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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 7, Pages 1488-1734)

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Court Reporter:

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Phoenix, Arizona
September 29, 2015
9:07 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
Phoenix, Arizona 85011

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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 Maricopa County Attorney's Office and Maricopa


County Attorney William Montgomery:
Ridenour Hienton, PLLC
By: April M. Hamilton, Esq.
Chase Tower
201 N. Central Avenue, Suite 3300
Phoenix, Arizona 85004

IEN

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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
Phoenix, Arizona 85254

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Melendres v. Arpaio, 9/29/15 Evidentiary Hearing

A P P E A R A N C E S

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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
Phoenix, Arizona 85003
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
Phoenix, Arizona 85012

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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
Phoenix, Arizona 85036

For the Intervenor United States of America:


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

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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 Chief Deputy Gerard Sheridan:


Mitchell Stein Carey, PC
By: Barry D. Mitchell, Esq.
1 Renaissance Square
2 North Central Avenue, Suite 1900
Phoenix, Arizona 85004

IEN

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For Deputy Chief Jack MacIntyre:


Dickinson Wright, PLLC
By: Gary L. Birnbaum, Esq.
1850 North Central Avenue, Suite 1400
Phoenix, Arizona 85004

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Melendres v. Arpaio, 9/29/15 Evidentiary Hearing

A P P E A R A N C E S

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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
Phoenix, Arizona 85012

For Timothy J. Casey:


Adams & Clark, PC
By: Karen Clark, Esq.
520 E. Portland Street
Phoenix, Arizona 85004

Also present:

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Sheriff Joseph M. Arpaio


Executive Chief Brian Sands
Chief Deputy Gerard Sheridan
Deputy Chief Jack MacIntyre
Lieutenant Joseph Sousa

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IEN

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Melendres v. Arpaio, 9/29/15 Evidentiary Hearing

I N D E X

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Witness:

GERARD SHERIDAN

Redirect Examination by Ms. Wang


Examination by the Court
Recross-Examination by Mr. Masterson
Further Redirect Examination by Ms. Wang

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No.
2072

2511

2512

2514

2533

IEN

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FR

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Description

2534

Admitted

Arpaio timeline/charts re Montgomery


investigation (Ex. F to Dkt 1166)
(MELC199917-MELC199935)

1724

Manuel De Jesus Ortega Melendres, et al v.


Joseph M. Arpaio, et al "Opinion Filed" dated
9/25/2012 (MCAO00025-27)

1681

E-mail from Tim Casey to Allen Lisa: Injunction 1684


compliance - Melendres Ortega v. Arpaio Letter
to Casey 10/11/2012 encls.pdf dated 10/12/2012
(MCAO00028-38)
E-mail from Tim Casey to Brian Sands, Gerard
Sheridan, Brian Jakowinicz, and John MacIntyre
re Melendres v. Arpaio (MCSO Response to
Plaintiffs' Accusation of Violation of Court's
12/23/11 Injunction.) Dated 10/18/2012
(MCAO00043-48)

1697

IA 14-0543 Casey Billing Records dated


12/31/2011 (MELC210534-1067)

1627

E-mail from Tim Casey to James Williams


copying Eileen Henry re Melendres Order on
Summary Judgment dated 12/23/2011
(MCAO0003 - MCA00006)

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1612

E X H I B I T S

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1507
1543
1599
1599

Direct Examination by Ms. Wang

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Page

TIMOTHY J. CASEY

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E X H I B I T S

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No.

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2537

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IEN

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2541

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FR

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Description

Admitted

E-mail from Tim Casey to Eileen Henry Fw:


Melendres v. Arpaio et al. Research needed
dated 1/4/2012 (MCAO0007-MCAO0012

1656

E-mail from Tim Casey to Thomas Liddy copying


1659
Eileen Henry FW: Putting out training reference
the court order Melendres dated 1/11/2012
(MCAO00014-15)

E-mail from Eileen Henry to Tim Casey copying


Eileen Henry FW: Scenarios for review based on
judge's order dated 1/13/2015
(CaseySub 000045-49) 2539 E-mail from Brett
Palmer to Carlos Rangel, Christopher Lopez,
David Joya, Jesus Cosme, Juan Silva, Roland
Gonzalez, Victor Navarrette, Alejandro OrtegaRodriquez, Charley Armendariz, Christopher
Hechavarria, Daniel Frel, Gabriel Almanza,
Hector Martinez, Jesus Jerez, Susan Monroe,
Wade Voeltz, Cesar Brockman, Joseph Sousa,
Michael Trowbridge, Albert Brown, Brent Wise,
Brett Palmer, Brian Sands, Cathy David,
Christopher Hegstrom, David Ames, David
Letourneau, David Trombi, Frank Munnell,
Frank Zumbo, George Acritelli, Glen Powe,
Henry Brandimarte, Irene Barron-Irby, James
Barrett, Jeffrey Sprong, Jesse Spurgin, Justin
Griffin, Lisa Allen, Mari Rawleigh, Perla
Plata, Randy Paulsen, Tim Casey, and Vicki
Kratovil - Subject: My cell number dated
1/19/2012 (CaseySub 000044)

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E-mail from Tim Casey to John MacIntyre, Jerry


Sheridan, Brian Sands and Joseph Sousa copying
Liddy Thomas, Eileen Henry, James Williams Melendres v. Arpaio/Settlement Overture dated
1/30/2012 (MELC165701-702)

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E X H I B I T S

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No.

2543

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IEN

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FR

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Description

Admitted

E-mail from Tim Casey to Paul Chagolla, Liddy


1704
Thomas copying Larry Farnsworth, Eileen Henry,
James Williams, John MacIntyre, Gerard Sheridan,
and David Trombi RE: Attorney Client
Communication Casey Recommendations re Reading
the Court's Orders dated 4/4/2014
(MCAO00634-635)
E-mail from Tim Casey to Eileen Henry re
1698
injunction compliance - Melendres Ortega v.
Arpaio dated 10/18/2012 (CaseySub 000178-000181)

E-mail from Tim Casey to Liddy Thomas and James 1712


Williams copying Eileen Henry and Christine
Stutz RE: Attorney Client Communication dated
4/4/2014 (MCAO00577-79)
E-mail from Larry Farnsworth to Tim Casey
1703
copying Eileen Henry, James Williams,
Christine Stutz, Liddy Thomas, Gerard Sheridan,
John MacIntyre, David Trombi, Benjamin Armer,
Christopher Dowell, Hector Martinez, Kip
Rustenburg, Russ Skinner RE: Melendres
Order dated 3/28/2014 (MCAO00580-621)

Maricopa County Sheriff's Office Complaint


Acceptance Report (MELC1306914)
Maricopa County Sheriff's Office Authorization
to Release Information (MELC1306915)
Maricopa County Sheriff's Office Policy and
Procedure, Subject: Internal Investigations
Policy Number GH-2, Effective Date 9/5/14
(MELC1306916-MELC1306934)

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P R O C E E D I N G S

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This is CV 07-2513, Melendres, et al.,

MR. YOUNG:

Good morning, Your Honor.

Cecillia Wang

Good morning, Your Honor.

Stanley Young,

Covington & Burling.

09:07:30

MR. POCHODA:

Arizona.

Dan Pochoda for plaintiffs, ACLU of

MR. KILLEBREW:

Paul Killebrew and Cynthia Coe for the

United States, plaintiffs intervenor.

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MR. MASTERSON:

Good morning, Judge.

John Masterson,

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Joe Popolizio, and Michele Iafrate for Sheriff Arpaio and the

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individual contemnors.

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Good morning, Your Honor.

09:07:43

Richard Walker

on behalf of Maricopa County.


MR. McDONALD:

Good morning, Your Honor.

Mel McDonald

09:07:53

making a special appearance for Sheriff Joe Arpaio.


MR. MITCHELL:

IEN

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MR. WALKER:

DS

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09:07:15

Michelle Morin, and Lauren Pedley for plaintiffs, of

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THE CLERK:

and Andre Segura of the ACLU for plaintiffs.

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Please be seated.

MS. WANG:

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THE COURT:

v. Arpaio, et al., on for continued evidentiary hearing.

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Good morning, Judge.

Barry Mitchell

specially appearing on behalf of Chief Gerard Sheridan.


MR. COMO:

Good morning, Judge.

representing Brian Sands.

Greg Como
09:08:08

MR. BIRNBAUM:

Good morning, Your Honor.

Gary

Birnbaum, special counsel for Deputy Chief MacIntyre.

Mr. MacIntyre's in the courtroom as well.


THE COURT:

Thank you.

MS. HAMILTON:

Good morning, Your Honor.

April

Hamilton on behalf of Maricopa County Attorney's Office,

Maricopa County Attorney William Montgomery.


MS. WANG:

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THE COURT:

Your Honor, may I proceed with redirect of

Did you have an issue, Mr. Masterson?

begin redirect.

MR. MASTERSON:

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Judge, I just have one thing.

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talked to Ms. Wang about it this morning, and I know that we

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have Rule 615's been invoked.

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we have some additional members of MCSO in the courtroom today.

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I've discussed with Ms. Wang, and she told me they do not

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intend to call these people, but I wanted to, just in case

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something comes up later, I wanted to alert the Court, too.

I wanted to alert the Court that

DS

We have Chief LeeAnn Bohn, Chief Shelly Bunn, Chief

Paul Chagolla, Captain Fred Aldorasi, Chief Ken Holmes, Chief

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Joe Rodriguez, and Chief Traci Haggard.

IEN

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THE COURT:

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Have we arrived at proposed witness lists and

FR

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09:08:46

I have a few matters I want to raise, too, before we

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09:08:27

Chief Sheridan?

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09:08:58

09:09:14

Thank you.

stipulated or non-stipulated exhibits?

09:09:43

MS. WANG:

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Your Honor, Ms. Morin will address that on

behalf of plaintiffs.
MS. MORIN:

Yes, Your Honor.

The plaintiffs have

circulated to the parties a proposed pretrial statement on

behalf of plaintiffs' positions, and we are in the process of

discussing that statement of issues and also the exhibits, the

proposed amendment to the exhibit list and proposed stipulation

on exhibits as well.

We have not yet reached any exhibit stipulations.

The

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parties have reached a stipulation, or have reached agreement

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to admit certain portions of Mr. Seebert's deposition

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transcript in lieu of calling Mr. Seebert.


THE COURT:

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I didn't know about the draft joint

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pretrial.

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down here this morning, so I haven't seen it yet.

I guess that was submitted while we were on our way

Ms. Wang and Mr. Young this morning.

My understanding was that

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we're going to get a list of proposed exhibits for each

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witness, and then I would then go through each of those

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witnesses and let plaintiffs know whether I agreed to stipulate

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to the exhibit or not.

IEN

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09:10:56

I have not gotten that list, but I was told this

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morning that my presumption, I guess, was wrong, that their --

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they have not made a decision whether they are going to give me

FR

09:10:40

I just had a conference concerning exhibits with

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09:10:12

Mr. Masterson.

MR. MASTERSON:

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09:09:59

09:11:13

such a list for each witness.

And you guys can correct me if I'm wrong; I'm trying

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to tell the Court what we just talked about a little bit ago.
I think they're going to discuss with one another

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whether they will provide such a list for each witness, and

then I will, of course, go through those exhibits.

Exhibit lists have been supplemented, and I understand

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some are taken off and some are added.

still faced with over a thousand exhibits.

But my problem is I'm

And I, due to all

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the proceedings we've had, haven't been able to go through the

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thousand exhibits to tell them which ones we'll stipulate to.

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But if they'd give me a condensed list for each witness, I will

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do that immediately.
THE COURT:

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All right.

Thank you.

objection, that I would have the monitor coordinate with the

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parties who were interested as to the status of the Internal

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Affairs investigations that had been disclosed to the monitor.

DS

Have all parties done that?


MS. WANG:
THE COURT:

IEN

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MS. WANG:

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THE COURT:

FR

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09:11:58

At the end of hearing last week I indicated, without

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09:11:43

I think it might

help expedite and organize this matter.

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09:11:26

Yes, Your Honor.

09:12:21

We have.

All right.
On behalf of plaintiff, we have.
Is there anything further you wish to

raise with respect to that?

09:12:30

MS. WANG:

THE COURT:

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No, Your Honor, not at this time.


Okay.

I discussed with you earlier on,

Mr. Masterson, whether we were going to be proceeding as we did

in the first part of this contempt hearing, which is we're all

going to call witnesses all at once, in which case you would

get the final redirect now, or whether you wished to reserve

the right to call your -- call the witnesses in any

case in chief you might wish to present.

going to get back to me later on that, and I think now's the

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And you said you were

time we need to make that decision.


MR. MASTERSON:

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09:13:03

Judge, I do wish to reserve the right

to recall witnesses in our case in chief.


THE COURT:

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All right.

Let me ask you how to proceed,

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then.

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few as we've gone along; I may have a few more.

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you the opportunity to address any questions I have.

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you're going to reserve the right to call your witness in the

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case in chief, I think Ms. Wang gets the final word in her

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case in chief.

I may have some questions for witnesses.

I've asked a

I want to give

acceptable to you I wait and hear Ms. Wang's redirect.

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have any questions of him, I'll ask them.

IEN

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09:13:36

If I

Then I'll allow you

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and any other defense witnesses an opportunity to pose him

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questions based on my questions.

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the final redirect, if she has any based on my questions, and

FR

09:13:19

But if

If I have any for Chief Sheridan, would it be

DS

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09:12:44

And then we'll give Ms. Wang


09:13:53

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then we'll move to the next witness.


MR. MASTERSON:

I believe that is appropriate.

And I

just want to make sure the Court understands that I'm not

guaranteeing you that I will recall all the witnesses, so if

you have questions -- I know you'll ask them.


THE COURT:

Yeah, I get that.

09:14:07

I just want to make

sure -- and I'm certainly not going to insist that you recall

them -- but I just want to make sure we proceed in an order

that is appropriate in terms of fairness to all the parties.

Does anybody else have any objection if we proceed in

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that way?

MS. WANG:

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No objection, Your Honor.

It's helpful to

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know that when Mr. Masterson is questioning a witness that that

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is, in effect, both his cross following my examination and his

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own direct.

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might be appropriate to make.

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THE COURT:

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That will help me to understand which objections

09:14:37

Thank you.

One more item of business before,

Ms. Wang, I turn it over to you.

The marshals informed me this morning -- and I think

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we did tentatively discuss this; I'd indicated I might raise

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it -- that PSB would like to take individual photographs of

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some or all of the identifications in the marshals' custody.

IEN

DS

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I've told them that I thought that would be acceptable, but I

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was going to raise it with all parties to see if anybody had an

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objection.

FR

09:14:22

09:14:55

09:15:13

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The marshals indicate to me that they have made

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arrangements, I think, Ms. Iafrate, with you, and with the PSB,

to go in this afternoon while we're in trial.

marshal present.

The marshal will be present while PSB takes photos of any of

the individual identifications that they wish to take photos

of.

09:15:28

that correct, as far as you understand it, Ms. Iafrate?


MS. IAFRATE:

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THE COURT:

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There will be photographic equipment present.

Does anybody have -- I think that's the procedure, is

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We'll have a

That is, Your Honor.

09:15:39

Anybody have any objections to proceeding

in that fashion?

MS. WANG:

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Your Honor, so long as the IDs stay in the

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custody of the U.S. Marshals, plaintiffs have no objection.

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don't want there to be any issues about -- I don't want there

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to be any issues about chain of custody later on coming from

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the defendants' table.

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receive a copy of any photographs that defendants take of those

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identification documents.

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And we would request that plaintiffs

All right.

MR. MASTERSON:

address it later, because it doesn't sound like it's going to

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be an issue today.

FR

09:16:07

Just one, Judge, and we can probably

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09:15:50

Any further issues with any of that?

IEN

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THE COURT:

DS

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It's possible at some point we need -- and I'm not

09:16:20

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saying we need to take custody of the IDs, but have to go hands

on with them for the process of going through them for fraud --

fraudulent documents.
THE COURT:

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A photograph might not be enough.

That will be fine, and we can take it up.

But as you stand there, I do think of one other issue.

If I understood the potential order of witnesses, it's

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likely that we're going to call -- or that the plaintiffs are

going to call Mr. Casey today.

whether or not you were going to invoke advice-of-counsel

I raised with you previously

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defense as to the May 14, 2014 meeting.

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think about that and get back to me.

You said you would

MR. MASTERSON:

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I understand there was more than one

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meeting, Judge, and so we will be invoking attorney-client

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privilege with respect to certain meetings that took place on

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that day.

THE COURT:

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with respect to advice -- or the course taken by the MCSO with

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respect to gathering the identifications --

DS

MR. MASTERSON:

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THE COURT:

FR

09:17:22

-- or gathering the videos and other

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At this time --

matters?

IEN

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MR. MASTERSON:
THE COURT:

09:17:05

Are you going to invoke advice of counsel

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09:16:53

Had any further thoughts on that?

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09:16:37

counsel?

At this time, yes.

You are going to be invoking the advice of


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MR. MASTERSON:

THE COURT:

Yes, sir.

Okay.

Just so plaintiff is aware of that,

we'll proceed, and then I guess we'll go on a

question-by-question basis from there on out.


All right.

Anybody else need to raise anything else?

Ms. Wang.

MS. WANG:

Your Honor, as to the last point that was

addressed, this is news to plaintiffs for the first time the

that defendants will rely on an advice-of-counsel defense as to

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the events of May 14th, 2015.

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witnesses, including Chief Sheridan -THE COURT:

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MS. WANG:

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We have not deposed the relevant

Sorry, 2014, Your Honor, correct.

And we

have not deposed the relevant witnesses on that subject.

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this defense was not raised previously we have not deposed

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Chief Sheridan on that subject or any of the other relevant

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witnesses, including counsel.

Since

plaintiffs to the late invocation of the advice-of-counsel

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defense during the trial.

DS

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THE COURT:

Well, what do you want to do about it,

MS. WANG:

Your Honor, I'd like to reserve the right

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to depose the witnesses, reopen the depositions of the relevant

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witnesses, so that we can take discovery on this late-breaking

FR

09:18:56

Ms. Wang?

IEN
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09:18:37

And so I guess I have an objection on behalf of

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09:18:20

That would be May 14, 2014.

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21

09:17:40

09:19:10

defense.

THE COURT:

MS. WANG:

3
4

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Well --

Or I would move to preclude the invocation

of the defense at this late stage.


THE COURT:

MS. WANG:

Mr. Masterson.

09:19:26

Oh, and I'm further informed, Your Honor,

that in their interrogatory responses prior to the continuation

of this hearing last week, defendants took the position -- I'm

sorry, in March, Your Honor, defendants did take a position

10

they would not rely on an advice-of-counsel defense as to the

11

events of May 14th, 2014.


MR. MASTERSON:

12

So this is a surprise.

Well, this is not a surprise.

We

13

talked about it the very first day of trial.

14

this issue was on the table; it just hasn't come up again since

15

then.

So everybody knew

09:20:05

Secondly, with respect to discovery, I don't know what

16
17

additional questions plaintiffs think they need to ask.

18

got hundreds and hundreds of pages of deposition for Chief

19

Sheridan.

20

of this defense I do not understand.

21

everything about this particular incident they wanted except

22

attorney-client privileged matters.

DS

IEN

They could have asked him

24

point.

THE COURT:

09:20:20

They chose not to do so.

So I don't see why we need additional depositions at this

FR

We've

What additional questions they could ask now because

23

25

09:19:49

Well, advice-of-counsel defense would

09:20:35

waive the attorney-client privilege, right?


MR. MASTERSON:

2
3

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Understood.

But they didn't even ask

the questions.

THE COURT:

All right.

What I'm going to do --

Well, I'll hear from you, Mr. Young, but I'm not going

5
6

to make a decision right this second.

look at some matters at break, and maybe over lunch -- well,

depends on when we get to Mr. Casey.

matters before we get to Mr. Casey and make a determination of

10

What I'm going to do is

I'll try to look at some

how we're going to proceed.

09:20:58

Mr. Young.

11

MR. YOUNG:

12

Well, I would just note, just to

13

supplement, we did take a deposition of Mr. Liddy, and there

14

was some discussion of the May 14, 2014 issues then.

15

believe the discussion during that deposition, which occurred

16

on September 21, last Monday, was that those questions could

17

only be asked if it was not deemed to be a subject-matter

18

waiver as to the May 14, 2014 issue.

But I

last day we took dep- -- or the second-to-last day that we took

21

depositions prior to this hearing, that the issue of advice of

22

counsel was not raised and, in fact, it was specifically agreed

IEN

DS

20

09:21:32

that there would not be a subject matter waiver on that issue.

24

So this is indeed a surprise.

25

THE COURT:

FR

09:21:12

So my belief is that as of last week, which is the

19

23

09:20:45

Well, Mr. Masterson is right that I asked

09:21:50

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him this question last Thursday, I think, last Wednesday.

asked him this question before we re-began or resumed

testimony.

that extent he's quite right.

So I think to the extent he says it isn't new, to

I would ask that if you've got interrogatory responses

5
6

that say that, if you have relevant excerpts from deposition

transcripts, that you gather them and find them for me now, so

that I can take a look at what happened.


MS. WANG:

We will do that, Your Honor.

And just to clarify, it was defendants' position

10
11

during the April hearing that they were not waiving the

12

attorney-client privilege as to matters relating to the May

13

14th, 2014 events.

14

testimony, there was a meeting between Chief Sheridan,

15

Christine Stutz, and Chief Trombi that was not subject to the

16

privilege in the first place; and they did invoke the privilege

17

over an earlier meeting on May 14th, 2014, and they've taken

18

that position consistently, as Mr. Young said, through the

19

depositions between April and now.

21

23
24

FR

25

I do recall that, but I want to have as

Are you ready to resume?


MS. WANG:

09:22:30

They specifically said that based on the

full picture as both parties can give me.

IEN

22

THE COURT:

DS

20

09:22:13

I am, Your Honor.

09:22:48

09:23:05

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GERARD SHERIDAN,

1
2

recalled as a witness herein, having been previously duly

sworn, was examined and testified further as follows:


REDIRECT EXAMINATION

4
5

BY MS. WANG:

Q.

Good morning, Chief.

A.

Good morning.

Q.

Chief, in response to questioning by Mr. Masterson you

testified that you began to pay close attention to this case

10

after the trial, is that right?

11

A.

12

the Court's issuance of the findings of facts and conclusions

13

of law.

14

Q.

That would be the trial ruling, is that right?

15

A.

Yes, ma'am.

16

Q.

And you testified that you did read the Court's May 2013

17

trial ruling, correct?

18

A.

I did.

19

Q.

And Mr. Masterson asked you to explain on the stand what

20

the trial ruling held, is that right?

21

A.

Yes.

22

Q.

And you did so --

Specifically, it would have been May of 2013, upon

IEN

DS

Yes.

23

A.

I did.

24

Q.

-- correct?

FR

25

09:23:35

Now, you contend that you were not aware of the

09:23:58

09:24:08

09:24:13

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preliminary injunction order until your deposition taken in the

United States Department of Justice case on March 27, 2014, is

that right?

A.

That's correct.

Q.

So you were not aware, although you read the Court's May

2013 trial ruling, that that ruling itself referenced

violations of the preliminary injunction order?


Is that your testimony?

8
9

A.

Yes, ma'am.

10

Q.

Now, in response to Mr. Masterson's questions, you also

11

mentioned that you gave a press conference outside this

12

courthouse after the Court's May 2013 trial ruling, is that

13

right?

14

A.

Yes.

15

Q.

And during that press conference you stated the ways in

16

which MCSO would comply with that ruling, correct?

17

A.

I don't recall what I said.

18

Q.

All right.

19

that press conference on your telephone, correct?

20

A.

That I do.

21

Q.

You're proud of that press conference, correct?

22

A.

Yes.

DS

IEN

09:24:45

09:24:57

Well, you testified that you have a photo of

23

Q.

24

indicated that MCSO would comply with the Court's trial ruling,

25

correct?

FR

09:24:31

09:25:15

And in effect you -- during that press conference you

09:25:27

A.

Yes.

Q.

All right.

caught on videotape disparaging that ruling by the Court,

correct?

A.

Not the ruling, no.

Q.

Well, didn't you call the ruling ludicrous and crap?

A.

No.

But in fact, just a few months later, you were

09:25:35

MR. MASTERSON:

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Objection, Your Honor.

Goes beyond

the scope of the cross-examination.


MS. WANG:

10

Your Honor, Mr. Masterson elicited

11

testimony about the press conference in which the chief

12

expressed a willingness to comply with the Court's orders, and

13

I think this is relevant.


THE COURT:

14
15

MS. WANG:

THE COURT:

17

MS. WANG:

18

20

All right.

-- dwell on them in great detail.

I'll move on, then, after I hear an answer

THE WITNESS:

21

BY MS. WANG:

22

Q.

IEN

All right.

My response was "No."

09:26:12

You did mischaracterize the Court's ruling, did

23

you not, during this preoperation briefing in October of 2013?

24

A.

I was not referring to the ruling.

25

Q.

Well, wasn't MCSO required to issue a corrective statement

FR

09:26:04

from the chief.

DS

19

I'll allow it, but I recall very well the

events myself, so you don't have to --

16

09:25:49

09:26:30

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about -- in response to your statements during the October 2013

briefing?

A.

questions you're asking me about my statement in October of

2014.

Q.

2013?

A.

2013, I'm sorry.

Q.

All right.

testimony on that, so we'll move on.

I think we have a miscommunication again about the

09:26:49

Well, the Court has indicated there's already

Sir, Mr. Masterson asked you about your reading of the

10
11

Court's February 2015 order requiring certain documents to be

12

produced to the plaintiffs.

Do you recall that?

13
14

A.

I'm sorry.

15

Q.

Sure.

16

2015 order requiring the disclosure of certain documents to the

17

plaintiffs.

A.

Yes.

20

Q.

Okay.

21

look.

FR

25

09:27:13

Do you recall that?

That's Exhibit 2003, if you would like to take a

09:27:29

That was the Court's order.


Do you recall Mr. Masterson asking you about that

IEN
24

Mr. Masterson asked you about the Court's February

DS

19

23

Could you repeat that again?

This is about the 1500 IDs.

18

22

09:27:01

court order?
Take a look at page 2, the item referring to

identification documents seized from members of the plaintiff

09:28:09

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class.

A.

Yes, I do.

Q.

Do you recall that question by Mr. Masterson?

A.

Yes, ma'am.

Q.

All right.

for a fact that any of the 1459 IDs from Sergeant Knapp had

been seized from the plaintiff class, correct?

