
I think it's an accurate description of what Mr. Casey
Let me go through this.
Did you, in fact, on occasion, as part of your work
5
6
responsibilities, give legal advice to the sheriff on matters
involving the MCSO?
A.
Yes.
Q.
And you were, in fact, a trusted member of the executive
10
staff for the sheriff, is that correct?
11
A.
12
judgment by someone else, I would believe.
13
Q.
14
the executive staff were brought together to meet with the
15
sheriff; is that fair to say?
16
A.
I was regularly at command staff meetings, yes.
17
Q.
And those meetings, if I recall, initially started on
18
Thursdays when you were first hired at the MCSO, is that
19
correct?
20
A.
Yes, sir.
21
Q.
And who would attend those Thursday meetings?
22
A.
Well, all of the deputy chiefs, all of the civilian chiefs,
I think I was a member of the staff.
13:31:55
Trusted is another
You attended the gatherings with the highest levels where
DS
IEN
13:32:14
13:32:29
23
the heads of administration, so it was a very large gathering.
24
And then once a month it would be all of the captains, some of
25
the lieutenants.
FR
13:31:39
It was an enormous meeting.
13:32:50
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Q.
And the sheriff asked you to attend those?
A.
Yes.
Q.
At some point in time there was also a smaller weekly
meeting that was convened, is that right?
A.
Yes, sir.
Q.
And who went to those meetings?
A.
Are you talking about the Monday morning meetings?
Q.
Yes, the Monday morning meetings.
expected by the sheriff to attend those meetings?
By title, who would be
10
A.
These are meetings that started about two years ago.
11
It was on Monday morning, and it was generally about six -- six
12
or seven people.
13
the chief of detention, the chief of enforcement, the PIO
14
director --
15
Q.
That's the public information office?
16
A.
Yes, sir.
17
administration?
18
Q.
I don't think so.
19
A.
Okay.
20
people.
21
Q.
22
some two years ago?
13:33:43
And the chief -- did I say the chief of
And myself, and occasionally one or two other
13:33:58
IEN
And those were every Monday morning starting, you believe,
23
A.
Almost every Monday, yes.
24
Q.
Let me try to pinpoint the date a little bit.
25
in a while about such a -- such a Monday morning meeting in
FR
13:33:18
It would be the sheriff, the chief deputy,
DS
Okay.
13:33:04
We will talk
13:34:11
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January of 2012, when the preliminary injunction in this case
was discussed by yourself.
A.
Yes, sir.
Q.
That was not the first meeting of this Monday group that
you went to, was it?
A.
No, sir.
Q.
So this group -- this group started at least in 2011, is
that right?
A.
Yes, sir.
10
Q.
And absent some reason that people had to miss the meeting,
11
it was expected by the sheriff that people would show up for
12
that; is that fair to say?
THE COURT:
14
Foundation, Your Honor.
THE COURT:
BY MR. POCHODA:
19
Q.
20
unless you had some reason to be away?
DS
Did the sheriff expect you to show up at those meetings
MR. POPOLIZIO:
IEN
THE COURT:
23
BY MR. POCHODA:
24
Q.
25
those meetings?
FR
13:34:53
Sustained.
18
22
He's asking
what the sheriff expected.
17
21
13:34:36
Did I have an objection?
MR. POPOLIZIO:
15
16
13:34:27
MR. POPOLIZIO:
13
Do you recall that?
13:35:01
Same objection.
Sustained.
Were you ever told by the sheriff that you should attend
13:35:10
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A.
I don't remember ever being told, no.
Q.
How did you find out about the meetings?
A.
They started, and we were -- you know, there was a small
list of people that were going to be there.
Q.
discuss issues that he was concerned about, is that right?
And the sheriff wanted to use those meetings at times to
MR. POPOLIZIO:
7
8
BY MR. POCHODA:
Q.
Did the sheriff use those meetings to discuss issues he was
10
concerned about?
11
A.
Yes.
12
Q.
And people responded to the issues that the sheriff raised,
13
who attended those meetings?
14
A.
Yes.
15
Q.
And others who were at the meetings could also raise issues
16
that they wanted to have discussed by others there, is that
17
right?
18
A.
Yes.
19
Q.
And people would give advice back and forth at those
20
meetings?
13:35:44
Withdraw that first question.
13:36:03
and forth at those meetings?
23
A.
Yes.
24
Q.
And all of the people you describe were the very top levels
25
of the various chains of command at the MCSO; is that fair to
FR
13:35:51
Would give you their views on a topic and discuss back
IEN
22
Or their views.
DS
21
13:35:32
13:36:21
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say?
A.
yes.
Q.
particular topic?
A.
Or as a substitute, sir.
Q.
A delegate for one of the people who couldn't make it who
was the top of the chain -- command?
A.
Yes.
10
Q.
And based on the discussions that you had at those
11
meetings, was it your conclusion that the people there were
12
concerned about making sure that the MCSO acted properly?
With the exception of the occasional visitor, I would say
Occasionally, someone was invited in to participate on a
MR. POPOLIZIO:
13
THE WITNESS:
14
THE COURT:
15
16
13:36:35
Yes.
I'll overrule the question, based on the
13:37:11
question.
You may answer.
17
THE WITNESS:
18
THE COURT:
19
I think I did, Your Honor, but yes.
Okay.
Thank you.
BY MR. POCHODA:
21
Q.
22
legal matters; is that fair to say?
DS
20
13:37:20
IEN
And on occasion at those meetings you would give advice on
23
A.
I think very infrequently.
24
Q.
If a legal matter came up, would you hesitate to give any
25
advice internally, based on your job responsibilities?
FR
13:36:44
13:37:41
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A.
Yes.
Q.
But you did on occasion.
give vice -- advice or not?
A.
Maricopa County Attorney's Office involvement and/or outside
counsel being more appropriate to give the advice.
Q.
advice.
A.
And how did you decide whether to
Well, I think that sometimes it may have required the
On occasion you would say:
No.
That's above my ability to give
Is that what you're telling us?
I think I'm saying that I think it would be more
10
appropriate for someone else to be giving a response to that
11
particular question.
12
Q.
13
or did it ever occur that someone gave an opinion at one of
14
those meetings on a legal matter that you disagreed with?
15
A.
I can't remember anybody else giving a legal opinion.
16
Q.
An opinion about a legal matter or a case that involved the
17
MCSO.
18
A.
19
opinion and I disagreed with it, I could -- I would disagree
20
with it.
21
Q.
You would speak up.
22
A.
Yes, sir.
13:38:11
But if someone gave an opinion at one of those meetings --
13:38:34
IEN
DS
Well, if it wasn't a legal opinion, it was just a personal
23
Q.
24
the bar of the state of Arizona, is that correct?
25
A.
FR
13:37:53
13:38:49
And during your years at the MCSO you remained a member of
Yes, sir.
13:39:09
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Q.
And the agency paid for your dues of the state of Arizona
bar?
A.
Several times.
Q.
For most of the years that you were there, is that correct?
A.
I think so, yes.
Q.
And you were always housed over the years, and continue to
today, on the same floor as the sheriff while working at the
MCSO, is that correct?
A.
Yes, sir.
10
Q.
That included when you had the various job titles, you
11
still remained on the floor near the sheriff, is that right?
12
A.
On the same floor.
13
Q.
On the same floor.
14
new building.
15
A.
Yes, sir, and even the oldest building.
16
Q.
Turning first to the preliminary injunction in this case,
17
when did you first read the preliminary injunction?
18
A.
19
my memory is it was in January of 2012.
20
Q.
How did you get a copy of the preliminary injunction?
21
A.
I believe I was given a copy.
22
Q.
Who gave it to you?
13:39:18
Including in the old building and the
13:39:44
IEN
DS
It was either the very end of December 2011, but I think --
23
A.
I think it was retired Chief Scott Freeman.
24
Q.
And did you read it then in either late December or early
25
January of 2012?
FR
13:39:31
13:40:19
13:40:42
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A.
Yes, sir.
Q.
And what was -- what was your reaction upon reading the
A.
know that I had a reaction.
Q.
practices at the MCSO?
A.
feeling was and is, and I think I paraphrased it a number of
Well, I read it, and I read the judge's order, and I don't
What was your feeling as to how it impacted any of the
Well, I prefer to have the order in front of me, but my
10
times, that the judge's preliminary injunction forbade the
11
arrest, detention, or delay or stoppage of individuals merely
12
based on the belief or suspicion, or reality, that they were
13
here in this country illegally alone.
14
Q.
15
that is if the M -- all that the MCSO knew about any one person
16
is that they were or might be in the U.S. illegally, they could
17
not stop or detain that person?
18
A.
19
it's very close to what you just said.
20
Q.
So the answer is yes to my question?
21
A.
Yes.
22
Q.
And if all that the MCSO knew about a person was that he or
13:41:28
And so your understanding of the preliminary injunction was
13:42:01
IEN
DS
I'd probably like to rely on my paraphrasing, but I think
23
she was here unlawfully, or suspected of being here unlawfully,
24
that person could not be involuntarily transported to a federal
25
agency, is that correct?
FR
13:41:05
13:42:16
13:42:32
MR. POPOLIZIO:
1
2
Honor.
THE COURT:
Objection, asked and answered, Your
Overruled.
THE WITNESS:
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If that was it, presence alone, yes.
BY MR. POCHODA:
Q.
federal agency, ICE or Border Patrol.
A.
Yes.
Q.
They could not.
That person could not be transported by the MCSO to a
I mean I -- my answer is yes, they could not.
And they could not be detained and held for a federal
10
agency to pick up that person if all the MCSO knew was that
12
person was present in the country unlawfully.
13
A.
Correct.
14
Q.
So in the absence of a warrant or probable cause for a
15
state crime, any person picked up who was only suspected of
16
being in the country unlawfully had to be released by MCSO
17
personnel; is that fair to say?
18
A.
Correct
19
Q.
And did there come a time when you expressed your
20
understanding of the preliminary injunction to the folks
21
assembled at a Monday meeting that we've just talked about?
22
A.
DS
11
13:42:55
13:43:15
13:43:29
IEN
Yes, sir.
23
Q.
When was that?
24
A.
It was sometime the second or third Monday in January of
25
2012.
FR
13:42:45
I don't know the exact date, I'm sorry.
13:43:42
1879
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Q.
That would have been one of those meetings that you
described before, these five or six persons and the sheriff?
A.
That's correct.
Q.
And you reported to that group that you had received and
read the preliminary injunction, is that right?
A.
I believe I had it with me.
Q.
You told them you had read it.
A.
I don't remember if I said I read it, but I had the actual
judge's order and the preliminary injunction order in front of
10
me, I believe.
11
Q.
12
assembled, did you?
13
A.
I did not.
14
Q.
But you gave them what you thought was the most important
15
aspects of that order so that they were aware of it; is that
16
fair to say?
17
A.
18
order, and I believe it's -- I don't have it in front of me,
19
but it's four or five sentences, and read those to the
20
individuals at that meeting.
21
Q.
22
what the order required; is that fair to say?
13:44:22
Well, you didn't read the entire 40 pages to the folks
13:44:32
DS
I turned to the judge's words in the preliminary injunction
13:44:53
IEN
And your intention was to be as clear as possible about
23
A.
And to be as close to the judge's actual order, yes.
24
Q.
Did you tell those persons assembled that the MCSO could no
25
longer stop or detain anybody solely on the basis of being in
FR
13:44:00
13:45:10
1880
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the country unlawfully?
A.
I read the judge's order exactly.
Q.
And did it include --
A.
And that's what the judge's order says, in my opinion, and
in my paraphrasing, as I indicated earlier, I believe.
Q.
that meeting?
A.
That's correct.
Q.
You spoke directly to the sheriff, is that correct?
10
A.
I spoke to everyone present.
11
Q.
The sheriff acknowledged hearing your saying that?
12
A.
Yes, sir.
13
Q.
Did anyone have any comments on -- or responses or
14
questions for you?
15
A.
None that I can remember.
16
Q.
No one questioned what the impact of that order might be on
17
their practices?
18
A.
I don't remember anyone asking a question.
19
Q.
One of the persons at the meeting was Chief Sheridan, is
20
that correct?
21
A.
I'm not a hundred percent sure.
22
Q.
You testified that you told Chief Sheridan what the order
IEN
DS
And you repeated -- you said that twice, is that right, at
23
contains in January of 2012, is that correct?
24
A.
Correct.
25
Q.
You're just not sure whether it was at that meeting or
FR
13:45:23
13:45:34
13:45:44
13:45:54
13:46:13
1881
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another time?
A.
I -- well, I -- I never had an individual meeting with Chief
Sheridan about the preliminary injunction order, so it must
have been at that same meeting.
Q.
about the order; is that fair to say?
A.
Yes, sir.
Q.
Before I go further, I'd like to ask, amongst your
It must have been at that meeting, because I don't think
And all the others at that meeting could hear what you said
10
responsibilities at the MCSO, since you have been employed
11
there, is that you've been a spokesperson in dealing with the
12
media and in answering reporters' questions about cases
13
involving the MCSO, is that correct?
14
A.
Excuse me.
15
Q.
Well, you've done it quite regularly; is that fair to say?
16
A.
I don't know what "quite regularly" means, but I imagine
17
so.
18
Q.
19
its version of events at the MCSO out to the public, is that
20
right?
On occasion.
MR. POPOLIZIO:
13:47:38
23
Q.
24
puts an emphasis on getting its version of events about the
25
MCSO activities through media and reporters?
FR
13:47:14
BY MR. POCHODA:
IEN
22
13:46:58
Well, the MCSO has an interest in using the media to get
DS
21
13:46:28
In your experience, Chief, have you found that the MCSO
13:47:50
1882
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A.
Yes.
Q.
And the public information office is -- attends all of
those executive meetings, management meetings, is that right?
A.
Not all, but most.
Q.
Well, they may be out for a day, but they're regular
attendees at the small meeting, is that right?
A.
Yes.
Q.
And who's the director of that office?
A.
Lisa Allen.
10
Q.
So she would be at those meetings?
11
A.
For the most part.
12
Q.
And she regularly consults with the sheriff on matters; is
13
that your experience?
MR. POPOLIZIO:
14
THE COURT:
15
13:48:43
I think she does.
17
BY MR. POCHODA:
18
Q.
19
office to respond to reporters' questions about cases involving
20
the MCSO, is that correct?
21
A.
Correct.
22
Q.
And Lisa Allen then started directing reporters who had
IEN
DS
Well, you had to get the approval of the public information
23
questions about MCSO litigation to you; is that fair to say?
24
A.
Yes.
25
Q.
And that covers a fair amount of litigation matters that
FR
13:48:21
Your Honor, objection on foundation.
Overruled.
THE WITNESS:
16
13:48:10
13:48:58
13:49:09
1883
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the MCSO is involved in, is that right?
A.
Yes.
Q.
And you would answer questions about litigation, whether it
had to do with a patrol function or a custodial function, is
that right?
A.
rarely.
Q.
as many as we did before, if we could take a look at
10
Very rarely on the patrol function.
Sometimes, but very
Let me just show you a few, we're not going to go through
Plaintiffs' Exhibit 30.

MR. POCHODA:
11
13:49:35
This has not been admitted.
MR. POPOLIZIO:
12
13
13:49:19
Your Honor, is there any way I could
get it a little larger on my screen?

Thank you.
14
BY MR. POCHODA:
16
Q.
Do you see that, Chief?
17
A.
I do.
18
Q.
And do you see that's an article dated January 6, 2015,
19
from The Arizona Republic by Daniel Gonzalez?
20
A.
Yes, sir.
21
Q.
And you see the bottom of the first page of that article
22
you're referred to saying that the sheriff was not pleased with
IEN
DS
15
13:50:23
Yes, sir.
13:50:36
23
the judge's ruling in that case, which would be the Puente
24
case, is that right, Chief?
FR
25
MR. POPOLIZIO:
Your Honor, objection, hearsay.
13:51:06
THE COURT:
1
2
3
4
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Sustained.
Well, hold it.
Overruled.
MR. POPOLIZIO:
Then Your Honor, if I could follow up,
he's reading from an exhibit not in evidence.

THE COURT:
He didn't read from it; he characterized
it, though.
BY MR. POCHODA:
Q.
the Puente case, the injunction?
Do you recall speaking to Mr. Gonzalez about the result in
10
A.
I don't.
11
Q.
If I could -- if we could take a look at the deposition
12
from March of 2015.
13:51:40
Do you recall giving a deposition in March of 2015?
13
A.
Yes.
15
Q.
And if you can read silently to yourself starting at page
16
140 on line 7, which involves a quote from you that was --
17
appears in this article, is that right?
18
A.
Yes.
19
Q.
And on page 141, on line 13, I'm reading now from the
20
deposition:
"Question:
23
24
FR
25
13:52:33
13:53:01
But you made the statement that I read.
You made -- you stated those words as part of your --"
IEN
22
DS
14
21
13:51:27
And then your answer is:
"I don't know if they were
exact words, but something to that effect, probably."

Do you see that?
13:53:16
A.
Yes.
Q.
Are you acknowledging that you said something to that
effect to this reporter, Mr. Gonzalez, is that right?
A.
That's my testimony in the deposition, correct.

MR. POCHODA:
5
6
Plaintiffs would move the admission of
MR. POPOLIZIO:
Objection, hearsay; relevance;
foundation; 403.
THE COURT:
MR. POCHODA:
10
It goes to Mr. MacIntyre's job
13:53:51
11
responsibilities that, amongst other things, he testified that
12
he didn't speak very much to the reporters or have
13
responsibilities on patrol cases.
14
will the others that I'll bring up, and it goes to his -THE COURT:
15
16
All right.
This is a patrol case, as
The
18
BY MR. POCHODA:
19
Q.
20
It says at the bottom of page 1, and this concerns -- if you
21
want to take a look, and take your time, take a look at what
22
this article is about.
If we could turn to this article.
It's two pages.
IEN
DS
Okay.
13:54:26
Are you familiar with what the article's about, the
24
Puente litigation that involved identity theft statutes in
25
Arizona that were used by the sheriff and the MCAO?
FR
13:54:08
objection is overruled.
17
23
13:53:38
this article, Plaintiffs' Exhibit 30.
7
8
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13:54:46
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A.
Very vaguely.
Q.
Okay.
"Jack MacIntyre, deputy chief of the Maricopa County Sheriff's
Office, said Arpaio was unhappy with the judge's ruling."
But down at the bottom of the first page it states:
Do you see that?
5
6
A.
Yes.
Q.
And how did you know that?
A.
I would have more than likely consulted with the sheriff;
he would have told me that.
10
Q.
When you were reporting to the media contact something that
11
the sheriff was reacting to, you would check with the sheriff
12
before stating it; is that fair to say?
13
A.
Yes.
14
Q.
And then turn to the second page, the paragraph, the second
15
paragraph from the top that starts "MacIntyre."
17
A.
Yes.
18
Q.
And it says:
19
encourage more illegal immigration."
13:55:32
"MacIntyre also said the judge's ruling will
DS
Do you see that?
A.
Yes, sir.
22
Q.
And what did you base that statement on?
IEN
21
23
A.
As I sit here here now, I don't recall.
24
Q.
But that's your own opinion; is that fair to say?
25
A.
I'm not sure, Mr. Pochoda.
FR
13:55:14
Do you see that?
16
20
13:55:03
13:55:43
13:55:53
Q.
that in order to make this statement to this reporter?
A.
I do not.
Q.
It's possible it was your opinion at the time, is that
correct?
Do you recall speaking to anyone else at the MCSO about
13:56:06
MR. POPOLIZIO:
6
7
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Object, Your Honor, foundation;
speculation.
THE COURT:
You said foundation?
MR. POPOLIZIO:
THE COURT:
10
And relevance.
Overruled.
11
BY MR. POCHODA:
12
Q.
13
right?
14
A.
It's possible.
15
Q.
And you were permitted, in your job as spokesperson to the
16
media, to give your own opinions on some of these matters; is
17
that fair to say?
18
A.
That might have been your opinion at the time, is that
13:56:23
Again, I would think that would be very infrequent.
And just to go back a little bit, I don't think I said
19
that I've never responded on patrol or enforcement matters; I
21
think I just said it was very infrequent.
22
Q.
DS
20
13:56:46
IEN
Do you have any idea how many times you would have
23
responded on patrol matters versus other matters?
24
A.
No.
25
Q.
Would you say that you've responded in the area of hundreds
FR
13:56:18
13:57:00
1888
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of cases, over your years, to the media?
A.
I think hundreds would be high, sir.
Q.
But you're recorded many, many times in the media; is that
fair to say?
A.
Yes.
Q.
Let's turn to Plaintiffs' Exhibit 17, please.
13:57:16
This is not in evidence.
7
8
A.
Which one, sir?
Q.
17.
10
A.
Yes, sir.
11
Q.
And is that you in this picture at this press conference?
12
A.
Yes, sir.
13
Q.
And the other participants are Mr. Masterson,
14
Mr. Popolizio, and Sheriff Arpaio, is that correct?
15
A.
That's correct.
16
Q.
And this case also involved the patrol function of the
17
MCSO, is that right?
18
A.
19
one way or another.
20
Q.
23
13:57:53
13:58:09
I think it involved the entire office in
What was the press conference called for, if you recall?