A.

That's correct.

Q.

And you testified that you did not know, is that right?

10

A.

That's correct.

11

Q.

But sir, by July 17, 2015, you did know that 30 percent of

12

the 1459 IDs belonged to people who appeared to be Hispanic,

13

correct?

14

A.

15

drivers.

16

Q.

And Mr. Masterson asked you whether you knew

09:28:32

That's correct, but we don't know if they were taken from

Okay.

09:28:52

But that's not my question.

I'm just asking you:

17

As of July 17, 2015, you were

well aware that 30 percent of the 1459 IDs apparently belonged

19

to people who were Hispanic, correct?

20

A.

That's correct.

21

Q.

That's about 500 IDs, correct?

22

A.

Yes, ma'am.

IEN

DS

18

23

Q.

24

had gotten all of the 1459 IDs from the destruction bin in the

25

Property and Evidence room, correct?

FR

09:28:16

All right.

09:29:06

And you knew by that point that Sergeant Knapp

09:29:17

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A.

Yes.

Q.

And you've testified before that in order to get into the

destruction bin at Property and Evidence, items would have been

seized by a deputy and processed for destruction, correct?

A.

Yes.

Q.

So by July 17, you knew that 30 percent of the 1500 IDs

belonged to people who appeared to be Hispanic, number one,

correct?

A.

Yes.

10

Q.

And number two, you also knew by then that those IDs would

11

have been seized in order to get into the destruction bin,

12

correct?

13

A.

Yes.

14

Q.

Yet you did not tell the monitor about the existence of the

15

IDs before -- on July 17, 2015, correct?

16

A.

That's correct.

17

Q.

Now, you understand that the Court's February 2015 order

18

relates to the requirement that identification documents be

19

disclosed to the plaintiffs, correct?

20

A.

I do.

21

Q.

You also understand, sir, that MCSO has an independent and

22

separate obligation to be truthful to the court-appointed

IEN

DS

monitor, correct?

24

A.

Yes.

25

Q.

And you understand that the monitor team is an arm of this

FR

23

09:29:31

09:29:45

09:29:58

09:30:16

09:30:29

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Court, correct?

A.

I do.

Q.

Now, you said that you wanted to wait until you got your

stories straight before telling the monitor about the IDs,

right?

A.

Correct.

Q.

Sir, nothing prevented you from telling the monitor on July

8th, when you found out about the existence of the IDs from

Captain Bailey, nothing prevented you at that point from

09:30:40

10

telling the monitor:

11

thousand IDs.

12

to know about this.

We've just become aware of over a

I don't know the full story yet, but I want you

You could have told the monitor that on July 8th,

13
14

correct?

15

A.

16

proceed.

17

Q.

18

what you knew at the point that Captain Bailey refer --

19

reported the IDs to you, correct?

20

A.

I wanted to act prudently, so I would disagree with you.

21

Q.

Had your counsel told you before that point, Don't disclose

22

any IDs to the monitor unless I tell you to?

We were waiting for advice from our counsel on how to

09:31:12

IEN

DS

But, sir, nothing prevented you from telling the monitor

23

MR. MASTERSON:

24

scope.

25

of Chief Sheridan.

FR

09:30:54

09:31:29

Your Honor, this goes beyond the

I did not address this issue at all in my examination


09:31:47

MS. WANG:

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Your Honor, I think Mr. Masterson did

elicit testimony relating to why it was that the identification

documents were not disclosed earlier than they were.


THE COURT:

(Pause in proceedings.)

MR. MASTERSON:

6
7

Just a moment.

09:33:24

Your Honor, I'll withdraw the

objection.

MS. WANG:

THE COURT:

Thank you.

Please proceed.

THE WITNESS:

10

Okay.

I'm sorry.

Can you repeat the

11

question?

12

BY MS. WANG:

13

Q.

14

down.

15

Sergeant Knapp had turned in over a thousand IDs, correct?

16

A.

Yes.

17

Q.

At that point, nothing prevented you from telling the

18

monitor:

19

know anything about them yet, but I want you to know.

Sir, Captain Bailey -- let me break it

Captain Bailey informed you around July 8th that

We've just received over a thousand IDs.

Nothing prevented you from telling the monitor that,

21

correct?

22

A.

09:33:54

IEN

Nothing prevented me from doing that.

23

Q.

24

17th that you knew you had almost 1500 IDs, and that one-third

25

of them appeared to belong to people who were Hispanic,

FR

09:33:43

I don't

DS

20

I'll ask you again.

09:33:30

And nothing prevented you from telling the monitor on July

09:34:14

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correct?

A.

Correct.

Q.

And nothing prevented Captain Bailey from responding to the

Monitor Team's question on July 20th by saying there was

another set of over a thousand IDs, but you hadn't gathered the

information on them yet, is that right?


MR. MASTERSON:

THE COURT:

MS. WANG:

Objection, foundation.

Are you asking about Captain Bailey?

That's right, Your Honor.

10

BY MS. WANG:

11

Q.

If you know.

12

A.

I do not know.

13

Q.

You had discussions with Captain Bailey all the way up

14

through July 17th about the Knapp IDs, correct?

15

A.

Yes.

16

Q.

And you discussed the Knapp IDs with Captain Bailey during

17

the week of July 20th, correct?

18

A.

We talked about a lot of things.

19

Q.

Including the Knapp IDs, right?

20

A.

I'm sure we did.

21

Q.

Okay.

22

anything preventing Captain Bailey from telling the Monitor

09:34:57

DS

IEN

09:34:45

So my question is:

09:35:10

To your knowledge, was there

23

Team, in response to their question on July 20th, We have

24

collected a new set of over 1,000 IDs and we're looking into

25

it?

FR

09:34:29

09:35:32

A.

Yes.

MR. MASTERSON:

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Objection, foundation.

BY MS. WANG:

Q.

doing that?

A.

Yes.

Q.

And you contend that was the advice of Ms. Iafrate?

A.

Yes.

Q.

All right.

Yes, there was something preventing Captain Bailey from

09:35:36

Sir, sitting here today, do you think that it

10

was a mistake not to disclose the Knapp IDs to the Monitor Team

11

on July 20th or earlier?


MR. MASTERSON:

12

THE COURT:

13

Objection, relevance.

Overruled.

THE WITNESS:

14

No.

We had every intention to advise

15

the monitor and the plaintiffs' counsel.

16

prudent and make sure what we were bringing forward was the

17

correct information.

18

and a half days.

19

BY MS. WANG:

20

Q.

So you would do it all over again the same way?

21

A.

Well, I've had to answer this question five times.

22

would have done it differently so I wouldn't have to answer the

I just wanted to be

DS

IEN

09:36:10

I've said that five times in the last two

23

question five times.

24

same way because I had the same issues.

25

never -- that would not have changed.

FR

09:35:47

09:36:29

Maybe I

But I believe I would have done it the


They would have
I would have had

09:36:50

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concerns that I voiced before.

changed.

Those concerns have not

The Monitor Team, the plaintiffs' counsel, would have

3
4

had a full accounting of what we were dealing with.

every intention to advise the Monitor Team.

to hide anything.

a locked room with an IA number pulled and an active

investigation.

this is such a big deal, I don't know.

We had

We were not trying

They were secured in a locked cabinet behind

So I don't know what else to tell you.

Why

10

Q.

11

not disclosed?

12

A.

13

That's why I don't understand it's a big deal.

14

Q.

15

answered the question from the Monitor Team on July 20th the

16

way that he did?

17

A.

18

we were waiting for advice from our counsel.

19

Q.

21

Yes.

09:37:46

No, I don't, because we had consulted with our counsel, and

So you stand by how MCSO handled the 1500 IDs?


MR. MASTERSON:
THE COURT:
MS. WANG:

23

subject, sir.

24

BY MS. WANG:

25

Q.

FR

09:37:32

And you don't think it's a big deal that Captain Bailey

IEN

22

That we didn't ring the phone right away?

DS

20

So you don't think it's a big deal that the 1500 IDs were

No.

09:37:10

Objection, asked and answered.

09:38:02

I'm going to sustain that objection.


All right.

We'll move on to another

Now, Mr. Masterson asked you a series of questions about

09:38:12

matters other than the Melendres case that occupied your

attention in late 2011 and during 2012.

Do you recall those questions?

A.

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I'm sorry, I was a little distracted for a second.


Can you repeat that?

5
6

Q.

I can.

questions on Friday about matters other than the Melendres case

that were occupying your attention around the time the

preliminary injunction order issued and afterwards, correct?

Do you recall that Mr. Masterson asked you some

10

A.

Yes, ma'am.

11

Q.

All right.

12

you about was an allegation that MCSO had improperly applied

13

$104 million in funds earmarked for detention purposes to pay

14

for deputy sheriffs on the enforcement side.

09:38:40

Now, one of the things that Mr. Masterson asked

Do you recall that testimony?

15
16

A.

Yes, ma'am.

17

Q.

All right.

18

and Finance Division, correct?

19

A.

I do.

20

Q.

You testified in response to Mr. Masterson's questions that

21

the controversy over the $104 million was, quote, more of a

22

media problem than anything, end quote.

09:39:09

Do you recall that testimony?

24

A.

Yes.

25

Q.

Actually, sir, that is an accounting problem, not a media

FR

09:39:00

Now, as chief deputy, you oversee the Budget

DS

IEN
23

09:38:26

09:39:26

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problem.

Would you agree with me?

A.

I believe I talked about the accounting issues.

Q.

It's not just a media problem, it is an accounting problem.


Do you agree with that?

4
5

A.

Absolutely.

Q.

MCSO gets funds from different sources for different

purposes, correct?

A.

Yes, ma'am.

Q.

Some funds are restricted in how they can be used, correct?

10

A.

Correct.

11

Q.

Sir, did your work on that controversy about the

12

$104 million heighten your awareness of the importance of

13

proper accounting for different funds used by MCSO?

14

A.

Yes.

15

Q.

Now, during the Seattle investigation, do you agree with me

16

that it was important to make sure that funds used to pay the

17

confidential informant were from proper sources?

21

MS. WANG:

THE COURT:

23

MS. WANG:

24

BY MS. WANG:

25

Q.

FR

Objection, beyond the scope of

Your Honor, I think it flows from the

09:40:25

testimony about other accounting --

IEN

22

09:40:05

cross-examination of this witness.

DS

20

09:39:51

MR. MASTERSON:

18
19

09:39:42

I'll allow it.


-- issues.

Thank you.

Do you agree with me on that, sir?

09:40:33

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A.

I do.

Q.

Now, MCSO in general has -- withdrawn.

MCSO has general funds in its budget, correct?

3
4

A.

Yes, ma'am.

Q.

Those can be used for any purpose, correct?

A.

Any lawful purpose, yes.

Q.

But you and Sheriff Arpaio chose to use state RICO funds to

pay the confidential informant, correct?


MR. MASTERSON:

9
10

Objection, beyond the scope of the

examination by me.

THE COURT:

11

MS. WANG:

12
13

BY MS. WANG:

14

Q.

15

investigations, sir.

09:41:03

Sustained.

All right.

We'll move on to another topic.

I'm going to turn to the subject of Internal Affairs

09:41:12

Now, you recall that Mr. Masterson asked you some

16

questions about the Internal Affairs investigation into

18

Deputy Ruben Garcia's complaints that fellow deputies had

19

discriminated against Latinos, correct?

20

A.

Yes.

21

Q.

All right.

22

fact that Deputy Walters had been polygraphed, correct?

IEN

DS

17

09:41:29

And Mr. Masterson called your attention to the

23

A.

He did.

24

Q.

And you recall that the complaint that Deputy Garcia made

25

against Deputy Walters was that he refused to take complaints

FR

09:40:45

09:41:45

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about crimes from Latino victims, correct?

A.

That's correct.

Q.

And you're also aware that there was another allegation

made by Deputy Garcia that he had been stopped, the subject of

a traffic stop, because of his race, is that right?

A.

Yes, ma'am.

Q.

Those were different deputies other than Deputy Walters who

were alleged to have done that, correct?

A.

Yes, ma'am.

10

Q.

And there was a reserve deputy, Mr. Coogan, who actually

11

conducted the stop, right?

12

A.

That's correct.

13

Q.

And he had done so, it was alleged, at the direction of a

14

regular deputy, Deputy Jackson.

15

A.

I do.

16

Q.

Deputy Coogan, the one who conducted the stop, was not even

17

named as a principal in the investigation.

I recall discussing that in my deposition, but I have not

20

read the investigation recently.

21

Q.

22

number 2521.

DS

A.

Okay.

IEN

FR

25

Do you recall that?

09:42:29

19

24

09:42:12

Do you recall that?

18

23

09:42:04

Feel free to refer to the exhibit.

you have it.

09:42:44

It's

And the findings are listed at -- I'll wait till


The findings are listed at MELC820996 through 99.

Do you see, sir, that only Deputy Walters and Deputy

Jackson were charged?

09:43:35

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A.

Yes.

Q.

All right.

relating to the traffic stop of Deputy Garcia.

Now, Mr. Masterson asked you about the facts

Do you recall that?

4
5

A.

I'm sorry.

Q.

Do you recall that Mr. Masterson asked you about the

traffic stop of Deputy Garcia on Friday?

A.

Yes.

Q.

And you testified that he had driven by Deputies Coogan and

10

Can you repeat that?

Jackson at a high rate of speed at 3:00 a.m.

12

A.

Yes, ma'am.

13

Q.

Now, you are aware that Deputy Garcia disputed those facts,

14

right?

15

A.

I -- I don't recall if he disputed those facts.

16

Q.

Okay.

17

polygraphed Deputies Jackson or Coogan?

18

A.

No.

19

Q.

Now, I'd like to ask you to turn to page MELC821009; again,

20

on the subject of the circumstances of the stop.

DS

MS. WANG:

23

THE COURT:

24

BY MS. WANG:

25

Q.

FR

09:44:31

Do you recall whether the IA investigators

THE COURT:

IEN

22

09:44:09

Do you recall that testimony?

11

21

09:43:52

09:45:01

Which exhibit is this, again?


It's 2521, Your Honor.
Thank you.

Are you there, sir?

09:45:22

A.

I am.

Q.

Okay.

MS. WANG:

3
4

Your Honor, this is in evidence.

May I ask

that it be published?

5
6

THE COURT:

You may.

MS. WANG:

Thank you.

And let's highlight the last three paragraphs.

BY MS. WANG:
Q.

Sir, do you agree with me that Sergeant Morrison -- well,

11

first, Sergeant Morrison was the IA investigator here, correct?

12

A.

Yes, ma'am.

13

Q.

And he interviewed Reserve Deputy Coogan, correct?

14

A.

Yes.

15

Q.

All right.

16

at this point that's highlighted on the screen in front of you,

17

is telling Deputy Coogan, first, that he has already spoken to

18

Deputy Jackson, is that right?

19

A.

That's correct.

20

Q.

And second, Sergeant Morrison tells Deputy Coogan Deputy

21

Jackson's recollection of the incident is a little different

22

than Ruben Garcia's.

IEN

DS

10

Would you agree with me that Sergeant Morrison,

09:45:42

09:45:54

09:46:11

Do you see that?

23

A.

I do.

24

Q.

And do you see that Sergeant Morrison continues to tell

25

Deputy Coogan what Deputy Jackson's statement was regarding

FR

09:45:27

Let's turn to page MELC821009 in Exhibit 2521, please.

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09:46:27

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this traffic stop?

A.

I do.

Q.

Sir, as the chief deputy reviewing an IA file, do you think

that it is problematic for an IA investigator to tell one

deputy accused of participating in an unlawful stop what the

other deputy involved in that stop has said about it?

A.

are in their investigation; what is known by the investigator;

what technique the investigator is using; the investigator's

It depends on a lot of variables:

Depends on where they

10

experience level; the body reaction; the verbal responses from

11

the person they're interviewing; there's a lot of variables.

12

It's difficult to take one sentence out of a report

13

that is an inch thick and criticize a question that was

14

asked --

15

Q.

Okay.

16

A.

-- without reading the whole investigate -- rereading the

17

whole investigation.

18

Q.

19

sir.

20

Morrison says, and I'll ask you some questions about it.

21

right?

09:47:57

DS

Why don't you -- let me just read you what Sergeant

So here Sergeant Morrison says:

All

09:48:13

"So I can tell you

23

I've already talked to Deputy Jackson.

24

recollection of the incident is a little different than Ruben

25

Garcia's.

FR

09:47:27

Well, let's focus on this page and the next one for now,

IEN

22

09:46:51

Deputy Jackson's

The way he remembers it is that you guys were pulled

09:48:25

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over, and that Ruben's vehicle came in the lane right next to

you guys at a speed that he felt was above the posted speed

limit.

hell's going on, because they, you know, are putting us in

danger.

that the things -- so the things that he described would

certainly be reasonable suspicion, which is all you need for a

traffic stop, and would, I would think, would move to probable

cause, since you're actually witnessing the act and so forth

So he had asked you:

Go stop that car and see what the

They're supposed to move over a lane and so forth.

10

and so on.

11

traffic stop if you could just kind of go into it for me."

So

But I wanted to get your recollection of the

09:49:02

Do you see that?

12
13

A.

I do.

14

Q.

Okay.

15

it's clear from this transcript that Sergeant Morrison, the

16

interviewer, first tells Deputy Coogan what Deputy Jackson's

17

version of events was and then asks Deputy Coogan to tell him

18

his version of events?

19

A.

I would agree with that.

20

Q.

And do you agree with me, sir, that that interview

21

technique permits Deputy Coogan to tailor his statement to

22

Deputy Jackson's?

Let me ask you first:

Do you agree with me that

DS

IEN
23

A.

24

dishonest.

25

Q.

FR

09:48:45

09:49:14

09:49:29

Well, you're assuming that Deputy Coogan is going to be

Sir, I'm asking you:

Do you agree with me that the way

09:49:49

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that Sergeant Morrison conducted this interview gave Deputy

Coogan an opportunity to tailor his testimony to

Deputy Jackson's?

A.

No.

Q.

Sir, focusing on what Sergeant Morrison says in the second

paragraph on page 821010, do you agree with me that Sergeant

Morrison is telling Deputy Coogan that he, Sergeant Morrison,

has already concluded that this was a lawful stop?


MR. MASTERSON:

9
10

BY MS. WANG:

11

Q.

Objection, foundation.

09:50:29

Do you agree with that reading of this transcript?


MR. MASTERSON:

12

THE COURT:

13

Same objection.

Overruled.

THE WITNESS:

14

Yes.

15

BY MS. WANG:

16

Q.

And that's inappropriate, is it not, in an IA interview?

17

A.

For all the reasons I stated earlier, it could be or it

18

could not be.

19

Q.

20

with me that in that respect, Sergeant Morrison went too far,

21

isn't that right?

22

A.

09:50:44

DS

Sir, when I deposed you on September 15th, 2015, you agreed

IEN

He could -- he could have.

09:51:17

I don't know without reading

23

this entire inch-thick document, hundreds of pages, what he was

24

trying to do.

25

senior investigator with a lot of experience as a detective and

FR

09:50:02

Sergeant Morrison is a very well thought of


09:51:50

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an interviewer.

Why he did this, probably should have him on

the stand asking him why he did it, not the chief deputy.

Q.

the chief deputy reviewing an IA file.

focus, to be clear.

Well, sir, what I'm asking you is what your reaction was as
All right?

That's my

09:52:11

On September 15th, 2015, when I deposed you, I asked

6
7

you about this passage:

Do you think that Morrison's saying,

quote, "So the things that he described would certainly be

reasonable suspicion, which is all you need for a traffic stop

10

and I would think move to probable cause, end quote.

11

think that's proper for an investigator to say during an

12

interview of a principal in an IA case?


"Answer:

13
14

said."

Do you

Probably a little more than he could have

That was your testimony on September 15th, right?

15
16

A.

17

said that a minute ago.

18

Q.

19

that this was an improper technique to use in an IA interview.

Well, a minute ago you wouldn't commit to the testimony

What's your testimony now?

21

that was over the line?

22

A.

Do you agree with me that

09:53:00

IEN

It could be.

23

Q.

24

you can't be sure whether Sergeant Morrison's interview style

25

or technique here influenced Deputy Coogan's testimony, is that

FR

09:52:44

That's correct, and I stand by that, and I think I just

DS

20

09:52:27

All right.

You also have just testified a moment ago that

09:53:24

right?

A.

That's correct.

Q.

All right.

paragraph.

Well, let's turn to page MELC821014, first

Do you see where Deputy Coogan says:

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what -- I beg your pardon.

said:

statements, same thing"?

I agree with

Do you see where Deputy Coogan

"I agree what your statements were about Jackson's

Do you see that?

9
10

A.

I see that.

11

Q.

And do you agree with me that Deputy Coogan is essentially

12

agreeing with the version of events that Deputy Jackson gave as

13

reported by Sergeant Morrison?

14

A.

15

also see a statement that's not highlighted that says, "I

16

disagree with him," so I don't know what he's agreeing to here,

17

what Coogan's agreeing to.

18

Q.

Where do you see a statement that he disagreed with him?

19

A.

Right before the highlighted area.

20

"d-i-s-a-g-r-e-e" is "disagree."

21

Q.

09:54:13

I don't know if I want to agree to anything else, because I

09:54:50

Well, take a look at the previous paragraph, then.

First of all, take a look at the middle of that

23

paragraph where there's a sentence that says:

24

pride and explain it when I've been challenged on the road with

25

my integrity about racial profiling."

FR

09:54:33

I think that word

DS
Okay.

IEN

22

09:53:51

"I always take

09:55:21

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Do you see that?

1
2

A.

Yes.

Q.

Okay.

this way:

follow up on whether Deputy Coogan had previously been accused

of racial profiling?

A.

Yes.

Q.

And is there any indication in this IA file that that

happened?

And do you agree with me that -- well, let me ask it

Should an IA investigator who hears that statement

10

A.

I don't know.

11

entirety when it was presented to me in 2011.

12

Q.

13

your point about Deputy Coogan's statement, "I disagree with

14

him."

Okay.

I don't know if I even read this in its

"Let me explain this

really clear to you what you were stopped for, and you might

17

disagree with it.

18

mean, and any stop I've gone on, I've also done the same thing.

19

What did you get him for?

20

he stopped for?

21

something, you know, one of the standard PC stops.

22

I disagree with him."

IEN

DS

16

09:56:23

But okay, you've got a cracked window, I

Oh, he's suspended.

But what he was

You know, headlight out or taillight out or

09:56:39

So yeah, so

23

Do you agree with him that at that point Deputy Coogan

24

says "I disagree with him," he's talking about his hypothetical

25

driver who is accusing him of racial profiling, not that he's

FR

09:56:05

So let's continue, because I want to get back to

So Deputy Coogan goes on to say:

15

09:55:46

09:56:55

disagreeing with Deputy Jackson?

A.

Yes.

Q.

So there is not an indication on page MELC821014 that

Deputy Coogan disagreed with anything in Deputy Jackson's

statement about the stop of Deputy Garcia, correct?

A.

That's correct, now that it's explained that way, yes.

Q.

Thank you.

All right.

8
9
10

case.

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Let's move on and talk about the 542 IA

This is the investigation into supervision of Deputy

Armendariz.

09:57:41

Sir, in response to a question from Mr. Masterson on

11
12

Friday, you testified that in the case involving supervision

13

issues relating to Charley Armendariz, Chief Trombi and

14

Lieutenant Sousa received discipline.

15

Do you recall that?

09:57:56

16

A.

I did.

17

Q.

You testified also that a sergeant also was disciplined in

18

the 14-542 case.

19

A.

I did.

20

Q.

Sir, do you stand by that today?

21

A.

That's my belief, yes.

22

Q.

Okay.

IEN

DS

Do you recall that testimony?

Take a look at Exhibit 2218.

23

the 14-542 case.

24

A.

Excuse me.

25

Q.

2218.

FR

09:57:20

09:58:08

That is the report on

And if you will turn to page -Did you say 20- --

Do you have that in front of you?

09:58:48

Oh, I'm sorry.

THE CLERK:

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Thank you.

(Handing).

BY MS. WANG:

Q.

The cover sheets and findings can be found there.

know if you find any indication that any sergeant received a

finding of sustained in the 542 case.

Sir, if you'd turn to page MELCIA011167, towards the front.

BY MS. WANG:
Q.

Do you see any indication that any sergeant received a

11

finding of sustained in the 542 case?

12

A.

Yes, ma'am.

13

Q.

Where is that?

14

A.

It's on MELC1A011189.

15

Q.

You mean where it says "preliminary finding" at the bottom

16

of page -- that page?

17

A.

Yes.

18

Q.

Turn to the next page, and do you see that the final

19

finding was not sustained?

20

A.

Yes.

21

Q.

All right.

DS

10

10:01:37

10:01:52

So I'll ask you again.

23

in this report that any sergeant received a finding of

24

sustained in the 542 case.

25

A.

FR

10:01:19

Well, let me just tell you, I don't see any indication

IEN

22

09:59:08

(Pause in proceedings.)

8
9

And let me

No.

Do you disagree with that?

The case that I'm talking about with Lieutenant Sousa

10:02:04

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and Sergeant Palmer, I must be confusing two different cases.

Q.

trinkets, is that right?

A.

Yeah.

Q.

All right.

A.

There's so many cases, IA numbers that were pulled, and

it's hard to, without actually having a list here, to sit here

and testify accurately like this.

received it.

You were talking about the 541 case into the so-called

10:02:31

I know that a sergeant

I must have misunderstood that it was not part of

10

the 542 case.

11

Q.

12

issues on Charley Armendariz, no sergeant received discipline

13

in that case, correct?

14

A.

15

the discipline and the names of the individuals that received

16

the discipline, I'm afraid to answer that question.

17

Q.

18

Armendariz' supervision, which is the 542 case in front of you.

19

A.

The 542 case --

20

Q.

Correct.

21

A.

-- in front of me?

22

Q.

No sergeant received discipline, correct?

Okay.

10:02:58

So to be clear, in the case involving supervision

Again, without having some document with all the cases and

Fair enough.

But my question is only about the case on

IEN

DS

10:03:36

23

A.

That's correct.

24

Q.

All right.

FR

25

10:03:21

Yes, do agree.

Let's move on to the 541 case.

Sir, you testified in response to questions from

10:03:48

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Mr. Masterson that MCSO, in fact, did open IA cases looking

into the drugs that were found in MCSO evidence envelopes in

Armendariz's home.

A.

I don't think I would have testified to that.

Q.

You don't recall that testimony with Mr. Masterson?

A.