MR. POPOLIZIO:
Objection, Your Honor, relevance and
THE COURT:
I don't know the answer.
I don't know
24
whether it's relevant till I hear the answer, so I'm going to
25
allow the -- allow the question.
FR
13:58:25
403.
IEN
22
I don't think so.
DS
21
Do you see that article from the New Times?
13:58:42
THE WITNESS:
1889
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BY MR. POCHODA:
Q.
What was the question, again?
What was the press conference called for?

Let me withdraw that.
Was this responding to the
Department of Justice's letter to the MCSO raising a number of
insufficiencies within the MCSO?
A.
I'm not positive.
Q.
Take a look, please.
A.
It makes reference to a report, and I'm not sure what that
10
is.
11
Q.
12
correct?
13
A.
It appears to be so.
14
Q.
And you and the others there were highly critical of this
15
report; is that safe to say?
13:59:19
It's a report from the Department of Justice, is that
MR. POPOLIZIO:
16
THE COURT:
17
MR. POCHODA:
19
13:59:38
MR. POPOLIZIO:
18
And foundation.
It's my understanding, Your Honor, that
some of the defense of this particular contemnor is that he
21
didn't have any responsibilities to take steps because of his
22
limited job responsibilities.
IEN
DS
20
13:59:48
And we want to have at least a
23
minimal attempt to show that his job responsibilities included
24
a number of activities that would clearly require him -- or
25
give him the responsibility to speak to the sheriff about
FR
13:58:54
14:00:10
the --
THE COURT:
1890
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I do think he's already testified that he
did engage in press respon- -- he did engage fairly often as a
spokesperson for the MCSO.
think it gets close to being cumulative, and might be
prejudicial to the extent it discusses another lawsuit that is
not before me.
exhibit.
BY MR. POCHODA:
10
Q.
Okay.
So while this may be relevant, I
I will sustain the objection and not admit the
Let's turn to Exhibit 28, I believe.
14:00:41
Let me check that just to make sure.
11
Do you see that, an article from the New Times?
12
13
December 2nd of 2014, Chief?
14
A.
15
between the two.
16
Q.
Okay.
17
A.
Yes, sir.
18
Q.
And that's a picture of you on the second page?
19
A.
It is.
20
Q.
And this article concerns the Ortega Melendres litigation?
21
A.
It does.
22
some years, I believe.
I think it says a blog, but I'm not sure of the difference
DS
IEN
14:01:38
It's two pages.
14:01:45
The picture predates the Melendres litigation by
23
Q.
24
Ortega Melendres case started?
25
A.
FR
14:00:25
You were a younger man in this picture than since the
Chronologically, I'd have to be, and the picture's not
14:02:02
terribly flattering but I'm stuck with it.
Q.
why the lawyers in the Ortega Melendres case submitted a
particular submission; is that fair to say?
And you were reporting to the press, you were explaining
MR. POPOLIZIO:
5
6
Honor.
THE COURT:
10
Objection, relevance; and 403, Your
Could you ask me that one again, please?
BY MR. POCHODA:
Q.
Take a look at the first sentence on the first page.

You see that?
11
A.
Yes.
13
Q.
-- a request from Sheriff Arpaio in the Ortega Melendres
14
case by his lawyers to clarify something about court-appointed
15
lawyers.
16
A.
Yes.
You see that?
THE COURT:
he is.
21
BY MR. POCHODA:
22
Q.
He is summarizing.
A.
14:03:05
IEN
FR
25
He's really not reading; it may sound like
DS
20
24
Your Honor, he's reading from a
document not in evidence.
19
23
14:02:56
MR. POPOLIZIO:
17
14:02:38
It talks about --
12
18
14:02:27
I'll allow a little leeway.
THE WITNESS:
8
9
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Yes.
MR. POCHODA:
The plaintiffs would ask that this be
admitted into evidence, Your Honor.
14:03:23
MR. POPOLIZIO:
1
2
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Objection, hearsay, relevance, and
403, Your Honor.
MR. POCHODA:
Your Honor, it's my understanding that
the defendants' position is that because of the alleged
noninvolvement of Mr. MacIntyre in the Ortega Melendres case,
that he had no responsibilities to pass on -THE COURT:
7
8
gave?
Is this the same response that you just
MR. POCHODA:
THE COURT:
10
Hmm?
I mean, I have -- tell me if I misheard,
11
because I might have misheard, but I heard the witness testify
12
that he does have press responsibilities fairly regularly from
13
the Maricopa County Sheriff's Office.
14
Did I mishear that?

Did I mishear that?
15
16
17
THE WITNESS:
No, Your Honor.
MR. POCHODA:
No.
litigation, Your Honor.
19
information about Ortega Melendres.
23
14:04:10
And that is central to, I believe,
the --
THE COURT:
Do you want to ask the witness if he has
24
some obligation -- or if he has some press obligations with
25
respect to Ortega Melendres?
FR
14:04:01
This is talking about his gathering
All right.
MR. POCHODA:
IEN
22
DS
21
THE COURT:
14:03:44
This is more specific to this
18
20
14:03:36
14:04:21
MR. POCHODA:
Well, we're using this particular
exhibit to show that he did.
THE COURT:
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It's the last one.
All right.
It's not being asserted for
truth of the matter?
MR. POCHODA:
THE COURT:
No.
14:04:31
I'll admit it.
7
8
BY MR. POCHODA:
Q.
Did you speak to the attorneys representing the defendants
10
in the Ortega Melendres case about this particular court
11
submission before you spoke to the reporter?

MR. POPOLIZIO:
12
THE COURT:
13
14:04:54
Objection, privilege.
Well, answer me this.
There is a statute
14
that says that no member of the Sheriff's Office can act as a
15
lawyer.
16
looked it up over noon because of Mr. Casey's testimony.
14:05:12
Are you asserting that Mr. MacIntyre does act as a
17
18
If you want me to find it, I'll try to find it.
lawyer with respect to Maricopa County?

MR. POPOLIZIO:
19
I thought, Your Honor, as I'm getting
whispers here, but I was -- I was under the impression that the
21
question asked was whether --
22
THE COURT:
IEN
DS
20
Oh.
23
MR. POPOLIZIO:
24
THE COURT:
FR
25
14:05:34
Ah.
adjusts my -- thank you.
-- Mr. MacIntyre spoke with attorneys.

Thank you for that perspective.
That
14:05:47
1894
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MR. POCHODA:
And just to clarify a point you made,
Your Honor.
BY MR. POCHODA:
Q.
MCSO or the sheriff in any court-related matters, are you?
A.
That's correct.
Q.
How did you get the information that you provided to the
reporter in this article?
A.
Chief, you do not -- are not permitted to represent the
I don't remember speaking to Mr. Stern.

THE COURT:
10
Mister who?
THE WITNESS:
11
12
14:06:12
Mr. Stern.
Mr. Stern is the reporter,
Your Honor.
THE COURT:
13
Oh, okay.
Thanks.
14
BY MR. POCHODA:
15
Q.
16
what you told the reporter?
17
A.
I don't remember ever speaking to Mr. Stern about this.
18
Q.
No, I understand.
19
that you spoke to over the course of your career at the MCSO,
20
do you?
21
A.
22
this.
You don't think that this is an accurate representation of
14:06:27
You don't recall all of the reporters
DS
14:06:40
IEN
I know Mr. Stern, and I don't think I spoke to him about
23
Q.
24
information about what you felt about these submissions?
25
you know?
FR
14:05:56
So do you think -- how do you think Mr. Stern got this

Or do
14:06:51
MR. POPOLIZIO:
THE COURT:
2
3
Well, he said "do you know," so I'm going
to allow the question.

THE WITNESS:
I don't know.
BY MR. POCHODA:
Q.
third paragraph from the top, quote:
fairly scathing statements in court, he says," referring to
yourself.
14:06:59
On the second page of this article, it quotes you in the
And it goes on:
MR. POPOLIZIO:
10
11
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"The judge made some
Liddy --
He was reading
from a document not in evidence.

THE COURT:
12
It's in evidence.
MR. POCHODA:
13
It is in evidence.
MR. POPOLIZIO:
14
MR. POCHODA:
15
Oh, I'm sorry.
"Liddy and Iafrate's motion is an
16
attempt to find clarification in the judge's order.
17
going to represent your client even slightly avidly, you've got
18
to know what you're facing," unquote.
A.
Yes.
21
Q.
Is it possible that those were your words?
DS
20
24
FR
25
If you're
14:07:33
MR. POPOLIZIO:
IEN
23
14:07:22
Do you see that?
19
22
14:07:14
Objection, Your Honor, foundation as
to possible.
THE COURT:
BY MR. POCHODA:
Overruled.
14:07:41
1896
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Q.
Were those your words?
A.
It's possible.
Q.
And how did you get the information that provided the basis
for that statement?
A.
I don't recall.
Q.
Do you have any idea as we sit here today?
A.
I may have talked to Mr. Liddy.
Q.
And generally, if you are acting as the spokesperson on a
case involving the MCSO, will you consult with the defense
14:07:48
10
counsel on that case?
11
A.
12
again.
13
Q.
14
MCSO in litigation involving the MCSO, is that right?
15
A.
Sometimes, yes.
16
Q.
And when you were that spokesperson, did you often speak --
17
did speak with the counsel involved in representing the MCSO on
18
that case?
19
A.
Sometimes.
20
Q.
And would you speak to the sheriff and others who were
21
defendants in a case in order to provide information to
22
reporters on occasions?
I'm sorry, Mr. Pochoda.
14:08:04
I need to have you ask me that one
I need to think about it.
IEN
DS
Well, we talked how that you were the spokesperson for the
A.
It would depend on the case.
24
Q.
You did it sometimes.
25
A.
Sometimes.
FR
23
14:08:25
14:08:33
14:08:47
1897
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Q.
Now, have there been any occasions when you have acted as
the client contact between the defense counsel in a case and
the clients at MCSO on a case?
A.
to that extent, no.
Q.
defending the MCSO or the sheriff and yourself would understand
that you were the client contact on that case?
A.
I don't think so.
10
Q.
And have there been any times when you've been the MCSO
11
representative on a case with the outside counsel?
12
A.
13
trial or something?
14
at, sir.
15
Q.
16
been the MCSO representative on any cases that you can recall?
17
A.
18
been -- I guess my confusion is that somebody can be designated
19
to sit with counsel during the pendency of the trial, for
20
instance, of a trial, and I don't believe I've ever done that.
21
Q.
22
anyone during the pendency of a trial.
I've never received any designation of any kind officially
14:09:16
But have there been occasions when the lead attorney
Do you mean the office representative for attendance at
I'm not sure what the question's aiming
To assist the counsel defending the MCSO.
Would you have
DS
Not the -- not the official representative.
IEN
That's one role you haven't done.
Yeah.
14:09:44
I've never
14:10:08
You didn't sit with
23
A.
24
to designate an individual, and I don't think that I've ever
25
been designated that.
FR
14:09:26
I mean, there's the ability for a municipal entity
14:10:24
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Q.
Even besides the official designation, have you ever worked
out an arrangement with defense counsel for the MCSO where you
would be the contact person for that defense counsel to assist
in defending the MCSO?
A.
I don't think I've ever been the formal contact, no, sir.
Q.
If we could turn now to Exhibit 32, please.
A.
Yes.
Q.
Do you recognize this as a pleading in the Ortega Melendres
case?
10
A.
Yes.
11
Q.
And this was a response that was prepared by Tim Casey in
12
2009 to a sanctions motion, is that right?
13
A.
That's correct.
14
Q.
And that covers the first 19 pages of this exhibit, is that
15
right?
16
A.
Yes.
17
Q.
And then there is some attachments that were included in
18
this response, is that right?
19
A.
Some what, sir?
20
Q.
Attachments.
21
A.
Yes.
23
14:11:06
DS
14:11:16
MR. POCHODA:
IEN
22
14:11:32
We move that this be admitted into
evidence, Your Honor.
24
MR. POPOLIZIO:
25
MR. WALKER:
FR
14:10:35
No objection.
14:11:41
MR. COMO:
THE COURT:
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No objection.
3
4
BY MR. POCHODA:
Q.
to Mr. Casey's response, you see Exhibit No. 1 is a letter from
D. Bodney to T. Casey re document preservation request.
If we could turn to the attachments, the exhibits attached
Do you see that, Chief MacIntyre?
8
9
A.
Exhibit 1 is a July 21st, 2008 letter?
10
Q.
Yes.
11
A.
Excuse me.
14:12:16
THE COURT:
12
Could that be August, Chief?
THE WITNESS:
13
THE COURT:
14
THE COURT:
16
Exhibit 1.
I think.
Yes.
BY MR. POCHODA:
19
Q.
And have you seen that before?
20
A.
Yes.
21
Q.
And that's a letter from the then-counsel for the
22
plaintiffs in Ortega Melendres to preserve documents because of
IEN
DS
18
23
the trial in this -- the litigation in this Ortega Melendres
24
matter, is that right?
25
A.
Yes.
14:12:28
Okay.
THE WITNESS:
17
No, it says July 21, 2008, Your Honor.
Okay.
THE WITNESS:
15
FR
14:11:52
14:12:34
14:12:51
MR. POPOLIZIO:
1
2
Your Honor, to clarify, this isn't in
evidence -- it is, but it is 8-21.

THE WITNESS:
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It is August, not July.
Your Honor, I think the confusion is the
list of exhibits shows it as 8-21-08, but I'm looking at the
actual Exhibit 1 itself and it's dated July 21, 2008.

THE COURT:
6
7
clarification.
BY MR. POCHODA:
Q.
That will be fine.
Thank you for that
And if we turn to the next Exhibit 2 attachment to this
pleading, do you see that?
It's an e-mail from Tim Casey?
11
A.
Yes.
12
Q.
When did you first see that e-mail?
13
A.
My first memory was sometime in 2009.
14
Q.
The e-mail is dated July 21st, 2008, correct?
15
A.
Correct.
16
Q.
You did not see it on July 21st of 2008?
17
A.
My memory is that the first time I saw it was sometime in
18
2009 during the prep -- the preparation of the various
19
documents and pleadings in response to the motion for
20
sanctions.
21
Q.
Well, this e-mail is directed to yourself, is that right?
22
A.
Yes.
IEN
DS
10
23
Q.
And you generally check your e-mails, is that correct?
24
A.
Yes.
25
Q.
Is there any reason why you would not have received this
FR
14:13:19
14:13:36
14:13:59
14:14:21
14:14:30
e-mail on the date stated on the e-mail, July 21, 2008?
A.
I don't know.
Q.
Any you don't know of any reason why you would not have
received it.
A.
That's correct.
Q.
But you don't recall reading it in July of 2008.
A.
That's correct.
2008.
Q.
10
14:14:43
I do not recall reading it in July of
It's possible you did, but you don't know one way or the
other; is that fair to say?

MR. POPOLIZIO:
11
12
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to possible.
Objection, Your Honor, foundation as
Speculation.
THE COURT:
13
14:14:57
I'll allow it.
14
BY MR. POCHODA:
15
Q.
Is it possible you read it in 2008 and didn't recall?
16
A.
Yes.
17
Q.
And it says the importance of this is high, is that right?

On the top of the e-mail?
18
A.
Yes, that's what it says.
20
Q.
And Mr. Casey at that point was the lead counsel in the
21
Ortega Melendres case, is that right?
22
certain steps, is that right?
IEN
DS
19
14:15:25
He asked you to take
23
A.
Mr. Casey was the lead counsel in Melendres, correct.
24
Q.
And he asked you in the second paragraph under the e-mail
25
to "make certain that the appropriate person at the MCSO knows
FR
14:15:08
14:15:45
1902
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to keep and preserve the attached list of categories of
information."
A.
Yes.
Q.
So he knew that you were that person; is that fair to say?
A.
I don't know --
Do you see that?
14:15:59
MR. POPOLIZIO:
BY MR. POCHODA:
Q.
What did he ask you to do?
A.
"Please make certain that the appropriate person gets the
10
attached listing of categories of information."
11
Q.
Correct.
12
A.
I don't know.
13
Q.
What did you take this to mean when you read it?
14
A.
To try and find out who the appropriate person was.
15
Q.
Correct.
16
that right?
17
A.
I don't know.
18
Q.
Do you recall -- let's turn to the next exhibit, which is
19
an affidavit from yourself that's attached to this submission.
And who was that appropriate person, if you know?

In July of 2008, I don't know.
And in fact, that didn't occur at the time, is
Do you see that, Exhibit 3?
DS
20
A.
I do, yes.
22
Q.
Without going into the details now, you acknowledge that
IEN
21
23
you forgot to pass this on.
24
you included in your affidavit?
25
A.
FR
14:16:14
I think it says:
14:16:35
14:16:57
Is that a fair assessment of what
"I do not recall how I handled Exhibit A
14:17:09
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after receiving the same.
I have searched my paper and
electronic files in an effort to refresh my memory and to learn
whether there is other information showing how I handled
Exhibit A within the MCSO back in July of 2008.
located a document that is helpful on this subject."
I have not
My affidavit is in December of 2009 --
6
7
Q.
Right.
A.
-- and that's -- that is when I remember reading the July
21st, 2008 letter and the e-mail.
By then, it would have been
almost 18 months since the date of the letter and the date of
11
the e-mail.
12
Q.
Correct.
13
A.
And --
14
Q.
You read this affidavit before you signed it, is that
15
right?
16
A.
Yes, sir.
17
Q.
And if we turn to paragraph 8 in this affidavit, it states:
18
"Based on the foregoing, it appears likely that I did not
19
forward Exhibit A to the MCSO legal liaison division or other
20
MCSO personnel pursuant to my standard practice.
21
uncertain how this happened, but believe that I must have
22
simply, albeit regrettably, forgot to forward Exhibit A to
IEN
DS
10
14:18:02
14:18:10
I am
23
others at the MCSO in the press of attending to other matters,
24
including my law enforcement duties and professional
25
activities."
FR
14:17:34
14:18:26
14:18:43
1904
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Do you see that?
1
2
A.
Yes.
Q.
And that was accurate when you wrote it?
A.
Especially I would like to remind you that that includes
the phrase "based on the foregoing," which would include the
foregoing paragraphs.
Q.
forward the request from Mr. Bodney and from Mr. Casey.
A.
No, I understand.
But you acknowledge that you did not
I'm not wanting to argue with you, Mr. Pochoda, but I would
10
include the paragraphs that immediately precede it.
11
why I say "based on the foregoing."
12
Q.
13
response.
14
under heading 5A, "Receipt of the hold letter."
And that's
On page 7 of the response itself from Mr. Casey,
Do you see that?
14:19:38
16
A.
Yes.
17
Q.
And the second sentence in that paragraph from Mr. Casey
18
reads:
19
received the hold letter.
"Less than a week later, July 21, 2008, defense counsel
DS
And it continues:
See Exhibit 1."
"On the same date at 5:33 p.m.
defense counsel provided the hold letter to his MCSO client
22
contact for this litigation, Chief John MacIntyre."
IEN
21
23
14:19:52
Do you see that?
24
A.
Yes, sir.
25
Q.
So at this point in time, Tim Casey considered you his
FR
14:19:07
And let me just turn briefly to one other statement in this
15
20
14:18:51
14:20:08
1905
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client contact for the Ortega Melendres litigation, is that
right?
A.
Based on that sentence, yes.
Q.
Now, following this involvement in the sanctions issues in
2009, I believe you reported that you were not much, if at all,
involved in the Ortega Melendres litigation; is that fair to
say?
A.
Yes.
Q.
That you were not involved in attending the trial or any
10
court proceedings until 2014, is that right?
11
A.
That's correct.
12
Q.
And that was after the trial was over and all the findings
13
of fact and conclusions of law were rendered; is that what you
14
recall saying?
That you were not much involved in Ortega Melendres
15
16
until after the trial was over and all the findings of fact and
17
conclusions of the law were rendered, correct?
18
A.
I don't remember my exact testimony or question.
19
Q.
Okay.
20
you gave in April of 2015.
21
A.
I believe you mean March of 2015.
22
Q.
I'm sorry, March of 2015.
DS
IEN
14:20:45
14:21:00
Let's the turn, if we could, to the deposition that
23
A.
Okay.
24
Q.
Page 170.
25
these questions and answers:
FR
14:20:28
14:21:21
And starting on the top of 170, if you recall

14:21:52
"Question:
1
2
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Let me ask, you attended some of the court
hearings in the Ortega Melendres case, is that right?

"Answer:
Not until very late after the trial was
completely over and all of the findings of fact and conclusions
of law had already been rendered."

Was that your testimony?
14:22:06
Do you see that?
A.
Yes.
Q.
And that was what you believed to be true at the time?
A.
Yes.
10
Q.
Then it continues at the bottom of page 170, on line 22 --
11
well, the question is up higher, but you indicate that you, at
12
line 22, that you had never been -- you were never in the
13
trial, is that right?
14
A.
Correct.
15
Q.
And then the question says:
"I know."
And then the answer goes, continues yourself:
16
14:22:46
"Or any
17
of the hearings, and I don't think I attended anything until
18
November or December of 2014."

You see that?
19
A.
Yes.
21
Q.
And that's what you believed to be true at that time?
22
A.
Yes.
IEN
DS
20
23
Q.
FR
A.
14:22:59
If we could turn to Exhibit 33, please.
24
25
14:22:20
I do.
Do you have that in front of you?

14:23:28
1907
OF
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Q.
And that's a transcript of the proceedings before the
Honorable G. Murray Snow.
of 2011, is that right?
A.
Yes.
Q.
And that was a hearing that involved summary judgment
motions made by the parties, as well as a class certification
request and the possible preliminary injunction, is that right?
A.
I'm looking at it right --
Q.
Take your time.
10
A.
I believe so.
11
Q.
And if we could turn to the first page of that --
13
On December 22nd
I would first move this into -- for
admission, Your Honor.
MR. POPOLIZIO:
14
THE COURT:
15
Relevance and foundation, Your Honor.
Well, and I may well grant the objection
16
as it pertains to this exhibit, but is there any way -- any
17
reason I can't take judicial notice of the actual transcript
18
for whatever it is Mr. Pochoda wants to show me?

MR. POPOLIZIO:
19
21
23
No.
14:24:50
if you want to see to it.

MR. POCHODA:
Yeah.
Well, I will ask a few questions
24
from the actual transcript before you have that opportunity,
25
Judge, if I may.
FR
14:24:31
But Mr. Pochoda, I will look at the actual transcript,
IEN
22
THE COURT:
DS
20
14:23:40
14:24:15
MR. POCHODA:
12
Do you see that?
14:25:01
1908
OF
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BY MR. POCHODA:
Q.
If we could turn to page 2 of this transcript.
A.
Yes, sir.
Q.
Do you see that up on top it lists -- starts listing those
who were in attendance at this hearing.
14:25:15
Do you see that?
6
7
A.
Yes.
Q.
And then towards the bottom it says "For the defendants."

Do you see that?
9
10
A.
Yes.
11
Q.
And it lists Timothy Casey and James L. Williams as
12
counsel.
13
A.
Yes.
14
Q.
And then on the next page 3 it lists Thomas Liddy as a
15
counsel, correct?
16
A.
Yes.
17
Q.
And then it lists for defendants Arpaio and MCSO L. Eric
18
Dowell for defendants.
19
A.
Yes.
20
Q.
And it then says:
21
MacIntyre."
22
A.
14:25:21
DS
Do you see that?
14:25:30
Do you see that?
"Also present:
MCSO Chief Jack
Do you see that?
IEN
Yes.
23
Q.
24
this transcript of the -- line 15 it says -- Mr. Casey is
25
talking:
FR
14:25:40
And then if we continue down the next pages, on page 4 of
"Good morning, Your Honor.
Tim Casey representing
14:26:02
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defendants.
With me is co-counsel Tom Liddy from the Maricopa
County Attorney's Office.
James Williams.
a representative of the defendants, Chief Jack MacIntyre for
the MCSO."
Also from my office is my colleague,
I will be doing the speaking today.
And also
14:26:18
Do you see that?
6
7
A.
Yes.
Q.
So for this hearing you were the representative of the
MCSO.
10
A.
That's Mr. Casey's statement.
11
officially for any reason.
12
Q.
13
hearing for the MCSO?
14
A.
No, I do not.
15
Q.
If a question involving an MCSO operation came up during
16
the hearing, Tim Casey could consult with you for information
17
about the MCSO operation, is that right?
18
A.
No.
19
Q.
If we could look at your deposition taken in March of 2015,
20
page 176.
21
A.
Excuse me, what -- what page?
22
Q.
The March deposition, page 176.

Yes.
24
Q.
Page 176, line 8.

"Question:
14:26:37
14:27:08
DS
IEN
A.
FR
14:26:25
You don't recall speaking to Mr. Casey about attending this
23
25
I don't believe I was there
And if in fact there was a question that
14:27:24
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came up involving MCSO operations during the hearing, could
Mr. Casey consult with you for information about that question?
"Answer:
He could have."
Do you see that?
4
5
A.
Yes.
Q.
And that was accurate at the time?
A.
He could have, but I would not know anything about street
operations.
Q.
14:27:38
You didn't know what he was going to be asking you about,
10
but he could have, in answer to my prior question, he could
11
have consulted you to see if you had the information about the
12
MCSO operation.
MR. POPOLIZIO:
13
THE COURT:
14
15
Overruled.
This is impeachment based on a
deposition transcript.
THE WITNESS:
16
14:28:01
If he had questioned me about street
17
operations, I couldn't have answered anything.
18
anything about them.
19
BY MR. POCHODA:
20
Q.
21
know anything about, but if you knew something about it you
22
would provide the answer about the MCSO for Mr. Casey, is that
DS
IEN
right?
24
Mr. Casey.
25
A.
FR
I don't know
There may have been things he brought up that you wouldn't
23
14:27:48
14:28:08
If you knew the answer, you would have provided it to
To the best of my ability, yes.
14:28:24
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Q.
And this is December 22nd of 2011, is that correct?
A.
Yes.
Q.
And you began your vacation on December 21st in 2011, is
that correct?
A.
I think it was on the 22nd.
Q.
So you spent at least the first day of your vacation at
this hearing, is that right?
A.
think I already said that.
I don't think I was there for the whole hearing, sir.
14:28:46
10
Q.
Well, you don't recall being at this hearing at all, right?
11
A.
I didn't when I was -- when I was first deposed, and I
12
still don't today, yes.
13
Q.
14
in Ortega Melendres was in 2014.
15
A.
Correct.
16
Q.
And as it turns out, you were at this very important
17
hearing in 2011, is that right?
18
A.
I was at this hearing, yes.
19
Q.
Now, if we could take a look --
20
A.
I don't know if I was there for the entire hearing, but I
21
was there for some part -- for the beginning, for sure.
22
Q.
Because you testified that the first hearing you attended
24
FR
25
14:29:10
DS
Right.
IEN
23
14:28:56
14:29:20
But you could have been there for the entire
hearing; you don't recall one way or the other, is that right?
MR. POPOLIZIO:
BY MR. POCHODA:
Objection, asked and answered.

14:29:36
Q.
You don't recall being at that hearing at all.
A.
Correct.
THE COURT:
I didn't get your --
MR. POPOLIZIO:
MR. POCHODA:
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It was asked and answered, Your Honor.
If we could take a look at Plaintiffs'
2533.
into evidence.
BY MR. POCHODA:
Q.
Do you see those?
10
A.
I do.
11
Q.
It's a little unwieldy.
12
A.
What was that number, again, sir?
13
Q.
210538.
14
A.
And the date, December the 21st?
15
Q.
Yes.
16
billings, Chief?
17
A.
Yes.
18
Q.
And those were billings related to his work on the
19
20
A.
I believe so.
21
Q.
And on the December 21 date of 2011, about seven lines down
22
under TJC --
These are Casey billing records that have been admitted
14:30:12
The page number is MELC210538.
It's a December 21st of 2011 entry.
You were here when Mr. Casey testified about his
That would be Tim Casey, is that right?
24
A.
I believe so.
25
Q.
He conferred with J. MacIntyre.
FR
14:30:35
14:30:55
DS
IEN
23
14:29:46
Do you see that?
14:31:09
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A.
At one-tenth of an hour, yes.
Q.
Right.
before this hearing that we've just been discussing, is that
correct?
A.
That would be the day before, correct.
Q.
And do you recall if he made sure that you would be present
at the next day hearing?
A.
I don't remember ever talking to Tim Casey that day.
Q.
You don't remember one way or the other.
10
A.
No, but for one-tenth of an hour, I don't think I did.
11
Q.
You don't think you did.
12
Mr. Casey when he said he billed for one-tenth of an hour
13
speaking with you?
14
A.
15
message, but I -- one-tenth of an hour's a very short period of
16
time.
17
Q.
18
You think he --
19
A.
That's what it says.
20
Q.
-- billed even though he might not have conferred with you?
21
A.
I would never say that about Mr. Casey, no.
22
Q.
If we turn back, then, to 12-15-2011.
And do you recall if that -- that was the day
No, sir.
He could have called my office phone and left a
14:31:54
But he said he conferred with J. MacIntyre.
DS
I understand.
IEN
14:31:37
You think that's an error by
23
A.
Yes, sir.
24
Q.
And you see under TJC, the second entry from the bottom?
25
A.
Yes.
FR
14:31:25
14:32:03
14:32:23
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Q.
Tim Casey says "Confer with J. MacIntyre"?
A.
Yes.
Q.
Do you recall what that meeting was about?
A.
No.
Q.
Do you doubt that it took place?
A.
I do not doubt that it took place.
Q.
And then if we look up a little further on that page on
December 6th of 2011, do you see that?
A.
I do.
10
Q.
And it says under TJC:
11
Arpaio, Chiefs Sheridan, Sands, and MacIntyre, and HSU
12
Sergeant Palmer."
13
A.
Yes.
14
Q.
And what was that meeting about?
15
A.
I don't know.
16
Q.
You don't recall what was discussed at that meeting?
17
A.
I do not.
18
Q.
These were all entries that were in December of 2011, is
19
that correct?
20
A.
14:32:56
14:33:09
THE WITNESS:
The December 6th meeting says:
"Tim
23
Casey prepared for a meeting with Sheriff Arpaio,
24
Chief Sands -- Chiefs Sheridan, Sands, and MacIntyre and HSU
25
Sergeant
FR
14:32:43
Do you see that?
MR. POPOLIZIO:
IEN
22
"Prepare for meeting with Sheriff
The December --
DS
21
14:32:30
14:33:20
B. Palmer."
Sergeant Palmer.
I don't remember ever going to a meeting with
Now, down further it also says:
1915
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"Handle media inquiry
from KPNX 12 and contact Chief J. MacIntyre."
BY MR. POCHODA:
Q.
is that right?
A.
Yes.
Q.
And as we've talked about before, you would have been the
14:33:43
It's a separate entry that had to do with a media request,
10
person assigned to respond to the media, is that right?
11
A.
Not always.
12
Q.
But you were here.
13
A.
I don't know.
14
responding to the KPNX -- KPNX Channel 12 inquiry, or if
15
someone else is.
16
Q.
But that entry has nothing to do with the meeting above.
17
A.
I don't know.
18
Q.
You don't know.
I don't know if it means that Tim Casey is
14:34:09
You can't get a sense.
There's redactions after the meeting.
19
You don't know
if that happened on the same day as the meeting; is that what
21
you're telling us?
22
A.
DS
20
IEN
I don't know.
14:34:22
I mean, they're dated the same day.
23
Q.
24
there was a preparation for a meeting on the 6th, is that
25
correct?
FR
I understand.
14:33:51
There was a media request on the 6th and
14:34:35
MR. POPOLIZIO:
THE COURT:
1916
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Sustained.
BY MR. POCHODA:
Q.
contacts with Mr. Casey concerning Ortega Melendres in December
of 2011, is that right?
A.
Apparently, yes.
Q.
And you attended the hearing on December 22nd concerning
the preliminary injunction and other matters, is that right?
In any event, it appears that you had at least three
10
A.
At least part of it.
11
Q.
Is the answer yes?
12
A.
I did attend the beginning of it; I don't know how long I
13
was there.
14
Q.
15
meeting.
16
A.
14:35:18
I do not know.
MR. POCHODA:
If we could look at Plaintiffs' 187.
That has been admitted.
May we publish, Your Honor?
19
THE COURT:
DS
20
21
BY MR. POCHODA:
22
Q.
Yes.
14:36:03
IEN
And do you see this exhibit?
23
to yourself and others.
24
A.
25
That's why I turned around.
FR
14:35:07
You don't know if you were there for 30 minutes or the full
17
18
14:34:49
Excuse me.
I'm sorry.
It's an e-mail from Tim Casey
I'm just having indigestion.

14:36:13
Okay.
1917
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I do see it.
Q.
And this was sent from Tim Casey to Brian Sands, John
MacIntyre, Jerry Sheridan, and Joseph Sousa, is that right?
A.
Yes.
Q.
And Mr. Casey indicates that in follow-up to his recent
telephone call, attached is the Court's order on the dueling
summary judgment motions and class certification motions.

Do you see that?
8
9
A.
Yes.
10
Q.
That would have been the same order that involved the
11
preliminary injunction, is that right?
12
A.
The same what?
13
Q.
Order that involved the preliminary injunction in this
14
matter.
15
A.
That's correct.
16
Q.
And he says, Mr. Casey, "In follow-up to my recent
17
telephone call."
18
Mr. Casey about the court order?
19
A.
I do not.
20
Q.
Do you recall getting this e-mail from Mr. Casey on
21
December 23rd at 5:22 p.m. in 2011?
22
A.
14:36:42
14:36:48
DS
Do you recall that telephone call from
14:37:01
IEN
I do not remember getting this e-mail in December of 2011.
23
Q.
24
wouldn't have received it on your incoming e-mail?
25
A.
FR
14:36:28
Again, is there any reason you can think of why you
It may have been on my incoming e-mail.
I wasn't in my
14:37:22
1918
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office.
Q.
right?
A.
could, because I -- my phone was one -- my phone at that time
was one of the ancient flip phones, and you could not check
your e-mail with it.
You can check your e-mail from outside your office, is that
I don't think in December of 2 -- I don't think in 2011 I
MR. POCHODA:
Okay.
exhibit, Plaintiffs' 2534.
10
could please publish this.

THE COURT:
11
THE COURT:
13
14
BY MR. POCHODA:
15
Q.
If we could move on to the next
This has also been admitted.
14:37:59
2534.
You may do so.
This is an e-mail from Tim Casey.
17
A.
I'm not there yet.
18
Q.
Take your time.
19
A.
I'm trying to keep these in order for the clerk.
DS
Yes.
Q.
22
bottom up to the top.
FR
It's a chain that goes from the
It's first an e-mail from James Williams
to Tim Casey about the preliminary injunction order.
24
25
14:38:20
Let me start down below.
IEN
21
23
14:38:11
16
20
If we
What exhibit is it?
MR. POCHODA:
12
14:37:32
A.
Do you see that?
From James Williams to Tim Casey.
14:38:46
1919
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Q.
Yes.
A.
Yes.
Q.
And then there's Tim Casey's response to James Williams,
which is the top e-mail, is that right?
A.
Yes.
Q.
And in responding -- do you know who James Williams is, by
the way, Chief?
A.
Yes, sir.
Q.
Who is he?
10
A.
James Williams was an associate with Tim Casey, but I think
11
he referred to him today as his partner.
12
Q.
13
litigation?
14
A.
Yes.
15
Q.
And this e-mail reads from Tim to James Williams:
14:39:05
And he also was an attorney on the Ortega Melendres
"Thanks, James.
16
I agree.
devastating and it was not. Frankly, I am relatively pleased.
18
So are Chiefs Sands and MacIntyre.
19
he feels."
20
try the case on all issues.
23
FR
And it goes on to talk about he's glad to get to
DS
A.
14:39:55
I -- I do.
Q.
-- that he spoke to you about that preliminary injunction?
24
25
Arpaio is conflicted on how
Do you see that he indicates --
IEN
22
14:39:30
It could have been
17
21
14:39:15
A.
Yes.
Do you see that?

14:40:03
1920
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Q.
And did you report to him your reactions to the preliminary
injunction?
A.
I don't remember.
Q.
You don't remember what you said to Mr. Casey at this date?
A.
That's correct.
Q.
But you may well have spoken to him on this date.
A.
That's possible.
Q.
Let me take a look at Plaintiffs' 2541, please.
A.
Yes.
10
Q.
This is an e-mail from Tim Casey on January 30th, 2012,
11
correct?
12
A.
Yes.
13
Q.
And it's directed to yourself, Jerry Sheridan, Brian Sands,
14
and Joseph Sousa, is that right?
15
A.
Yes.
16
Q.
And if you could take a look at that and see whether it has
17
to do with a potential overture about settlement in the
18
19
A.
Yes.
20
Q.
And do you recall getting this e-mail on this date, January
21
30th, 2012?
22
A.
DS
14:40:56
14:41:18
14:41:45
IEN
I don't.
23
Q.
24
date?
25
A.
FR
14:40:14
Is it possible that you got this and read this on that
It's possible.
14:41:58
1921
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Q.
And did you have any reaction, if you can recall, to being
included in an e-mail that has to do with settlement,
confidential matters such as that in a case?
A.
I don't think I did react.
Q.
saying?
A.
to it, in that I don't believe I responded to it.
Did I have any reaction?
I don't think I responded to it.
14:42:17
You're not sure if you got this or not; is that what you're
That's what I already said.
10
Q.
11
admitted.
12
of 2012.
13
A.
I also don't think I reacted
If we could the turn to Plaintiffs' 2249, which is also
This is an e-mail from Tim Casey dated January 4th
Do you see that?
I'm just catching up to you, sir.
It is an -- yes, an e-mail dated January 4th, 2012.
14
Q.
And the e-mail is directed to Tom Liddy, John MacIntyre,
16
and Brian Sands, correct?
17
A.
Yes.
18
Q.
And it's informing the folks listed about matters
19
concerning appeal of the preliminary injunction order, is that
20
right?
21
A.
22
Q.
Excuse me?
IEN
DS
15
23
A.
24
Q.
Well, it's also whether you -- whether -- strategy decision
25
about whether the defendant should seek a stay, is that
FR
14:42:34
14:43:11
14:43:24
14:43:36
1922
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correct, while the appeal is pending?
A.
Correct.
Q.
And do you recall getting this e-mail?
A.
As I sit here today, no.
Q.
But it didn't -- it doesn't surprise you that you were
getting these regular e-mails about strategy matters involving
the Ortega Melendres litigation?
A.
Was I surprised?
Q.
Yes.
10
A.
No.
11
no, I'm not surprised.
12
Q.
13
Casey, is that right?
I was getting regular e-mails from many sources, but
Did you get e-mails about Ortega Melendres from anyone
15
else involved in the defense of the MCSO other than Tim Casey?
16
A.
I don't remember.
17
Q.
Okay.
18
is admitted.
19
A.
28 which?
20
Q.
Oh, I'm sorry.
Now, if we turn to Plaintiffs' 2866.
DS
turning.
I get the wrong one.
I apologize.
14:45:01
I apologize for the page
2510.
A.
Yes.
24
Q.
Which is admitted.
FR
I believe this
What number was that again, sir?
23
25
14:44:23
I don't think so.
2510, which is admitted.
IEN
22
14:44:04
Well, you got all the Ortega Melendres e-mails from Tim
14
21
14:43:51
And this involves a meeting that you were listed as
14:45:20
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the organizer of.
Do you see that?
A.
Yes.
Q.
And that concerns the Ortega Melendres case, is that right?
A.
Yes.
Q.
And what was discussed at that meeting?
A.
I have no idea.
Q.
Were you present?
A.
I don't know.
Q.
You don't recall today if you were present or not?
10
A.
That's correct.
11
Q.
You don't dispute where it says that you were the organizer
12
on this, that you were in fact the organizer?
13
A.
It was typed by the secretary to the chief deputy.
14
Q.
So it's possible you were the organizer.
15
one way or the other?
16
A.
17
e-mail, I guess, yes.
18
The document says that.
19
Q.
20
meeting?
21
A.
I do not.
22
Q.
And do you recall when the meeting took place?
14:45:32
14:45:41
You don't recall
14:46:04
The organizer seems to be a slot that's on a -- on an
I mean, I'm listed as the organizer.
IEN
DS
And do you recall if you took any steps to organize this
A.
I do not.
24
Q.
So you don't know what was discussed at that meeting.
25
A.
That's correct.
FR
23
14:46:22
14:46:30
Q.
from Tim Casey dated June 19th, 2012.
Okay.
Now, if we could look at 2866.
This is an e-mail
Do you see that?
3
4
A.
28- --
Q.
-866.
A.
I don't think I have that.
14:46:52
THE CLERK:
I don't have that, sir.
2866?
MR. POCHODA:
Six six.
Thank you.
THE CLERK:
10
You're welcome.
THE WITNESS:
11
(Handing).
BY MR. POCHODA:
13
Q.
14
yourself.
15
A.
Yes.
16
Q.
And you're the only one listed as the recipient of this
17
e-mail, is that right?
18
A.
Yes.
19
Q.
And the e-mail is an order from the judge in this case?
20
A.
Yes.
21
Q.
And do you know why it was sent to you by Tim Casey?
22
A.
I do not.
Do you see that?
It's an e-mail from Tim Casey to
14:47:52
DS
IEN
14:47:23
Yes, sir.
12
23
Q.
Had you discussed this with him at any point?
24
A.
No.
25
Q.
Okay.
FR
1924
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If we can move on to 2511.
14:48:01
14:48:13
A.
Do I keep this in this pile now?
Q.
Yeah.
A.
Should I keep this in this pile?