I don't think I would have testified that we opened

individual cases on drugs found in Charley Armendariz's home,

because I'm fairly sure we did not.

Q.

10

Do you recall that testimony?

I'm going to read to you from your testimony on Friday,

September 25th, 2015, starting at page 1435, line 22:


Question by Mr. Masterson:

11

10:04:34

"You also talked a bit

12

with Ms. Wang about some drug issues, I guess drug IAs.

13

kept mentioning heroin and methamphetamine.

She

"Do you remember that?

14

"Answer:

15

Yes, sir.

"Question:

16
17

10:04:07

10:04:52

Tell me, what part of Armendariz had

anything to do with heroin or methamphetamine?


"Answer:

18

When sheriff's detectives executed a search

warrant in Charley Armendariz's house, those items were found

20

in his garage and in his house.

21

"Question:
"Answer:

IEN

22

DS

19

23

10:05:04

Did you investigate that?


Yes, sir.

"Question:

Was it a separate IA?

Let's talk about

this.

25

There was an IA concerning Armendariz himself, is that correct?

FR

24

And I think I might have this a little bit confused.


10:05:15

"Answer:

Yes, sir.

"Question:

Was there another IA, then, or was -- I'm

a little bit confused about 40 IAs.

what seems to be another IA we're talking about now about

drugs, methamphetamine, and heroin.

An IA in Armendariz, and

10:05:31

"Can you just kind of straighten that out for me?"

And I'll skip now to page 1437, line 25:

"Question:

8
9

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So you investigated these

drug/heroin/methamphetamine issues, is that correct?


"Answer:

10

Yes, sir.

"Question:

11

"Answer:

12

10:05:53

You didn't blow them off?

No, sir."

Do you recall that testimony now?

13

MR. MASTERSON:

14

Your Honor, under Rule 106, I'm going

15

to ask that ask counsel go back and read this witness's entire

16

answer on page 1436 and on to 1437, where he clarifies this

17

whole matter for her.


THE COURT:

18

MS. WANG:

19

1436, line 16.

21

BY MS. WANG:

22

Q.

DS

20

IEN

"Answer:

Why don't you do that, Ms. Wang.

Sure, I can do that.

There were many items.

Let me start again at

10:06:16

Trying to remember the

23

number.

24

seized during the search warrant of Charley Armendariz's home.

25

Some of those items could be attributed back to other deputies.

FR

10:06:04

It was over a thousand items that were confiscated,

10:06:28

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For example, a driver's license, let's say, that we were able

to backtrack through our CAD system, through our Records

Management System to another deputy sheriff.

sheriff had contact with that individual.

internal investigation of that deputy sheriff over that ID.

That would be one of the 40-plus spin-off Armendariz

investigations, as an example.

were able to attribute to somebody other than Charley

Armendariz, we could follow up on a separate investigation.

The deputy

We initiated an

So any item that we had that we

"Now, your question about the drugs specifically, I

10
11

don't recall if we were ever able to match up, because some of

12

those drugs were in evidence bags with a seal with no numbers

13

on them with some -- with some information on them.

14

ever able to connect them with another deputy, I don't believe

15

so.

10:07:18

"So that's how the Charley Armendariz investigation

17

was very big, very volu -- as a matter of fact, the executive

18

summary was 542 pages.

19

week.

20

grammar, and there are, I understand, I haven't seen it, there

21

are 17 volumes or so of support documents, tens of thousands of

22

pages, support documents for that investigation, so we have

I just reviewed that within the last

IEN

DS

I sent it back for some editing, not of content, but of

10:07:35

that.

24

"So then there's the 40 spin-off investigations where

25

we were able to identify sheriff's personnel that had violated

FR

10:07:01

If we were

I don't believe we were.

16

23

10:06:44

10:07:48

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policies, and we were also able to identify some outside law

enforcement agencies, their officers that had violated some

policies, and we notified those agencies about their officers'

behavior.

"Question:

5
6

So you investigated these

drug/heroin/methamphetamine issues, is that correct?


"Answer:

Yes, sir.

"Question:

"Answer:

You didn't blow them off?

No, sir."

That's the complete testimony, sir.

10

So my question

11

again is:

12

looking into the drugs found in evidence envelopes in

13

Armendariz's house?

14

A.

15

involving the drugs.

16

case that -- and I don't know what the number of it was -- the

17

main Charley Armendariz case.

18

Q.

19

Armendariz?

20

A.

21

the IDs; not any of the other cases.

22

Q.

10:08:11

Do you recall testifying on Friday about IA cases

No, because I don't believe we did any individual IA cases


They were all contained in the one IA

10:08:33

Not the case into the trinkets, but the case into

It was the Armendariz case.

DS

Yes.

IEN

All right.

Not the trinkets; not

10:08:56

And do you know whether that case was the

23

14-221 case?

24

A.

I'm sorry, I don't recall any of those numbers.

25

Q.

Sir, are you aware that defendants were supposed to

FR

10:08:02

10:09:11

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disclose all the documents relating to any Armendariz

investigation or Armendariz spin-off investigation to the

plaintiffs in this case?

A.

Yes, ma'am.

Q.

So would the documents relating to this -- any

investigation into the drugs found in Armendariz's house, would

those be among the documents turned over to us?

A.

past week or two.

It would be in the case that I just reviewed within the

10

Q.

So that has not been turned over --

11

A.

It took me -- it took me about three weeks to read the

12

542-page executive summary.

13

Q.

14

221 investigation actually have been turned over to plaintiffs?

15

A.

16

it yet.

17

Q.

18

that I had asked you about allegations that TVs, in the plural,

19

had been taken by HSU members.

Okay, sir.

10:09:49

So are you aware that documents relating to the

I don't know if they have or not; I haven't signed off on

Okay.

Do you recall that testimony?

10:10:27

A.

Yes, ma'am.

22

Q.

And Mr. Masterson elicited from you testimony that you knew

IEN

21

23

of only one TV that was seized by HSU.

24

A.

Yes.

25

Q.

So I just want to make sure, sir:

FR

10:10:07

Sir, Mr. Masterson called your attention to the fact

DS

20

10:09:25

Do you recall that?

Is it true that you are

10:10:41

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Sheridan - Redirect, 9/29/15 Evidentiary Hearing

not aware of PSB looking into more than one TV seized by HSU?

A.

That's my understanding.

Q.

To your knowledge, HSU has only seized one TV.

A.

That's my understanding.

Q.

All right.

asked you about a new protocol that MCSO has where lieutenants

on the division side, as opposed to the PSB side, who are

involved in Internal Affairs investigations receive training in

Internal Affairs investigations.

Sir, shifting gears slightly, Mr. Masterson

Do you recall that testimony?

10
A.

Yes, ma'am.

12

Q.

And you said this is a relatively new development for MCSO,

13

correct?

14

A.

Correct.

15

Q.

And the goal is to have all of the lieutenants who are

16

assigned to divisions who are involved in IA investigations be

17

trained in IA investigations, correct?

18

A.

Yes.

19

Q.

But that you're not sure you've completely accomplished

20

that goal yet, correct?

21

A.

Correct.

22

Q.

Now, the lieutenants in the division side who con -- who

IEN

DS

11

are involved in IA investigations do not actually conduct all

24

of those investigations, correct?

25

A.

FR

23

That's correct.

10:11:03

10:11:30

10:11:36

10:11:48

10:12:00

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Q.

They would assign investigations to sergeants or other

personnel on the division side, correct?

A.

Yes, ma'am.

Q.

Those sergeant investigators are not required to go through

the training currently, correct?

A.

Correct.

Q.

And, sir, isn't it true that at the time that you assigned

Captain Bailey to command PSB, he had never been trained in IA

investigations?
A.

Correct.

11

Q.

And sir, you have never been trained in IA investigations,

12

have you?

13

A.

No.

14

Q.

You also testified in response to questions from

15

Mr. Masterson that PSB does not handle all IA cases at MCSO, is

16

that right?

17

A.

That's right.

18

Q.

In fact, you testified that they only handle about 200 out

19

of 550 cases annually, is that right?

20

A.

Approximately.

21

Q.

So in order for PSB to investigate all IA cases within

22

MCSO, you would need quadruple the PSB staff, right?

IEN

DS

10

A.

Yes, ma'am.

24

Q.

But you don't have that, right?

25

A.

I do not.

FR

23

10:12:10

10:12:26

10:12:39

10:12:53

10:13:06

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Sheridan - Redirect, 9/29/15 Evidentiary Hearing

Q.

PSB is not adequately resourced to handle all of the

internal investigations for this agency, correct?

A.

No, I -- I would disagree with that statement.

Q.

Well, PS -- you have to assign many IA cases to the

division, correct?

A.

It would be a waste of resources.

Q.

all internal investigations at MCSO to PSB, PSB would not have

10:13:20

Not all of them are necessary to be investigated by PSB.

Okay.

Well, my only question was:

If you wanted to assign

the resources to do that, correct?

11

A.

Correct.

12

Q.

Sir, you said that you assigned Captain Bailey to command

13

PSB, correct?

14

A.

I did.

15

Q.

That was in early June of 2014, right?

16

A.

Approximately.

17

Q.

And at the time you assigned Captain Bailey to command PSB,

18

you knew that PSB was going to handle many issues relating to

19

Charley Armendariz, correct?

20

A.

Yes, ma'am.

21

Q.

You were aware at the time you assigned Captain Bailey to

22

command PSB that he had been in Charley Armendariz's chain of

IEN

DS

10

command, correct?

24

A.

25

worked at Special Investigations, HSU worked for Lieutenant

FR

23

10:13:38

10:13:52

10:14:07

I knew that Charley Armendariz, while Lieutenant Bailey


10:14:35

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Sheridan - Redirect, 9/29/15 Evidentiary Hearing

Jakowinicz for a period of time, and when Lieutenant Bailey was

promoted to Captain Bailey, it was a very short time, if

Charley Armendariz was still assigned to SID.

I think it was a very short time, a matter of weeks,

4
5

before Charley Armendariz was transferred to District 3 Patrol,

I believe.

Q.

assigned to command PSB, you were aware that Charley Armendariz

had been in his chain of command, correct?

So your answer is yes, at the time Captain Bailey was

10

A.

Yes.

11

Q.

All right.

12

you actually took Captain Bailey out of the loop on some IA

13

cases because of conflict of interest problems?

10:15:30

And in fact, didn't there come a point where

MR. MASTERSON:

14
15

Objection, beyond the course -- or

beyond the scope of my examination of this witness.


THE COURT:

16

MS. WANG:

17

10:15:47

Sustained.

All right.

18

BY MS. WANG:

19

Q.

20

had a large volume of recordings of traffic stops, lieutenants

21

were assigned to do a secondary review of videos that were

22

flagged as potentially problematic, correct?

IEN

DS

Sir, you testified that after it was discovered that MCSO

23

A.

Yes, ma'am.

24

Q.

Lieutenants who did that review of the videos were not

25

given any written protocol for their review, is that right?

FR

10:15:12

10:16:04

10:16:22

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Sheridan - Redirect, 9/29/15 Evidentiary Hearing

A.

I don't recall.

Q.

Okay.

Sir, you testified about IAPro.

Do you remember that?

3
4

A.

Yes, ma'am.

Q.

That was in response to Mr. Masterson's questions, correct?

A.

Yes, I remember talking about IAPro.

Q.

Okay.

of deputies, is that right?

A.

Yes, ma'am.

10

Q.

It's a technology that PSB uses, right?

11

A.

Yes.

12

Q.

You testified that the green lights, yellow lights, and red

13

lights in IAPro will help to prevent a future Charley

14

Armendariz from happening, is that right?

15

A.

That's correct.

16

Q.

But, sir, would you agree with me that an agency's IA

17

system is not run by colored lights or a computer program; it's

18

run by the human beings who work in the agency, right?

19

A.

Correct.

20

Q.

And because human beings run the IA system, the culture of

21

the agency is critical to how IA functions, right?

22

A.

IAPro is a software tool to help track the behavior

DS

10:17:28

IEN

That's correct.

Q.

And that's true at MCSO, right?

24

A.

In any organization, including MCSO.

FR

10:16:58

10:17:14

23

25

10:16:44

MS. WANG:

All right.

Thank you, sir.

That's all I

10:17:45

have for you.

THE WITNESS:

THE COURT:

3
4

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Sheridan - Examination, 9/29/15 Evidentiary Hearing

Thank you.

Chief, I think I'm going to have a few

questions for you; I just want to get some things straight.


EXAMINATION

5
6

BY THE COURT:

Q.

MCSO?

A.

Which matter, Your Honor?

10

Q.

I'm not talking about a specific matter; I'm talking about

11

written policies that govern the operation of PSB.

12

A.

Yes, sir.

13

Q.

Do they have anything in them relating to conflicts of

14

interest, and how they're to be handled?

15

A.

I'm not sure.

16

Q.

Well, let me you an example.

17

think -- and if I'm misstating it, please correct me -- that

18

Sheriff Arpaio designated Chief Olson to be the officer who

19

considered your discipline, and we also heard testimony that

20

Chief Olson reports to you.

10:18:32

We've heard testimony, I

10:18:50

conflict of interest, arguably?

23

A.

Yes.

24

Q.

Do you have anything that you can recall in your written

25

policies that would govern a situation like that?

FR

10:18:13

Do you understand how that could be considered a

IEN

22

Are there written policies that govern IA or PSB for the

DS

21

10:17:55

10:19:08

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A.

No.

Q.

Now, we did talk last April, you and I -- we were kind of

hurried, because I wanted to get through some things, and I

said we might talk about some things later.

In addition to talking about what Ms. Wang just

5
6

raised, which I don't think we need to re-raise, about

Captain Bailey supervising Sergeant Armendariz for a time, and

you've already the testified on that, I raised to you my

concern when I showed you Exhibit 1000 about a memorandum being

10

sent to Captain Bailey while he was head of SID that says:

11

Gosh, look at all these documents.

12

with them?

13

Captain Bailey had actually received that document and was

14

conducting investigations on IDs, that would not be

15

appropriate.

What do you want me to do

And I believe you indicated at that time that if

10:20:04

A.

I'm sorry, I don't.

18

Q.

Well, I don't think I need to remind you of it, but if you

19

want to see it, I can look it up.

20

to sort of a collateral point.

DS

17

My question is:

But my question really goes

Are you aware that -- whether PSB

23

a captain is investigating an issue that he may have been

24

involved in, even collaterally?

25

A.

FR

10:20:16

would have any policies regarding a situation like that, where

IEN

22

10:19:47

Do you remember that testimony?

16

21

10:19:28

I do, Your Honor.

I believe I also testified that

10:20:42

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Sheridan - Examination, 9/29/15 Evidentiary Hearing

Captain Bailey, while he was a lieutenant --

Q.

is --

A.

Um-hum.

Q.

-- are you aware whether there are any policies governing

the operation of PSB to govern a situation like that where --

where at least there's some evidence that Captain Bailey had

received an inquiry about a situation when he wasn't in PSB

that he's now assigned to investigate the larger issue?

You know, Chief, I don't mean to be rude, but my question

Are you aware of any written policies that deal with

10
11

that.

12

A.

No, Your Honor.

13

Q.

Now, I did raise for you last time that concern, and you

14

remember -- you may remember; you may not remember -- did you

15

do anything to investigate whether or not Captain Bailey had

16

received the memorandum?

17

A.

18

talking about.

19

Q.

20

whether you do or not.

21

A.

I do.

22

Q.

And you may remember it's an incident report, which is on

10:21:19

10:21:29

I'm sorry, I'm drawing a blank on the memorandum you're

Do you have it there?

I don't know

IEN

DS

It's Exhibit 1000.

23

top of a memorandum to Steve Bailey from Detective D. Frei,

24

that has attached to it a number of identifications and

25

requests what to do with these identifications.

FR

10:20:58

10:21:50

10:22:14

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Sheridan - Examination, 9/29/15 Evidentiary Hearing

Do you remember discussing that last April?

1
2

A.

I do.

Q.

And do you remember, for example, that we discussed a lot

of the identifications in there were Mexican-issued

identifications, and it wouldn't make sense for somebody to

assume that they were forged if they were trying to establish

American residency.

Do you remember that discussion?

8
9

A.

No, sir.

10

Q.

Okay.

11

and whether or not the memorandum -- my concerns about the

12

memorandum being sent to Captain Bailey by Detective Frei?

Do you remember a discussion about Captain Bailey,

14

A.

I'm sorry, Your Honor, I don't.

15

Q.

That's all right.

10:23:02

Did you do anything to investigate whether or not

16
17

Captain Bailey ever received this memorandum, or Detective Frei

18

ever forwarded it to Captain Bailey?

19

A.

I don't remember.

20

Q.

Okay.

21

about whether the seized cards were used as training aids.

DS

Now, you may remember that we had some discussion

10:23:23

IEN

Is it MCSO's position that all of the cards that have

23

been seized were used as training aids?

24

impression you're still taking that position, but if you are,

25

I'd like to know it.

FR

10:22:42

You remember that?

13

22

10:22:31

I'm not under the

10:23:54

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A.

No, sir.

Some of those cards were used on an informal

basis.

that were in the unit would show them:

like; this is what you should look for; this is what the

matricula card looks like; and those types of things, but it

was an informal basis done for new people assigned to the unit.

Q.

and you're not claiming that there was.

A.

No, sir.

10

Q.

And you're not claiming that all of the cards that were

11

seized were used in that informal training.

12

A.

That's correct.

13

Q.

Is it fair to say -- and if it isn't, I'm not trying to

14

oblige you to say anything.

15

appears that there was a habit among some officers of taking

16

identifications and drivers' licenses and other things kind of

17

as souvenirs or trophies?

When a new deputy was assigned to the unit, deputies

Okay.

Q.

You can answer if you know.

21

A.

It appears that might have been the case.

22

Q.

Now, in addition to the drugs, there was also found in

DS

20

IEN

10:24:52

Objection, foundation.

BY THE COURT:

23

Armendariz's home currency, bank cards, debit cards, things

24

like that.

FR

10:24:35

Is it fair to say that these -- it

19

25

10:24:20

So there's no evidence of, like, formal training,

MR. MASTERSON:

18

This is what they look

Was any investigation ever done into those bank cards,

10:25:06

10:25:26

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debit cards, credit cards?

Was there ever an IA investigation

done into that?

A.

the overall Armendariz case.

Q.

about what Ms. Wang just referred to as 2 --

Some of those items that you mentioned would be included in

When you say "the overall Armendariz case," are we talking

Was it 221?

MS. WANG:

Yes, Your Honor.

THE WITNESS:

If that's the case that I'm thinking of,

10

because, I'm sorry, I don't remember the individual IA numbers,

11

I didn't --

12

BY THE COURT:

13

Q.

All right.

14

A.

-- pay attention to those, then yes, if we were able to get

15

a -- let's take, for example, a bank card with someone's name

16

on it.

17

Q.

18

to follow up on two questions I have so I can get them out, get

19

answers, and then I'll let you clarify for me.

20

A.

Okay.

21

Q.

221 is not yet complete.

22

signed off on it?

10:26:04

10:26:17

IEN

DS

You know, I want to hear this, so remember it, but I want

10:26:34

Did I hear you say you've not yet

23

A.

That's correct.

24

Q.

So it hasn't been turned over to plaintiffs?

25

A.

I assume not.

FR

10:25:45

10:26:43

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Q.

And it hasn't been turned over to the monitor?

A.

No, sir.

Q.

Is the subject of that in -- is the only subject of that

investigation Detective Armendariz?

Armendariz.

A.

Yes, sir.

Q.

All right.

other possible subjects.

A.

That's correct.

10

Q.

But you were aware that other deputies provided materials

11

that were found in the Armendariz house.

12

A.

We were.

13

Q.

All right.

14

A.

Okay.

15

house -- and if I recall correctly, there was a purse.

16

were no items in it -- or there were some items in it, but

17

nothing where we could link another deputy sheriff that it was

18

in their possession at any time.

19

attributed to Charley Armendariz.

10:27:00

So that investigation does not involve any

Now give me your explanation.

There were drugs.

There

There was heroin, cocaine,

22

on them; some just in boxes, if I recall correctly.

IEN

methamphetamine, whatever, in evidence bags with no identifiers

10:27:51

Again, we

23

were not able to identify those things with anyone in

24

particular.

FR

10:27:27

That purse would be

21

25

10:27:06

The trouble with some of the items in Charley's

DS

20

Or, I'm sorry, Deputy

The items that we had, for example, where you would

10:28:21

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have a bank card that had somebody's name on it, and we were

able to backtrack that name through our CAD or Records

Management System that another deputy had possession of that or

had contact with that individual however long ago, we would

initiate an IA number on that.

attribute to anyone were contained in the main Armendariz

investigation.

Q.

details which of these credit cards you could identify folks

Okay.

But items that we could not

And I assume the main Armendariz investigation then

10

for and which you couldn't.

11

A.

12

Charley Armendariz in the Human Smuggling Unit was

13

interviewed --

14

Q.

Well, let me ask --

15

A.

-- during this investigation.

16

Q.

Okay.

17

A.

Yes, sir.

18

Q.

I assume, though, if you found a credit card, you'd have

19

the name of somebody that lost the credit card.

20

A.

That's correct.

21

Q.

And you could go back in your CAD system and find if that

22

person had ever had an encounter with police, or with Maricopa

That's correct.

10:29:14

Every deputy sheriff that worked with

IEN

10:29:36

Did you complete your answer?

DS

I interrupted.

23

County Sheriff's Office.

24

A.

Yes, sir, if it was in the system.

25

Q.

And I assume that you did that and put it in the Armendariz

FR

10:28:53

10:29:49

10:30:01

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investigation.

A.

through the search warrant, so it would be documented, yes.

However, if it wasn't Deputy Armendariz that had contact with

it, say it was Deputy Sheridan, then a new IA number would be

pulled, and that would be a separate spin-off Armendariz

investigation.

Q.

I understand.

A.

Okay.

10

Q.

-- any such investigations?

11

A.

Yes, sir.

12

Q.

Do you know how many?

13

A.

Again, I'm afraid to guess because --

14

Q.

That's all right.

15

monitor, or are they still incomplete, some of them?

16

A.

17

the main Armendariz investigation, it's my understanding.

18

Q.

19

Armendariz's home, and in addition to the 1459, which include

20

some percentage that involve members of the plaintiff class, a

21

number of other identifications and other items, including

22

cell phones and other things, have been found during the course

Well, it would be inventoried that we confiscated that

Are there --

10:30:38

Have they all been turned over to the

10:30:52

I believe as of today, the monitor has all of them except

IEN

DS

Now, in addition to the identifications found in Charley

23

of this ongoing proceeding; fair to say?

24

A.

Yes, sir.

25

Q.

Has any investigation ever been started on those

FR

10:30:26

10:31:25

10:31:44

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identifications in Exhibit 1000?

A.

Your Honor.

Q.

defendants turned over -- and I think there were 111 of

those -- defendants turned over 51 from Deputy Gandara and 44

from Sergeant Powe.

I don't recall what we did with the IDs in Exhibit 1000,

At the same time that we got the IDs in Exhibit 1000,

Was anything ever done with respect to those

8
9

identifications?

10

A.

11

so many, I don't recall what we did with them.

12

Q.

13

are identifi- -- are investigations?

14

A.

15

think I'm the best person to ask that question.

16

Q.

17

pull -- assuming you pulled IA numbers, and I'm not assuming

18

that, but I understand you're telling me you think you did, but

19

you're not sure, assuming you pulled IA numbers, you can't tell

20

me whether the IAs are complete as to those identifications.

21

A.

22

only one that is not complete is the Armendariz one that I

I know we initiated internal investigations, but there were

Okay.

24

FR

25

10:32:41

So you don't know in fact even if there

Oh, I believe that we did pull IA numbers, but I don't

10:33:06

So you don't know whether the IAs -- if you

DS

All right.

10:33:21

I believe they would be complete, because I believe the

IEN
23

10:32:24

mentioned earlier.
And the problem -- the reason I'm having a hard time

answering your question, Your Honor, there was so many IAs

10:33:47

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pulled.

There were four sheets, a spreadsheet with four

sheets' worth of information on them, and I can't recall those

specifically, you know, I'm afraid to guess.

Q.

don't know, that's fine.

That's all right.

Let me just ask you if you know, and if

10:34:11

In addition to the Powe, Gandara, the Frei, there have

6
7

been since then a number of IDs that keep being found and

turned in, including IDs after the 1459, correct?

A.

Yes, sir.

10

Q.

As far as you are aware, are all of those identifications

11

being investigated?

12

A.

Now, when you say "investigated," are you --

13

Q.

I mean trying to find out who took the IDs.

14

A.

Yes, sir.

15

Q.

All of them?

16

A.

Yes, sir.

17

Q.

And I take it that your investigation on those aren't

18

complete, since some of them were found as late as September

19

9th?

20

A.

21

who took them, let -- give me an example, because I don't want

22

to give you any wrong information, okay?

IEN

DS

Well, can we back up one second?

23

10:34:40

When you say as far as

10:34:50

When let's say with Sergeant Powe, he had 44 -- 44 IDs

24

in his go bag in his truck for a year that were confiscated --

25

or not "confiscated" -- that were obtained through the property

FR

10:34:24

10:35:16

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room in the destruction box.

investigated to see how they were obtained.

Q.

you can't speak about individual investigations.

A.

Correct.

Q.

Now, you talked with Mr. Masterson about what I think he's

referred to, and I've occasionally referred to as unicorn bins,

which are these bins where identifications are cut up, and I

think your testimony was they exist all over the Valley in all

Okay.

I don't think that we

So fair to say you think you've been diligent, but

kinds of police departments.

11

A.

Except MCSO.

12

Q.

Now.

13

A.

Now.

14

Q.

Unicorn bins did exist at MCSO.

15

A.

Yes, sir.

16

Q.

Fair to say that a number of identifications have been

17

destroyed over the past five years?

18

A.

Yes, sir.

19

Q.

Over the past eight years?

20

A.

Your Honor, I don't know when that practice began at the

21

Maricopa County Sheriff's Office.

22

Q.

DS

10

10:36:04

10:36:13

10:36:26

IEN

Can you tell me when the practice ended?

23

A.

When you ordered it.

24

Q.

I'm not recalling an exact order I ever said that

25

stopped -- stopped the unicorn boxes, but it's clear that I've

FR

10:35:46

10:36:50

been very interested in this issue, I grant you.


MR. MASTERSON:

Excuse me, Judge.

I must have missed

the question, because I thought the question was IDs being

destroyed, and you did issue an order on that.


THE COURT:

I did?