THE COURT:
THE COURT:
6
7
Sure.
THE WITNESS:
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So I can keep it in numerical order.
Oh, I'm sorry.
Mr. Pochoda, what
number are we on?
8
9
MR. POCHODA:
2511, which is admitted.
THE WITNESS:
Yes.
10
BY MR. POCHODA:
11
Q.
12
2012, is that correct?
13
A.
Dated September 25th, 2012, correct.
14
Q.
And it's directed to yourself and others?
15
A.
Correct.
16
Q.
And it has to do with the Ninth Circuit opinion affirming
17
Judge Snow's December 23rd, 2011 ruling on the preliminary
18
injunction, is that right?
19
A.
Yes.
20
Q.
And again, do you recall getting this e-mail on that date?
21
A.
No, I do not.
22
Q.
Do you have any doubt that you got it?
14:49:00
IEN
DS
And that's an e-mail from Tim Casey dated September 25th of
23
A.
I have no memory of ever receiving it.
24
Q.
Turning to the next, 25 -- Plaintiffs' 2511.
25
A.
That was 2511.
FR
14:48:35
14:49:15
14:49:27
14:50:15
1926
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Q.
I'm sorry, 2512.
A.
Yes.
Q.
This is an e-mail from Tim Casey dated October 12, 2012,
correct?
A.
October 12th, 2012, correct.
Q.
I'm sorry.
from Tim Casey dated October 11, 2012.
That's the top one.
14:50:33
I want the second one down
Do you see that?
8
9
A.
Yes.
10
Q.
And that's in bold to the chiefs, Dear Chiefs?

MR. POCHODA:
11
THE COURT:
12
May we publish this, Your Honor?
You may.
13
BY MR. POCHODA:
14
Q.
Do you see that?
15
A.
Yes.
16
Q.
Do you recall getting this e-mail from Tim Casey --
17
A.
I do not.
18
Q.
-- October 11th of 2012?
19
A.
I do not.
20
Q.
Is there any reason why you wouldn't have gotten this
21
e-mail in your server?
DS
14:51:03
MR. POPOLIZIO:
IEN
22
23
THE COURT:
24
BY MR. POCHODA:
25
Q.
FR
14:50:48
That you know of.
14:51:11
Objection, Your Honor, speculation.
That he knows of, I presume?
14:51:29
1927
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A.
I know of none.
Q.
You do check your e-mails regularly, correct?
A.
Yes.
Q.
And if you could take a look at this.
this, if you can --
A.
What do we -- what are we looking at now?
Q.
The bold e-mail from Tim Casey.
A.
Okay.
Q.
Says "Dear Chiefs."
10
A.
It's addressed Eileen Henry, James Williams, Thomas Liddy,
11
Joey Gulley, and Doug Irish.
12
Q.
Right.
13
A.
I have it -- the bold one, yes.
14
Q.
Do you know what this is -- the topic of this e-mail is?
15
A.
I believe we talked about this during my deposition.
16
Q.
Did we?
17
A.
I think so.
18
Q.
This is a letter of concern based on a letter from the
19
counsel for the plaintiffs, is that right?
20
A.
Oh, okay.
21
Q.
Yes.
22
A.
-- I don't think I've seen that before.
All right.
14:51:47
Fine.
No, the -- the e-mail in bold print --
23
ever seeing it.
24
Q.
Um-hum.
25
A.
But do I know what it is?
FR
If you had gotten
14:52:12
Other counsel, right?
DS
IEN
I do not remember ever receiving this.
14:52:36
14:52:51
I don't remember
14:53:04
1928
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Q.
Yeah.
Do you see what he's talking about?
It says
"potential violations of the preliminary injunction by the
MCSO," is that right?
A.
Yes.
Q.
And had you recalled any discussion in the MCSO of
potential violations of the preliminary injunction at this
point in time?
A.
No.
Q.
Were you present for the testimony of Tim Casey about
10
these -- this e-mail this -- earlier today or yesterday?
11
A.
I believe so.
12
Q.
And if you see, this was attached -- this was prompted by a
13
letter from Andre Segura, one of the counsel for plaintiffs, is
14
that right?
15
A.
Yes.
16
Q.
And Mr. Segura included in his letter three press releases
17
from the Sheriff's Office, is that right?
18
A.
Yes.
19
Q.
I'm not going to look at all of them, but if we take a look
20
at the first one, that's dated September 21st of 2012.
A.
Yes.
23
Q.
24
Sheriff's Deputies During Human Smuggling Operation."
FR
25
14:54:15
Do you see that press release?
IEN
22
14:53:39
14:53:55
DS
21
14:53:13
The headline:
"ICE Refuses to Accept Illegal Aliens From
Do you see that?
14:54:28
1929
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A.
Yes.
Q.
And there's two other press releases if you want to take a
quick look.
Did you have occasion to review those releases or read
4
5
them when they were put out by the Sheriff's Office in 2012?
A.
No.
Q.
Did you ever read press releases put out by the Sheriff's
Office in 2000- -- at any point?
A.
I read these press releases when you showed them to me
10
during my deposition.
11
Q.
12
being sent out by the Sheriff's Office.
13
press releases?
14
A.
Have I ever read -- yes.
15
Q.
But you did not read any of these three?
16
A.
Correct.
17
Q.
If you read a press release and you thought it raised a
18
problem in terms of a potential illegality by the MCSO,
19
pursuant to your job responsibilities to inform the sheriff,
20
would you have so informed the sheriff?
21
A.
Yes.
22
Q.
But you, as far as you know, from the date of the
I meant in your work to keep up to date with what's

Did you ever follow
IEN
DS
Right.
14:54:50
23
preliminary injunction in December of 2011 until and through
24
the trial, you were not aware of any potential violations of
25
the preliminary injunction; is that your testimony?
FR
14:54:36
14:55:03
14:55:20
14:55:44
1930
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A.
Yes.
Q.
So that responsibility to inform the sheriff didn't arise
in your mind because you had no reason to believe the
preliminary injunction was not being followed; is that what
you're saying?
A.
Correct.
Q.
Did you inquire if the preliminary injunction was being
followed in the manner that you had urged in the Monday meeting
in January of 2012?
14:56:00
10
A.
I don't know who I would have inquired of.
11
Q.
Well, starting with the sheriff, did you ask the sheriff at
12
the preliminary injunction -- you spoke to him in the meeting
13
of January 2012 and told him directly, is that right, that the
14
MCSO could no longer stop or detain people solely on the basis
15
of suspicion of being here unlawfully, is that correct?
16
A.
17
the preliminary injunction, I believe verbatim.
18
Q.
19
heard those words and understood them; is that fair to say?
20
A.
Correct.
21
Q.
And at any point after that meeting in January of 2012 up
22
and through the trial in this case in 2013, did you inquire of
That's correct.
And you wanted to make sure that the sheriff
IEN
23
the sheriff if the changes that were required by the
24
preliminary injunction had, in fact, taken place within the
25
MCSO?
FR
14:56:35
I read -- I read the judge's order from
DS
Correct.
14:56:09
14:56:50
14:57:05
1931
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A.
I believe I had been told, and it may have been by
then-counsel, that we were no longer doing any of those
operations which would have been controlled by the judge's
injunction.
in the preliminary injunction.
Q.
as to whether that was in fact the case.
A.
I don't remember doing so.
Q.
You did not ask the sheriff, you did not ask the deputy,
Correct.
I was aware of no violations of the Court's order
Did you -- and I'm asking if you made inquiries
the chief, or anyone who's in the patrol chain of command?
11
A.
I don't remember doing so.
12
Q.
And you don't recall any of those potential -- any
13
potential violations of the preliminary injunction being
14
discussed at either the regular Monday meetings or regular
15
Thursday meetings in that two-year period?
16
A.
That's correct.
17
Q.
Now, you were not a witness at trial in this case, is that
18
correct?
19
A.
Correct.
20
Q.
So Tim Casey, nor any of the other counsel for defense, had
21
to consult with you about witness preparation of -- in
22
anticipation of taking the stand, you taking the stand?
IEN
DS
10
23
A.
That's correct.
24
Q.
And you were not familiar with the underlying facts in this
25
case because it was a patrol function, is that right?
FR
14:57:33
14:57:47
14:58:08
14:58:34
14:58:53
1932
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A.
I may have had some small understanding, but I certainly
had no great understanding of the facts in the case, no.
Q.
consulted with to be able to assess whether the plaintiffs'
version of events took place, as they were reported or not, you
would not be the person that they went to, is that correct?
A.
That's correct.
Q.
You did confer with Mr. Casey regularly during the trial,
is that right?
But you would not -- you were not a person that Mr. Casey
10
A.
I don't know about regularly, but on occasion.
11
occasion, sir.
12
Q.
13
billings, billing records.
14
number 21057 --
On
14:59:41
If we could turn to the Plaintiffs' 2533, I believe, the
THE COURT:
15
And if we could start on the
Mr. Pochoda, it's 3 o'clock.
It's about
16
usually when I take my afternoon break.
17
breaking point, or do you just have a few more minutes?

MR. POCHODA:
18
THE COURT:
19
Few more minutes.
All right.
21
Q.
Number 210575, looking at 7-19 of 2012.
22
A.
I'm not as fast as you, sir.
DS
BY MR. POCHODA:
IEN
15:00:15
Is this a good
20
23
Q.
Okay.
24
A.
21.
25
Q.
I was just directing you.
FR
14:59:18
15:00:28
15:00:36
1933
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A.
05.
Q.
75.
A.
Okay.
Q.
And looking at the July 19th of 2012 entry, second or third
from the bottom, TJC.
A.
Yes.
Q.
And it states under Tim Casey's entry:
for first trial day, 2.1.
work" -- and it's redacted -- "with client contact Jack
Do you see that?
15:00:54
"Final preparations
One full day of trial and related
10
MacIntyre."
11
A.
Yes, sir.
12
Q.
And turning on to the next page --
13
A.
Well, that indicates 8.0 hours.
14
Q.
Eight total hours, including the trial day.
15
A.
Yeah.
16
billed for a trial day.
17
Q.
18
those eight hours he had a trial, and he had something that's
19
redacted with you, client contact Jack MacIntyre.
21
I'm not sure what you're saying.
MR. POPOLIZIO:
THE WITNESS:
BY MR. POCHODA:
24
Q.
25
say?
FR
23
15:01:35
You're saying that in
Do you see that?
IEN
22
15:01:18
I think that fair -- fair standard is 8.0 hours
DS
20
Do you see that?
15:01:56
I see that, yes.
All occurred during that eight-hour period; is that fair to

15:02:00
A.
I just want to make sure -THE COURT:
You know, Chief MacIntyre --
THE WITNESS:
THE COURT:
4
5
made --
15:02:09
THE COURT:
I'm sorry.
-- that you wait until I rule on it.
THE WITNESS:
I'm sorry, sir.
-- it's customary when an objection is
THE WITNESS:
THE COURT:
10
Well, Mr. Popolizio did make an objection
11
as to foundation, which I think is well taken, but it's
12
pointless now.
I think the answer's been given.
MR. POCHODA:
14
I apologize.
I was responding to what
Mr. MacIntyre raised about the 8.0 hours.

THE COURT:
16
That's fine.
BY MR. POCHODA:
18
Q.
19
entry under TJC.
20
A.
Yes.
21
Q.
And it states:
22
additional witness preparation for trial and during breaks and
IEN
DS
If you turn to the next page on July 24th of 2012, the

Do you see that?
15:02:56
"One full day of trial and related
23
conduct" -- and it's redacted -- "with client contacts Brian
24
Sands and Jack MacIntyre."
FR
15:02:39
Please proceed.
17
25
15:02:28
Go ahead.
13
15
1934
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Do you see that?
15:03:08
1935
OF
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A.
Yes.
Q.
Okay.
Tim Casey, it says:
because it's doubled up, so let's turn to the next page.
continues, "And during breaks and conduct" -- it's redacted --
"with client contact Sheriff Arpaio, Brian Sands, and Jack
MacIntyre."
A.
Yes.
Q.
And then on 7-26-2012, TJC, says:
If we go down to the next entry, 7-25-12 under TJC,

"One full day" -- I cannot read the rest
It
Do you see that?
"One full day and
10
related additional witness preparation before trial and during
11
breaks, and conduct post trial day briefing with client contact
12
Sheriff Arpaio, Brian Sands, and Jack MacIntyre."
15:03:42
Do you see that?
13
14
A.
Yes, sir.
15
Q.
And then on 7-27 of 2012, under TJC it says:
16
and it's redacted -- "with T. Liddy.
17
Sands.
"Evaluate" --
15:03:55
Confer with Chief Brian
Confer with Chief Jack MacIntyre."

Do you see that?
18
A.
Yes, sir.
20
Q.
And then if we go on to the next page, 7-31-2012 at the
21
bottom, under TJC it states in the middle of his entry from
22
TJC:
DS
19
15:04:08
IEN
"Confer with Chief Jack MacIntyre."
23
Do you see that?
24
A.
Yes.
25
Q.
And then if we turn to August of 2012, on 8-2-2012, August
FR
15:03:27
15:04:27
1936
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2nd, 2012 under TJC says:
"One full day and related" -- and
that's redacted -- "with Sheriff Arpaio, and Chiefs Sheridan,
Sands, and MacIntyre."
A.
Yes.
Q.
And then on the next day, 8-3-2012, it states:
numerous MCSO deputies re" -- and it's redacted.
Chief Brian Sands.
Do you see that?
"Speak with
"Confer with
Confer with Chief MacIntyre."
Do you see that?
8
9
A.
Yes.
10
Q.
So you were conferring and Mr. Casey was conferring with
11
you pretty much on a daily basis throughout trial in this
12
matter; is that fair to say?
13
A.
Frequently.
14
Q.
And he understood that you were one of his client contacts,
15
is that right?
16
A.
15:05:12
MR. POPOLIZIO:
THE COURT:
18
Sustained.
BY MR. POCHODA:
20
Q.
He listed you as one of his client contacts, is that right?
21
A.
I don't know.
22
Q.
In his billing records that we just read, did he list you
IEN
DS
19
24
FR
25
15:05:02
I don't know what he --
17
23
15:04:48
15:05:19
as a client contact?
THE COURT:
I can see that he did that, whether or
not -- regardless of the chief's response.
15:05:35
MR. POCHODA:
THE COURT:
2
3
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MacIntyre - CX Popolizio, 9/30/15 Evidentiary Hearing 1937
We'll take a break and be back at 3:20.
Thank you.
(Recess taken.)
THE COURT:
Please be seated.
CROSS-EXAMINATION
7
8
BY MR. POPOLIZIO:
Q.
Chief MacIntyre, a little while ago you testified that you
attended a mid-January 2012 meeting at MCSO.
15:25:44
Do you recall that?
11
12
A.
Yes.
13
Q.
And was it at that meeting that you read from the Court's
14
order?
15
A.
Yes.
16
Q.
And did you read verbatim from the Court's order?
17
A.
Yes.
18
Q.
Okay.
19
A.
I wanted to make sure that I used the exact words utilized
20
by the judge, written by the judge.
21
not my order, and it's not something I should interpret.
22
Q.
15:25:55
DS
And why did you do that?
It is the judge's order,
15:26:13
IEN
And aside from reading -- well, strike that.
23
Did you provide any legal advice to anyone at MCSO
24
regarding the Melendres case?
25
A.
FR
15:25:27
Mr. Popolizio.
10
I have no further questions.
No.
15:26:35
OF
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Q.
And during Mr. Pochoda's examination of you he showed you a
lot of e-mails.
A.
Yes.
Q.
Okay.
right?
A.
Yes.
Q.
Aside from being an addressee on e-mails, did you have any
specific responsibility regarding the Melendres preliminary
injunction?
Do you recall that?
And you were on a lot of those e-mails, is that
15:26:53
10
A.
No, I did not.
11
Q.
Going to December 23rd, 2011, Chief MacIntyre, were you a
12
deputy chief on the jail side of MCSO operations?
13
A.
We would call it the detention side, yes.
14
Q.
Okay.
And I'll try to use that term.
As such, were you on that date an MCSO chief involved
15
in the detention operations of MCSO?
17
A.
Yes.
18
Q.
And on December 23rd, 2011, did you have any command over
19
the law enforcement side of MCSO?
20
A.
No, I did not.
21
Q.
And throughout 2011 did you have any command over the law
22
enforcement side of MCSO?
IEN
DS
16
23
A.
No, I have not.
24
Q.
As a chief on the detention side of MCSO operations, do you
25
have -- did you have any general command authority over MCSO
FR
15:27:05
15:27:25
15:27:50
15:28:07
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law enforcement operations from 2011 to the present?
A.
No.
Q.
And did you have any general supervisory control over MCSO
law enforcement operations from 2011 to the present?
A.
No.
Q.
In your capacity as chief of jail -- detention operations,
or as a chief, were you ever tasked with overseeing MCSO
personnel with regard to the adherence to the December 23rd,
2011 preliminary injunction?
15:28:29
10
A.
What were the dates again, sir?
11
Q.
From December 23rd -- well, let me ask the question again.
12
How's that?
13
A.
Fine.
14
Q.
Withdraw the question.
Chief MacIntyre, in your capacity as a chief in jail
15
16
operations, were you ever tasked with overseeing MCSO personnel
17
with regard to the adherence to the December 23rd, 2011,
18
19
A.
No, I was not.
20
Q.
Okay.
21
ever tasked with implementing any training with regard to the
22
December 23rd, 2011 preliminary injunction?
IEN
DS
And as a chief in jail operations at MCSO, were you
A.
No.
24
Q.
Okay.
25
to violate the December 23rd, 2011 injunction?
FR
23
15:28:51
15:29:02
15:29:20
To be clear here, Chief, did you ever order anyone

15:29:42
OF
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A.
Absolutely not.
Q.
Did you ever order MCSO personnel not to comply with the
December 23rd, 2011 order?
A.
Absolutely not.
Q.
Did you ever order MCSO personnel to prevent training
calculated to ensure compliance with the preliminary
injunction?
A.
No, I did not.
Q.
Did you ever order any MCSO personnel to delay training
10
11
injunction?
12
A.
No, I did not.
13
Q.
Okay.
15
BY MR. POPOLIZIO:
16
Q.
17
injunction?
Objection, hearsay.
15:30:28
-- to violate the December 23rd, 2011 preliminary
THE COURT:
18
Overruled.
THE WITNESS:
19
No, they did not.
BY MR. POPOLIZIO:
21
Q.
22
the December 23rd, 2011 preliminary injunction?
DS
20
15:30:34
IEN
Did anyone at MCSO ever order you to delay compliance with
23
A.
No, they did not.
24
Q.
Did anyone at MCSO ever give you an order to interfere with
25
the December 23rd, 2011 preliminary injunction in any way?
FR
15:30:08
Did anyone at MCSO ever give you an order, Chief --
MR. POCHODA:
14
15:29:55
15:30:50
OF
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A.
No.
Q.
Did anyone at MCSO ever order you to delay training on the
December 23rd, 2011 injunction?
A.
No.
Q.
Did anyone at MCSO ever order you to interfere with any
training that was calculated to ensure compliance with the
A.
No.
Q.
To your knowledge, Chief Macintyre, did anyone at MCSO ever
10
issue an order to delay training calculated to compliance with
11
the preliminary injunction?