MR. MASTERSON:

THE COURT:

7
8

Thank you.

BY THE COURT:

10:37:06

Yes, sir.

You're right.

10

Q.

When was that?

11

A.

I believe it was in April, yes.

12

Q.

Whatever.

13

I ordered it, you did it.

14

A.

You're correct.

Do you have that date?

THE COURT:

17

minutes and then I'll finish my questions up?

10:37:21

Can we take 15

(Recess taken.)

18

THE COURT:

19

Thanks.

Please be seated.

DS

If I can, I'm going to resume.

10:55:53

Anybody need to raise anything?

IEN

THE COURT:

23

Chief, a question.

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

24

clerk.)

25

BY THE COURT:

FR

But whenever

You know, I still have a few more

questions, but it is time for morning break.

22

10:37:11

You can provide me with the date.

16

21

Thank you.

Yes, sir.

15

20

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10:56:08

1556

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Q.

When you sign off -- you sign off on all PSB

investigations, normally?

A.

Yes, sir, all PSB investigations.

Q.

Okay.

a division.

A.

Correct.

Q.

When you sign off on a PSB investigation, does

Captain Bailey, now Captain Molina, also sign off on that

investigation?

As opposed to an investigation that might happen in

10:56:21

10

A.

Yes, sir.

11

Q.

I want to be clear; I'm going to change gears now.

12

to be clear about the chronology of some of the things I think

13

I heard you testify to.

10:56:35

I want

When is the first time you heard about Dennis

14
15

Montgomery?

16

A.

Oh, gosh.

17

Q.

I appreciate that.

18

A.

Sometime in 2013.

19

Q.

Okay.

20

A.

That he worked for -- he was a contractor for the CIA, NSA,

21

and he had information that 150,000 Maricopa County residents'

22

personal bank accounts had been hacked into by the -- either

10:56:49

I would only be guessing, Your Honor.

Can you give me a rough time frame?

IEN

DS

And what did you hear when you heard about him?

the CIA or the NSA, and that he was looking to give us that

24

information.

25

Q.

FR

23

Do you remember whether it was early 2013?

Late 2013?

10:57:28

10:58:22

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A.

I can only -- I can't even speculate.

Things are -- things

are kind of a blur.

Q.

NSA or CIA infiltration into Maricopa County residents'

personal information.

A.

Yes, sir.

Q.

You heard nothing else.

A.

That's correct.

Q.

And did you understand that this was information that

When you heard about him, you only heard about these -- the

10:58:44

10

Mr. Montgomery claims to have gleaned from his employ with the

11

federal government?

12

A.

13

was that he helped build the hammer, which is the high-powered

14

software program supercomputer that is housed somewhere in

15

Maryland, I believe, that the CIA/NSA uses to get this

16

information on U.S. citizens.

17

Q.

18

doing that, I do not mean to mischaracterize your testimony of

19

yesterday and previously, so if I do, correct me.

Okay.

His story

All right?

I thought I understood, and I think it was in response

to Ms. Wang, that when you heard this, you were a little bit

22

concerned about the legality of everything.

IEN

21

23

A.

24

about his credibility.

25

Q.

FR

10:59:26

And I'm just going to try and speed it up, but by

DS

20

He was a contractor that worked for a company.

10:58:53

10:59:54

I was concerned about the legality of it; I was concerned

Did you do anything to protect yourself legally?

11:00:11

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A.

Well, that's when we contacted the Attorney General's

Office.

Q.

Mr. Montgomery's story.

A.

some of those documents to us that had spreadsheet with

people's names and numbers on it, and the bank account numbers,

and that's when we contacted the Arizona Attorney General.

Q.

All right.

And you did that right as soon as you heard

As soon as we heard Mr. Montgomery's story, he provided

All right.

When you say spreadsheet on it, you don't mean

10

the spreadsheet that you've referred to as -- or that's been

11

shown you that's the DOJ/Arpaio timeline; you mean a

12

spreadsheet that relates to information that he claims he had

13

regarding the CIA's infiltration into Maricopa County folks'

14

bank accounts.

15

A.

16

that I never saw that spreadsheet document; that was coming

17

from Detective Mackiewicz and Detective Zullo.

18

Q.

19

about a personal records document.

20

A.

Yes, sir.

21

Q.

So Mackiewicz -- you never saw the spreadsheet; Mackiewicz

22

described it to you.

That's correct.

And I just want to make it quite clear

11:01:09

11:01:22

DS

IEN
A.

Correct.

24

Q.

And then you went to the attorney general.

FR

11:00:51

When you say "spreadsheet document," again you're talking

23

25

11:00:25

Did you go with Mr. Montgomery?

3?
11:01:30

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A.

No, sir.

Q.

Who went to the attorney general?

A.

Sheriff; myself; Detective Mackiewicz; Posseman Zullo.

not sure if someone else went with us.

Q.

Who did you meet with at the Arizona Attorney General?

A.

We met with the Arizona Attorney General himself, the

assistant attorney general, I -- sorry, I don't recall his

name, and we discussed this case with them.

I'm

One of the issues that Mr. Montgomery was hesitant to

9
10

give us any further information was he was seeking immunity,

11

and that's why he came to a law enforcement agency with this

12

information.

14

with the Attorney General's Office -- at the detective level

15

now -- to have a free talk with Mr. Montgomery.

16

attend that free talk, but Mr. Montgomery came to Arizona for a

17

free talk with the attorney general.

18

Q.

Was that pretty quickly after your initial meeting?

19

A.

I think it was a few months later.

20

Q.

Few months later?

DS

And I did not

11:03:13

Arizona?

23

A.

I don't recall exactly, but I -- I believe so.

24

Q.

You said that the attorney general himself was there, Tom

25

Horne.

FR

11:02:51

Was it paid for by the MCSO, Montgomery's trip to

IEN

22

11:02:17

And out of that meeting there was further discussions

13

21

11:01:54

You said there was an assistant attorney general.

11:03:33

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Do you remember who that was?

1
2

A.

Sorry, I don't remember his name, but if somebody told me

it, I'd probably remember.

Q.

coordination about immunity and other things before Montgomery

came down, if I understood the chronology correct, is that

right?

A.

Yes, sir.

Q.

Who were those detectives?

10

A.

Well, it would be Detective Mackiewicz was the case agent,

11

and I don't know who from the -- who he was working with from

12

the Attorney General's Office.

13

Q.

14

sheriff, with the attorney general, about these bank matters;

15

within a month or two, Montgomery comes down and has his free

16

talk with the attorney general.

Okay.

You said later there was sort of detective

All right.

11:03:57

So you hold an initial meeting with the

11:04:16

Do you know who went to the free talk?

17
A.

No, sir.

19

Q.

Do I have the chronology right so far?

20

A.

I believe so.

21

Q.

You know that Montgomery himself -- and when I say

22

"Montgomery" I mean "Dennis Montgomery" -- went to the free

IEN

DS

18

23

talk.

24

A.

Yes.

25

Q.

Do you know of anybody else that accompanied him to the

FR

11:03:48

11:04:28

11:04:39

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free talk?

A.

I don't recall who went to the free talk.

Q.

Did somebody --

A.

But there were others; I don't remember who.

Q.

Did somebody from the MCSO go with him to the free talk?

A.

Yes, Detective Mackiewicz.

Q.

And you don't know if there may have been others or not.

A.

That's correct.

Q.

And you don't know who they met with at the attorney

10

general.

11

A.

No, sir.

12

Q.

When did you first start hearing about the Department of

13

Justice in relation to Dennis Montgomery?

14

A.

15

Justice with Montgomery was on that timeline that Ms. Wang

16

showed me the other day.

17

Q.

That was Exhibit 2074A?

18

A.

I'm not which exhibit number it was.

19

Q.

Can you see if you happen to have it there?

20

did discuss it with you the other day.

21

A.

Yes, sir.

22

Q.

And again, I think you said it was just you and the sheriff

11:05:03

IEN

DS

I think the first time that I heard about the Department of

23

when you discussed the timeline?

24

A.

Yes, sir.

25

Q.

And how did that strike you, the timeline?

FR

11:04:51

11:05:28

I think she

11:05:52

11:06:11

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A.

By this time, I had read the -- excuse me -- the online

information about Dennis Montgomery constantly questioned his

credibility, but yet, if he did have information about the

federal government hacking into American citizens', 150,000 of

them that lived in Maricopa County's personal information, that

was something that was of interest to law enforcement.

there was always that in the back of our mind to maybe continue

to do business with him; I don't know what other word to use.

So

But when I saw this document, which a lot of the

9
10

information looks accurate, but again, like I testified the

11

other day, it's something that it's out there in the public

12

domain, it wouldn't be difficult, except for those two DOJ

13

wiretaps.

14

Justice would be interested in Jerry Sheridan.

15

ran the jail system, and I couldn't think of anything.

16

Q.

17

you're only dealing with memory, I think you said that kind of

18

shook you up a little bit to see your phone number on it?

19

A.

20

you see your name at the Department of Justice, the federal

21

government is looking -- maybe listening or has listened to

22

your phone calls.

11:07:38

You know, I tried to think why the Department of

Back in 2009 I

11:08:20

And again, I don't mean to mischaracterize your words,

IEN

DS

Well, yeah, it did.

That's why I am saying, you know, when

11:08:33

You know, this is my personal cell phone

23

number.

24

Q.

What did the sheriff say to you about this document?

25

A.

He was concerned about the wiretap also, but the other

FR

11:07:12

11:08:56

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issue, you know, we were quite concerned at about -- you know,

at this time about the Department of Justice lawsuit against

us.

fourth line down.

handwriting there, but it looks like he wrote crim, c-r-i-m,

question mark.

remember he was quite concerned about that.

Q.

Do you remember anything else he said?

A.

No, sir.

10

Q.

So you decided to continue to do business with

11

Mr. Montgomery.

12

banking stuff, now you were interested in whether the

13

Department of Justice might be investigating you?

14

A.

15

the sheriff and I didn't give it much credibility.

16

Q.

Neither one of you.

17

A.

No, sir.

18

Q.

And so you did pursue matters with Mr. Montgomery, but you

19

didn't pursue anything, as far as you're concerned, that

20

related to the Department of Justice.

21

A.

22

my thought was, you have to -- I have to go back for a second.

So I remember him homing in on that line, I think it's the

I know, I

11:09:59

I was concerned that this was on here, but

11:10:28

11:10:43

And my thought was -- to understand what

Dennis Montgomery was very difficult to deal with.

24

That's why we had to send the detectives up there to deal with

25

him.

FR

11:09:30

And you were interested in, as well as the

That's correct.

IEN
23

Criminal, does that mean criminal?

No, sir.

DS

No.

I don't know if that's the sheriff's

He is a lot of things, but one of the things that I

11:11:06

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understand and I believe, he is -- he is a computer genius.

He

is probably a very good con man also.

President of the United States and --

Q.

It appears now that he conned you, too.

A.

Oh, there's no doubt about it.

we were in very good company with the federal government and

the President of the United States, and, you know, the DOJ and

the NSA, and Homeland Security shutting down the airports, and,

you know, so we were in very good company.

I mean, he conned the

No doubt about that.

But

So while I am

10

embarrassed about that, okay, I'll stand next to the President

11

and be embarrassed with him.

12

Q.

All right.

13

A.

So we -- we didn't really follow up on it because he was

14

trying to get us to pay him, because it was a constant thing:

15

Get us information.

16

enough.

17

put all this information together.

Oh, I can't do it.

It's not fast enough.

My computer's not big

Those kinds of things.

11:11:54

11:12:23

I can't

I have way too much.

And I'm not a technical person as far as computers are

18

concerned, and so at times Posseman Zullo, Detective

20

Mackiewicz, someone would get along with him, one wouldn't, one

21

would threaten not to pay him, one -- you know, and so that's

22

when he came up with this.

IEN

DS

19

23

Q.

Okay.

24

A.

And --

25

Q.

When was the next time that you recall hearing anything

FR

11:11:34

11:12:47

11:12:59

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about a Department of Justice investigation that involved

Montgomery?

A.

Masterson, Tom Liddy, Tim Casey, the sheriff, myself, where we

talked on the phone with Mike Zullo and Brian Mackiewicz.

were in the old building, the 19th floor of the Wells Fargo

building, I don't remember when it was, when Dennis Montgomery

had given them information that the DOJ had hacked into the

Jones, Skelton, Hochuli server and the Maricopa County

I recall being at a meeting with Joe Popolizio, John

We

Attorney's Office server, and that's what that meeting was

11

about.

12

Q.

Were there any documents distributed during that meeting?

13

A.

No, sir.

14

Q.

What was said at that meeting?

15

A.

Just that.

16

fragment, and we learned a lot about -- and this was from

17

Mackiewicz and Zullo -- about how e-mails were -- were sent.

18

You type an e-mail on your computer.

19

out in bits and pieces.

20

back in seconds, or if you know sometimes by practical nature,

21

sometimes it takes minutes for it to come back; sometimes they

22

get lost for some time.

IEN

DS

10

23

That Montgomery had come up with an e-mail

11:14:32

11:14:48

Your computer sends it

It could go around the world and come

11:15:25

And that's how e-mails get sent out.

But the problem that Montgomery has is that he has

24

these e-mails from the DOJ or whoever, the NSA, the CIA, the

25

ones that he collected while he was a contractor, and his --

FR

11:13:44

11:15:59

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Q.

Allegedly, at least.

A.

Allegedly.

stipulate everything's allegedly?

Q.

With Montgomery?

A.

Yes.

Okay.

And I should say everything.

Maybe can we

Sure.

Thank you.

11:16:14

And so he had an e-mail fragment that he believed was

6
7

about Mr. Popolizio's daughter playing a soccer game, but it

was just a fragment.

whole e-mail together -- and never did put any e-mails together

And the reason that he couldn't put the

10

for us -- is because he needed this supercomputer like the

11

hammer that was able to take those fragments from the -- and

12

I'm just going to make this number up, but from the hundred

13

million terabytes of information that he had on his servers

14

that was able to blend those back together.

15

we never got any other information from him about the e-mails

16

or any of that stuff.

And so, therefore,

11:17:06

However, the meeting was called because there was

17

concern that there was a lot of attorney-client privilege

19

information on the Jones, Skelton and the Maricopa County

20

Attorney's Office, and I learned that day how important

21

attorney-client privilege is to lawyers.

22

Q.

DS

18

11:17:27

IEN

So are you saying that Mr. Masterson or Mr. Popolizio

23

called the meeting?

24

A.

No.

25

Q.

Who did call the meeting?

FR

11:16:42

I -11:17:40

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A.

It may have been me, because -- and again, Your Honor, I'm

trying to put these memories together.

memories, but it probably was me.

Detective Mackiewicz would have called me, I would have

thought, Hmm, this is something I should let my counsel know

about and get everybody together.

Q.

All right.

A.

No, sir.

heard testimony about that meeting and I was not at that

I hate to create

Thinking that Mackiewicz,

And was that a January 2nd, 2014 meeting?

I don't think -- I don't think so, because I've

meeting.

11

Q.

Okay.

12

A.

That was not the meeting I attended.

13

Q.

So somebody -- you've heard from somebody -- and don't

14

discuss things that your attorneys have talked to you over with

15

because you've just talked about how important the

16

attorney-client is.

17

A.

Right.

18

Q.

But you have some notion that there's been testimony about

19

a January 2nd, 2014 meeting, and you don't have any

20

recollection of being there.

21

A.

22

meetings, because I recall --

DS

10

IEN

That's correct.

11:18:25

11:18:36

11:18:44

I think people are confusing two different

23

Q.

24

meeting you do know about.

25

A.

FR

11:18:02

I appreciate that, but let me just ask you about the

Um-hum.

11:18:53

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Q.

When would that meeting have been?

A.

That's what I don't remember.

Q.

Well, in relation to the November meeting when you met with

Sheriff Arpaio and discussed the DOJ/Arpaio document, which is

2074, how much later would it have been?

recollection.

A.

I can't even speculate a guess, Your Honor.

Q.

A month?

A.

You're asking me to guess.

10

Q.

Six months?

11

A.

Within six months.

12

Q.

You think more likely closer to a month or closer to six

13

months?

To your best

11:19:32

I used to be a lawyer, too.

14
15

A.

16

with Ms. Wang, and she's very good.

I know.

I've just been through a couple of depositions

Again, I don't want to speculate.

17
months.

19

Q.

20

communication regarding Montgomery and the Department of

21

Justice?

When's the next time you remember any

DS

All right.

IEN

Before we -- I'm sorry.

11:20:03

I am going to ask that

23

question, so keep it in mind.

24

meeting you remember, who said anything, that you recall?

25

A.

FR

11:19:49

I'd say within six

18

22

11:19:12

But before we get away from the

Well, I know all the lawyers did, because that's -- I think

11:20:25

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they were jumping up and down about how important the

attorney-client privilege was, and I know that -THE COURT:

That being said, Mr. Masterson, I haven't

ruled that there's waiver as to this meeting, so I don't know

if you want to pose any problem, but I'm going to raise it for

your consideration.

BY THE COURT:

Q.

Mr. Masterson; he can defend his own interests in this one.

So you can go ahead and answer the question.

I've alerted

10

A.

I wasn't seeking any legal advice, Your Honor.

11

Q.

All right.

12

A.

And I also remember Mr. Liddy.

13

Q.

So it was your impression that Mr. Masterson and

14

Mr. Popolizio, Mr. Casey, Mr. Liddy, were concerned about the

15

possibility that the Department of Justice was operating hammer

16

on MCSO, Jones, Skelton, Mr. Liddy, Mr. Casey?

17

A.

Yes, sir.

18

Q.

Was each one of them concerned about this?

19

A.

Yes, sir.

20

Q.

Okay.

21

specifically?

22

A.

DS

Do you remember anything that any of them said

11:20:57

11:21:12

11:21:27

IEN

Yes, I do.

23

Q.

Okay.

24

A.

I remember that Mr. Liddy said that he grew up near the

25

building that housed the hammer.

FR

11:20:44

And we all know who his

11:21:43

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famous father is.

And his father told him what that building

was and what they did there.

meeting knew all about the hammer.

before.

And that Mr. Liddy at that

I'd never heard of it

And he gave, in my opinion, he gave Mr. Montgomery a

5
6

lot of credibility that day for knowing about all these issues.

And that's what I remember specifically that Mr. Liddy had

said.

Mr. Montgomery had to say.

So in my mind, it gave us some credibility to what

10

Q.

11

meeting?

12

A.

13

the day.

14

Q.

Do you remember where it occurred?

15

A.

Yes, sir.

16

building, the sheriff's old headquarters.

17

Q.

All right.

18

A.

We moved there --

19

Q.

From there.

20

A.

Sorry.

No, sir.

23
24

FR

25

Do you remember anything else about that

It was in the evening.

11:22:42

It was late -- later in

It was on the 19th floor of the Wells Fargo

11:22:59

When did you move from there, do you recall?

Thank you.

11:23:16

We moved from there January -- excuse me, December of

2014.

IEN

22

All right.

DS

21

11:22:06

Q.

Okay.

Thank you.
Next time that you remember any communication

involving the DOJ in connection with the Montgomery

11:23:31

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investigation.

A.

Detective Mackiewicz advising me that Mr. Montgomery had some

information that the DOJ had phone conversations.

information about phone calls that went into your office.

Q.

And what did he say about that that you recall?

A.

It was a pretty quick conversation, because, you know, I

was not excited to hear that.

other than what I just told you and my response, which I've

I believe it was the phone call that I got from

He had

And I don't really recall a lot

10

said several times.

11

Q.

Sure.

12

A.

Okay.

13

Q.

Well, let me just make clear:

14

you and Mr. Mackiewicz are the only people on the phone call.

15

A.

Correct.

16

Q.

All right.

17

A.

So I told -- I told Detective Mackiewicz that this

18

Montgomery investigation is not to go anywhere near Judge Snow

19

or the Court.

20

investigating Judge Snow.

21

contact Montgomery and tell him that we will walk away, we'll

22

stop doing business with him if he even attempts to do this in

This is on a phone call, and

I don't want to hear anything about Montgomery

DS

IEN

11:24:44

Go ahead.

the future.

24

Q.

25

conversation at all?

FR

I can repeat it if you want me to.

11:24:55

23

All right.

11:24:13

I am giving you a direct order to

11:25:24

Anything else you remember about this


11:25:44

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A.

excited about -- and not in a good way -- excited about hearing

that information.

Q.

And did Mackiewicz call from Seattle?

A.

I believe he was.

Q.

And it was after the meeting in which Mr. Liddy discussed

the hammer.

A.

Oh, it was way, way after that, yes, sir.

Q.

So when Mr. Liddy discussed the hammer, you indicated that

10

No, sir.

It was a pretty short conversation.

I was pretty

that gave some credibility to what Montgomery was saying.

11:26:14

Did you continue to get reports about the DOJ?

11
12

A.

13

19th floor, before we really knew who Montgomery was and what

14

he was all about.

15

Q.

16

after?

17

A.

Yes, sir.

18

Q.

Do you recall where you were when you had this phone call?

19

A.

I was on the 19th floor of the Wells Fargo building; I was

20

at work.

21

Q.

22

Department of Justice in connection with the Dennis Montgomery

It gave me credibility that day that we sat there on the

DS

And so this conversation about me occurred did you say way

IEN

Okay.

11:26:43

11:27:04

When do you next recall hearing anything about the

23

investigation?

24

A.

I don't believe I did.

25

Q.

Ever did?

FR

11:26:02

11:27:36

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A.

I don't recall ever hearing Mackiewicz or Sergeant Anglin

or Posseman Zullo talk about the DOJ after that, because I did

give Sergeant Anglin a direct order also not to investigate

this or not to --

Q.

Sergeant Anglin?

A.

to -- as this thing, as this investigation seemed to get bigger

with the IDs -- excuse me, with the bank account IDs, and there

Let's discuss that.

When did you have a discussion with

When I assigned Sergeant Mackiewicz -- Sergeant Anglin

10

were some issues about Zullo and Mackiewicz and Montgomery

11

getting along and all those issues like I explained earlier, I

12

thought Sergeant Anglin would be a good person to go up there

13

because of his experience as a detective, to go up there and

14

give the sheriff and I, because we didn't have the luxury of

15

talking to these people or going up there and evaluating it

16

ourselves, to go up there and manage this investigation.

17

Q.

18

to this investigation you discussed something with him.

All right.

11:28:42

11:29:05

So when you initially assigned Sergeant Anglin

What was that?

19
A.

I'm not sure if -- I wish I would have wrote this stuff

21

down; I didn't.

22

Anglin about Mr. Montgomery and you when I sent him up there.

IEN

DS

20

11:29:24

I'm not sure that I talked with Sergeant

23

I don't think we knew about it at that time.

24

Q.

25

right, upon reflection, when did you discuss me with Sergeant

FR

11:28:11

I'm not sure.

Well, when did you discuss -- if you think that that's not
11:30:02

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Anglin, if you did at all?

A.

he was back from Seattle, I believe when that information came

to light, it was shortly after he came back into town and I had

that conversation with him in person.

Q.

light?

A.

Which information, Your Honor?

Q.

Well, I assumed, and maybe I'm assuming wrongfully, that

I know I had that conversation with him in person, so when

11:30:32

How did that come -- how did that information come to

10

when you had the discussion with Sergeant Anglin, you were

11

saying that it was a discussion about me.

12

A.

13

doing whatever he wanted to or thinking that we were interested

14

in hearing any information about the Court.

15

I said, We are not interested in this at all.

16

Q.

17

conversation?

18

doing something with respect to me?

19

A.

It's from the phone call that I had with Brian Mackiewicz.

20

Q.

So you believe that you had the conversation with Sergeant

21

Anglin after the phone conversation with Mackiewicz.

22

A.

It was a discussion about Montgomery trying to look into or

And I told Anglin,

11:31:05

And how did you find out -- what triggered that

DS

How did you find out that Montgomery might be

11:31:25

IEN

Oh, yes, sir.

23

Q.

24

about the Department of Justice in connection -- or a

25

discussion or communication of any kind, being aware of one --

FR

11:30:43

When is the next time that you remember having a discussion

11:31:42

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about the Department of Justice with respect to Dennis

Montgomery's investigation?

A.

Mackiewicz, who I also, just so you know, I did leave out the

fact that I told him, I told Detective Mackiewicz to ensure

that Zullo understood my order, and I never did hear again

about the DOJ and this Court.

Q.

remember testifying that when you found yourself the subject of

I don't believe after I had those conversations with

Let me ask a follow-up question before I move on:

Do you

10

a wiretap investigation, you continued with Mr. Montgomery,

11

continued -- well, I think you said he strung you along -- in

12

part because a justice of the FISA Court had been contacted and

13

verified for you that the wiretap number given to you by

14

Mr. Montgomery was a wiretap number that was in use.


Do you remember that testimony?

15
A.

Yes, sir.

17

Q.

What can you tell me about that?

18

A.

One of the things that we continually tried to do was

19

ascertain some type of credibility for Montgomery.

20

our focus was 150,000 bank accounts from Maricopa County

21

residents, to see if the federal government did order him to do

22

that.

And again,

DS

IEN

11:32:37

11:33:02

16

23

Q.

Did you discuss those with the FISA Court justice?

24

A.

I don't know, Your Honor.

25

direct that conversation.

FR

11:32:09

11:33:23

I didn't attend that; I didn't

Detective Mackiewicz and Posseman

11:33:49

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Zullo went to Washington and --

Q.

When did they go to Washington, do you recall?

A.

I don't recall, but it -- it's all a matter of -- we have

the records, the travel records and that kind of thing.

Q.

Did Dennis Montgomery go with them?

A.

I believe he did the second time.

Q.

So they went one time and then Montgomery went with them a

second time?

A.

If I'm recalling things correctly, yes, I believe they did.

10

Q.

How was it that Mr. Mackiewicz and Mr. Zullo were able to

11

get an interview with a FISA Court judge?

12

A.

I believe it was through someone that Mr. Zullo knew.

13

Q.

Is that Mr. Klayman?

14

A.

It's possible.

15

Q.

Let me ask, in your previous testimony you indicated that

16

the FISA Court judge verified that the wiretap numbers used for

17

you and Sheriff Arpaio were typical wiretap exchanges, or

18

something like that.

11:34:34

I'm not sure exactly who that was.

11:35:02

Do you recall that testimony?

19
A.

Yes, sir.

21

Q.

So what were you told about the conversation?

22

A.

Just that: that those numbers looked like typical numbers

IEN

DS

20

23

associated with a wiretap.

24

Q.

Who did you -- who told you that?

25

A.

That would have been Detective Mackiewicz.

FR

11:34:16

11:35:19

11:35:39

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Q.

Would it have -- would Mr. Zullo also have also been

involved in that conversation?

A.

He could have been; he could have been around.

Q.

And do you remember where you were when this conversation

occurred?

A.

building.

sheriff's office.

Q.

Is this the new building or old building?

10

A.

New building, sir.

11

Q.

And you moved there when?

12

A.

In December of 2014.

13

Q.

All right.

14

A.

I hope I'm right on the year that we moved there.

15

Q.

Well, let me ask you:

16

is?

17

A.

Yes, sir.

18

Q.

Okay.

19

building, not the old building.

20

A.

Yes, sir.

21

Q.

And that was with Mackiewicz and -- well, it was with

22

Mackiewicz.

11:35:54

I was at work on the fifth floor of the headquarters


I don't know if we were in my office or the

11:36:15

And so what all -- who all was present?

Are you right on where the location

IEN

DS

So you remember having this discussion in the new

11:36:45

Who else was there?

23

A.

And I -- I believe Zullo was there.

24

Q.

Anybody else there?

25

A.

Possibly the sheriff, I -- possibly the sheriff.

FR

11:36:35

11:36:55

Q.

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Possibly the sheriff was there.


And what do you recall?

2
3

A.

Specifically about that meeting, the judge -- and I'm

sorry, I don't recall his name -- seemed to think that those

were typical numbers associated with a wiretap.

he -- the judge was very sketchy on try -- he wanted some more

information, I believe, and he wanted some more information and

didn't want to commit to whether or not Montgomery was

reliable, unreliable, whatever.

But again,

Q.

Who told you that?

11

A.

That would be Detective Mackiewicz and/or Zullo during our

12

briefing.

13

Q.

You don't remember who between the two of them?

14

A.

No, sir.

15

Q.

What did you say?

16

A.

I don't remember.

17

Q.

What did the sheriff say?

18

A.

I don't remember, Your Honor.

19

Q.

Do you remember any other awareness on your part of

20

Mr. Montgomery doing an investigation into the DOJ?

21

A.

Not that I'm aware of.

22

Q.

Let me ask you:

IEN

DS

10

this time when you had the FISA judge tell you that it was --

24

it looked like it might be legitimate?

25

A.

FR

11:38:00

11:38:12

11:38:32

Were you concerned about the wiretap at

23

No, sir.

11:37:20

11:38:47

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Q.

You thought it was garbage, nonetheless?

A.

Yes, sir.

Q.

Did you tell Sheriff Arpaio that?

A.

Yes, sir.

being garbage and those numbers used as a ruse to try and get

us to continue to do business with him.

Q.

you thought that gave credibility to Mr. Montgomery?

A.

No, sir.

10

Q.

You wouldn't dispute that, though, if that was your

11

testimony?

12

A.

No.

13

Q.

There's been some discussion that you're in charge of

14

finance, and there's been some suggestion in your direct that

15

HIDTA funds were initially used to pay Mr. Montgomery.

We had many conversations about that wiretap

Do you remember your previous testimony when you told me

11:39:21

11:39:38

Do you know whether that's correct or not?

16
17

A.

18

used.

19

Q.

20

out they were not appropriate and paid them back?

21

A.

22

finance, noticed that some HIDTA funds were used, and that was

Yes, I'm a -- I'm aware that there were some HIDTA funds

DS

And were those the initial funds used, and then you found

IEN

That's correct.

11:39:51

Chief Freeman, who was our -- who was over

23

immediately corrected by our own volition.

24

Q.

25

funds?

FR

11:38:59

And then you started paying out of, what was it, forfeiture
Asset forfeiture funds?

11:40:13

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A.

Well, most of the -- the funds, well, they were paid from

RICO --

Q.

Ah, RICO.

A.

Our RICO funds.

Q.

RICO's different than asset forfeiture?

A.

Yes and no; that's where we get the RICO funds.

Q.

All right.

thing you paid him from was HIDTA funds.

was inappropriate, then you paid RICO funds.


No.

I apologize.

So if I have the chronology down, the first

No, Your Honor.

You found out that

10

A.

11

don't remember exactly; I know the document's here -- but there

12

was a small amount of money, relatively speaking, paid from

13

HIDTA for some reason, and that was quickly caught and

14

rectified.

15

Q.

16

to Mr. Montgomery?

17

A.

I do not.

18

Q.

But you do recall that HIDTA funds were paid and RICO funds

19

were paid?

20

A.

Yes, sir.

21

Q.

Any other kinds of funds used?

22

A.

Well, we used general funds to pay for the travel expenses;

I think there was a small -- and I

IEN

DS

And do you recall whether those were the first funds paid

23

salary, overtime; some equipment purchases from general funds.

24

Q.

Did the Cold Case Posse use some of its funds?

25

A.

Yes, sir.

FR

11:40:28

11:40:45

11:41:10

11:41:17

11:41:35

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Q.

And do you administer Cold Case Posse funds?

A.

No, sir.

Q.

Do you know how many -- how much funding came from the Cold

Case Posse?

A.

I do not.

Q.

I do recall in your previous testimony you did discuss a

conversation where you were with Mackiewicz, Anglin, and the

sheriff, and told them not to investigate me.

11:41:44

Is that yet a separate conversation, or do you recall

9
10

it at all?

11

A.

12

little bit.

13

Q.

14

have twice-a-week briefings on the Montgomery investigation,

15

and that Mackiewicz was in charge but reported to you and the

16

sheriff.

17

that Mack -- that you were in charge of the investigation.

11:42:02

You know, sir, as time goes on, my memory kind of fades a


I don't recall that.

All right.

I think your testimony last time was that you'd

And the sheriff testified that he reported to you, or

Were any documents generated in connection with these

18

weekly briefings?

20

A.

No, sir.

21

Q.

No documents at all.

22

A.

No, sir.

IEN

DS

19

23

Q.

24

Montgomery's progress on the bank accounts that you thought he

25

was infiltrating?

FR

11:42:25

11:42:38

So you don't recall any documents that would go through

11:42:52

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A.

I'm sorry.

Can you repeat that?

Q.

Sure.

concerned, the infiltration of private information of Maricopa

County residents like bank accounts, correct?

A.

was attempting to do was through his computer -- now, I was

told that he had a computer that filled his garage -- that

through his computer system he was attempting to put back

together the information that he had gleaned from when he was a

Montgomery was investigating, as far as you were

Well, I wouldn't characterize it that way.

What Montgomery

10

contractor with the NSA.

11

investigation.

12

Q.

13

about his attempts to put back together this information?

14

A.

Not that I'm aware of.

15

Q.

And did he refer to these categories of information that he

16

was trying to put together as "packets"?

17

A.

Yes, sir.

18

Q.

And so in your weekly briefings or biweekly briefings, you

19

didn't get any papers that would discuss these efforts at all?

20

A.

No, sir.

21

Q.

Let's then switch to -- I believe you testified yesterday

22

that -- well, before we get there, do you remember when I

IEN
23

think -- and I'm sorry, because there's a lot to remember for

24

me, too.

25

Thomas Drake and a Wieby where Maricopa County -- it was an

FR

11:43:44

And no doc -- he didn't generate any documents

DS

I see.

That was, quote-unquote, the

11:43:08

11:44:03

11:44:17

There was documents showed you that was authored by


11:44:41

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e-mail from Mackiewicz to you that attached this report from

Drake that said that Montgomery was a fraud?


Do you remember that?

3
4

A.

Oh, yes, sir.

Q.

Did you get that e-mail?

A.

Yes, sir.

Q.

Did you read it?

A.

I don't recall reading it.

Q.

Do you recall reading the report that was attached to it?

10

A.

I do.

11

Q.

And what did it say?

12

A.

I recall reading it; I don't recall right now what it said.

13

Q.

Do you recall when you read it?

14

A.

It would have been right around the time that I got the

15

e-mail, and I also had a conversation with Detective Mackiewicz

16

about his meeting with those two gentlemen.

17

Q.

And what did he say?

18

A.

He said that they confirmed that Montgomery was a fraud,

19

and that the vast majority of the information that he gave us

20

on those 50 hard drives was nothing but junk, and Al Jazeera

21

broadcasts, that kind of thing.

22

Q.

11:45:02

11:45:13

DS

When you first read it.

11:46:03

IEN

What did you tell him?

23

A.

24

towards the very end of us doing -- or using Mr. Montgomery as

25

an informant, and we were just, again, verifying this

FR

11:45:38

I said, Oh, great.

But, you know, by this time, this was

11:46:45

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information.

It was towards the end of our relationship with

him.

Q.

Did you say anything to the sheriff?

A.

Yes.

knew about this.

Q.

Did you do that?

A.

I don't recall if I did.

Q.

Do you recall any conversation or communication with the

sheriff about that e-mail, other than your general sense that

I believe the sheriff was -- was briefed on that and

10

the sheriff was briefed about it?

11

A.

12

Mr. Montgomery, and their opinion of him.

13

Q.

Whose opinion of him?

14

A.

The former NSA employees.

15

Q.

And what did you say?

16

A.

I don't remember the exact details, Your Honor, but I

17

remember the sheriff agreeing that, you know -- again, the

18

sheriff and I all along had always questioned Mr. Montgomery's

19

reliability.

20

event that he did have something credible, because at times he

21

did give us a little information here and there.

22

Q.

11:47:14

I know we talked about those two former NSA employees and

11:47:36

DS

But we continued to do business with him in the

11:47:56

IEN

Like with the FISA Court judge.

23

A.

24

send detectives out with information on the bank accounts to

25

contact people that were still available, because his

FR

11:46:59

Like with the FISA Court judge; like with the -- we did

11:48:25

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information was old.

I think the latest information he had was

from 2010.

approximately -- please don't hold me to this number -- but

approximately 50 or so county residents to check up on their

bank accounts:

this your number?

he did provide us with some valid information.

Q.

Name/address/bank account number?

A.

Yes, sir.

10

Q.

I think your testimony was that he got the amount in the

11

accounts wrong, right?

12

A.

13

vary, and people don't remember how much they had in their bank

14

account in 2008 and 2009.

15

account number and the name, people might remember --

16

Q.

There were a few of them that --

17

A.

-- or have record of that.

18

Q.

-- few of them that were verified.

19

A.

Yes, sir.

20

Q.

Let me ask, you indicated that there were two visits to the

21

FISA Court judge.

22

A.

And so we sent detectives out to follow up on

Is this your name?

Is this your address?

And about half of them came back valid.

Is

So

11:49:10

DS

Well, it was difficult on the amounts, because amounts

Some did, some -- but the bank

11:49:28

11:49:36

Do you remember that testimony?

IEN

Yes, sir.

23

Q.

When was the second visit to the FISA Court judge?

24

A.

I'm sorry, I don't recall.

25

Q.

Who told you about the visit to the -- the second visit to

FR

11:48:53

11:50:01

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the FISA Court judge?

A.

Detective Mackiewicz; he kept me abreast of that.

Q.

And what did he say about that visit?

A.

I'm sorry, Your Honor, I don't recall.

Q.

Let me just ask:

told you?

A.

No, sir.

Q.

In your previous testimony -- I didn't ask you to do this,

but you told me that you had the name of the FISA Court judge

10

written on your pad, and if I'd let you, you could go look at

11

it.

12

A.

Well, Detective Mackiewicz.

13

Q.

Would have told you who the FISA Court judge was?

14

A.

Yes, sir.

15

what it is.

16

Q.

17

name on your pad before your testimony.

18

name from that you wrote on your pad?

19

record, some notes you'd made of your conversations with

20

Detective Mackiewicz?

21

A.

22

Detective Mackiewicz.

Did you ever take notes of things that he

11:50:42

Where did you get that name from?

And if I heard his name I'd be able to tell you

I just don't recall it right at the moment.

What I'm really asking you is:

11:50:58

You apparently wrote his

Where did you get the

Did you look at some

DS

11:51:16

IEN

I never took any notes, Your Honor, from


Probably just from conversation, you

23

know, I might have jotted the judge's name down just --

24

Q.

25

topics on the same pad?

FR

11:50:27

What pad was it?

Did you keep conversations on the same


11:51:41

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A.

No, sir.

Q.

So where would you have gotten that name from, to the best

of your recollection?

A.

sometimes I can remember things and, you know, a minute later I

can't, you know, so with this judge's name -- and it begins

with an L -- I can't think of it right now.

Lambert.

Well, I don't know if you've noticed it or not, but

It might be Judge

Again, I don't want to -- I don't want to guess.

You know, it's -- sometimes, you know, I'd be talking

9
10

to Detective Mackiewicz on the phone.

11

judge's name, I'd write his name down on a -- on a yellow

12

sticky.

13

talk.

14

Q.

15

were briefed about this second conference with the judge?

16

A.

I'm not sure.

17

Q.

Where did that conversation occur?

18

A.

I'm sure on the fifth floor of the Wells Fargo building.

19

Q.

Was it in person or on the telephone?

20

A.

I believe it was both.

21

Washington to brief me after the meeting, and then when he came

22

back from Washington he came to see me.

11:52:26

I have a bunch of them on my desk right now as we

I don't really keep a ledger.

DS

MR. MASTERSON:

24

clarification.

25

the Wells Fargo building.

FR

If he told me the

Was there anybody else present at the conversation when you

IEN
23

11:51:53

I believe he called me from

11:52:42

11:53:13

Excuse me, Judge, just a

The witness just testified the fifth floor of


It's either the wrong building or

11:53:28

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the wrong floor.

THE COURT:

Thank you.

THE WITNESS:

I'm sorry.

That would be the fifth

floor of our headquarters building.

BY THE COURT:

Q.

Montgomery actually attended that meeting.

A.

Yes, I believe he did.

Q.

And I think you said that MCSO would have paid for that

11:53:38

And I think you testified that he told you that Dennis

10

and --

11

A.

12

appearance to Washington, D.C.

13

for his transportation to meet with the Arizona Attorney

14

General.

15

Q.

16

Mr. Zullo to go to Washington, D.C., presumably.

17

A.

Yes, sir, we did.

18

Q.

Do you recall now any other communications that you had

19

with anyone regarding Montgomery's investigations with the DOJ,

20

or that might involve the DOJ?

21

A.

No, sir.

22

Q.

You testified that -- I think there was some confusion --

11:53:55

We did -- we did not pay for the transportation for his

You would have paid for Detective Mackiewicz and

IEN

DS

Okay.

We did -- I believe we did pay

maybe at your deposition and maybe in this court -- when

24

Ms. Wang first discussed with you Exhibit 2074A, which is that

25

DOJ/Arpaio timeline.

FR

23

And I think you testified yesterday that

11:54:13

11:54:36

11:55:09

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you didn't -- even though you may have said in the deposition

you saw some things later on, that you didn't see anything

called the, I don't know, Arpaio timeline or something, until

April 23rd or 24th in Captain Knight's office, right?

A.

That's correct.

Q.

Tell me about that.

A.

This was in response to your order to myself and

Ms. Iafrate to produce Montgomery documents.

Q.

Yeah.

11:55:30

Now, to be clear, I did give that order to the

10

sheriff, right?

It came during the sheriff's testimony.

11

A.

Okay.

12

Q.

Did the sheriff delegate that job to you?

13

A.

I assume so.

14

Q.

All right.

15

A.

But that was ultimately delegated to Chief Knight by me.

16

Q.

All right.

17

the 23rd.

18

A.

Yes, sir.

19

Q.

What did you do next?

20

A.

I asked Chief Knight to collect all that information from

21

Detective Mackiewicz concerning the Montgomery investigation,

22

because he had all the records --

So that would be on the 23rd, and I don't know --

DS

IEN

11:56:18

What did you -- you heard me issue the order on

23

Q.

All right.

24

A.

-- on that case.

25

Q.

Let me just say:

FR

11:55:55

Where did you do that?

Where were you

11:56:33

11:56:49

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when you did that?

A.

I don't recall, Your Honor.

Q.

When did you do it?

A.

Shortly after you advised us to get it done.

Q.

Okay.

A.

Yes, sir.

Q.

What happened next?

A.

Chief Knight contacted Detective Mackiewicz.

Detective Mackiewicz turned over what he did to Chief Knight.

So that would have been on April 23rd.

11:57:06

10

Chief Knight was putting this information together, and we must

11

have been on a break, because I remember being over there at

12

his office, and because he called me in and he said:

13

got -- you gotta see this.

And he showed me a phone tree.

14

You

It's a one-sheet piece

15

of paper.

16

Holder's name in an oval.

17

probably 20 other ovals in it with people's names in it, and

18

your name happened to be in one of those.

19

first time I had -- I had ever seen that document.

20

Q.

11:57:59

And then it had many, I don't know,

Let's go back.

And that was the

When did he call you?

A.

11:58:27

I think I was in my office when he called me and he said:

23

You gotta come over and see this.

24

gotten me and -- I don't --

25

Q.

FR

It had Eric

Or he didn't call you; you were there, you said.

IEN

22

DS

21

It had "Arpaio briefing" on top.

All right.

11:57:26

Or he may have come over and

This I think you said was when we were on a break here?

11:58:44

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A.

I think I -- I went over to make sure this was being done.

I know I was over there.

Q.

you went over there at noon because we had some issues about

production.

A.

That's probably what I'm remembering.

Q.

All right.

I do remember that on the 24th, when you were testifying,

Do you remember that?

11:59:03

So you were over there at noon on the 24th.

Is that your best recollection?

8
9

A.

Yes, sir.

10

Q.

All right.

11

Captain Knight calls you in your office.

12

A.

Chief Knight, yes, sir.

13

Q.

I'm sorry.

I don't want to --

So you're over there at noon on the 24th and

Thank you.

Chief Knight calls you in your office, and you do

14
15

what?

16

A.

17

And I said -- I told Bill, I said:

18

document before.

19

Q.

Did he show you any other documents?

20

A.

I don't remember seeing or looking at any other documents

21

other than that one.

22

Q.

11:59:32

I look at that document, and I probably said a bad word.


I've never seen this

DS

This is not good.

11:59:59

IEN

And what did Chief Knight say?

23

A.

He agreed with me that it's -- it's not good.

24

Q.

And what did you say?

25

that you can remember.

FR

11:59:15

Tell me everything that you said


12:00:21

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A.

I didn't stay very long.

I don't remember saying anything

else to him, and I remember coming back here.

Q.

And then you continued your testimony?

A.

Yes, sir.

Q.

Did he say anything else to you?

A.

Not that I recall.

Q.

Are you positive that he didn't show you any other

documents?

A.

Am I positive?

10

Q.

Yes.

11

A.

I don't recall seeing any other documents.

12

Q.

If I were to show you documents, would you remember whether

13

or not he showed you those documents?

14

A.

It's possible.

15

Q.

Do you have Exhibit 2080 in front of you?

16

A.

Yes, sir.

17

Q.

Can you pull that out.

12:00:57

12:01:07

Can you take a look at those documents, please.

18

(Pause in proceedings.)

19

BY THE COURT:

21

Q.

Have you had a chance to look at them?

22

A.

I have.

IEN

DS

20

23

Q.

24

entitled "Joe Arpaio brief" until the April 23rd or 24th time

25

that you reviewed documents?

FR

12:00:43

12:02:42

Do you remember saying that you didn't see anything

12:02:53

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A.

That's correct.

Q.

Does that refresh your recollection as to whether or not

you were showed any of these documents?

A.

No, sir.

Q.

Do you recognize any documents in that pile that you were

shown?

A.

the closest thing that I recall seeing that day are the last

three pages that say "Arpaio brief."

Well, I guess the best way to answer that, Your Honor, is

But I recall seeing them

10

in ovals, not a round structure in the middle with squares and

11

lines to that.

12

Q.

Did you see several different copies?

13

A.

No, sir.

14

document had "Arpaio brief" on it, with Eric Holder's name and

15

your name on it, that's what I focused on.

16

recall if Chief Knight showed me these other documents, if he

17

even had them up on his computer or a hard copy.

18

remember -- I think it was a hard copy he showed me.

19

Q.

20

appears on any of the documents.

I remember it was so graphic to me that this

And I really don't

I don't even

Now, there are on these -- several times my name

A.

12:04:46

No, sir, just on that one -- just on that one oval.

23

Q.

24

the way -- that I authorized a wiretap on you?

25

A.

FR

12:04:23

Did you recall my name appearing several times?

IEN

22

Okay.

12:03:39

I remember all of them being ovals.

DS

21

12:03:03

And was the one oval the one that indicates -- falsely, by

No, I didn't even know that, no.

12:05:02

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Q.

All right.

Did the document that you looked at say that

this page is still under construction?

A.

No.

Q.

It was a completed version?

A.

I don't recall it saying that it was under construction.

Q.

All right.

it didn't say it?

A.

I don't think it did.

Q.

Okay.

It might have been -- it might have said it or

Did Chief Knight provide us with the document he

10

showed you?

11

A.

12

ready to do was get it to counsel.

13

Q.

14

Montgomery investigation.

15

document, did you?

12:05:24

Oh, I'm sure he did, because that's what he was getting

That afternoon you came back and I asked you about the
You didn't mention seeing this

12:05:45

I did ask you -- you did testify that you hadn't seen

16

anything in the Montgomery investigation that would suggest

18

that I was involved, didn't you?

19

A.

I don't recall, Your Honor.

20

Q.

Did you ever find out who Thomas Drake was from

21

Mr. Mackiewicz?

22

A.

DS

17

12:06:06

IEN

Yes, sir.

23

Q.

Who is Mr. Drake?

24

A.

He was a former employee of the NSA, I believe.

25

Q.

And was he familiar with Mr. Montgomery?

FR

12:05:13

12:06:50

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A.

I don't believe so.

Q.

Was Mr. Montgomery familiar with him?

A.

I don't know.

Q.

You'll be happy to know, Chief, I'm almost through, and so

I'm just going to ask you a few more questions; then we'll

break for lunch.

When did you become aware that the 50 hard drives

7
8

weren't provided in response to my order?

A.

I believe when the Monitor Team brought it up.

10

Q.

You knew that I'd asked for them; you knew that I'd ordered

11

their production.

12

A.

13

documentation.

14

Q.

Did you ever talk to anybody about that?

15

A.

I'm not sure I understand your question.

16

Q.

Did you ever talk to Mr. Mackiewicz?

17

A.

No, sir.

18

Q.

Did you ever talk to Chief Knight?

19

A.

I did talk to Chief Knight.

20

Q.

And what did you say to him?

21

A.

"Did you get all the information from Mackiewicz?"

22

Q.

And what did he say?

12:07:44

IEN

DS

I knew that you asked for the -- all the Montgomery

23

A.

He said "Yes."

24

Q.

Anything else?

25

A.

No, sir.

FR

12:07:13

12:08:09

12:08:25

12:08:41

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Q.

Did you ask him what he asked Mackiewicz to provide you?

A.

I don't think we got into detail.

Q.

Did you ever talk to anybody about the documents that

Chief Knight showed you?

A.

I don't remember.

Q.

You have no recollection at all?

A.

No, sir.

Q.

Did you ever have any recollection of anybody showing you

any other documents that would involve the DOJ in the -- that
resulted from the Montgomery investigation?

11

A.

Just in my deposition with --

12

Q.

That was the only other time you've seen such documents?

13

A.

Yes, sir.

14

Q.

So the only recollection you have is that Chief Knight

15

showed you one document that looks something like, but you

16

don't think is, the same as the last three pages of

17

Exhibit 2080?

18

A.

That's what I believe, yes, your --

19

Q.

Do you remember in your testimony last April telling me

20

that no PS -- that you weren't aware of any PSB investigations

21

arising from the Seattle operation?

22

A.

DS

10

12:09:20

12:09:33

12:09:48

IEN

That's correct.

23

Q.

24

ever made to PSB concerning the Seattle operation?

25

A.

FR

12:08:56

Have there been any PSB investigations or any complaints

Yes, sir.

12:10:06

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Q.

And do they involve Detective Mackiewicz?

A.

They do.

Q.

And I think that you've indicated that there is a criminal

investigation.

A.

pending also.

Q.

in investigating either one of those?

A.

Is that still ongoing?

There's criminal and an administrative investigation

Is Sergeant Tennyson investigating, or has he been involved

Sergeant Tennyson is not now involved in either one of

10

those investigations; I don't know if he was in the beginning.

11

Q.

When was the complaint made, do you know?

12

A.

A complaint was made approximately a year ago.

13

Q.

Are you overseeing those investigations?

14

A.

I am.

15

Q.

Taking an active role?

16

A.

I don't know what you mean by an active role, Your Honor.

17

Q.

Well, has it ever concerned you or ever -- have you ever

18

considered whether or not you should have assigned this

19

investigation, since Detective Mackiewicz will be a witness in

20

this action that personally concerns you?

21

A.

22

Detective Mackiewicz made some comments that involved me, and I

12:10:42

DS

Originally.

12:11:07

12:11:30

IEN

Well, as of last week I was notified that

23

don't mean that in a bad way, but involved me where I'm going

24

to need to have a notice of investigation served on me and give

25

a statement.

FR

12:10:18

So what I have done since that has occurred is

12:12:08

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assigned that responsibility that I normally would do over a

PSB investigation to Executive Chief Trombi.

Q.

Did you generate any paperwork in connection with that?

A.

No, sir.

Q.

Did you ever have, or any members of your family ever have

any business dealings with Detective Mackiewicz?

A.

Yes, sir.

Q.

And what are those?

A.

My wife's a real estate agent and sold him a couple of

10

houses.

11

Q.

And so she got a commission.

12

A.

Yes, sir.

13

Q.

You ever have any social interaction with

14

Detective Mackiewicz?

15

A.

I have.

16

Q.

Consider yourself to be a friend?

17

A.

I consider myself to be an acquaintance, yes.

12:12:47

THE COURT:

18
answers.

20

lunch break.

IEN

22

12:12:53

Thank you, Chief.

I'm through with my questions.

We'll reconvene at 1:30.


(Lunch recess taken.)

23

THE COURT:

24

Mr. Masterson.

FR

25

I appreciate your

I think it's time for

12:13:14

DS

19

21

12:12:31

Please be seated.

RECROSS-EXAMINATION

1
2

BY MR. MASTERSON:

Q.

I just have one question for you, Chief:


When did you move offices?

4
5

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A.

I was mistaken earlier.


MR. MASTERSON:

THE COURT:

It was December of 2013.

Thank you.

Thank you.

Ms. Wang.

MS. WANG:

Yes, Your Honor.

MR. MASTERSON:

10

Your Honor, excuse me.

13:35:41

I'm sorry, Ms. Wang.