MR. POCHODA:
12
THE COURT:
14
To his knowledge, Your Honor.
To his knowledge.
THE WITNESS:
15
I'll allow it.
No.
16
BY MR. POPOLIZIO:
17
Q.
18
an order to interfere with training calculated to ensure
19
compliance with the preliminary injunction?
20
A.
No.
21
Q.
Chief MacIntyre, did you engage in any sort of pattern of
22
resistance to this Court's preliminary injunction?
15:31:50
DS
A.
No.
24
MR. POCHODA:
25
THE COURT:
FR
15:31:40
And to your knowledge, Chief, did anyone at MCSO ever issue
IEN
23
15:31:29
Objection, foundation; hearsay.
MR. POPOLIZIO:
13
15:31:06
Overruled.
15:32:06
OF
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THE WITNESS:
No, I did not.
BY MR. POPOLIZIO:
Q.
directive of this Court?
A.
No, I did not.
Q.
One second.
And did you engage in a pattern of resistance to any
15:32:15
Now, do you recall that Mr. Pochoda asked you
7
8
whether -- something to the effect of whether you inquired as
to whether anyone at MCSO -- as to whether MCSO was following
10
the preliminary injunction?
15:32:30
Do you recall that?
11
12
A.
I do.
13
Q.
And -- well, did you make such an inquiry?
14
A.
No, I did not.
15
Q.
Okay.
16
A.
Well, I had no authority, responsibility, or a chain of
17
command power over the law enforcement -- the enforcement, law
18
enforcement/patrol side of MCSO, and had no direct authority
19
over those individuals.
20
MR. POPOLIZIO:
23
24
FR
25
15:32:38
Okay.
Thank you, sir.
15:33:10
I have no further questions, Your Honor.

THE COURT:
IEN
22
DS
21
And why not?
MR. WALKER:
Mr. Walker.
I have no questions for this witness.
Thank you.
THE COURT:
Mr. Como?
15:33:19
MR. COMO:
THE COURT:
1943
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MacIntyre - RDX Pochoda, 9/30/15 Evidentiary Hearing

Mr. Pochoda.
REDIRECT EXAMINATION
3
4
BY MR. POCHODA:
Q.
legal advice concerning the preliminary injunction in this
matter to anyone at MCSO, is that correct?
A.
Yes.
Q.
So you don't define as part of legal advice informing those
Yes, Chief.
You had responded that you had not given any
10
people at that meeting on January of 2012 exactly what was
11
required by the preliminary injunction?
12
A.
Well, I think when you ask about legal advice you --
13
Q.
I'm not talking about my.
14
Mr. Popolizio that you didn't --
15
A.
Correct.
16
Q.
-- give any legal advice --
17
A.
Correct.
18
Q.
-- but sir you in fact did tell them exactly what was
19
required, others at the MCSO, what was required by the
20
preliminary injunction, is that correct?

MR. POPOLIZIO:
23
THE COURT:
24
THE WITNESS:
FR
25
You answered the question of
15:34:00
Objection, misstates testimony, Your
Honor.
IEN
22
15:33:38
15:33:52
DS
21
15:33:27
Overruled.
I believe, Mr. Pochoda, I answered the
question, both to you and to Mr. Popolizio, that I read the
15:34:09
1944
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judge's order verbatim to the people who were in attendance at
that meeting.
my ability, any part of the judge's order.
BY MR. POCHODA:
Q.
examination that the reason you did that was to ensure that
there was compliance at the MCSO with the judge's order; is
that fair to say?
A.
And I did not advise or change, to the best of
I understood that.
But you testified under direct
I think my testimony was that I wanted to make sure that
10
everyone knew what the order said in that meeting in January of
11
2012, and as directly and as verbatim as possible to utilize
12
the judge's words from that order.
13
Q.
14
that the judge's order required some change in the MCSO
15
practices in terms of stopping or detaining people who are here
16
solely on the basis of suspicion of unlawful presence, is that
17
right?
18
A.
Yes.
19
Q.
And you wanted to make it clear to other people at that
20
meeting that that was a required change in MCSO practice,
21
correct?
22
A.
15:34:47
But you were aware, we talked about before,
DS
I understand.
15:35:10
15:35:25
IEN
That if anyone were doing that from the patrol side, they
23
should be aware of the judge's order, which precluded the
24
stopping, detaining, or delaying individuals based on mere --
25
mere illegal presence in this country alone.
FR
15:34:34
15:35:42
1945
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And again, right now I'm paraphrasing, but at that
1
2
point in time I believe I read the exact words of the judge,
and I think it was twice I did it.
Q.
I understand.
And you testified before that that precluded MCSO
5
6
patrol folks from detaining people on the basis of presence in
order to bring them to a federal agency, is that correct?

MR. POPOLIZIO:
THE COURT:
Objection, asked and answered.
Overruled.
THE WITNESS:
10
Yes.
11
BY MR. POCHODA:
12
Q.
13
the patrol function, for the patrol function at the MCSO, is
14
that right?
15
A.
I never have, correct.
16
Q.
But nothing precluded you, if you felt there was a concern
17
or possible impropriety, from you using your job
18
responsibilities as a legal advisor to the sheriff to inform
19
the sheriff about a possible problem?
20
A.
If I knew of one.
21
Q.
If you did, nothing precluded you from, in fact --
22
A.
That's correct.
15:36:13
IEN
DS
And you indicated that you did not have any authority under
23
Q.
24
matters, leaving aside Ortega Melendres, about legal matters
25
involving the MCSO?
FR
15:35:59
15:36:29
15:36:45
And you did speak to the sheriff many times about legal
15:36:57
1946
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A.
Sometimes legal matters.
Q.
Sometimes?
A.
Yes.
Q.
And you, of course, would have to know about any problem or
potential problem before you could give that advice, is that
correct?
A.
That's correct.
Q.
Under your testimony today you kept yourself ignorant of
any possible knowledge by not reading the e-mails you received
10
about that, is that right?

MR. POPOLIZIO:
11
THE COURT:
12
THE COURT:
14
THE COURT:
16
THE COURT:
18
23
24
FR
25
You may step down.
Thank you, Chief.
Your Honor, we'd call Brian Sands.
THE CLERK:
Can you please state and spell your first
15:37:38
and last name for the record.
IEN
22
15:37:27
I have no further questions.
MR. YOUNG:
DS
21
Does that mean sustained, Your Honor?
Next witness.
19
20
Does that mean sustained?
That's what it means.
MR. POCHODA:
17
Objection, argumentative.
What?
MR. POCHODA:
15
15:37:19
It is argumentative.
MR. POCHODA:
13
15:37:07
THE WITNESS:
Brian Sands.
B-r-i-a-n, last name
S-a-n-d-s.
THE CLERK:
Thank you.
Please raise your right hand.
15:38:13
(Brian Sands is duly sworn as a witness.)
1
2
3
THE CLERK:
Thank you.
Please take our witness stand.
MR. YOUNG:
Your Honor, I have copies on paper of
Mr. Sands' depositions of February 1, February 15, and
September 17.
May I hand those to the witness?
THE COURT:
You may.
if you need it?
MR. POPOLIZIO:
Yes, Your Honor.

BRIAN SANDS,
10
11
12
15:38:53
DIRECT EXAMINATION
13
BY MR. YOUNG:
15
Q.
Good afternoon, Mr. Sands.
16
A.
Good afternoon.
17
Q.
You've read your deposition testimony from April 2015 in
18
this contempt proceeding, correct?
19
A.
Yes, sir.
20
Q.
And you have no corrections to that testimony, is that
21
right?
22
A.
DS
14
15:38:58
15:39:09
IEN
I do not, no.
23
Q.
24
that you gave before Judge Snow in April of this year, is that
25
correct?
FR
15:38:37
Does opposing counsel have access to that deposition
7
8
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Sands - DX Young, 9/30/15 Evidentiary Hearing
You don't have any corrections to the hearing testimony
15:39:23
1948
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A.
That's correct.
Q.
I'd like to ask you some questions about Mike Zullo and
Brian Mackiewicz.
Do you know who Mike Zullo is?
4
5
A.
Yes, I do.
Q.
What do you know about Mike Zullo?
A.
He's a member of the sheriff's volunteer posse, and he
works primarily in what they call the Cold Case Posse, or dead,
from my personal experience.
And how about Brian Mackiewicz?
15:39:36
10
Q.
Do you know Brian
11
Mackiewicz, or who he is?
12
A.
Yes, I do, yes.
13
Q.
And what do you know of him?
14
A.
He's a deputy sheriff for the Maricopa County Sheriff's
15
Office.
16
Unit at one time, and I'm not sure where he's at now, or where
17
he's technically assigned.
18
Q.
What is or was the Threats Unit?
19
A.
That was a unit that investigated threats against the
20
sheriff and other public officials.
21
Q.
Did they work together on anything, to your knowledge?
22
A.
During my tenure at the sheriff's office they were involved
IEN
DS
He was assigned -- I believe he was with the Threats
in the -- the Obama birth certificate investigation.
24
Q.
25
structure?
FR
23
15:40:00
15:40:11
15:40:36
Were Mr. Zullo and Detective Mackiewicz within your command

Did they report to you?
15:41:02
1949
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A.
Indirectly, yes, through a number level of -- of
commanders.
Q.
a -- an operational standpoint, how did they operate?
observation.
A.
sergeant, I can't remember his name right now, and --
Q.
How about Mr. Zullo?
A.
Mr. Zullo would have technically been under the control of
That was in an organizational chart standpoint, but from
In your
15:41:23
Well, Detective Mackiewicz technically answered to a
10
the Enforcement Support commander as a volunteer.
11
Q.
12
Mr. Zullo and Detective Mackiewicz seem to operate
13
independently of the command structure?
14
A.
From my observations, they worked for the sheriff.
15
Q.
Was there only one person with whom you saw them -- or to
16
whom you saw Mr. Zullo and Detective Mackiewicz report?
17
A.
I frequently saw them at meetings with the sheriff.
18
Q.
Other than the sheriff, did you actually see them report to
19
anyone else?
20
A.
21
knowledgeable of that.
22
Q.
From your standpoint and in your observation, though, did
DS
They may have, while working other duties.
I'm not
15:42:08
15:42:30
I don't recall seeing it.
IEN
Did you ever discuss your thoughts on the investigation
23
that you saw Mr. Zullo and Detective Mackiewicz working on with
24
the sheriff?
25
A.
FR
15:41:44
I'm sorry.
Ask me the question again, please.
15:43:00
1950
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Q.
Okay.
Well, you knew that and Mr. Zullo and
Detective Mackiewicz were working on the birth certificate
investigation, correct?
A.
Correct.
Q.
Did you ever talk to the sheriff about your thoughts as to
what they were doing, and whether it was a good idea or not?
A.
the case.
Q.
And what did you tell him?
10
A.
I told the sheriff that I thought that it -- the Sheriff's
11
Office had the inability to investigate the matter, and we
12
didn't have the jurisdiction to investigate the matter.
13
Q.
14
Detective Mackiewicz to Hawaii to pursue the birth certificate
15
investigation?
I shared my thoughts with him before they started working
MR. YOUNG:
18
issues:
19
Detective Mackiewicz.
23
24
FR
25
Your Honor, this goes to a couple of
The sheriff's method of operating with Mr. Zullo and
You've established that.
MR. YOUNG:
And the sheriff's reactions to advice from
DS
THE COURT:
15:44:09
other people in his office who serve under him about what he
IEN
22
15:43:57
MR. POPOLIZIO:
17
21
15:43:32
What did you think of the sheriff sending Mr. Zullo and
16
20
15:43:14
does through Mr. Zullo and Detective Mackiewicz.

THE COURT:
not a lot.
I'll allow one or two questions more, but

15:44:24
1951
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BY MR. YOUNG:
Q.
And what did you say to the sheriff, Mr. Sands?
A.
When the idea came up, I -- I told him that it was my
understanding that he didn't want to incur any costs,
particularly sending Detective Mackiewicz to Hawaii.
Q.
Did you think that idea was ridiculous?
A.
I thought investigating the case was ridiculous, based on
what I felt gave us no authority to do so.
Q.
Did the investigation that Mr. Zullo and Detective
10
Mackiewicz were working on have an effect on your relationship
11
with the sheriff?
12
A.
I believe it did.
13
Q.
What effect did it have?
14
A.
He seemed to disconnect himself from having a lot of
15
communication with me.
16
Q.
17
was pushing you away from the sheriff?
18
A.
That, and perhaps other things.
19
Q.
In your observation, does the sheriff sometimes ignore
20
advice that other people around him, high officers in his
21
command structure, give him?
22
A.
15:45:12
15:45:27
DS
Was it your perception that that issue, that investigation,
IEN
I'm not privy to a lot of that.
15:45:54
I can't really remember
23
anything offhand where he didn't, but I don't know exactly what
24
he was subjected to.
25
Q.
FR
15:44:48
Well, did he ignore your advice on this investigation that
15:46:19
1952
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Mr. Zullo and Detective Mackiewicz were doing into the birth
certificate?
MR. POPOLIZIO:
THE COURT:
I think we've gone far enough.
I'm going
to sustain the objection.
BY MR. YOUNG:
Q.
called Arpaio's de Facto Lawman.
A.
Yes, sir.
10
Q.
Do you recall some discussion of Mr. Zullo in that book
11
relating to the birth certificate investigation?
12
A.
13
but yes.
14
Q.
15
page from your book, just to remind you.
15:46:34
Mr. Sands, you wrote a book about your time in the MCSO
I believe, yes.
You recall that?
I -- I can't tell you the exact quotes,
Well, I'm going to ask Mr. Klein, if he can, to show you a
15:47:12
Do you recognize that --
16
MR. POPOLIZIO:
17
Relevance to
this line of questioning.
19
we were to move on.
20
THE COURT:
Where are we going with this, Mr. Young?
MR. YOUNG:
Again, it's the sheriff's methodology with
23
FR
15:47:22
or investigations or judgments by others.
24
25
I think you've already ordered that
respect to initiating investigations in response to criticisms
IEN
22
DS
18
21
15:46:51
Honor.
MR. POPOLIZIO:
I believe it's the same issue, Your

15:47:47
THE COURT:
Well, I mean, you can show him whatever
you want to refresh his recollection.
it to everybody.
MR. YOUNG:
4
5
Honor.
I'm not going to publish
I'm not asking for its admission, Your
15:48:04
THE COURT:
1953
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And then we're going to deal with it on a
question-by-question basis.
You gotta establish that he needs
his recollection refreshed first.
BY MR. YOUNG:
10
Q.
So with respect to this investigation that you saw
11
Mr. Zullo and Detective Mackiewicz doing, did the sheriff say
12
anything to you about why he was having this investigation
13
done?
MR. POPOLIZIO:
14
THE WITNESS:
15
THE COURT:
16
He made the comment --
Oh.
MR. POPOLIZIO:
18
THE COURT:
19
Sorry, Your Honor.
And 403, Your Honor.
You know what?
I think we've gone as far
as we need to go to pursue the ground that you said you were
21
going to pursue.
22
think we need to move on.
IEN
DS
20
15:48:43
Unless you've got something different, I
23
BY MR. YOUNG:
24
Q.
25
that you were with the Sheriff's Office, initiated corruption
FR
15:48:33
Wait a minute.
THE WITNESS:
17
15:48:13
Mr. Sands, you're aware that the sheriff, during the time
15:49:03
1954
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cases against judges and members of the Board of Supervisors,
correct?
A.
Correct.
Q.
Did the sheriff ever say anything to you to relate those
investigations to the investigation that he had Mr. Zullo and
Detective Mackiewicz doing?

MR. POPOLIZIO:
7
8
And which investigation
are we talking about?

MR. YOUNG:
9
10
Relevance.
The one that Mr. Sands testified to just a
moment ago that Mr. Zullo and Detective Mackiewicz were doing.
MR. POPOLIZIO:
11
12
13
15:49:41
The birth certificate?
MR. YOUNG:
Yes.
THE COURT:
I'm going to allow this question.
THE WITNESS:
14
Ask again, please.
15
BY MR. YOUNG:
16
Q.
17
cases against the judges and the board members to the
18
investigation that he had Mr. Zullo and Detective Mackiewicz
19
doing about the birth certificate?
20
A.
Yes.
21
Q.
What did he say?
22
A.
He said:
15:49:54
IEN
DS
Mr. Sands, did anything to you that related the corruption
23
Q.
24
hole?
25
A.
FR
15:49:19
15:50:11
"Now let them go after me."
Did he say anything about that investigation being a bolt
I believe that's my description.
15:50:26
Q.
Okay.
A.
A security, like an additional lock on a door.
Q.
When you discussed that issue with the sheriff, did he
indicate how the investigation that Mr. Zullo and
Detective Mackiewicz were doing would be a security?
THE COURT:
that.
Objection, relevance; 403.
I don't recall any details other than
10
BY MR. YOUNG:
11
Q.
Okay.
12
A.
Yes.
13
Q.
What was that?
14
A.
The understanding would be, or was to me, he felt they --
15
the Justice Department would not further any investigation
16
against him because he was investigating the President.
17
Q.
I'm sorry, because he was investigating --
18
A.
The President.
enough.
21
BY MR. YOUNG:
22
Q.
All right.
IEN
Let's look at Exhibit 2534, Mr. Sands.
15:51:38
It's a December 23,
2011 e-mail.
24
THE COURT:
What exhibit was it, Mr. Young?
25
MR. YOUNG:
2534.
FR
15:51:16
I really have let this go long
I don't see any further benefit to it.
DS
20
23
15:51:02
Did you have an understanding in that regard?
THE COURT:
19
15:50:48
Overruled.
THE WITNESS:
8
9
And what do you mean by that?
MR. POPOLIZIO:
1955
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It's been admitted, and I'm
15:52:12
1956
OF
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wondering whether we could have it projected on the screen at
this point.
THE COURT:
You may if it's been admitted.
BY MR. YOUNG:
Q.
injunction was issued, correct?
A.
Correct.
Q.
And Mr. Casey, in this exhibit, states to his colleague
that in his view, you are relatively pleased.
Now, you spoke with Mr. Casey right after the preliminary
Do you see that, on Exhibit 25 --
10
11
A.
I see it, yes, sir.
12
Q.
Was that an accurate description of your view after the
13
granting of the injunction?
14
A.
Yes, I believe so, yes.
15
Q.
In what way, or why, were you relatively pleased?
16
A.
The use of both saturation patrols and the extreme use of
17
roadside interdiction was becoming a drain on the office, and
18
so I felt that this gave us -- or alleviated that problem.
19
Q.
20
detention of individuals based solely on illegal presence in
21
the country alone, is that right?
22
A.
15:52:39
15:52:55
DS
You believed that the preliminary injunction prohibited any
15:53:34
IEN
Yes.
23
Q.
24
to hold such people for a federal agency based solely on
25
illegal presence, is that correct?
FR
15:52:22
And you believed that the injunction did not allow the MCSO
15:53:54
1957
OF
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A.
That's correct.
Q.
Now, Mr. Casey says, in that same e-mail that we're looking
at, that Sheriff Arpaio was conflicted on how he feels.
Did you have a view on that issue at that time?
MR. POPOLIZIO:
5
6
He's asking
what the sheriff felt.