11

Just to make clear, I mentioned earlier today, but we

12
13

are reserving the right to call Chief Sheridan during our case

14

in chief.

THE COURT:

15

You did make that clear.

MR. MASTERSON:

16

13:35:49

Thank you.

FURTHER REDIRECT EXAMINATION

17

BY MS. WANG:

19

Q.

Good afternoon, Chief.

20

A.

Good afternoon.

21

Q.

Sir, the Court asked you questions about current policies

22

relating to PSB activities.

IEN

DS

18

13:35:55

Do you recall that?

23

A.

Yes, ma'am.

24

Q.

Could you please take a look at Exhibit 2881.

25

be in front of you now.

FR

13:35:20

That should

This was produced by defendants to the

13:36:08

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plaintiffs.

If you skip to the third page, this appears to be

MCSO Policy Manual on Internal Investigations, Policy GH-2.


Do you see that?

3
4

A.

I do.

Q.

And I will tell you that upon review, it appears to us that

the first two pages of Exhibit 2881 are attachments to the GH-2

policy.

Does it look that way to you?

They come the beginning of the exhibit, but they're

8
9

attachments to the policy.

10

A.

Correct.

11

Q.

Okay.

12

governing internal investigations at MCSO?

13

A.

13:37:04

MR. MASTERSON:
MR. WALKER:
MR. COMO:

18

THE COURT:

19

No objection.

No objection.

No objection, Your Honor.

Exhibit 2881 is admitted.

DS

(Exhibit No. 2881 is admitted into evidence.)


MS. WANG:

Thank you.

23

Q.

24

where within IA files any investigation of the drugs found in

25

Deputy Armendariz's house would appear.

FR

13:37:13

BY MS. WANG:

IEN

22

Your Honor, I'd move Exhibit 2881 into

evidence.

17

21

And is this familiar to you as the current policy

MS. WANG:

16

20

13:36:49

Yes, ma'am.

14
15

13:36:31

Chief, the Court asked you some questions following up on

13:37:35

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Do you recall that?

1
2

A.

Yes.

Q.

And you testified that they would appear in what you refer

to as the main Armendariz investigation, is that correct?

A.

Yes, ma'am.

Q.

All right.

answer to my questions back on Thursday as the death

investigation, is that right?

A.

Yes.

13:37:52

And that was something that you described in

Some people have referred to it as that, and I

10

believe I did also.

11

Q.

12

into far more than just the death investigation, correct?

13

A.

That's correct.

14

Q.

And you also testified in response to the Court's questions

15

before lunch today that in that investigation there were some

16

items found in Armendariz's house that could be linked through

17

investigation to deputies other than Armendariz, is that right?

18

A.

Yes, ma'am.

19

Q.

And if that were the case, a new IA number would be pulled

20

and a new IA case would be started against those deputies, is

21

that correct?

22

A.

DS

But that investigation ultimately developed into being --

13:38:18

13:38:39

IEN

Correct.

23

Q.

24

deputy other than Armendariz, those investigations stayed

25

within what you call the main Armendariz investigation, is that

FR

13:38:06

But as to other items that could not be linked to another

13:38:54

1602

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right?

A.

Yes, ma'am.

Q.

So if you could not find any documentation linking an item

of evidence found in Armendariz's home to someone else, you

would just keep it in the Armendariz investigation.

A.

Yes.

Q.

Now, you said that the Armendariz investigation is still

open, is that right?

A.

Yes.

You're reviewing the final report?

We would classify it as open until my final

signature.

11

work has been completed.

12

Q.

When was that work completed, sir?

13

A.

I'm not sure.

14

Q.

Was it your testimony that the only principal in that case

15

is Deputy Armendariz himself?

16

A.

That's correct.

17

Q.

Armendariz died in early May of 2014, right?

18

A.

Yes, ma'am.

19

Q.

And the investigation continued after that time?

20

A.

Yes.

21

Q.

Sir, I'm going to turn now to the issue of the Seattle

22

investigation.

IEN

FR

13:39:34

13:40:03

13:40:14

The Court asked you whether -- about the nature

of your relationship to Detective Mackiewicz.

24
25

However, just for the record, all the investigative

DS

10

23

13:39:09

A.

I do.

Do you recall that?


13:40:35

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Q.

And you testified that you were the one who assigned

Detective Mackiewicz to the Seattle investigation, correct?

A.

I don't believe so.

Q.

All right.

me -- well, I beg your pardon.

Did you testify in response to questions from

Did you and the sheriff jointly decide to assign

6
7

Mackiewicz to the Seattle investigation?

A.

Yes, ma'am.

Q.

So you had a part in assigning Mackiewicz to this

10

investigation?

11

A.

I did.

12

Q.

And the judge asked you whether you had a personal

13

relationship to Brian Mackiewicz.

13:41:09

Do you recall that?

14
15

A.

I did.

16

Q.

And the Court asked you whether there was any business

17

relationship between Brian Mackiewicz and you or any member of

18

your family.

19

A.

Yes.

20

Q.

And you testified that Brian Mackiewicz and his girlfriend

21

were clients of your wife's real estate business, is that

22

right?

13:41:22

IEN

DS

Do you recall that?

23

A.

No.

24

Q.

You did not testify to that?

25

A.

No.

FR

13:40:58

13:41:35

13:41:49

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Q.

Did your wife act as a real estate agent to Brian

Mackiewicz?

A.

Yes.

Q.

Did she act as a real estate agent to Brian Mackiewicz's

girlfriend?

A.

The judge didn't ask me that question.

Q.

Oh, I apologize.

A.

That's correct.

Q.

Okay.

13:42:00

I'll ask you now:

Is that true?

Sir, is it the case that earlier this year, 2015,

10

your wife still was acting as a real estate agent to Brian

11

Mackiewicz --

MR. MASTERSON:

12
13

A.

Objection, relevance, 403.

-- and his girlfriend?


THE COURT:

14

Overruled.

THE WITNESS:

15

Yes.

16

BY MS. WANG:

17

Q.

18

commission on two real estate transactions on behalf of Brian

19

Mackiewicz's girlfriend?

21

MR. MASTERSON:
THE COURT:

Same objection.

Correct.

23

BY MS. WANG:

24

Q.

And that was in -- earlier this year, 2015, correct?

25

A.

Yes, ma'am.

FR

13:42:41

Overruled.

THE WITNESS:

IEN

22

13:42:30

And is it true that your wife stood to make a $100,000

DS

20

13:42:18

13:42:48

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Sheridan - Redirect, 9/29/15 Evidentiary Hearing

Q.

Sir, at the time that you and Sheriff Arpaio assigned Brian

Mackiewicz to the Seattle investigation were you aware that he

had been the subject over the years of several IA

investigations?

MR. MASTERSON:

5
6

This goes beyond the scope

THE COURT:
MS. WANG:

I think that's sustained.

All right.

I'll move on, then.

BY MS. WANG:

10

Q.

11

detailed a meeting -- or you testified that you were present at

12

a meeting about the Seattle investigation at which

13

Mr. Masterson, Mr. Popolizio, Mr. Liddy, and Mr. Casey were

14

present, correct?

15

A.

Yes, ma'am.

16

Q.

Now, do you recall that during your two depositions in

17

September, earlier this month, you testified that you were not

18

present at a meeting with those counsel on January 2nd of 2014?

Now, in response to questions from the Court, sir, you

13:43:15

13:43:37

Do you recall that testimony?

19
A.

That's correct.

21

Q.

And is your testimony now that you were present at a

22

meeting on a different date with those counsel?

IEN

DS

20

23

A.

That's correct.

24

Q.

Concerning the Seattle investigation?

25

A.

Yes, ma'am.

FR

13:43:04

of the Court's inquiry with this witness.

Objection.

13:43:52

13:44:03

Q.

All right.

counsel that you attended?

A.

He was.

Q.

He was not?

A.

He was.

Q.

All right.

This is not in evidence.

Was Sheriff Arpaio present at the meeting with

13:44:12

Sir, you have in front of you Exhibit 2273.

First of all, sir, let me ask you:

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Are you aware that

in e-mail correspondence, Dennis Montgomery used the alias or

10

the e-mail address "David Webb"?

11

A.

No.

12

Q.

You're not aware of that?

13

A.

No.

14

Q.

Okay.

15

of this e-mail on Exhibit 2273.

I'm going to direct your attention to the first line

to?

18

A.

No, ma'am.

19

Q.

Do you see the date on this e-mail, February 11th, 2015?

20

A.

I do.

21

Q.

All right.

22

"Judge Snow Info"?

IEN

DS

17

A.

13:45:15

And you're not familiar with the reference to

No, ma'am.

24

MS. WANG:

25

THE COURT:

FR

13:44:51

Do you know what this reference "Judge Snow Info" is

16

23

13:44:43

Your Honor, may I have a moment?


You may.

13:45:34

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(Pause in proceedings.)

1
2

BY MS. WANG:

Q.

Seattle investigation in February of 2015?

A.

I don't know.

Q.

Okay.

another question.

understand that Detective Mackiewicz was using the alias or

e-mail address "David Webb" in connection with the Seattle

Sir, were you speaking with Detective Mackiewicz about the

13:46:09

I may have misspoken earlier.

Let me just ask you

Looking again at Exhibit 2273, did you ever

10

investigation?

11

A.

No, I've never heard of that name before.

12

Q.

Okay.

13

Mackiewicz about the Seattle investigation in February of 2015?

14

A.

I don't recall anything like that, no.

15

Q.

Do you recall ever speaking to Posseman Zullo about the

16

Seattle investigation in February of 2015?

17

A.

No.

THE COURT:

19

21

23

Chief, I think you can step down.

Thank

13:47:17

THE WITNESS:
THE COURT:

IEN

22

MS. WANG:

Thank you, Your Honor.

Next witness.
Your Honor, before we hear testimony from

24

the next witness, plaintiffs did want to submit to the Court

25

some discovery responses and deposition transcripts connected

FR

13:46:54

Nothing further.

you.

DS

20

And you don't recall whether you spoke to Brian

MS. WANG:

18

13:46:37

13:47:47

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Sheridan - Redirect, 9/29/15 Evidentiary Hearing

to defendants' current assertion of the advice-of-counsel

defense as to the events of May 14, 2014, as the Court directed

earlier this morning.

MR. MASTERSON:

MS. WANG:

We --

MR. MASTERSON:

Your Honor --

13:48:04

Your Honor, excuse me.

there, maybe we can shorten this up.

that defense.

THE COURT:

All right.

THE COURT:

11

MS. WANG:

12

We're not going to assert

All right.

MS. WANG:

10

Before we go

That seems to shorten it up.

Your Honor, plaintiffs call Tim Casey.

Your Honor, I have copies of Mr. Casey's deposition

13
14

testimony, which we may or may not refer to during his

15

testimony.

MR. WALKER:

18

MR. COMO:

No objection, Your Honor.

No objection.
You may.

MS. WANG:

Thank you.

23

break that she does not have paper copies of all the exhibits.

24

So I would ask that when I refer to an exhibit, if I can have

25

that shown just on the screens at counsel table so she can

FR

13:49:04

Your Honor, Ms. Clark has informed me at the lunch

IEN

22

No objection.

THE COURT:

DS

19

13:48:44

Any objection?

MR. MASTERSON:

17

21

May I hand those up to the witness stand?

THE COURT:

16

20

13:48:11

13:49:15

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review those as we go along.

THE COURT:

Where are you going to sit, Ms. Clark?

MS. CLARK:

Well, that's what I was approaching --

3
4

good afternoon, Your Honor.

Tim Casey.

because we do need a place, both myself and my law partner, to

be.

9
10

I was approaching to address that very issue,

MR. MASTERSON:

Karen Clark, ethics counsel for

Your Honor, we can probably move

around here somewhere and get Ms. Clark stuffed in here at some
point.

11
12

13:49:43

THE COURT:

Thank you, Mr. Masterson.

MS. CLARK:

Judge, I have paper copies from the

13

deposition, but my copies were not marked with exhibit numbers,

14

so it would be difficult for me to follow along.


THE COURT:

15
16

MS. WANG:

18

Are the exhibit numbers the

them.

Mine aren't marked with numbers, most of

THE COURT:

That's all right.

We're going to take

care of it by letting you see the screen as Mr. Masterson and

22

Mr. Popolizio are moving around.

IEN

21

23

MS. CLARK:

Thank you, Judge.

24

THE COURT:

Thank you.

25

MR. MASTERSON:

FR

13:49:55

They are, Your Honor.

MS. CLARK:

DS

20

All right.

same as they were in the deposition?

17

19

13:49:29

Judge, we've got a spot.

Is there

13:50:02

13:50:15

another chair lurking around here somewhere?


Oh, never mind.

2
3

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now.

THE COURT:

Kind of feel like Elmer Fudd here

I don't know that this will be a problem,

but courtroom mechanics require that if counsel table can see

it, the witness can see it as well.

Is that going to be an issue?

MS. WANG:

THE COURT:

Not from my perspective, Your Honor.

If it is an issue, Mr. Masterson, please

10

be aware of it.

11

Mr. Walker.

12

before we publish it so that Ms. Clark can see it, and we'll

13

have to find her a paper copy.

Can you please state and spell your first

THE WITNESS:
THE CLERK:

18

Timothy J. Casey, C-a-s-e-y.

Please raise your right hand.

Thank you.

THE COURT:

Can I see counsel at sidebar, please.

IEN

DS

THE CLERK:

Please take our witness stand.

13:51:30

(Bench conference on the record.)

23

MR. MASTERSON:

24

THE COURT:

25

My only concern is this, Mr. Masterson.

FR

13:51:07

(Timothy J. Casey is duly sworn as a witness.)

19

22

13:50:42

and last name.

17

21

Also Mr. Jirauch and/or

So if it's going to be a problem, let me know

THE CLERK:

15

20

Mr. Como.

Mr. Casey, please come forward.

14

16

13:50:31

We need a bigger sidebar.

I'll just do this in public next time.


In Chief

13:52:12

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Sheridan - Redirect, 9/29/15 Evidentiary Hearing

Deputy Sheridan's testimony, he referenced a meeting he doesn't

think is a January 2nd meeting.


THE COURT REPORTER:

3
4

Judge, I couldn't quite hear

that, I apologize.

THE COURT:

I'm really directing this to

Mr. Masterson, so maybe you could come in and another folks can

hear.

In Chief Deputy Sheridan's testimony he referenced a

8
9

meeting at which you and Mr. Casey, other counsel, were

10

present, that he did not believe was a January 2nd meeting.

11

You didn't invoke any objection to his discussion of that

12

meeting, so I'm going to presume that you are not going to

13

assert the privilege as to that meeting if it comes up in the

14

questioning of Mr. Casey.


MR. MASTERSON:

15

I am not.

And also because the chief

16

deputy also testified that he was not seeking legal advice from

17

me or Mr. Popolizio at that time, I believe, during his

18

testimony.

THE COURT:

19

21

IEN

22

MR. MASTERSON:
THE COURT:

13:52:49

13:53:00

Yeah.

Okay.

Thanks.

23

MS. WANG:

24

(Bench conference concluded.)

25

MS. WANG:

FR

13:52:36

He did say that, or at least that's my

recollection of what he said.

DS

20

13:52:24

Thank you.

May I proceed, Your Honor?

13:53:32

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Casey - Direct, 9/29/15 Evidentiary Hearing

THE COURT:

Please.

TIMOTHY J. CASEY,

2
3

called as a witness herein, having been duly sworn, was

examined and testified as follows:

DIRECT EXAMINATION

5
6

BY MS. WANG:

Q.

Good afternoon, Mr. Casey.

A.

Good afternoon.

MS. CLARK:

Judge, could we have a moment?

10

having some logistical issues.

11

the witness.

THE COURT:

13

THE COURT:

Pardon me?

You're welcome, Judge.

(Pause in proceedings.)

18

MS. CLARK:

19

If I could have a moment.

DS

(Pause in proceedings.)
MS. CLARK:

IEN

MS. WANG:

13:54:49

Thank you.
You're welcome.

23

BY MS. WANG:

24

Q.

25

representation of the defendants in this matter who your

FR

13:54:12

I just said thank you for your courtesy.

MR. MASTERSON:

17

22

13:53:41

Thank you for your courtesy,

MR. MASTERSON:

16

21

We need one more seat facing

Mr. Masterson.

15

20

We're

(Pause in proceedings.)

12

14

13:53:35

Mr. Casey, can you tell me during the course of your


13:54:56

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primary client contact was?

A.

over the course of years.

management case, for whatever reason, under the County, and I

was directed to speak through the risk manager, originally to

Jack MacIntyre, but that evolved over the years.

It varied.

As I mentioned during my deposition, it varied


Originally, this was a risk

Under David Hendershott's tenure it became David

7
8

Hendershott, Joe Arpaio and Brian Sands.

left, it was Brian Sands until his departure, and then it

And after Hendershott

10

became the sheriff and Jerry Sheridan.

11

Q.

12

you've mentioned where your primary client contact may have

13

changed, you spoke frequently about this case with Sheriff

14

Arpaio as well?

15

A.

13:55:31

Sir, is it true that throughout the various times that

That's correct.

MS. CLARK:

16

13:55:48

Judge, excuse me.

I'm going to assert an

17

objection based on client confidentiality, and I need to make a

18

record about it.

THE COURT:

Make your record.

MS. CLARK:

Judge, I'm ethics counsel representing Tim

DS

19
20

Casey, and as everyone knows, he's under subpoena to testify

22

here today.

IEN

21

13:56:01

He is former counsel to Sheriff Joe Arpaio and the

23

Maricopa County Sheriff's Office in this case and a host of

24

other civil litigation cases.

25

obligations to his former clients to maintain both

FR

13:55:10

As such, he has ethical


13:56:21

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attorney-client privilege, work product privilege, as well as

client confidentiality.

Mr. Casey's coun- -- excuse me.

Mr. Casey's clients

are the holders of the privilege.

Mr. Casey is not.

Furthermore, he has not been authorized by his former clients,

in writing or in any other way, to waive attorney-client, work

product, or client confidentiality.

intends to and will honor his ethical obligations to his former

clients as set forth in the ethics rules and relevant law.

Accordingly, Mr. Casey

Because of Mr. Casey's obligations to his former

10
11

clients, and as Your Honor has generously allowed me, I intend

12

to be advising him independently as appropriate regarding the

13

scope of his obligations as they may arise during his

14

testimony.

At this time I am objecting to the question based on

15
16

THE COURT:

All right.

19

understand your position and you're allowed to make whatever

20

objections you wish, I have already ruled that as it pertains

21

to any advice about the preliminary injunction, the

22

attorney-client privilege and the work-product immunity have

IEN

DS

indicated to you both at deposition and here, while I

FR

25

13:57:09

And as I've previously

18

24

13:56:54

attorney-client confidentiality under Ethical Rule 1.6.

17

23

13:56:35

13:57:23

been waived.
To the extent that you assert confidentiality

obligations on those matters, I'm going to overrule those

13:57:35

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objections to the same extent I did at the deposition.

I've also ruled that any content of the January 2nd,

2
3

2014 meeting has been waived, and I am similarly going to treat

any questions about the January 2nd, 2014 meeting.

As we've just confirmed at sidebar, Chief Deputy

5
6

Sheridan just testified to another meeting at which Mr. -- he

testified Mr. Casey was present.

he testified that he was not seeking nor was attorney-client

privilege -- or legal advice sought during that meeting, and

10

Mr. Masterson has indicated he's not going to seek to assert

11

the privilege at that meeting.

He did not seek attorney --

13

that meeting it has been waived, and even though you assert a

14

confidentiality objection, it will be overruled, just to sort

15

of get the blanket down.


MS. CLARK:

16

13:58:26

Thank you, Judge.

At the depositions, we made objections and Your Honor

17

entertained them.

19

question-by-question basis, as Your Honor indicated and

20

instructed at the deposition.

DS

18

However, at the depositions it was on a

13:58:39

So I've advised Mr. Casey that it will be the same

today during his trial testimony.

IEN

22

The deposition was the

23

deposition; this is his trial testimony.

24

objections on a question-by-question basis on all three of

25

those bases.

FR

13:58:10

And so to the extent that questions revolve around

12

21

13:57:53

So I will be making

13:58:54

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In addition, because his former client --

THE COURT:

Let's just be clear.

You've already said

that you do not have the attorney-client privilege or the

work-product immunity to assert.


MS. CLARK:

That's right, Judge, and I was just about

to make a record about that.

is incumbent on current defense counsel, current civil defense

counsel, to raise objections based on attorney-client privilege

and/or work product.

I've instructed Mr. Casey that it

And he's been instructed that if current

10

civil defense counsel does not make such an objection, then

11

attorney-client privilege and/or work-product privilege have

12

been waived by the defendants, and I have so instructed him.


THE COURT:

13

All right.

MR. MASTERSON:

15

All that said, similar to the

statement I made at Mr. Casey's deposition, there may well be,

17

and I expect there to be, questions asked of this witness where

18

I will not know whether a privileged communication is being

19

asked for because I was not present at the meeting, and my

20

clients may or may not have been present at the meeting, so --

21

at least the ones sitting here today.

DS

16

IEN

counsel in certain instances as to whether it was, in fact, an

24

attorney-client privileged question.

FR

13:59:40

14:00:06

So I will need assistance from Mr. Casey and his

23

25

13:59:24

Mr. Masterson.

14

22

13:59:07

In addition, I'm going to object to the first

14:00:21

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question.

I think -- it's been a bit now, but I think it was

beyond the scope of the Court's ruling on preliminary

injunction and waiver.

communications Mr. Casey may have had with his clients at some

certain date or occasion, I don't recall.


THE COURT:

I think she asked a question about all

I will tell you the question I recall was

who his principal client contact was, and then who he had

contact -- whether he had contact with the sheriff even when he

had other client contacts.

That's what I recall the question

10

to be.

11

I can't remember whether there was an objection made.

13

That was allowed -- I allowed that at the deposition.

MR. MASTERSON:

12

the question.

I don't have an objection if that's

All right.

Now, let me just say in response to your speech -- and

15
16

we're going to quit speechifying, Ms. Clark -- we -- I

17

recognize, as occurred at the deposition, sometimes questions

18

have to be parsed.

19

to accommodate whatever needs to be accommodated, but please be

20

alert and make whatever objections need to be made so that we

21

can parse it or otherwise deal with it on a

22

question-by-question basis.

DS

IEN

14:01:04

And so if they have to be parsed, we want

23

MR. MASTERSON:

24

MS. CLARK:

Thank you, Judge.

25

THE COURT:

Ms. Wang.

FR

14:00:54

I thought there was a subsequent question.

THE COURT:

14

14:00:39

14:01:23

Thank you, Judge.

14:01:35

MS. WANG:

THE COURT:

2
3

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Thank you, Your Honor.

I am going to overrule the objection and

direct you to answer the question.


THE WITNESS:

4
5

BY MS. WANG:

Q.

I don't remember the question.

14:01:41

You might have answered it, sir.

I think the question was:

During the periods in which you had various primary

7
8

client contacts did you also frequently speak with Sheriff

Arpaio about this case?

10

A.

I did.

11

Q.

Is it also true that at the time of the Court's preliminary

12

injunction order you also were in regular contact with

13

Lieutenant Sousa about this case?

14

A.

Yes.

15

Q.

Sir, during this litigation, while you were representing

16

the defendants, who was your official contact for purposes of

17

document preservation and production issues?

18

A.

19

under your predecessor counsel there was a letter of

20

preservation sent by your predecessor counsel.

21

that, sent that over to then my contact, Jack MacIntyre.

22

was an issue in the case that came up about that.

14:01:52

Primarily, early on in the case

IEN

DS

It -- it was twofold.

I received

14:02:23

There

After that,

23

he was not involved.

24

believe the person who headed that was a lieutenant, and I

25

think it's Dot Colhane, Dorothy Colhane.

FR

14:02:04

It became MCSO legal liaison, and I

14:02:44

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Q.

And did there come a time where you went directly to

Lieutenant Sousa for document production issues relating to

this case?

A.

I did is tried to follow what I understood was the chain of

command.

liaison was not operating timely, based on some demands that we

had.

Chief Brian Sands, explained my concerns, and then he went to

I'm not trying to be difficult, but the answer is no.

What

So there was a time that I believed the MCSO legal

And I tried to circumvent that process and I went to

10

Lieutenant Sousa.

11

believe I made Mr. Sousa's life, Lieutenant Sousa's life

12

miserable.

13

Q.

14

directed by Chief Sands to go directly to Lieutenant Sousa for

15

document issues?

16

A.

17

I'd go to Chief Sands and tell him:

18

need, and I don't think we can do it through MCSO legal liaison

19

for these reasons.

20

or not.

21

Q.

22

right?

And, unfortunately, we did that a lot, and I

14:03:19

So there were periods of this litigation where you were

What it was is I would go to lieutenant -- excuse me.

DS

No.

All right.

IEN

14:03:36

Can I go to Joe?

This is what I think we

And he would approve that

14:03:52

And he generally did approve that, is that

23

A.

He was very cooperative all times.

24

Q.

Was it consistent with MCSO protocol for you to bypass the

25

legal liaison office and go directly to the chain of command in

FR

14:02:59

14:04:00

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that way?

A.

MCSO legal liaison.

you, it wasn't operating in a timely basis for what I deemed we

needed to do to respond to the plaintiffs and to our court

obligations, so we went that different route.

Q.

you understand that plaintiffs' document requests included

video recordings of traffic stops?

My understanding was that you were supposed to go through

But then, for the reasons I've shared with

Sir, during the pretrial discovery period in this case did

10
11

MS. CLARK:

Objection, Judge.

THE COURT:

I'm going to allow it.

THE WITNESS:

12

Yes.

Mental impressions.

The short answer is yes.

Your

14

broad, and certainly covered any video or audio.

15

BY MS. WANG:

16

Q.

And did you convey that request to anyone at MCSO?

17

A.

I conveyed -- I forwarded your discovery request directly

18

to MCSO legal liaison.

19

Q.

And did they produce anything in response?

20

A.

There were no videos available.

21

Q.

All right.

22

MCSO did have video recordings?

IEN

DS

document definitions were like they always were: were very

23

FR

25

14:04:36

Overruled.

13

24

14:04:19

14:04:52

14:05:03

Did there come a time where you learned that

MS. CLARK:

Objection, Judge.

THE COURT:

Overruled.

Client confidentiality,

ER 1.6.
14:05:19

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MS. CLARK:

Judge, when you say "overruled," I just

want it clear on the record under ER 1.6, Mr. Casey is only

authorized to answer the questions -THE COURT:

4
5

When I say "overruled," that means that

I'm directing Mr. Casey to answer.

6
7
8

MS. CLARK:

And it's an order under ER 1.6.

THE COURT:

It is.

MS. CLARK:

Thank you, Judge.

THE WITNESS:

14:05:28

In fall of 2009, as I shared with you

10

during the deposition, there was a series of MCSO HSU member

11

depositions.

12

equipment that were just being introduced to HSU, is my memory.

13

After that, because of that potential, Brian Sands and

It came up at that time that there were new video

14

I -- Brian went to every deposition with me, is my memory.

15

that time, we needed to find out:

16

keep them?

Are there videos?

18

out of the box yet.

19

testimony was.

20

BY MS. WANG:

21

Q.

All right.

22

A.

So --

How do we

And that's pretty similar to what the

14:06:11

DS

IEN

14:05:59

They're not

23

Q.

24

found out there actually were video recordings of traffic

25

stops?

FR

At

Let's get them.

And the response that we got back was:

17

14:05:39

I'm sorry.

And did there come a time after that where you

14:06:20

A.

Yes.

Q.

When was that?

A.

May 12th, 2014.

Q.

Did you do anything to find out about those

video recordings and to produce them?

6
7

14:06:28

MS. CLARK:

Just a continuing objection on 1.6, Judge.

THE COURT:

Overruled.

THE WITNESS:

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Yes, I did.

BY MS. WANG:

10

Q.

What did you do?

11

A.

My counsel and I, my co-counsel, and I don't remember if my

12

colleague at my firm was with me that day, but there was a

13

meeting in which we were introduced to the fact that there were

14

videotapes.

14:06:35

We were shown some exemplar videotapes.

And immediately, I guess to put it bluntly, Mr. Liddy

15
16

is the co-counsel, and he and I were not happy.

17

And so we immediately wanted to find out when were the dates --

18

when did these things take place?

19

we match documents with the videos?

This was news.

Where were they stored?

And there were problems with this videos.

DS

20

stamp was obviously incorrect on some of them.

22

do that.

IEN

21

Can

The date

14:07:18

So we needed to

23

Q.

And who at MCSO did you speak to on this issue?

24

A.

The meeting -- I can't tell you for sure, because it was a

25

very large room with a whole host of people.

FR

14:06:55

I believe that it

14:07:35

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was the head of PSB, the Internal Affairs, the new Professional

Standards Bureau.

everyone was there.

there.

obligations that our client had to the Court.

Q.

well?

A.

I believe he was.

Q.

And Chief Trombi?

10

A.

-- I can't tell you for certain, but I believe he was.

11

Q.

All right.

12

September 16th that Sheriff Arpaio, Chief Sheridan, and

13

Chief Trombi were present at that meeting, is that correct?

14

A.

15

said.

16

sheriff being there.

17

Q.

18

questions that you just described?

I can't tell you --

14:08:06

Well, you testified during your deposition on

I don't -- as I sit here today, I don't remember the

Okay.

14:08:23

And what did you find out during that meeting on the

MS. CLARK:

Objection, Judge.

Calls for

attorney-client privilege and confidentiality under 1.6.


THE COURT:

14:08:36

Overruled.

THE WITNESS:

We learned for the first time that the

23

MCSO had been aware that those videos had been in existence

24

since February, and we had not been, as counsel, told.

25

BY MS. WANG:

FR

14:07:56

If that's what I said, then I -- you know, that's what I

IEN

22

I mean, the sheriff I don't recall being

But that's what we were most interested in because of

DS

21

But, I mean,

Do you recall that Chief Sheridan was at that meeting as

19
20

I think it was Steve Bailey.

14:08:58

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Q.

Did you look into why that was the case?

A.

We did.

Q.

Did you get any response?

A.

We did not get -- my memory's both Mr. Liddy and I were not

satisfied with the response, but it was essentially we needed

to find out what we had before we wanted to alert you.

Q.

videos since February of 2014 but did not disclose it to you

until May 2014?

10

A.

Did you ever find out why your client had known about the

No.

11
12

14:09:28

MS. CLARK:

Objection, Judge.

THE COURT:

Overruled.

THE WITNESS:

13

Mental impressions.

No, other than what I shared with you is

14

that -- I think the explanation was we needed to get our handle

15

around these things before we alerted the defense lawyers.

16

BY MS. WANG:

17

Q.

18

the preliminary injunction order.

19

A.

Yes.

20

Q.

The preliminary injunction order came about as a response

21

to the summary motions filed by the parties, correct?

22

A.

14:09:39

I'm going to turn to the issue of

DS

All right, Mr. Casey.

14:09:49

IEN

That's right.

23

Q.

24

on those summary judgment motions?

25

A.

FR

14:09:08

And do you recall when the argument in this courtroom was

It was the day before it was issued.

14:10:04

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Q.

Was that December 22nd of 2011?

A.

It was.

Q.

And prior to the argument on the summary judgment motions

did you meet with MCSO personnel?

A.

tell you we did not meet to prepare for the hearing, because

that was lawyer work and did not need input from clients.

Q.

2011?

You know, we went over this in the depo.

A.

I'm sure we did.

11

Q.

All right.

12

A.

I have -- I found these up here, but --

14

BY MS. WANG:

15

Q.

There we go.

16

A.

There we go.

17

Q.

33.

18

A.

I do.

23

(Handing).

What is it?

Is that going to be produced on the

DS

MS. WANG:

14:10:58

Oh.

Could we have -- Mr. Klein, could we

have each exhibit produced just on the screens for counsel


table?

24

MS. CLARK:

25

THE WITNESS:

FR

25 what?

screen, Judge?

IEN

22

14:10:34

14:10:51

MS. CLARK:

19

I remember you asking me about a date.

Do you have Exhibit 2533 in front of you?

THE CLERK:

13

21

14:10:16

Well, did you meet with your clients earlier in December of

10

20

I did, but I can

Thank you.
I have the exhibit.

14:11:09

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BY MS. WANG:

Q.

Okay.

3
4
5

Sir, we went over this in your deposition.

MS. CLARK:

I don't have it yet.

THE COURT:

Do you have it now?

MS. CLARK:

I do.

MS. WANG:

I'm sorry.

I guess I have a cover page.

Okay.

Okay.

BY MS. WANG:

Q.

Exhibit 2533 is a redacted copy of your -- what was represented

So Mr. Casey, we went over this in my deposition.

10

to us and produced to us by defendants as a reacted copy of

11

your billing records for a certain period of time.

13

to be the case to you.

14

A.

15

deposition --

16

Q.

It is.

17

A.

I don't know how you all got it, but it is a copy of my

18

time sheets for various periods that are redacted.

19

Q.

20

reacted, copy of your time sheets for certain periods of time?

21

A.

22

accurate, yes.

Yeah, this is the same one that I looked at my

FR

25

14:11:48

And appears to you to be an accurate, if

DS

All right.

I remember looking at it at my depo.

IEN
24

14:11:31

Take a look at it and let me know whether that appears

12

23

14:11:18

MS. WANG:

All right.

14:11:57

It does appear

Your Honor, I'd move the

admission of Exhibit 2533 into evidence.


MR. MASTERSON:

No objection.

14:12:09

MR. WALKER:

MR. COMO:

THE COURT:

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No objection, Your Honor.

No objection.

Exhibit 2533 is admitted.

(Exhibit No. 2533 is admitted into evidence.)

MS. WANG:

THE COURT:

MS. WANG:

All right.

14:12:16

You may publish.

Can we highlight the time entry for

December 1st of 2011 on this page, MELC210536.

BY MS. WANG:

10

Q.

11

2011, there is a notation that you conferred with MCSO

12

Lieutenant J. Sousa?

13

A.

Yes.

14

Q.

And do you also see that you again conferred with J. Sousa

15

for three-tenths of an hour?

16

A.

17

that day.

18

Q.

19

12-6-11, let's take a look at that one.

It looks like I talked to him several different occasions

Okay.

And let's turn to the next page.

The time entry for

Sir, do you see that your time entry there indicated

that you prepared for a meeting with Sheriff Arpaio, Chiefs

22

Sheridan, Sands, and MacIntyre, and HSU Sergeant B. Palmer?

IEN

21

23

A.

I see that's what it says.

24

Q.

And do you see that the next time entry that's not redacted

25

indicates you conferred with clients except for absent Sheriff

FR

14:12:27

14:12:49

DS

20

Sir, do you see that in your time entry for December 1st,

14:13:07

14:13:25

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Arpaio?

A.

Yes.

Q.

Sir, do you read that billing record to indicate that you,

in fact, met on December 6th, 2011, with Chief Sheridan,

Chief Sands, Chief MacIntyre, and Sergeant Palmer about the

Melendres case?

A.

That's what I wrote, so that's what would have happened.

Q.

All right.

A.

I try to be accurate so my bills get paid, yes.

10

Q.

And your typical practice is to make your time entries

11

after the fact, correct?

12

A.

13

as I go during the day.

14

in the evening.

15

I come in in the morning is enter the time from the previous

16

day so it's not lost, but --

17

Q.

Yeah.

That would be an accurate time record, sir?

14:13:51

I think I explained to you what I do is I take notes


I either record them before I go home

If it's a late evening, first thing what I do

14:14:06

Thank you.

All right.

18

Let's turn to your entry for December

15th, lower on that page.

Do you see an indication there that

20

you conferred separately with Chief Sands, Chief MacIntyre, and

21

Sheriff Arpaio about this case on that date?

22

A.

DS

19

14:14:25

IEN

I do.

23

Q.

24

December 21st, 2011.

25

summary judgment argument, correct?

FR

14:13:39

And then turning to the next page, your time entry for
That would have been the day before the
14:14:46

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A.

Yes.

Q.

And on December 21st, 2011, do your time entries indicate

that you conferred at length with Sheriff Arpaio, and then

separately with Chief MacIntyre, and on multiple occasions

separately with Chief Sands on that date?

A.

Yes.

Q.

And let's turn now to the next page, the continuation of

your time entries for December 22nd, 2011.

A.

What date is this?

10

Q.

December 22nd.

11

A.

Okay.

12

Q.

It's the continuation from the previous page.

13

A.

Okay.

Thank you.

14

Q.

Okay.

Do you see that you had extended conferences with

15

Sheriff Arpaio, Chief Sands, and Lieutenant Sousa?

16

A.

Yes.

17

Q.

All right.

18

after the summary judgment argument, do you recall?

19

A.

20

redactions, but my guess is it probably was, but I can't be

21

certain.

22

Q.

14:15:22

14:15:32

That would have been -- would that have been

I cannot tell with the

DS

That was the -- you know what?

14:15:50

IEN

Do you recall debriefing with any of your clients about the

23

summary judgment argument afterwards?

24

A.

25

would come to the hearings and report back, but I also would

FR

14:15:02

Yeah.

Typically, Brian would try -- Chief Brian Sands


14:16:10

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try to report back myself, or at least be available for

questions if additional questions came up.

Q.

summary judgment argument in this case on the 22nd of December,

2011?

A.

would tell you it would be the normal practice to do that, but

this was so close to the Christmas holidays that I couldn't

tell you if the normal practice was followed.

And do you recall debriefings specifically about the

14:16:26

I mean, you're almost talking four years ago.

All right.

I don't.

10

Q.

During your deposition on September 16th you

11

actually recalled that -- you recalled debriefing them that you

12

thought we would probably have a jury trial, based on how the

13

argument went.

14

A.

I do recall.

15

Q.

Does that ring a bell now?

16

A.

Yeah.

17

all lawyers try to size up where they think the Court may or

18

may not be going; most of the time we're wrong.

19

reaction was we're going to have a trial, and what I said there

20

was I thought there was a Fourth Amendment concern in the

21

Court's mind, which turned out to be accurate.

22

Q.

Do you recall that testimony?

14:16:54

Yeah, my memory after the hearing is reporting -- is

DS

But my

14:17:09

IEN

So, sir, the preliminary injunction order did issue on

23

December 23rd, 2011, correct?

24

A.

It did.

25

Q.

What immediate steps did you take in response to the

FR

14:16:39

14:17:20

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Court's order?

2
3

MS. CLARK:

Objection, Judge, work product.

THE COURT:

What steps he took?

THE WITNESS:

Overruled.

I remember it coming out late.

remember the motions pending for some period of time.

And

parties have no control over when a court issues an order but I

remember it coming out late on the 23rd.

it, but not studying it, because the key thing is that because

you're representing, obviously, a defendant who's also a public

I remember reading

10

official, so it was important to give them notice as soon as

11

possible because the media would pick up on it.

13

Chief Brian Sands and gave him an oral report about the main,

14

you know, the highlights, but the main issue was the

15

injunction.

16

e-mail summary to the various people.

And then I know that I prepared that note, the

records requests.

19

have -- it looks to me that I spoke with Joe Arpaio that day

20

and with Jack MacIntyre that day, but I can't tell you for

21

sure, but that's what it looks like.

22

Q.

DS

18

I saw a note that indicated that I may

14:18:47

I do not remember that.

IEN

You said a moment ago that when you read the preliminary

injunction order you thought the main issue was the injunction.

24

FR

14:18:23

I saw -- since I had a subpoena from you folks, I did

17

25

14:18:02

So reading it, I am confident that I talked to

12

23

14:17:42

A.

Can you explain what you mean by that?

You know, as lawyers, you get summary judgment rulings all

14:19:03

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the time.

happens.

You win/you lose; none of us like to lose but it

That's why there is a court or a jury.

But you don't get injunctions all the time; in my 25

3
4

years of practice, probably a handful.

So when a court enjoins

you from doing something, that's an official order.

very serious.

immediately to your client, because it's not issued to the

lawyers, it's issued to the client.

get out something in writing right away.

That's

And you have to make sure you disseminate it

10

Q.

11

That should be in front of you.

And that's why I wanted to

Take a look at Exhibit 187, which is already in evidence.

MS. WANG:

12
13
14

You may.

MS. WANG:

Thank you.

15

BY MS. WANG:

16

Q.

Sir, do you have it in front of you?

17

A.

I've got it in front of me; I've got it on the screen, yes,

18

ma'am.

19

Q.

20

conveying that the Court had issued this injunction?

21

A.

It is.

22

Q.

All right.

And is that the e-mail that you sent to your clients

DS

IEN

14:20:06

14:20:16

Who did you send it to?

23

A.

24

Sands, Jack MacIntyre, Jerry Sheridan, and Joe Sousa.

25

Q.

FR

14:19:42

Your Honor, may we publish this one?

THE COURT:

Okay.

14:19:24

I sent it to Brian Sands -- the recipients up there:

And why did you send it to each of them?

Brian

14:20:31

A.

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Brian Sands --

2
3

MS. CLARK:

Objection, Judge, mental impressions.

THE COURT:

I'm going to allow the question.

The witness is directed to answer.

THE WITNESS:

Brian Sands because he was the chief

head of law enforcement, and HSU was really his direct report

under the sheriff.

The sheriff doesn't take e-mails.

Jack MacIntyre for the sole reason as a courtesy copy.

8
9

He had no chain of command authority, had no responsibility,

10

but the sheriff had at various time -- at least one time after

11

Hendershott left asked me to copy him on key developments, so I

12

did.

was the new deputy chief.

And then Joe Sousa, and I think I shared this with you

15
16

during my deposition, I normally would not have copied him on

17

it as lieutenant of HSU.

18

telephone conference that I copy him so he gets it, because HSU

19

at the time was the proverbial tip of the spear.

20

ones that were most likely to be in a position to either comply

21

or violate this, so we wanted to make sure that he got it right

22

away.

They were the

DS

IEN

BY MS. WANG:

24

Q.

25

Chief MacIntyre as a courtesy?

All right.

14:21:27

I believe Brian suggested during a

23

FR

14:21:11

Jerry Sheridan as a sheer courtesy to him because he

13
14

14:20:52

14:21:48

Now, you said that you sent this e-mail to


Is that what you just

14:22:00

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testified?

A.

authority.

Q.

was important to share the news of the injunction with Chief

MacIntyre, other than as a courtesy?

A.

That was my view, because he had no chain of command

Okay.

Yes.

Did you have any other reasons why you thought it

MS. CLARK:

8
9

impressions, Judge.

10

THE COURT:

11

Continuing objection on mental

To the extent it involves what he was

THE WITNESS:

I'm not able to answer that.

I was told

13

by the sheriff to copy him on it, but I formed an impression,

14

based on my work during client confidentiality about why that

15

was important that he be copied on it.

16

that's at least client -- my mental impression's based on

17

client confidentiality.

18
19

All right.

MS. WANG:

Well, sir --

THE COURT:
MS. WANG:

And that would --

You've already answered the question.

Q.

24

MacIntyre should get the preliminary injunction order?

FR

14:22:56

I'm sorry.

23

25

14:22:45

BY MS. WANG:

IEN

22

THE COURT:

DS

21

14:22:24

told, I'm going to allow him to answer, direct him to answer.

12

20

14:22:12

Did you have any particular reason you thought Chief

MS. CLARK:

Same objections, Judge.

14:23:03

THE COURT:

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To the extent that it's limited to the

preliminary injunction order I'm going to direct the witness to

answer.

THE WITNESS:

Jack MacIntyre was a trusted member of

the executive staff, in my judgment, for the sheriff.

He

happened to be a lawyer by training.

law, but it was my impression that very often the sheriff liked

to get second opinions, at least bounce it by Jack MacIntyre

because he had a lot of outside counsel on various cases.

14:23:14

He was not practicing

So

10

it's not uncommon, in my experience, that he might ask Jack

11

MacIntyre what's his -- what's his thought on this.

12

BY MS. WANG:

13

Q.

14

as a courtesy because he was the chief deputy, is that right?

15

A.

Yeah, that's right.

16

Q.

Did you think that the fact that an injunction had issued

17

against MCSO was important to convey to the chief deputy of

18

MCSO?

19

A.

20

will say honestly that Jerry Sheridan at the time was a new

21

face to me, was an unknown commodity that I did not get to know

22

until the time of our trial and our trial prep.

And you also testified that you sent this to Chief Sheridan

DS

Yes and no.

IEN
23
24

FR

25

14:23:38

14:23:52

You know, we went over this in my depo and I

14:24:05

My

relationship really was with Brian Sands and Sheriff Arpaio.


My thought process was to copy him on it because he is

the number two in the chain of command, but I didn't have any

14:24:28

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expectations of him because I hadn't dealt with him on this.

Q.

on this e-mail.

A.

fairness, tell you that we didn't have any dealings with him.

Q.

records --

A.

Yes.

Q.

-- earlier this month, correct?

10

A.

About the case --

11

Q.

All right.

12

A.

-- yes.

13

Q.

You did not send the December 23rd, 2011 e-mail to Sheriff

14

Arpaio, right?

15

A.

He doesn't do e-mail.

16

Q.

Did you convey the preliminary injunction order to him in a

17

different format?

18

A.

I did.

19

Q.

How was that?

20

A.

Telephonically.

21

Q.

And I think you testified a few minutes ago that you

22

believed that in addition to Chief Sands, you spoke by

But you did think it was important to copy the chief deputy

Obviously I did, because I included it.

But I have to, in

Well, you had met with him, according to your billing

14:24:54

14:25:01

IEN

DS

14:25:10

23

telephone with Sheriff Arpaio and also with Chief MacIntyre

24

about the preliminary injunction order that day, correct?

25

A.

FR

14:24:46

I have no memory of that.

But I did find an e-mail to my

14:25:24

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colleague in my office summarizing their impressions after my

report, so it tells me that I must have spoken, albeit briefly,

with them that day.

Q.

All right.

A.

34?

Q.

Correct.

A.

Yes, I have it.

Q.

Okay.

A.

Yes, that's the one from me to my colleague at 9:30 that

10

night.

14:25:49

2534.

Is that the e-mail you were referring to just now?

14:26:11

MS. WANG:

11
12

Take a look at Exhibit 2534.

Your Honor, I would move the admission of

Exhibit 2534 into evidence.


MR. MASTERSON:

13

MR. WALKER:

14

MR. COMO:

15

THE COURT:

16

No objection.

No objection, Your Honor.

No objection.

Exhibit 2534 is admitted.

(Exhibit No. 2534 is admitted into evidence.)

17

MS. WANG:

18

Thank you.

19

BY MS. WANG:

20

Q.

21

December 23rd, 2011, with Chief Sands, correct?

22

A.

DS

So Mr. Casey, just to recap, you spoke by telephone on

14:26:26

IEN

I'm positive I did.

23

Q.

24

spoke by telephone with Sheriff Arpaio and with Chief MacIntyre

25

the same day, correct?

FR

14:26:19

All right.

And you have seen documents indicating you also

14:26:41

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A.

2534 indicates, but I have no memory.

Q.

Okay.

correct?

A.

Correct.

Q.

Okay.

convey the preliminary injunction order to your clients?

A.

when 187 went out, but I think -- I think I got my report out

within an hour of receiving Judge Snow's injunction.

And you also sent the e-mail that's in Exhibit 187,

Did you do anything else on December 23rd, 2011, to

As I sit here, I don't remember.

I believe -- I don't know

And I can

10

see here that I'm writing an e-mail to my colleague at 9:30, so

11

I obviously was there certainly from 4:30 -- I see it to be a

12

Blackberry, so -- but obviously I was doing stuff until 9:30

13

that night five hours later.

14

Q.

15

for December 23rd, 2011, don't reflect all the work you did on

16

this case?

17

A.

18

December 23rd, which I -- I'm surprised at, but I -- there's no

19

entry.

20

Q.

But you obviously did work on that date, correct?

21

A.

I -- yes, I did.

22

didn't charge -- I'm sure it was an oversight.

All right.

DS

IEN

14:27:33

I did not bill any time on

14:27:48

I did all the things I described, but I


I would have

23

charged for it, but I'm sure it got lost over the holidays.

24

Q.

25

you spoke to him by telephone about the preliminary injunction

FR

14:27:13

And do you believe that your billing records

I have no billing record.

All right.

14:26:50

Sir, what did you convey to Chief Sands when


14:28:06

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order on December 23rd, 2011?

A.

tell you now, this many years, the precise words; I could tell

you the gist of it.

We can no longer turn people over.

people over to the federal authorities.

something more.

under the human smuggling statute.

that HSU understands this right away.

The focus -- the focus was on the injunction.

But the focus was:

And I can't

We have an injunction.

We no longer can turn

There has got to be

We had some issues about the judge's analysis

But we've got to make sure


And that's the gist of

10

it.

11

Q.

12

injunction order issued, did you speak to anybody else about

13

the preliminary injunction order?

14

A.

15

another date after Christmas, the 26th or 27th, I don't

16

remember, that I do have a conference with Joe Arpaio.

17

28th there was a conference with Brian Sands, is my memory.

14:28:54

Okay.

Over the period of the days after the preliminary

Yeah, I've seen my time sheets, and there -- there was

14:29:14

On the

And then on the 30th there was a very long -- I think

18

it was all telephonic -- meeting, over an hour, with Brian

20

Sands and Joe Sousa about what HSU could and could not do under

21

the human smuggling statute, given the injunction.

22

Q.

DS

19

IEN

Okay.

14:29:37

Going back to the 23rd when you spoke to

23

Chief Sands, did you discuss with him whether it was urgent to

24

get word of the preliminary injunction order out to HSU

25

immediately?

FR

14:28:29

14:29:54

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A.

He knew that.

We talked about that.

That's why -- and I

can't tell you specifically, I'm just sharing with you that

that is why I believe he suggested to me to copy Joe Sousa on

it, because he recognized the urgency on it, and it was

important that his people under Enforcement Support comply.

Q.

operations over the holidays where they would need to know

about the order?

A.

Was there any concern that HSU might be conducting any

I don't know if they had any planned.

Historically, they

10

were very active over the holidays in one way or another, and

11

that was one reason why it was important that HSU get that.

12

But I don't -- they certainly did not have -- at that time,

13

they were not doing saturation patrols.

14

Q.

15

specifically telling him the injunction required?

Okay.

THE COURT:

17
matter?

MS. WANG:

19

14:30:44

Objection, hearsay.

Is it being offered for the truth of the

Not really, Your Honor.

Let me back up a

question and maybe we can avoid the objection.

21

BY MS. WANG:

22

Q.

14:31:08

DS

20

IEN

Was it important to convey the preliminary injunction order

23

to the client in order for them to follow it?

24

A.

25

was important to talk to them and it was important to send that

FR

14:30:28

When you spoke with Brian Sands, what do you recall

MR. MASTERSON:

16

18

14:30:13

If they don't know about it, they cannot follow it.

So it
14:31:16

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letter e-mail off.

Q.

order to Chief Sands?

A.

Okay.

So how did you describe the preliminary injunction

That we --

MR. MASTERSON:

MS. WANG:

Objection, hearsay.

Your Honor, it's not offered for the truth;

it's offered to show the sequence of events and what MCSO were

told about the preliminary injunction order.


MR. MASTERSON:

9
10

12

Well, that sense that it was offered

for what was told is the truth.


MS. WANG:

11

14:31:51

I also think it's non-hearsay as the

statement of a party opponent.


THE COURT:

13

I'm going to overrule the objection.

THE WITNESS:

14

I cannot, Cecillia, tell you the details

of it, other than to focus on that.

16

whether we were going to take an appeal, but that was mostly an

17

issue with the sheriff.

18

expressed by Chief Sands.

19

BY MS. WANG:

20

Q.

And tell me more about that.

21

A.

No one wanted to turn over people to the federal government

22

at HSU.

IEN

DS

15

23
24

FR

25

14:31:26

Also, the big issue was

14:32:11

But I just remember there was relief

Why was he relieved?

14:32:29

Not Brian; not Lieutenant Sousa; not the sergeants;

not the troops.

They didn't like that.

They told me that.

And when this first came in, it was relief, because

they didn't have to do it any more.

They were being told they

14:32:54

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weren't doing it, that they couldn't do it, and so there was

relief expressed.

Q.

injunction order to the sheriff, how did you describe it to

him?

A.

And when you conveyed the substance of the preliminary

14:33:10

I --

MR. MASTERSON:

THE COURT:

Overruled.

THE WITNESS:

Objection, hearsay.

I don't remember when we spoke.

I do

10

remember we spoke, and I believe -- I do remember, one, we had

11

a substantive discussion.

12

whether we were going to appeal, how quickly we were going to

13

appeal.

The sheriff was very concerned about

We talked about it.


Also told him:

14

You can't turn anyone over to the

15

federal government and that was not a problem.

16

resistance from Sheriff Arpaio.

17

it because I was very pleased to hear that.