THE COURT:
7
8
BY MR. YOUNG:
Q.
I'm going to sustain that.
You talked to the sheriff in the period after the
10
injunction was issued, correct?
11
A.
Yes, sir.
12
Q.
Did he agree or disagree with your view of the injunction?
13
A.
He disagreed.
14
Q.
And you've testified earlier about the nature of that
15
disagreement, correct?
16
A.
Yes, sir.
17
Q.
Let's look at Exhibit 2511.
15:54:17
15:54:34
Well, I'm not sure it's been admitted, but I'll ask
18
you to look at it, Chief Sands, and it relates to the result of
20
the appeal.
Do you recall receiving this e-mail?
15:55:02
Your name is on
it.
IEN
22
DS
19
21
23
A.
I do not, sir.
24
Q.
Okay.
25
the decision of the Ninth Circuit affirming the injunction?
FR
15:54:09
Would it have been part of your job to know about

15:55:11
1958
OF
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A.
I believe so, yes.
Q.
Now let's look at Exhibit 2512, which has been admitted, so
I'll ask that it be published.
Do you have that exhibit in front of you?
It consists
of a number of pages.
A.
Yes, sir.
Q.
Okay.
from Mr. Casey to you, among other people.
you will look at the e-mail below the one to Lisa Allen, you'll
15:55:31
Now, just to refresh your memory, it's an e-mail
And actually, if
10
see that you're listed there along with Chief Sheridan and
11
Deputy Chief MacIntyre, and it in turn attaches an e-mail from
12
Andre Segura, co-counsel for plaintiffs.

Do you see all that?
13
14
A.
Yes, sir.
15
Q.
Then there's a letter from Mr. Segura that raises issues
16
about whether the injunction has been violated, and then three
17
press releases by the MCSO.
A.
Yes, sir.
20
Q.
You've seen those things before, correct?
21
A.
Yes, sir.
22
Q.
Now, if all of this information had been presented to you,
IEN
DS
19
23
what would have been your view in relation to the Court's
24
FR
15:56:05
Do you see all that?
18
25
15:55:49
MR. COMO:
15:56:18
15:56:38
1959
OF
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MR. POPOLIZIO:
THE COURT:
Sustained.
MR. POPOLIZIO:
THE COURT:
Join.
You won on the first one.
BY MR. YOUNG:
Q.
issues raised by the plaintiffs in October 2012 in relation to
potential violation of the injunction?
A.
15:56:58
Chief Sands, were you familiar with the questions, the
I don't have total recall of this.
I admit to seeing it
10
during production in the deposition.
11
of it when the name -- and I -- I'm sorry if I mispronounce,
12
Segura, is spoken with in relationship to it.
13
recall what actions I took at the time.
14
Q.
15
today about those events in October 2012?
16
A.
Yes, I did hear it, sir.
17
Q.
Did you hear anything that you know to be incorrect in what
18
Mr. Casey testified to about what he did and saw and said in
19
that time period?
21
MR. POPOLIZIO:
THE COURT:
And I don't
15:58:10
Not that I can think of, sir.
23
BY MR. YOUNG:
24
Q.
25
Office, what was your belief as to whether the sheriff's
FR
15:57:48
Overruled.
THE WITNESS:
IEN
22
15:57:17
Did you hear Mr. Casey's testimony yesterday and earlier
DS
20
I have some recollection
During last couple of years of your time at the Sheriff's

15:58:32
1960
OF
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activities were directed to get publicity that would help him
politically?
A.
sheriff was -- was driven to publicize his activities within
the sheriff's department and personalize that publication.
Q.
Do you have an understanding of why he wanted to do that?
A.
I believe --
I believe, and some of this is retrospective now, that the
MR. POPOLIZIO:
THE COURT:
9
10
He asked if he had an understanding, and
so that can be answered with a yes or no.

THE WITNESS:
11
12
BY MR. YOUNG:
13
Q.
Yes.
MR. POPOLIZIO:
THE COURT:
15
Foundation.
You want to lay some foundation?
BY MR. YOUNG:
17
Q.
Well, what was your understanding based on, Mr. Sands?
18
A.
Observations of his personal contact with the media.
19
Q.
So what was your understanding?
20
sheriff wanted to obtain that publicity.
DS
16
MR. POPOLIZIO:
THE COURT:
IEN
22
23
15:59:27
Of the reason that the
15:59:46
Overruled.
THE WITNESS:
I think it was a multitude of things.
24
One, he enjoyed that aspect of his job.
25
is, as he always said, this is how you gain not notoriety, but
FR
15:59:18
What was your understanding?
14
21
15:59:02
And the second thing

16:00:05
1961
OF
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you gain -- I'm trying to remember how he phrased it --
recognition for what you do.
BY MR. YOUNG:
Q.
sheriff and I make the decisions around here"?
A.
I've heard him make that.
Q.
Other than with respect to the birth certificate
investigation, did he ever ignore your advice?
A.
Probably on a number of occasions.
10
Q.
In your observation, did the sheriff always do things his
11
way?
12
A.
I think that's a phrase he liked to make constantly.
13
Q.
You spoke on a couple of occasions to Don Vogel, who had
14
been retained by the MCSO to do some internal investigations,
15
correct?
16
A.
Yes, sir.
17
Q.
One of those related to the violation of the preliminary
18
injunction, correct?
19
A.
Correct.
20
Q.
Would it surprise you to find out at the end of that
21
investigation that no one in the department was found to have
22
violated any rules of that department as a result of that
Did you ever hear the sheriff say something like, "I'm the
24
A.
25
had -- made a review on.
16:00:57
16:01:24
DS
IEN
violation?
FR
23
16:00:31
16:01:31
It's hard for me to speculate on something that I haven't

On its face, yes, it does.
16:01:53
1962
OF
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Q.
It does surprise you?
A.
Yes, on the face of it, yes.
Q.
Now, the Armendariz supervision issue was the other
investigation that was at issue in the interview that you had
with Mr. Vogel, is that right?
A.
Yes, sir.
Q.
Do you have any view as to -- and there were some problems
resulting from Armendariz being allowed to continue what he was
doing, despite all of the issues surrounding him.
16:02:16
10
16:02:33
11
A.
From what I've seen in the media, and a little bit of what
12
I saw when I was at the Sheriff's Office before I left, yes.
13
Q.
14
situations like that of Deputy Armendariz from arising and
15
causing problems in the future?
What changes do you think are needed to prevent future
MR. COMO:
16
17
16:02:57
Objection, Your Honor, calls for
speculation.
MR. POPOLIZIO:
18
THE COURT:
19
Join.
I'm going to sustain the foundational
objection.
If you want his opinion, you're going to have to
21
establish that he has a basis to offer it.
22
BY MR. YOUNG:
IEN
DS
20
Q.
24
the Sheriff's Office to support a view as to what the
25
department should do in order to prevent future Armendariz
FR
23
16:03:09
Do you have any facts that you know of from your time at
16:03:33
1963
OF
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M
situations from arising?
A.
they're establishing some type of system there that monitors
employee activities relative to complaints, to -- down to even
the mere fact that they don't show up to work at time -- on
time.
they're called, and I think that that's progressively working
towards the right thing to do.
Q.
10
From what I've heard in testimony here, it appears that
Red flag systems, is what I've heard in the past that
How about isolating Internal Affairs investigations from
the rest of the department?

MR. POPOLIZIO:
11
THE COURT:
12
16:04:22
Sustained.
13
BY MR. YOUNG:
14
Q.
15
removed from the chief deputy and given to someone outside the
16
agency?
17
A.
Do you have a view as to whether decision-making should be
MR. POPOLIZIO:
DS
THE COURT:
23
Yeah.
THE WITNESS:
16:04:54
Yes.
Q.
What is your view, Mr. Sands?
24
MR. POPOLIZIO:
25
THE COURT:
FR
You can answer that yes or no.
BY MR. YOUNG:
IEN
22
The question was yes or no, Your Honor.
19
21
16:04:35
From the things that I -- I heard --
18
20
16:03:58
Foundation.
You're going to have to lay foundation.
16:05:05
1964
OF
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BY MR. YOUNG:
Q.
you have on that issue?
A.
seen with the implementation of the monitor program or system.
I'm not sure exactly how it's titled.
those areas will correct the problem.
What's the basis on which you have arrived at the view that
Some of it's from experience.
MR. YOUNG:
8
9
time.
Mr. Sands, thank you very much for your
I didn't turn the page.
I'm actually --
16:05:49
I do have one more area.
Sorry, Mr. Sands, for getting your hopes up.
12
13
BY MR. YOUNG:
14
Q.
15
the litigation counsel in the Melendres case?
16
A.
17
shifted around quite a bit during the course of the litigation.
18
Q.
19
immediately address the order with the HSU, and to make
20
whatever changes were needed so there would be no violations
21
over the holidays at the end of 2011?
22
A.
Is it accurate to say that you were the primary contact for
16:06:05
I'm going to say yes, even though that seemed to have
DS
When the injunction was issued, did you agree to
16:06:28
IEN
I did.
23
Q.
24
that order, until there could be a joint meeting with counsel
25
and the sheriff after the holidays?
FR
16:05:23
I think an increase in
Oh, actually, forgive me, Your Honor.
10
11
Some of it is from what I've
Did you also take it upon yourself to brief the sheriff on
16:06:48
1965
OF
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A.
Yes, I did, yes.
Q.
And did you do that?
A.
Yes.
Q.
Were HSU and saturation patrols historically in the
province of your command authority?
A.
Yes.
Q.
Were you the person within the MCSO, exclusively, who
handled matters relating to the litigation that affected the
HSU and saturation patrols?
And that's where the disagreement came about.
MR. COMO:
10
THE COURT:
11
Did you brief the sheriff?
16:07:28
One moment, please.
I'm going to allow him to answer the question.
12
THE WITNESS:
13
I was a commander over those areas.
There's a number of different bureaus that are responsible for
15
response to litigation matters, those types of -- of legal
16
affairs, and so my -- my actual job was command responsibility
17
over the enforcement area.
18
BY MR. YOUNG:
19
Q.
Were you handling the preliminary injunction order?
20
A.
I was, yes.
21
Q.
You told Lieutenant Sousa not to violate that order, is
22
that correct?
IEN
DS
14
23
A.
Yes, I did.
24
Q.
Is it also correct, though, that you don't recall telling
25
him anything more specific than that?
FR
16:07:07
16:07:54
16:08:17
16:08:37
1966
OF
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A.
I don't recall that, you're correct.
Q.
Okay.
don't remember saying anything more specific to
Lieutenant Sousa about what would be required for him to follow
that instruction, is that right?
A.
with Mr. Casey.
Q.
It's page 93, lines 14 through 20.
10
I'm going to play a section of your deposition recently.

And it's clip F for
Mr. Klein.
MR. COMO:
MR. YOUNG:
12
16:09:18
Which deposition is this?
This is the most recent one dated
September 17.
And you can look at it on the screen or you can also
14
15
16:08:54
I believe there was instruction to him to -- to coordinate
11
13
So other than saying don't violate the order, you
read it, Mr. Sands.
16:09:30
MR. POPOLIZIO:
16
Can we get it -- can we hold off, Your
17
Honor, until it comes up on the screen?
18
there's objections in there.
19
MR. YOUNG:
21
Is it going to be published on the
MR. YOUNG:
Well, I can -- you want me to play it
23
without your looking to see whether there are objections?
24
lines 14 through 20.
FR
25
16:09:50
screen?
IEN
22
It's page 93 at lines 14 through 20.
MR. POPOLIZIO:
DS
20
I need to see if
Actually, there's a logistical issue, which I
93,
16:10:10
understand the audio is not on.

THE COURT:
2
3
Well, the audio will come on when I direct
that it comes on.
4
5
6
make?
MR. YOUNG:
Okay.
THE COURT:
Do you have any objection you want to
MR. POPOLIZIO:
THE COURT:
"Question:
10
"Answer:
11
No, Your Honor.
All right.
You may publish the --
What changes had you directed in HSU?
Sousa, I testified to this before, that order should not be
13
violated.
"Question:
14
Did you tell Lieutenant Sousa anything
more specific than that?

"Answer:
16
16:10:36
I had told -- I remember telling early on
12
16:10:58
I can't remember right now."
(Deposition clip concludes.)
17
BY MR. YOUNG:
19
Q.
Was that testimony accurate, Mr. Sands?
20
A.
At the time, but I do remember other conversation about
21
what the chief deputy had directed as far as coordinating
22
what -- with Tim Casey.
IEN
DS
18
23
Q.
Do you recall anything else currently?
24
A.
No.
25
Q.
You had meetings yourself with Mr. Casey, correct, relating
FR
16:10:25
(Deposition clip played as follows:)
15
1967
OF
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16:11:06
16:11:21
1968
OF
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Sands - CX Popolizio, 9/30/15 Evidentiary Hearing
to the preliminary injunction?
A.
I did, yes.
Q.
And is it correct that you don't recall disagreeing with
him on anything that he said during the course of those
meetings about the injunction, is that right?
A.
I can't recall disagreeing with him, no.

MR. YOUNG:
7
8
16:11:40
Now I am finished, Mr. Sands.
Thank you
very much.
THE WITNESS:
Thank you.
CROSS-EXAMINATION
10
11
BY MR. POPOLIZIO:
12
Q.
13
instructed Lieutenant Sousa to coordinate with Mr. Casey.
Hi, Chief.
A few moments ago you testified that you
Do you recall that?
14
A.
Words to that effect, yes.
16
Q.
And what you were referring to, or were you referring to
17
coordinate with him, Sousa coordinate with Casey, on the issue
18
of the preliminary injunction?
19
A.
Yes, sir.
20
Q.
And do you know if he did that?
21
A.
I believe at the time he was doing it, yes.
22
Q.
Did the coordination include developing training with
IEN
DS
15
23
regard to the preliminary injunction?
24
A.
25
and the other testimony that I've seen indicates that that's
FR
16:12:17
16:12:31
16:12:45
I can't recollect exactly at the time, but the documents

16:13:07
1969
OF
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what happened.
Q.
And Joe Sousa at the time was lieutenant over HSU, correct?
A.
Correct.
Q.
And there was no captain between Mr. -- Lieutenant Sousa
and you as chief over HSU, correct?
A.
Chief Trombi was over HSU.
Q.
did you know if there was training being developed to comply
Not at that time, but there was another chief.
With regard to the training, if you recall, did -- well,
with the preliminary injunction?
11
A.
I can't recall, sir.
12
Q.
Do you recall any scenarios of training being drawn up by
13
anyone under your command?
14
A.
I don't remember, no.
15
Q.
Do you recall if any of your subordinates came to you to
16
discuss training under the preliminary injunction?
17
A.
No, I don't recall it.
18
Q.
Sir, did you ever order anyone to violate the December 23rd
19
20
A.
No, sir.
21
Q.
Ask by the way, you left MCSO and retired when?
22
A.
July 31st, 2013.
IEN
DS
10
23
Q.
24
with the preliminary injunction?
25
A.
FR
16:13:26
16:13:53
16:14:10
16:14:42
But did you ever order any MCSO personnel not to comply
No, sir.
16:15:02
1970
OF
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Q.
Did you ever order any MCSO personnel to prevent training
injunction?
A.
No, sir.
Q.
Did you ever order any MCSO personnel to delay training
calculated to ensure compliance with the injunction?
A.
No, sir.
Q.
Did anyone give you an order, sir, to violate the December
23rd, 2011 preliminary injunction?

A.
No, sir.
11
Q.
Did anybody order you at any time to delay compliance with
12
that injunction?
13
A.
No, sir.
14
Q.
Did anybody at MCSO ever order you to interfere with the
15
preliminary injunction in any way?
16
A.
No, sir.
17
Q.
Did anybody order you to delay any training on the
18
19
A.
No, sir.
20
Q.
Or to interfere with any training on that injunction?
21
A.
No, sir.
22
Q.
To your knowledge, sir, did anybody at MCSO ever issue an
IEN
DS
10
order to delay training calculated to ensure compliance on the
24
preliminary injunction ordered by the Court?
25
A.
FR
23
No, sir.
16:15:12
16:15:35
16:15:49
16:16:00
16:16:23
1971
OF
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Sands - CX Como, 9/30/15 Evidentiary Hearing
Q.
to interfere with training calculated to ensure compliance with
this Court's preliminary injunction?
A.
No, sir.
Q.
Sir, did you engage in any sort of pattern of resistance to
the Court's preliminary injunction?
A.
No, sir.
Q.
Did you engage in any sort of pattern of resistance to any
directive of this Court?
10
A.
Did anyone at MCSO, to your knowledge, ever issue an order
No, sir.
12
16:16:56
MR. POPOLIZIO:
11
Thank you, sir.
I have no more
questions.
THE WITNESS:
13
Thank you.
CROSS-EXAMINATION
14
BY MR. COMO:
16
Q.
Good afternoon, Chief.
17
A.
Hello.
18
Q.
When did you retire?
19
A.
July 31st, 2013.
20
Q.
A little bit more than two years ago?
21
A.
Yes, sir.
22
Q.
You've been asked a lot of questions over the course of
IEN
DS
15
23
this hearing, both back in April and recently, and a lot of the
24
answers you've given, frankly, are "I don't recall."
FR
25
16:16:34
Are the events back in 2011 and 2012 concerning this
16:17:16
16:17:29
16:17:49
1972
OF
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preliminary injunction kind of a forgotten period in your -- in
your life at this moment?
A.
Yeah, among other things, too, yes, yeah.
Q.
Well, why did you retire, sir?
A.
I was dissatisfied with my job.
Q.
Did you retire earlier than you would have liked to for --
based purely on financial reasons?
have stayed longer would it have been to your financial
benefit?
16:18:07
In other words, if you'd
10
A.
Oh, much -- much that, yes.
11
Q.
What was the dissatisfaction that you were experiencing
12
that led you to retire in July of the 2013?
13
A.
14
no longer effect any change in the office, and that people
15
weren't listening to me.
16
Q.
17
by that.
18
A.
19
longer than I can remember as I sit here.
20
wasn't conferred with on some major management decisions, and
21
my subordinates were directed to make changes in staffing
22
allocations, those types of things.
It's like I told the sheriff when I left.
I felt I could
16:18:42
Can you expand on that for us as to what you exactly meant
Well, there were a number of instances, and the list is
Incidents where I
DS
IEN
23
Q.
24
command?
25
A.
FR
16:18:23
16:19:03
Now, on the enforcement side you were number three in
Correct.
16:19:20
1973
OF
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Q.
Under Sheriff Arpaio and Chief Deputy Sheridan?
A.
Correct.
Q.
Were there times before your retirement that you felt that
the sheriff or the chief deputy essentially went around you and
directed things to your subordinates?
A.
Yes.
Q.
Was that a fairly regular occurrence before your
retirement?
A.
From some things I've seen here in court, I think it
10
probably happened more than -- than I even realized at the
11
time.
12
Q.
Did you have any significant health problems in 2012?
13
A.
Yes.
14
Q.
When was that, sir?
15
A.
Around August of 2012.
16
Q.
So that would be shortly after the trial in this matter?
17
A.
Yes, sir.
18
Q.
Did you miss some time from work for medical appointments
19
and so forth?
20
A.
Yes.
21
Q.
Did you feel that your role in the office changed at all
22
after you came down with those health problems in August of
IEN
DS
There were some days that I wasn't here.
2012?
24
A.
25
and there were a lot of times I wouldn't even see the chief
Yes.
16:19:52
I came down with coronary heart disease.
23
FR
16:19:38
16:20:11
16:20:24
I feel like as though I was communicated with less,

16:20:45
1974
OF
TH
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deputy or the sheriff.
Q.
that you learned during those months, that you were kept out of
the loop on major decisions from this operational standpoint?
A.
I believe so.
Q.
Now, when this order came down in December 2011, you were
the chief, I believe the title was executive chief of --
A.
Correct.
Q.
-- enforcement?
10
A.
Correct.
11
Q.
Would you agree that you were one of the people that were
12
responsible for seeing that this order was distributed to the
13
troops, the deputies?
14
A.
Certainly.
15
Q.
Did you have any reservations about seeing that the order
16
was distributed to those people?
17
A.
Yes.
18
Q.
You had reservations --
19
A.
I'm sorry.
20
Q.
-- about -- did you have reservations --
21
A.
I'm sorry.
22
not.
IEN
DS
Do you feel that, based on your observations and things
16:21:20
I misunderstood.
23
Q.
24
people on the enforcement side?
25
A.
FR
16:21:05
I misunderstood.
16:21:29
16:21:38
No, I did
Did you, in fact, want to see that order distributed to the
Certainly.
16:21:50
1975
OF
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Q.
almost four years later, but what steps do you recall taking to
see that that order was distributed?
A.
it's quite apparent that I established meetings between
Mr. Casey and Lieutenant Sousa, and there were communications
about the training, and it -- there was a start to have it
implemented.
Q.
10
What steps do you recall now, recognizing that this is
Well, from the documents and all the testimony that I see,
Okay.
I'm not quite sure how that changed.
So that covers the training, and we'll get back to
that in a second.
16:22:37
But there's also been testimony that -- and I think
11
12
you testified just a few minutes ago, that you agreed that the
13
order should be -- that the HSU deputies should be briefed on
14
that order immediately.
Do you recall just giving that testimony shortly?
15
16
A.
Yes, sir.
17
Q.
Okay.
18
proceedings that he did, in fact, brief the deputies in the HSU
19
on the order.
20
ultimately been at your direction through Lieutenant Sousa?
21
A.
Yes, sir.
22
Q.
Let's go back, then, to the training scenarios.
DS
IEN
16:22:51
Now, Sergeant Palmer has testified in these
And if he had done that, would that have
16:23:09
And I
23
understand your testimony that you don't really recall them
24
today, but you have seen documentation that shows that training
25
scenarios were being developed regarding the preliminary
FR
16:22:11
16:23:27
1976
OF
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injunction order.
A.
Yes, sir.
Q.
And since you were the chief in the enforcement unit, is it
true that that would have been at your direction?
A.
Yes, sir.
Q.
Now, would you have been involved in the minutiae of
what -- how the wording of the training scenarios and what
scenarios would be given?
A.
No.
16:23:40
Normally I wouldn't even be involved in the matters of
10
training directly, and I believe the only reason I was because
11
of the importance of the -- of the court order.
12
Q.
13
been on your radar, a change if the law or something like this.
14
Training would have been developed without your involvement at
15
all.
16
A.
17
and the training side, that develop these types of things when
18
it comes to changes in the law.
19
Q.
20
hearing, did you delegate the development of the training
21
scenarios to someone?
22
A.
So normally a matter like this wouldn't have even really
16:24:22
Correct.
There's units, both in the administrative side
DS
Based on the documents that you've seen here at the
16:24:38
IEN
Yes, sir.
23
Q.
And who was that?
24
A.
Lieutenant Sousa.
25
Q.
Would that have been the typical line of authority for
FR
16:24:01
16:24:48
1977
OF
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M
something of this nature?
A.
training is, entails.
Q.
though, under this scenario, correct?
A.
training aids or legal type of training aids, you'd have --
you'd look to the resources, both with inside your department
and outside the department to properly ensure that the
Not always.
It would depend on what the nature of the
It wouldn't have been completely out of the ordinary,
Correct, because you normally, on technical type of
10
training's disseminated.
11
Q.
Okay.
16:25:36
Fair enough.
And you -- you have seen some additional documents
12
13
that have been produced in this case since you originally
14
testified back in April, right?
15
A.
Correct.
16
Q.
Have you seen any documents that have been produced by any
17
of the parties in this case which show that a final version of
18
the training materials were ever sent to you for approval?
19
A.
No, sir.
20
Q.
Do you believe that a final version of those training
21
scenarios was ever sent to you for approval?
22
A.
DS
16:25:51
IEN
Q.
24
executive chief, what would you have done with those?
FR
16:26:08
I don't believe so.
23
25
16:25:11
If they had been, based on your custom and practice as the
MR. POPOLIZIO:
16:26:26
1978
OF
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Sands - X Court, 9/30/15 Evidentiary Hearing
THE COURT:
I'll allow the question.
THE WITNESS:
I would have coordinated with the
training people to disseminate it.
BY MR. COMO:
Q.
Would you have done that promptly?
A.
Oh, yes.
Q.
Chief, looking back on this situation with a few years of
hindsight, is there anything you would have done differently if
you had the opportunity to?
16:26:40
10
A.
Several things.
11
Q.
Go ahead, sir.
12
A.
One, I wouldn't have had the confidence in my staff to
13
ensure that the training was done, and taken on their role and
14
the responsibility of doing it, seeing it to the end, and I
15
probably would have left a year and a half earlier.

MR. COMO:
16
17
MR. WALKER:
21
THE COURT:
I have no questions for this witness,
I think I just have a few.

EXAMINATION
23
Q.
24
Lieutenant Sousa:
25
instruction you remember giving him?
FR
16:27:40
BY THE COURT:
IEN
22
I have no further
Your Honor.
DS
20
Thank you, sir.
16:27:20
questions.
18
19
16:26:57
The only thing you remember doing, Chief Sands, is telling

Don't violate the order.
That's the only

16:27:58
1979
OF
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A.
There was another point in time where I told him that he
needed to get with Mr. Casey.
Q.
need to get with Mr. Casey.
Mr. Casey to develop the training scenarios, is that correct?
A.
Yes, sir.
Q.
Did you ever do anything to find out what Lieutenant Sousa
did to implement your instruction that he shouldn't violate the
order?
Okay.
So you told him, Don't violate the order, and You

And he needed to get with
A.
I can't remember, sir.
11
Q.
Did you ever do anything to determine whether
12
Lieutenant Sousa correctly understood the order?
13
A.
I can't recall doing that, no, sir.
14
Q.
Did you ever do anything to see that departments other than
15
the HSU that had to do with patrol operations did anything to
16
implement the preliminary injunction order?
17
A.
I can't recall it.
18
Q.
Do you recall that you indicated that you didn't hear --
19
you were here for all of Tim Casey's testimony, and you didn't
20
hear anything that he testified to that you thought was
21
incorrect.
23
A.
Yes, sir.
24
Q.
Do you remember meeting with Sheriff Arpaio in October of
25
2012?
FR
16:28:36
16:28:54
16:29:15
Did I understand that testimony correctly?
IEN
22
DS
10
16:28:17
16:29:26
1980
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A.
No, sir.
Q.
You have no recollection of that --
A.
No, sir.
Q.
-- one way or the other?
A.
No, sir.
Q.
Do you remember anything coming to your attention in
October of 2012 that the sheriff was putting out press releases
indicating that he had a policy for taking folks for whom he
had no state charges, as a backup plan, and delivering them to
16:29:31
10
Border Patrol?
11
A.
12
that he used for a long period of time on how to deal with
13
taking illegal immigrants to the Border Patrol and ICE.
14
Q.
15
Sheriff Arpaio's trial testimony in this matter, concerning
16
whether or not his testimony indicated the department was
17
violating the preliminary injunction as a matter of policy?
18
A.
I don't recall it at the time, but that was a common phrase
Do you recall having any discussions with Mr. Casey, after
THE COURT:
IEN
22
questions.
I don't think I have any of any further
Mr. Popolizio?
DS
21
MR. POPOLIZIO:
MR. COMO:
16:30:34
I have no follow-up, Your Honor.
23
MR. WALKER:
24
MR. YOUNG:
Nothing further, Your Honor.
25
THE COURT:
You may step down.
FR
16:30:20
I don't recall it, sir.
19
20
16:29:51
No questions.
16:30:42
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Next witness.
MR. YOUNG:
Your Honor, our next witness would be
Sheriff Arpaio, but I have a logistical issue, which I've also
discussed with Mr. Masterson, which is that the next witness,
Lieutenant Seagraves, is unavailable starting Friday and won't
become available until after October 15.
So it was our request that we have Lieutenant
7
8
Seagraves testify tomorrow at 9:00 a.m.
that would affect Your Honor's inclination as to whether we
And I don't know how
10
should start Sheriff Arpaio now or later.
11
heard -- I don't know whether Lieutenant Seagraves is available
12
at that time, but we would need to -- it would be our desire to
13
take her tomorrow whenever we can.

THE COURT:
14
15
In fact, I haven't
MR. MASTERSON:
16:31:41
My reaction, Judge, and I -- I briefly
discussed this with Mr. Young and then we exchanged a note, is
18
that we'll try to determine as soon as we leave today, and I
19
can turn on my phone, we'll try to determine when we can get
20
Lieutenant Seagraves here for her testimony.
21
certainly willing to work her in if we have to interrupt
22
testimony and stick her in tomorrow or -- I'm not certain --
IEN
DS
17
23
24
MR. MASTERSON:
FR
16:31:26
Do you have a reaction to that,
Mr. Masterson?
16
25
16:31:04
And we're
16:32:02
We'll figure out a way to work her in
tomorrow somehow, and if it -- if we have to interrupt
16:32:23
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Arpaio - DX Young, 9/30/15 Evidentiary Hearing
testimony, that's fine with us.
2
3
4
THE COURT:
All right.
MR. YOUNG:
Our next witness is Sheriff Arpaio.
THE CLERK:
Raise your right hand.
(Joseph M. Arpaio is duly sworn as a witness.)
THE CLERK:
Thank you.
THE WITNESS:
7
8
9
Please take our witness stand.
Good afternoon.
THE COURT:
Good afternoon.
MR. YOUNG:
Your Honor, I have a binder of Sheriff
10
Arpaio's depositions from March 25, April 14, September 17, and
11
September 18 of this year.
16:33:42
May I hand that to the witness?
12
13
14
THE COURT:
You may.
MR. YOUNG:
(Handing).
JOSEPH M. ARPAIO,
15
16
17
DIRECT EXAMINATION
18
BY MR. YOUNG:
20
Q.
Good afternoon, Sheriff Arpaio.
21
A.
Good afternoon.
22
Q.
How are you feeling today?
IEN
DS
19
23
A.
Pardon?
24
Q.
How are you feeling today?
25
A.
I'm here.
FR
16:33:01
That's important.
16:34:18
16:34:24
Q.
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Okay.
Well, I'm glad of that.
Would you agree with me that a core value of the
2
3
United States is the rule of law and not of men?
A.
Yes.
Q.
We have a government that has a system of checks and
balances to make sure that power is not unduly accumulated in
any one place, is that right?
A.
Yes.
Q.
Courts have a role to make sure that law enforcement
10
officials do not abuse their power.
11
12
A.
Yes.
13
Q.
And the sheriff's duty, any sheriff's duty, is uphold the
14
law, correct?
15
A.
Yes.
16
Q.
A sheriff, would you agree with me, should not use his
17
office and his officers to investigate or retaliate against
18
others for telling him to obey the law.
MR. MASTERSON:
THE COURT:
Objection, relevance; 403.
Can you repeat the question?
BY MR. YOUNG:
24
Q.
25
to investigate or retaliate against others who tell him that he
FR
23
Yes.
16:35:23
Overruled.
THE WITNESS:
IEN
22
16:35:11
DS
21
16:34:56
19
20
16:34:39
A sheriff should not use his office and his officers

16:35:35
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should obey the law.
Do you agree with that?
2
3
A.
Yes.
Q.
Now, Mr. Casey testified earlier today and yesterday.

Did you hear his testimony?
5
6
A.
Yes.
Q.
The fact that he stopped representing you in this case was
his decision and not yours, is that correct?
A.
Yes.
10
Q.
And to your knowledge, you and your office have never told
11
him that he ever did anything wrong or deficiently in this
12
case, is that correct?
13
A.
Could you repeat that?
14
Q.
Yeah.
You and your office have never told Mr. Casey that he
15
did anything wrong or deficiently, that is not up to standard,
17
in this lawsuit, is that correct?
18
A.
Not that I know of.
19
Q.
Did you hear Mr. Casey say anything with respect to the
20
Montgomery Seattle investigation that you can affirm here today
21
was incorrect?
MR. MASTERSON:
IEN
22
DS
16
23
THE COURT:
24
THE WITNESS:
FR
25
BY MR. YOUNG:
16:35:56
16:36:08
16:36:22
16:36:45
Overruled.
I don't recall.
16:37:03
1985
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Q.
Well, you heard all of his testimony, correct?
A.
Yes.
Q.
Okay.
Montgomery or Seattle investigations -- investigation that you
believe to be incorrect.
MR. MASTERSON:
THE COURT:
Am I understanding you?
Same objection.
I may not agree with his assessment, but
I'm not saying it's true or not true.
10
BY MR. YOUNG:
11
Q.
12
he said on that subject is untrue, is that right?
13
A.
That he said?
14
Q.
Yes.
15
A.
No, I don't believe so.
16
Q.
Now, you heard Chief MacIntyre testify earlier today about
17
some things he said to you about the injunction, correct?
18
A.
Yes.
19
Q.
Do you disagree with anything that he said on that issue
20
about what he told you and others at a staff meeting in early
21
January 2012 about the meaning of the preliminary injunction?
22
A.
16:37:32
DS
Well, you can't the tell me right now that something that
16:37:43
16:38:01
IEN
Well, I don't -- I don't recall, but if he said what he
23
testified to, yes, I have no objection.
24
Q.
25
issue because you asked him to do that at that meeting,
FR
16:37:15
Overruled.
THE WITNESS:
8
9
And you don't recall him saying anything about the
Now, Mr. -- or Chief, rather, MacIntyre commented on that

16:38:34
1986
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correct?
A.
I don't recall asking him.
Q.
Is it possible that you asked him to comment on that issue?

MR. MASTERSON:
4
5
Judge, I'm going to object to
foundation for these "is it possible" questions.

THE COURT:
I'm going to overrule the objection.
THE WITNESS:
I don't recall asking him to discuss
that.
that was in the staff meeting.
He -- evidently, he did, and I guess we all listened
10
BY MR. YOUNG:
11
Q.
12
and legal issues because, in part, you know he is a lawyer,
13
even though he's not serving as a lawyer in your office, is
14
that right?
15
A.
16
operation of the jails, which he's an expert in.
17
Q.
18
office, right, or someone in our office keeps those videos for
19
you, is that right?
20
A.
Yes.
21
Q.
And you look at videos of yourself that are maintained in
22
that library most of the time, is that correct?
16:39:10
You sometimes do ask Chief MacIntyre to comment on lawsuits
Yes, but I think it's geared more to the -- to the
16:39:23
IEN
DS
You keep copies of videos about your operations in your
23
A.
24
I said in the media.
25
Q.
FR
16:38:48
16:39:51
I sometimes -- yeah, I do look at it to see sometimes what
Those videos sometimes come in handy in lawsuits, correct?
16:40:11
1987
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A.
Yes.
Q.
Now, after this Court's preliminary injunction, and after
what you've heard from, among other people, Mr. Sands,
Sergeant Palmer, Chief MacIntyre, and Mr. Casey, you knew that
under the injunction you were prohibited from enforcing federal
immigration law, correct?
A.
authority to do so, because we had the tools that the ICE
authority, I think 2007 to 2009, where we could enforce the
Well, I had a little problem with that as to if we had the
10
federal immigration laws.
11
Q.
12
dated December 23, 2011.
13
A.
14
bottom of it, but I believe they mentioned the Supreme Court.
15
I had an idea that we could still -- it was a criminal
16
violation, not a civil, but I think that was
17
decision that came out around 2012 that it was a civil and not
18
a -- a criminal violation.
19
it was civil and not criminal.
20
Q.
21
injunction you could not enforce federal civil immigration law?
22
A.
16:41:16
I'm talking about after the Court's preliminary injunction

Do you have that time frame in mind?
I believe there was some -- and I never could get to the
16:41:40
Supreme Court
And I believe the judge ruled also
DS
Well, in 2012 did you understand that under the Court's
16:42:06
IEN
I believe that I didn't realize that at that time.
23
Q.
You did not realize that?
24
A.
No, I said I didn't realize it in a sense.
25
Q.
All right.
FR
16:40:36
So with that realization, you -- I'm going to
16:42:41
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actually ask the -- Mr. Klein to play Exhibit 2828A.
video that comes from your office's collection.
know whether there will be an objection to it or not.
hoping there will be a stipulation to do it, I don't know.

MR. MASTERSON:
MR. YOUNG:
And I don't
I'm
What is this, Your Honor?
Exhibit 2828A.
MELCDVDID001_00006529, DOJ disk 1 of 2, April to July 2012.

MR. MASTERSON:
That tells me nothing.
I don't know
10
what this is, Judge, so I don't know that I can -- I can't
11
formulate an objection.
12
13
THE COURT:
Okay.
MR. YOUNG:
Well, Your Honor, what we did in April was
play each video and have the sheriff affirm that it was him,
15
and then Your Honor would be presented with the issue of
16
whether to admit it or not.
18
19
THE COURT:
Yes.
MR. YOUNG:
Mr. Klein, could you play Exhibit 2828A.
DS
(Video clip played with no sound.)

THE COURT:
moment.
IEN
22
16:44:17
We don't have our sound engineer for the
We'll get one in a minute.
We can just wait.
23
BY MR. YOUNG:
24
Q.
25
video and several others that will come up.
FR
16:43:59
Shall we follow that procedure here?
17
21
16:43:44
I don't know what it is.
14
20
16:43:10
And I'll note for the record that it comes from
7
8
It's a
Let me ask you some background questions relating to this

16:44:38
1989
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You actually had a dispute with the Department of
1
2
Justice during 2012, correct?
A.
I think that's been resolved --
Q.
Okay.
A.
-- a couple months ago --
Q.
All right.
A.
-- through an agreement.
Q.
Yes.
Department of Justice lawsuit, but during the course of your
10
discussion in the news media about that lawsuit, you did say
11
some things about what your office was doing and about what you
12
wanted to accomplish, and I'm going to show you some of those
13
videos and ask you some questions about them.
And I'm not going to ask you questions about the
Exhibit 2828A.
16:45:27
(Audio clip played as follows:)
16
SHERIFF ARPAIO:
17
I'm not going to give it up.
I'm
going to continue to enforce state laws and federal laws, and I
19
look forward to going to court, because then we can put our
20
case out and they're going to have to put up and stop these
21
press conferences to embarrass me, especially in a election
22
year.
IEN
DS
18
23
16:45:43
(Video clip concludes.)
24
BY MR. YOUNG:
25
Q.
FR
16:45:09
So I wonder whether we're able now to play
14
15
16:44:58
Was that something that you said in the first part of 2012,
16:45:56
1990
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Sheriff?
A.
that we still had the authority on enforcing the human
smuggling laws and the employer sanction laws, and also keeping
the ICE people in jail to check everyone coming in.
have an immigration connection.
Q.
The human smuggling law was not a federal law, correct?
A.
It's a state law.
Q.
And the employer sanctions law is also a state law, right?
10
A.
Yes.
11
Q.
Okay.
12
A.
May have been connected to the -- to the federal activity
13
when you talk about the human smuggling, the smugglers and the
14
co-conspirators, the majority came in from another country,
15
which is a violation.
16
Q.
17
between the human smuggling activity and federal law?
18
A.
19
that they had come from another country, they probably had
20
violated the -- a federal law coming across the border.
21
Q.
16:46:17
16:46:38
Neither of those is a federal law, is that right?
16:47:00
DS
Well, if we do arrest people on the state law, in the sense
16:47:21
Did you believe that -- well, strike that.

Was it your intent to enforce and continue to enforce
23
the federal law in 2012?
24
A.
25
employer sanction.
FR
So we did
And so what, in your understanding, was the connection
IEN
22
That was part of it, I presume, but I was talking about
I was enforcing the state laws, the human smuggling and the
16:47:49
Q.
that you were going to continue to enforce federal laws as
well.
Well, you were pretty clear in the video that we just saw
Did you hear that?
4
5
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A.
Yes.
6
7
16:47:57
THE COURT:
Do you have a date on that video?
MR. YOUNG:
What I have, Your Honor, is the date range
that was on the disk that was given to us, which was April to
July, 2012.
MR. MASTERSON:
10
Your Honor, I'm going to object as to
11
foundation.
12
now because it's not on here, but it said something about DOJ
13
2012.
14
I don't know if it was produced --
16
so --
MR. YOUNG:
18
21
THE COURT:
16:48:32
Okay.
Well, I do move to admit it now, Your
16:48:37
I don't think you've laid foundation yet
that this -- I mean, you want to ask the sheriff some
23
questions?
24
BY MR. YOUNG:
25
Q.
FR
Well, he hasn't moved to admit it yet,
MR. MASTERSON:
IEN
22
Honor.
DS
20
I don't know if that's when it was produced by the DOJ;
MR. MASTERSON:
17
19
I'm seeing up at the top -- well, I don't see it
THE COURT:
15
16:48:16
Sheriff, was that video you speaking?
16:48:45
A.
Just now?
Q.
Yes.
A.
Yes.
a piece of it.
But once again, I didn't see the whole video.
MR. YOUNG:
1992
OF
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I saw
Well, Your Honor, the video from which
this segment came is about two hours long.
us by the MCSO, so they have it.
We produced it back to them
again when we exchanged exhibits.
So I think that there's no
issue as to --
THE COURT:
10
11
is him.
16
Could have been the sheriff in 2006, I
THE COURT:
Do we have a date?
MR. YOUNG:
I think I just asked him, Your Honor, but
16:49:32
I can -- I can ask some more questions.

THE COURT:
18
If I missed it, I apologize.
Could you please ask if he remembers --
19
DS
MR. YOUNG:
21
BY MR. YOUNG:
22
Q.
Sure.
16:49:43
IEN
So the press conference that the DOJ held that you referred
23
to in that video clip that we just saw, that was held in
24
December 2011, correct?
25
A.
FR
16:49:18
don't know.
15
20
The sheriff has testified that that
I accept that, and that that is a video.
MR. MASTERSON:
13
17
It was produced to
Any objection?
12
14
Okay.
16:48:56
I didn't even know that was a press conference.
16:49:55
1993
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Q.
No, I'm --
A.
You're talking about a press conference?
Q.
Yeah.
need to hear it again to understand my question?
5
6
Well, you want to play the video again in case you
THE COURT:
That's fine.
MR. YOUNG:
Okay.
We can do that.
16:50:09
So let's do that --
(Video clip played as follows:)
SHERIFF ARPAIO:
I'm not going to give it up.
I'm
going to continue to enforce state laws and federal laws, and I
10
look forward to going to court because then we can put our case
11
out, and they're going to have to put up and stop these press
12
conferences to embarrass me, especially in an election year.

13
14
BY MR. YOUNG:
15
Q.
16
video was 2012, correct?
17
A.
18
didn't seem like a press conference to me.
19
Q.
20
Justice press conference that criticized you that took place in
21
December 2011, correct?
Sheriff, the election year you're referring to in that
You said "press conference."
That was in my office.
That
DS
16:50:55
23
A.
What took -- what took place 2011, the DOJ investigation?
24
Q.
Yes.
25
conference announcing its findings against your office relating
FR
16:50:39
Well, you were referring in the video to a Department of
IEN
22
16:50:23
Do you remember a Department of Justice press

16:51:16
1994
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to racial profiling that took place in December 2011?
A.
just recently.
Q.
Do you recall you had an election in 2012?
A.
Yes.
Q.
Do you recall being upset that the Department of Justice
was suing you in an election year, because you thought that
they were trying to influence the outcome of the election?
A.
10
I don't recall that.
16:51:37
No, I didn't think they were trying to influence the
election.
Didn't even enter my mind, in a sense.
MR. YOUNG:
11
admission of the video.
13
about what the year was.

THE COURT:
14
We can make arguments, I suppose,
Any objection?
MR. MASTERSON:
15
Well, foundation and relevance.
It's
THE COURT:
Overruled.
18
foundation to admit the exhibit.
19
number is 2828A.
I think there's sufficient

It is admitted.
The
DS
(Exhibit No. 2828A is admitted into evidence.)
21
BY MR. YOUNG:
22
Q.
16:52:31
IEN
Sheriff, in the video we just saw you said what you meant,
23
right?
24
A.
Pardon?
25
Q.
In the video we've just seen, twice now, you meant what you
FR
16:52:10
a different lawsuit we're talking about there.
17
20
16:51:56
Well, Judge, I'm still going to ask for
12
16
I know that we settled that situation
16:52:41
1995
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said, is that right?
A.
things you don't mean, but I stand by what I said.
Q.
Do you often yourself say things that you don't mean?
A.
Well, sometimes when you're dealing with the press.
Depends what the questions are, you try to respond.
Q.
video collection that we received from your office.
2829A.
I would think I meant what I said.
Sometimes you say
I'm going to ask you to play another segment from that same
It's
10
SHERIFF ARPAIO:
11
sheriff?
13
enforcing illegal immigration law.
Well, we know why.
Because they don't like me
14
15
BY MR. YOUNG:
16
Q.
Sheriff, is that you?
17
A.
Yes.
18
Q.
Was that an accurate description of your opinion as to why
19
the Department of Justice was suing you in 2012?
20
A.
21
to.
22
Q.
16:53:38
DS
I don't even know when that came out that you're referring
16:53:49
Is that -- what year --
IEN
My question is:
Is that the way you felt about why the
23
Department of Justice was suing you in 2012, that they didn't
24
like you because you were enforcing illegal immigration laws?
FR
16:53:24
Why are they going after this
12
25
16:53:01
Was that your view?
16:54:10
A.
It was my opinion.
Q.
Was that you in the video, sheriff?
A.
Pardon?
Q.
The video that we just saw --
A.
Yes.
Yes, it was.
MR. YOUNG:
16:54:21
Okay.
MR. MASTERSON:
1996
OF
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Your Honor, I move to admit 2829A.
Objection, foundation; cumulative.
And generally, too, if we're going to sit here and watch 50
cherry-picked videos by Mr. Young on various snippets about a
10
second and a half long, it's cumulative; it's prejudicial; it's
11
not relevant.
THE COURT:
12
It is not cumulative; it is not
13
prejudicial; it is not -- it is not irrelevant; but I don't
14
think you've laid a sufficient foundation for me to accept this
15
exhibit, because I don't know the date.
16
BY MR. YOUNG:
17
Q.
18
relating to the Department of Justice lawsuit that featured you
19
talking on various news shows, and sometimes in press
20
conferences, during the year 2012?
21
A.
We kept videos on many subjects.
22
Q.
Was the subject that I just described one of those
DS
IEN
subjects?
24
A.
FR
16:54:59
Well, Sheriff, did your office keep a collection of videos
23
25
16:54:42
16:55:24
Yes, I believe so.

MR. YOUNG:
Your Honor, I move to admit the exhibit.
16:55:39
THE COURT:
I'm going to admit the exhibit.
MR. MASTERSON:
MR. YOUNG:
4
5
or --
Your Honor, may I ask my next question,
16:55:54
THE COURT:
Yes, I've admitted the exhibit.
BY MR. YOUNG:
Q.
and I'm going to ask you whether that's you, Sheriff.
Now, I'm going to show you the next video, which is 2831A,
10
UNIDENTIFIED SPEAKER:
11
12
1997
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16:56:16
Now, tell us exactly what's
going on with this war with the DOJ.

SHERIFF ARPAIO:
13
Well, you know, Eric, it's sad.
14
spent 30 years in my other life with the U.S. Drug Enforcement
15
Administration -- an agent, regional director in Mexico,
16
Turkey, Texas, Arizona -- and I know where the border is.
17
took on the fight against illegal immigration, over 51,000
18
we've arrested, investigated on the streets and in the jails,
19
and Washington doesn't like it.
20
sheriff.
21
I report to the 4 million people.
22
election year, they're going after me now after three years,
24
FR
25
So I
So, you know, I'm an elected
I don't report to the President or Washington, D.C.;
DS
IEN
23
16:56:30
16:56:49
So I presume it's an
and we'll see what happens.

BY MR. YOUNG:
16:57:03
1998
OF
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Q.
Sheriff, that's you, correct?
A.
Yes.
Q.
The language on that screen indicates that it's -- you're
running for your sixth term when you make those statements.
That was in 2012, correct?
A.
trying to enforce the laws.
Q.
laws?
Yes, but I didn't -- it wasn't politics with me.
16:57:13
It was
You were trying to enforce the federal laws and the state
10
A.
11
from 2007 to 2009 where we could assist the government in
12
enforcing the illegal immigration laws, and that was taken away
13
from me by the government.
14
Q.
15
ability, correct?
16
A.
Yes.
17
Q.
And that --
18
A.
-- me perform my duties.
19
Q.
Is that what you did during 2012?
20
A.
I was enforcing the laws, yes.
16:57:54
I did not want it taken away from me --
MR. YOUNG:
Your Honor, I move that we admit -- or
23
THE COURT:
Is that the clip we just saw?
24
MR. YOUNG:
Yes.
25
THE COURT:
Objection?
FR
16:58:08
that the Court admit 2831A.
IEN
22
16:57:30
And you thought it would be better if you still had that
DS
21
And I was a little concerned because we had a great program
16:58:25
MR. MASTERSON:
THE COURT:
1999
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Relevance; foundation.
Overruled.
2831A is admitted.
3
4
BY MR. YOUNG:
Q.
Now, you won the election in November 2012, correct?
A.
Yes.
Q.
And did you give an interview -- did you give some
interviews in January 2013 after your election?
actually on January 27, 2013, did you give an interview to John
10
Hook on the Newsmaker Fox show -- Newsmaker Sunday show on Fox?
11
A.
I don't remember.
MR. YOUNG:
12
In particular,
I've done many interviews.
Okay.
SHERIFF ARPAIO:
14
Well, let's play 2832B.
They do know that I will continue to
15
enforce all the illegal immigration laws.
16
until the law changes.
17
doing it; how we are doing it.
Nothing will change
16:59:18
But I like to tell them why we are
18
19
BY MR. YOUNG:
20
Q.
21
Newsmaker Sunday show.
DS
Actually, this is a segment that was embedded in the
16:59:31
IEN
Do you recognize yourself in that video, Sheriff?
23
A.
Yes, but I don't see John Hook.
24
Q.
No, that was definitely not John Hook, you're right about
25
that.
FR
16:59:00
13
22
16:58:36
16:59:44
2000
OF
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A.
I don't know what show you're talking about.
Q.
Well, the video that we just is saw, did that accurately
reflect your views of what you were going to do in January
2013?
A.
sanction laws, and it was my opinion that connected somewhat
with the illegal immigration problem.
Once again, we had the human smuggling laws, the employer
MR. YOUNG:
Your Honor, I move to admit 2832B.
MR. MASTERSON:
THE COURT:
10
Objection, foundation; relevance; 403.
Overruled.
2832B is admitted.
17:00:24
(Exhibit No. 2832B is admitted into evidence.)
11
12
BY MR. YOUNG:
13
Q.
14
think that the disputation over what your -- what your
15
immigration policies were was a matter of politics, right?
16
crime suppression, the employer sanctions, the human smuggling,
17
that was all politics.
18
A.
Politics?
19
Q.
Yes.
20
A.
You mean from Washington it was politics?
21
Q.
Well, in any way did you believe it was a political matter?
22
A.
No, I believe it was a law enforcement matter.
Now, Sheriff, you mentioned politics earlier.
The
DS
IEN
MR. YOUNG:
Could we play Exhibit 2835A.
24
THE COURT:
You know what, Mr. Young?
FR
You did
5 o'clock.
17:00:42
17:00:58
23
25
16:59:58
It is
I don't know if this is as good a breaking point as
17:01:17
any, but do you --
MR. YOUNG:
Fine.
We can pick up again.
We'll talk
to Mr. Masterson about Lieutenant Seagraves, so it may be,
depending on when that happens, either first thing in the
morning or sometime later tomorrow.

THE COURT:
you.
17:01:44
MR. YOUNG:
Zullo subpoena.
Oh, and we also have an issue about the
No, we don't.
Oh.
13
MR. YOUNG:
14
15
Your Honor, just before we break,
Mr. Birnbaum, I believe, had an issue he wanted to discuss with
11
12
All right.
MR. MASTERSON:
10
17:01:33
Mr. Masterson.
2001
OF
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Actually, we do not have an issue as to
the Zullo subpoena, Your Honor.

THE COURT:
16
All right.
MR. BIRNBAUM:
17
17:02:07
Your Honor, I apologize for keeping you
on an administrative matter.
19
from the Court for Mr. MacIntyre's special counsel, my firm,
20
and from Mr. MacIntyre, to have leave from the Court to not
21
appear for the remainder of the evidentiary presentations
22
unless something comes up where the Court or counsel requests
IEN
23
I'd like to request permission
DS
18
that we be here.
It's just simply a matter of economics.
24
THE COURT:
25
Does any other party have any objection?
FR
17:02:28
I understand.
I have no objection.
17:02:50
MR. MASTERSON:
MR. WALKER:
MR. COMO:
I have no objection, Your Honor.
MR. BIRNBAUM:
Your Honor, we may appear from time to
time, for example, to hear some of the sheriff's testimony.
Otherwise, we assume that if we're needed, if you will let
Mr. Masterson, Mr. Popolizio know, they'll contact us.

THE COURT:
8
9
2002
OF
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17:03:00
Well, I don't mean to be too persnickety
about this, Mr. Birnbaum.
You are free to appear or not to
10
appear as you choose.
But I'm viewing it as you waiving your
11
presence and waiving Chief MacIntyre's presence, and he's doing
12
that voluntarily.
If something happens, it happens.
We will do you the courtesy, if we're aware that
13
14
something that involves some need for Chief MacIntyre to be
15
here, we'll try and do the courtesy to advise you of that.
16
I assume by waiving your presence, you're waiving your presence
17
and you're not going to complain later on if you think
18
something happened here -MR. BIRNBAUM:
19
But
I did understand that.
21
I simply meant that if you felt we were required, that we are
22
ready, available, and generally in town, and you can certainly
IEN
DS
presence.
I appreciate your comments.
17:03:48
communicate with us in any way you deem appropriate.
24
THE COURT:
25
MR. BIRNBAUM:
FR
17:03:33
Your Honor, we are waiving our
20
23
17:03:14
All right.
Thank you.
Thank you very much, Your Honor.
17:04:02
THE COURT:
MS. WANG:
2003
OF
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Ms. Wang.
Your Honor, just to clarify on this point,.
I think Your Honor already did, but plaintiffs'
3
4
position would be that in order to waive his presence, Chief
MacIntyre's also waiving any future arguments he may make
otherwise about due process rights or other rights that would
accrue because of his presence.
MR. BIRNBAUM:
Your Honor, just because the word
"arguments" has two meanings, yes, we agree with that.
We do
10
intend to appear at the conclusion of the evidentiary
11
presentation for the purpose of presenting motions to the Court
12
at that time, but -THE COURT:
13
14
that.
THE COURT:
16
17
that.
Excuse me, Your Honor?
But we certainly are not going to argue that our due
19
process rights have been impeded as a consequence of our
21
voluntary decision to not appear.
DS
20
THE COURT:
IEN
22
MR. BIRNBAUM:
24
THE COURT:
FR
17:04:53
All right.
23
25
17:04:45
I am not going to preclude you from doing
MR. BIRNBAUM:
18
17:04:31
I'm not going to preclude you from doing
MR. BIRNBAUM:
15
17:04:13
Thank you.
Now, because you are special counsel to
Chief MacIntyre and you are counsel to Chief MacIntyre,
17:05:00
Mr. Masterson, do you agree with that understanding as it's
been placed on the record?

MR. MASTERSON:
2004
OF
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I do.
And just so it's clear, we --
and I'm not saying we will do this, but this does not preclude
us from making any appropriate due process arguments other than
for the time Chief MacIntyre's not present, based upon the
discussion with the Court.

THE COURT:
8
9
If I understood what you said, you're
saying you're going to try to reserve whatever other due
10
process arguments that you might want to make that that do not
11
relate to Chief MacIntyre's waived presence at the proceedings
12
here.
MR. MASTERSON:
13
14
THE COURT:
THE COURT:
17
THE COURT:
19
All right.
DS
MR. MASTERSON:
IEN
23
Exactly.
Well, 9 o'clock tomor- --
Well, did you --
THE COURT:
17:05:51
One more thing?
Yeah.
MR. MASTERSON:
Judge, could we get a copy of the
24
exhibit list for Sheriff Arpaio that you were provided by
25
plaintiff?
FR
17:05:44
I gotcha.
MR. BIRNBAUM:
18
22
I'm not saying there is such
But you're not waiving it.
MR. MASTERSON:
16
21
Exactly.
17:05:34
an argument, but if there is --
15
20
17:05:17
Not you were provided; your assistant.
17:06:01
1
2
3
4
8
9
10
11
12
13
14
15
16
17
18
IEN
24
FR
25
Well, why don't -- do you have a copy?
MR. YOUNG:
I'm sure we do, and I'm giving it to
DS
19
23
THE COURT:
Thank you.
See you tomorrow at 9 o'clock.
(Proceedings recessed at 5:06 p.m.)
22
THE COURT:
21
MR. YOUNG:
Mr. Masterson now.
20
2005
OF
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17:06:12
2006
OF
TH
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C E R T I F I C A T E
2
3
4
5
6
I, GARY MOLL, do hereby certify that I am duly
7
8
appointed and qualified to act as Official Court Reporter for
the United States District Court for the District of Arizona.
I FURTHER CERTIFY that the foregoing pages constitute
10
11
a full, true, and accurate transcript of all of that portion of
12
the proceedings contained herein, had in the above-entitled
13
cause on the date specified therein, and that said transcript
14
was prepared under my direction and control.
15
16
DATED at Phoenix, Arizona, this 1st day of October,
17
18
2015.
20
21
IEN
22
DS
19
23
24
FR
25
s/Gary Moll

Melendres v. Arpaio #1422 Sept 30 2015 TRANSCRIPT - DAY 8 Evidentiary Hearing

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Melendres v. Arpaio #1422 Sept 30 2015 TRANSCRIPT - DAY 8 Evidentiary Hearing

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OF

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Manuel de Jesus Ortega Melendres,

Joseph M. Arpaio, et al.,

(Evidentiary Hearing Day 8, Pages 1735-2006)

BEFORE THE HONORABLE G. MURRAY SNOW

REPORTER'S TRANSCRIPT OF PROCEEDINGS

Proceedings taken by stenographic court reporter

For the Plaintiffs:

American Civil Liberties Union of Arizona

Covington & Burling, LLP

Covington & Burling, LLP

For the Movants Christine Stutz and Thomas P. Liddy:

For the Defendant Maricopa County:

Melendres v. Arpaio, 9/30/15 Evidentiary Hearing

For the Defendant Joseph M. Arpaio and Maricopa County

For the Intervenor United States of America:

U.S. Department of Justice - Civil Rights Division

For Executive Chief Brian Sands:

For Deputy Chief Jack MacIntyre:

Melendres v. Arpaio, 9/30/15 Evidentiary Hearing

Cross-Examination by Mr. Masterson

Direct Examination by Mr. Pochoda

Direct Examination by Mr. Young

Direct Examination by Mr. Young

Melendres v. Arpaio, 9/30/15 Evidentiary Hearing

Phoenix New Times article by Ray Stern,

Dkt. 235 - Defendants' Response in Opposition

Email Chain from J. Sousa to B. Jakowinicz,

E-mail from Tim Casey to Amy Lake, Jerry

E-mail from Joseph Sousa to Brett Palmer

Video Clip 1 CBS Evening News, DOJ, Racial

Video Clip 1 Fox News, Follow the Money dated

Video Clip 2 Newsmaker with John Hook - Fox,

Melendres v. Arpaio, 9/30/15 Evidentiary Hearing

Melendres v. Arpaio, 9/30/15 Evidentiary Hearing

This is civil case number 07-2513,

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

I guess we'll need to have the parties

I'm sorry, Your Honor.

Cecillia Wang of the ACLU, with Andre Segura, for the

Good morning, Your Honor.

Michelle Morin, and Lauren Pedley, Covington & Burling, for

Dan Pochoda of the ACLU

of Arizona for plaintiffs.

Good morning, Judge Snow.

Masterson, Joe Popolizio, for Sheriff Arpaio, and with us is

Holly McGee to assist us.

Cynthia Coe and

Paul Killebrew for the United States.

Good morning, Your Honor.

Good morning, Your Honor.

appearing on behalf of Maricopa County.

Good morning, Judge Snow.

appearing specially on behalf of Sheriff Joe Arpaio.

Melendres v. Arpaio, 9/30/15 Evidentiary Hearing

Good morning, Judge.

Greg Como on behalf

Good morning, Your Honor.

Birnbaum, special counsel for Deputy Chief MacIntyre.

Mr. MacIntyre will be here for the testimonial part of this

Good morning, Your Honor.

Iafrate on behalf of Sheriff Arpaio and the alleged unnamed