His comments were:

18

There was no

Nothing changes anything because


And what he meant by -- and he

20

said, We're not doing the saturation patrols, and we're not

21

turning anyone over to ICE because Obama won't take them.

DS

we're not doing it any more.

14:33:51

IEN

And what that was a reference to, as I understood it,

23

was that under the President's policy that he made a decision

24

that they were not going to be simply taking over

25

non-criminal -- violent criminal people who were in the country

FR

14:33:34

And I was very -- I remember

19

22

14:33:19

14:34:08

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unlawfully.

So that was his expression that nothing changes

because we're not doing that.

BY MS. WANG:

Q.

Sir, take a look at Exhibit 2534 again.

A.

Which one is that?

Q.

That's the e-mail that you sent at 9:26 p.m. to James

Williams.

A.

Okay.

Q.

Do you see the indication where you said -- well, first you

14:34:23

10

said, "rankly, I am relatively pleased.

11

MacIntyre."

12

A.

Yes.

13

Q.

"Arpaio is conflicted on how he feels"?

14

A.

Right.

15

Q.

So Arpaio expressed conflicted feelings about the

16

preliminary injunction order to you?

17

A.

18

resistance.

19

lose.

20

concerned about some appeal grounds that we thought we had

21

because we had -- at least I had some issues as counsel about

22

my understanding of what Judge Snow ordered.

No.

14:34:42

I can't tell you specifically, but no one likes to

Parties don't like to lose.

And I remember him being

14:34:59

I turned out to

23

be wrong and he turned out to be right by the Ninth Circuit,

24

but I remember him -- that's what I understand him being

25

conflicted on it.

FR

14:34:36

He had no reservations about that; he had no

DS

IEN

So are Chief Sands and

14:35:15

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Q.

Okay.

Well, is the point that Sheriff Arpaio expressed to

you during this specific conversation that he hated to lose but

he did not resist.

A.

He did not express any resistance --

There was no resistance -MR. MASTERSON:

THE COURT:

MS. WANG:

Objection, leading.

Sustained.

Your Honor, I believe that under the

hearsay rules, Mr. Casey is affiliated with the adverse party,

and therefore I can lead him.


THE COURT:

10
11

Well, it may be that you can establish

MS. WANG:

All right.

Respectfully, Your Honor, I

13

think that the fact that he is former counsel for defendants

14

establishes that, but I will -THE COURT:

15

Well, let me just say I think I have a

fair amount of discretion on that.

17

objection because even though what you say is true, I haven't

18

detected anything that is argumentative on behalf of Mr. Casey

19

or that suggests that he is other than answering your questions

20

when I direct him to do so.

14:36:15

If in fact that changes, then I might let you lead

IEN

him, but I'm sustaining the leading objection.

23

MS. WANG:

24

BY MS. WANG:

25

Q.

FR

14:35:57

I have sustained the

DS

16

22

14:35:44

adverseness, but you haven't done it yet.

12

21

14:35:33

Yes, Your Honor.

Mr. Casey, did you -- can you explain to me what you meant

14:36:24

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when you wrote in your e-mail to James Williams that Arpaio was

conflicted on how he feels?

3
4

MS. CLARK:

Objection, Judge, mental impression.

THE COURT:

Overruled.

THE WITNESS:

I think I shared with you I don't know,

but I can tell you it was not anything earth-shattering any

more than any other private client would have when they get an

adverse result.

BY MS. WANG:

10

Q.

All right.

11

A.

It means nothing about resistance to the order.

12

Q.

When you spoke with Chief MacIntyre about the preliminary

13

injunction order in the days after it issued, how did you

14

describe the preliminary injunction order to him?

15

A.

16

lines and there -- you know, with him it would have been just

17

making sure that we were on the same wavelength about the

18

interpretation of the judge's order.

19

anything specifically, but that's what it would have been

20

about.

21

Q.

22

preliminary injunction order?

14:36:53

I don't remember, but it would have been along the same

14:37:05

DS

And I don't remember

14:37:23

IEN

And was he in agreement with your reading of the

23

A.

24

one way or the other what was said.

25

Q.

FR

14:36:43

I'm sure he was, but I couldn't sit here today and tell you

Okay.

You've just testified that you described the

14:37:30

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preliminary injunction order as prohibiting turning over people

to ICE --

A.

Yes.

Q.

-- is that your testimony?

A.

Yeah, the federal government.

Q.

Did you give any -- did you also describe the preliminary

injunction order as prohibiting detention of individuals solely

because of suspected immigration violations?

9
10
11

client.

12
13
14

MS. CLARK:

Objection, Judge, mental impressions.

MS. WANG:

The question is what he conveyed to the

MS. CLARK:

Based on --

THE COURT:

Well, what he conveyed to the client, he

Objection's overruled.

I'm going to direct the

14:38:07

witness to answer.

MR. MASTERSON:

17

THE COURT:

18

Objection, hearsay.

Overruled.

THE WITNESS:

19

The letter -- the e-mail letter that you

showed me quoted right out of Judge Snow's order that used that

21

language about detentions.

22

later trying to paraphrase for you what -- you know, what was

IEN

DS

20

14:38:14

And what I'm doing is four years

23

the message that was conveyed, and that's -- that's what it

24

was.

25

BY MS. WANG:

FR

14:37:58

conveyed to the client.

15
16

14:37:39

14:38:32

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Q.

When you spoke with Sheriff Arpaio about the preliminary

injunction order, did you come up with a simple way of

conveying the preliminary injunction order to him?


MR. MASTERSON:

THE COURT:

Overruled.

THE WITNESS:

Objection, leading.

14:38:50

I don't remember when I came up with

arrest or release.

I think it was certainly after December

23rd.

expect everyone to know and read it, but -- the order was

But to me -- the order was 40 pages long.

You can't

10

detailed, but it wasn't complicated in its injunction.

11

pretty straightforward, in my judgment.

12

MCSO either could arrest -- if someone was in the country

13

illegally and you came across them, you could either arrest

14

them on state charges, and there was a footnote there about

15

whether or not certain federal charges, but I kept it state, or

16

you released them.

17

options.

18

we can't charge him state-wise, we hold him for the feds.

19

cannot do that.

20

BY MS. WANG:

21

Q.

All right.

22

A.

Yes, multiple times.

So there's no more saying:

DS

IEN

14:39:11

And it was either the

14:39:27

AOR, arrest or release; those are your two


We found this person.

If

You

14:39:47

And you conveyed that to your clients?

23

Q.

Okay.

24

A.

Certainly Brian Sands understood.

25

he understood.

FR

It was

To whom did you convey that?


I conveyed it to Brian;

I understand he also conveyed the same message

14:40:01

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to the sheriff.

understand from a conversation with him that he conveyed the

same thing to the sheriff.

Sands, Sousa, Palmer.

right now.

Q.

individuals, believe that they understood what you were telling

them about the preliminary injunction order?

Okay.

Judge.

And did you, through your conversations with those

MS. WANG:

12

I conveyed that to the sheriff.

14:40:21

MS. CLARK:

10

And I

Those are -- that's what I remember

MR. MASTERSON:

11

Jack MacIntyre understood that.

Objection, foundation.

Also objecting on mental impressions,

Withdrawn, Your Honor.

I'll ask a

13

different question.

14

BY MS. WANG:

15

Q.

16

injunction order, which I think the shorthand was "arrest or

17

release," is that right?

18

A.

Right.

19

Q.

Okay.

20

listed -- Sheriff Arpaio, Chief Sands, Chief MacIntyre,

21

Lieutenant Sousa, and Sergeant Palmer -- did you discuss that

22

with them?

When you conveyed that description of the preliminary

DS

IEN

14:40:47

When you conveyed that to those individuals you just

23

A.

AOR?

24

Q.

Correct.

25

A.

Yes.

FR

14:40:39

14:40:59

14:41:10

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Q.

Did you make sure that they understood it?

A.

There was no indication of not understanding.

pretty clear.

relief, because they didn't want to ever do it in the first

place.

Q.

conversations with those individuals, that they did not

understand arrest or release?

A.

That's correct.

10

Q.

All right.

11

spoke with Chief Sands you discussed the fact that HSU was the

12

tip of the spear in terms of getting the word out to the rank

13

and file, is that right?

14

A.

15

would come across -- at that time on that date, since there

16

were no saturation patrols being conducted by MCSO -- would

17

come in contact with people that were in the country

18

unlawfully.

19

Q.

20

informed of the preliminary injunction order?

21

A.

22

he was going to call, when he hung up with me, was going to

Right.

It was

In fact, the -- from Sands on down there was

14:41:23

And so you had no reason to believe, based on your

You said a moment ago that when you initially

They were the ones that were most active in which they

14:41:56

DS

And did you have an understanding about when HSU would be

14:42:11

IEN

My understanding from the conversation with Brian is that

23

call chief -- excuse me, Sheriff Arpaio right away and brief

24

him.

25

other, and tell him, This is on the way on the e-mail, and get

FR

14:41:32

Then he was going to call Joe Sousa, or one order or the


14:42:30

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it to the troops.

That's what I was told on the night of the

23rd, because we wanted to make sure it got to HSU over the

holidays.

Q.

order would be conveyed immediately to HSU?

A.

So your understanding was that the preliminary injunction

The night --

MR. MASTERSON:

7
8

BY MS. WANG:

Q.

Objection, foundation.

Was that your understanding, based on the conversations you

10

had?

11

A.

That was my understanding.

12

Q.

All right.

13

whether the preliminary injunction order needed to get out

14

beyond HSU, office-wide?

15

A.

Yes, Brian Sands and I discussed that.

16

Q.

When did you discuss that?

17

A.

It was either our first conversation or it was -- or it was

18

right after the Christmas holiday that HSU was tip of the

19

spear, but we need to make sure that anyone in patrol also gets

20

it.

21

better than I remember it now -- but there was the

22

Briefing Board, the bulletin board, and that Brian said that he

14:42:52

And did you also discuss with anyone at MCSO

IEN

DS

And I forget the methodology -- I used to know the case

23

was going to have it issued through that, so all -- anyone who

24

does patrol, vehicle patrol, would have it -- know the same

25

injunction applied to them as it would to HSU.

FR

14:42:43

14:43:03

14:43:22

14:43:42

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Q.

And did you discuss why Patrol Division deputies needed to

know about the preliminary injunction order, in addition to

HSU?

A.

I don't remember that level of detail.

Q.

All right.

spoke directly with Lieutenant Sousa and Sergeant Palmer about

the preliminary injunction order?

A.

Eventually I did, yes.

Q.

Okay.

10

A.

I have a time sheet that shows I talked with Chief Sands

11

and Sousa I think on December 30th for over an hour, and then I

12

know that I later talked with Sergeant Brett Palmer about the

13

order.

14

he sent over some proposed training scenarios.

15

Q.

16

injunction order other than the individuals you've just

17

mentioned: Sheriff Arpaio, Chief Sands, Chief MacIntyre,

18

Lieutenant Sousa, and Sergeant Palmer?

19

A.

If I did, I don't remember.

20

Q.

Did you ever brief anyone else in HSU about the preliminary

21

injunction order?

22

A.

And did you say that -- did you say that you

14:44:10

I forget the whole genesis of that, but that was before

DS

Did you speak to anyone else at MCSO about the preliminary

14:44:32

14:44:47

IEN

I did not, and I wasn't asked to.

23

Q.

24

Lieutenant Sousa and Sergeant Palmer, did you also describe it

25

as arrest or release?

FR

14:43:54

And as you described the preliminary injunction order to

14:45:04

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A.

I did.

Q.

Mr. Casey, did you think that MCSO needed to take any steps

to implement the preliminary injunction order?

4
5

MS. CLARK:

Objection, Judge, mental impressions.

THE COURT:

Sustained.

14:45:20

BY MS. WANG:

Q.

taken to implement the preliminary injunction order?

A.

Did you convey to anyone at MCSO whether steps needed to be

At some point -- again, it's either the night of the 23rd

10

of December or it was afterwards -- Chief Brian Sands, who was

11

my contact, we discussed and I recommended that it would be a

12

good measure, a prophylactic measure, to have some training on

13

this.

And he was very supportive of it.

14

That was good.

15

It's always nice to have a client tell you, Hey, we like that

16

recommendation, and that was going to happen.

17

some point it did happen.

18

Q.

19

understanding, based on your conversation with Chief Sands,

20

that he would say cause a Briefing Board to go out

21

office-wide --

DS

23

BY MS. WANG:

24

Q.

FR

25

Let me go back, actually.

MS. CLARK:

IEN

22

All right.

14:45:31

14:45:48

And in fact, at

Was it your

14:46:05

Objection, mental impression.

-- conveying the preliminary injunction order?


MR. MASTERSON:

Objection, leading.

14:46:14

THE COURT:

1
2

Can you rephrase the question, please,

Ms. Wang?

MS. WANG:

Sure.

BY MS. WANG:

Q.

sending out a Briefing Board office-wide to convey the

preliminary injunction order, correct?

A.

That is correct.

Q.

All right.

You testified a moment ago that Chief Sands mentioned

be done?

11

A.

12

going to have it done, was going to send it out, because we

13

have to send it out office-wide.

14

Q.

15

you recall that you, based on your billing records, you

16

conferred with Chief Sands about the preliminary injunction

17

order on December 28th, is that right?

All right.

And I think you've already covered this, but

Well, let's back up, actually.

And if you need to

DS

refer, again, to Exhibit 2533, please feel free.

14:47:17

Did you meet with Sheriff Arpaio, Chief Sands, Chief

IEN

MacIntyre, and Lieutenant Sousa about the preliminary

23

injunction order on December 26th, 2011?

24

A.

I'm going to have to go -- let me go back --

25

Q.

Sure.

FR

14:46:50

Feel free to refer to Exhibit 2533 if you need.

19

22

14:46:32

My understanding is that's what he was telling me is he's

18

21

14:46:18

Did he convey to you whether that was going to

10

20

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14:47:34

A.

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-- real quick to find this, please.


(Pause in proceedings.)

THE WITNESS:

I see that I have a time entry with Joe

Arpaio going up to 24 minutes; I conferred with Brian Sands up

to 18 minutes; I conferred with Jack MacIntyre up to six

minutes; with Joe Sousa up to a half hour.


MR. MASTERSON:

Your Honor, could we please have the

witness give us some date references there?

where he's talking about right now.


THE COURT:

10

I'm not seeing

Okay.

THE WITNESS:

11

14:48:05

December 26, 2011, on the time sheet in

12

Exhibit 2533.

13

BY MS. WANG:

14

Q.

15

28th, 2011, about the preliminary injunction order?

16

A.

All right, sir.

14:47:52

And did you confer with anyone on December

14:48:16

It's redacted here but I mentioned it to you in my depo.

I did talk to Brian Sands, because over the holiday

17
18

somebody made an accusation that the MCSO had already violated.

19

It wasn't you; it wasn't the ACLU; it wasn't any of your

20

clients.

21

Q.

22

think you might have already mentioned this.

DS

And we -- we talked about that.

14:48:40

IEN

And did you also confer -- let's turn to December 30th.

Did you confer at

length with Lieutenant Sousa and Chief Sands about the

24

preliminary injunction order?

25

A.

FR

23

Yes.

And that was where we discussed about what we could

14:48:56

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and couldn't do under the order and the human smuggling law.

Q.

preliminary injunction order consistently with how you've

described it today in your testimony?

A.

I believe so.

Q.

All right.

with Lieutenant Sousa and Chief Sands?

A.

What was your previous date that you asked me about?

Q.

Oh, I'm sorry.

10

A.

Yeah.

11

Q.

I beg your pardon.

And again, during that meeting did you describe the

And on December 30th of 2011 did you meet again

I just repeated myself.

14:49:26

All right.

12

14:49:13

I withdraw the question.

You mentioned a moment ago that you had a

13

discussion with the sheriff about whether to take an appeal

14

from the judge's preliminary injunction order.


Was that correct?

15

14:49:39

16

A.

17

discussed options that you have if you get an adverse result,

18

and I think we talked afterwards about what options that he

19

had.

20

Q.

21

an e-mail chain dated January 3rd and 4th of 2012.

Why don't you take a look at Exhibit 2535.

DS

Okay.

This is

23

A.

I do.

24

Q.

All right.

25

client and co-counsel about the preliminary injunction order?

FR

14:50:01

Do you see that?

IEN

22

No, I think -- I don't remember what exactly I said, but we

Was this an e-mail exchange you had with your


14:50:26

A.

It was.

MS. WANG:

2
3

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All right.

Your Honor, I'd like to move

the admission of Exhibit 2535.


MR. MASTERSON:

MR. WALKER:

MR. COMO:

THE COURT:

No objection.

No objection.

14:50:51

I have no objection.

Exhibit 2535 is admitted.

(Exhibit No. 2535 is admitted into evidence.)

THE COURT:

MS. WANG:

10

You may publish.

Thank you, Your Honor.

14:51:02

11

BY MS. WANG:

12

Q.

13

continuation of your e-mail to Tom Liddy, John MacIntyre, and

14

Brian Sands on January 4th, 2012.

All right.

Let's turn to the second page.

This is a

In this e-mail you were discussing whether to file a

15
16

notice of appeal from the preliminary injunction order,

17

correct?

18

A.

Yes.

19

Q.

All right.

20

you wrote -- you're referring to the sheriff, and then you

21

wrote:

22

of appeal on file, even though the injunctive relief is, in

IEN

DS

Do you see here on -- what's on the screen that

14:51:27

During the call he indicated that he wanted the notice

23

actual practice, relatively harmless to MCSO field operations?

24

A.

I see that.

25

Q.

Okay.

FR

14:51:12

Did you have any understanding -- well, what did you

14:51:41

mean by that?

MS. CLARK:

Objection, Judge.

I believe that your

orders waiving privilege and client confidentiality go to

compliance --

THE COURT:

5
6

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You know what?

I want single-word

14:51:53

objections.

7
8

MS. CLARK:

Privilege; work product.

THE COURT:

Overruled.

THE WITNESS:

This was my -- Cecillia, this was my

10

characterization of the conversation that I had with the

11

sheriff.

12

the deposition that we used this -- when he said, We're not

13

doing this any more, I said:

14

patrols, you're not doing any turning over to the feds, and if

15

you're telling me that's true, it's the equivalent of being

16

ordered not to wear a dress.

17

doesn't change anything.

18

you're doing or not doing, then it's relatively harmless.

19

BY MS. WANG:

20

Q.

21

sheriff was well aware of what HSU practices were?

And I think I described to you earlier that -- or in

You're telling me no saturation

If you don't wear a dress, it

So if you're telling me that's what

DS

MR. MASTERSON:

14:52:38

Objection, foundation.

23

I'm going to look at the question one moment.

24

MS. WANG:

25

THE COURT:

FR

14:52:25

And at that time did you have an understanding that the

IEN

22

14:52:05

I'm sorry, Your Honor?


I'm going to overrule the objection.

14:53:00

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think that the question will indicate whether he had -- it was

just the question asked if he had an understanding.


THE WITNESS:

Yes, I do have an understanding.

BY MS. WANG:

Q.

And what was your understanding on that question?

A.

My understanding is that Sheriff Arpaio knew exactly what

was going on at all times in HSU.

Q.

application for a stay pending appeal with the Ninth Circuit?

Did you discuss with your clients whether to file an

10

A.

We did discuss that.

11

Q.

And what did you decide to do?

12

A.

I think the record shows that we did not file an

13

application to stay or a motion to stay.

14

Q.

15

file an application for a stay.

16

A.

17

remember who else, but it would have been with the sheriff and

18

whoever else he wanted to be part of it.

19

Q.

20

you indicated that you had that discussion with the sheriff and

21

with Chief MacIntyre.

22

A.

Who did you discuss that with?

14:53:25

The question of whether to

It would have been with the sheriff.

It would -- I don't

During your deposition on September 16th, 2015,

DS

All right.

14:53:39

14:53:53

Is that your recollection?

IEN

That -- yes.

23

Q.

24

and Chief Sands discussed a voluntary training --

25

A.

FR

14:53:07

Okay.

Right.

All right.

I'm going to -- you mentioned that you

14:54:13

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Q.

-- to implement the preliminary injunction order, is that

right?

A.

That's correct.

Q.

Okay.

Let's turn to Exhibit 2537.

Exhibit 37 is not in evidence yet.

It appears to be

an e-mail string where the earlier e-mail is from Joe Sousa to

Brett Palmer dated January 11th, 2012, copying you, Rollie

Seebert, Brian Sands, David Trombi, Eileen Henry, and Joseph

Sousa.

Do you see that?

10

14:54:54

11

A.

I do see that.

12

Q.

And then you forwarded this e-mail to Tom Liddy the same

13

day, correct?

14

A.

That's correct.

15

Q.

All right.

16

discussion you and Chief Sands had about a voluntary training

17

on the preliminary injunction order?

18

A.

MS. WANG:

IEN

22

14:55:11

MR. MASTERSON:
MR. WALKER:

No objection.

No objection.

23

MR. COMO:

24

THE COURT:

25

(Exhibit No. 2537 is admitted into evidence.)

FR

14:54:59

Your Honor, I'd move the admission of

Exhibit 2537.

DS

21

And was this an e-mail to follow up on the

That was my understanding it was.

19
20

14:54:33

None.
2537 is admitted.
14:55:18

1
2
3

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MS. WANG:

All right.

THE COURT:

You may.

MS. WANG:

Thank you.

Let's publish that, if we may.

BY MS. WANG:

Q.

Palmer:

scenarios, right way and wrong way, based on Judge Snow's order

to MCSO and your conversations with Tim Casey."

So Mr. Casey, do you see that Joe Sousa is directing Brett


"Per our phone conversation, write up a couple of

Do you see that?

9
10

A.

I do see that.

11

Q.

All right.

12

this e-mail, it appears that you had already spoken to Brett

13

Palmer about the preliminary injunction order, is that right?

14

A.

15

sense, generally, because that's what I remember.

16

Q.

17

did you convey the preliminary injunction order, the substance

18

of it, to Sergeant Palmer?

19

A.

I did.

20

Q.

And was that consistent with the arrest or release

21

formulation that you've described earlier?

22

A.

14:55:43

Now, as of the time that Lieutenant Sousa sent

I don't remember specifically, but that's -- that makes

14:56:01

And do you remember during that conversation,

DS

All right.

14:56:12

IEN

It was.

23

Q.

24

understand that, correct?

25

A.

FR

14:55:27

And you had no reason to think that Sergeant Palmer did not

Not at that time.

14:56:20

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Q.

All right.

reason to doubt that?

A.

Yes.

Q.

All right.

Sergeant Palmer before January 11th, 2012, when Joe Sousa sent

this e-mail?

A.

What do you recall about your conversation with

MR. MASTERSON:
THE COURT:

Objection, hearsay.

I think you're going to have to lay

foundation before you overcome the hearsay objection.


MS. WANG:

11
12

BY MS. WANG:

13

Q.

14:56:58

All right, Your Honor.

So Mr. Casey --

THE COURT:

14

MS. WANG:

15

So I'm sustaining the objection.

Sure.

16

BY MS. WANG:

17

Q.

18

Sergeant Palmer before Joe Sousa sent -- Joe Sousa sent this

19

e-mail on January 11th, 2012, correct?

20

A.

Yes, that's my general memory.

21

Q.

Okay.

22

preliminary injunction order?

14:57:05

IEN

DS

So Mr. Casey, you said that you did speak with

14:57:17

And did you convey to him the substance of the

23

A.

I did.

24

Q.

What else do you recall about that conversation?

25

A.

I remember --

FR

14:56:39

Again --

10

Did there come a time later when you did have

14:57:28

MR. MASTERSON:

MS. CLARK:

2
3

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Objection, hearsay.

Objection, privilege, if it's not about

the preliminary injunction order.


THE COURT:

I will sustain the objection to the extent

that it requires you to discuss matters that are not related to

the preliminary injunction.

the preliminary injunction, I'm going to direct you to answer.


THE WITNESS:

8
9
10

To the extent that it relates to

I remember communicating to Brett Palmer

the AOR, no more turning over.

He had already heard that from

Joe Sousa.

14:57:59

He had also conveyed, I think it was at this meeting,

11
12

that he had already briefed his troops.

13

you, in HSU you had one sergeant with people underneath him;

14

another sergeant with people underneath him.

15

if he was talking about the universe of HSU or the troops

16

underneath him, but he had already conveyed it by the time we

17

spoke in the first week or so of January.


I also remember him asking me:

18

And as I explained to

So I didn't know

That's my paraphrase; it's not to say

20

those are his words.

But:

21

board?

And it was:

22

clear.

He doesn't have a problem.

IEN

DS

sheriff is on board?

Are you sure the sheriff's on

Absolutely.

14:58:16

Are you sure the

19

I spoke with him.

14:58:36

It's

There's no resistance.

23

BY MS. WANG:

24

Q.

25

to you that he doubted the sheriff would be on board with the

FR

14:57:38

Did he express to you any doubt that the -- did he express


14:58:50

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preliminary injunction order?

A.

on board?

Q.

doubting -- expressing some doubt that the sheriff was on board

with the preliminary injunction order?

I interpreted what he said as:

All right.

Yes, absolutely.

And did you interpret that as Brett Palmer

MR. MASTERSON:

7
8

And I said:

Are you sure the sheriff is

Objection, foundation; asked and

answered.

MS. CLARK:

MS. WANG:

10

THE COURT:

11

Objection, mental impression.

All right.

I'll move on.

14:59:16

Ms. Wang --

12

BY MS. WANG:

13

Q.

14

drafting the training?

15

A.

I'm sorry.

16

Q.

Do you know why Brett Palmer was tasked with writing the

17

training curriculum?

18

A.

I don't know.

19

Q.

Did you express any concerns to anyone about the fact that

20

Palmer had been tasked with that job?

21

A.

I did.

22

Q.

To whom did you express that concern?

Do you know, Mr. Casey, why Brett Palmer was tasked with

IEN

DS

Could you repeat it?

23

A.

24

Brian -- Chief Brian Sands or Lieutenant Joe Sousa.

25

Q.

FR

14:59:04

14:59:26

14:59:36

It would have either been Brian or Lieutenant Sousa; either

And did they respond in any way to that concern?

14:59:47

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A.

You know, Joe did a remarkable job, but under very

difficult circumstances.

you know, I mean limited ability in HSU.

Palmer at that time was sort of like a senior sergeant; the

other one I think had just rotated out or something.

Palmer was the man.

7
8

THE COURT:

Ms. Wang.

And I think Brett

So Brett

MS. WANG:

13
14
15

Yes.

I'll just tell you it's 3 o'clock, and I'm

15:00:16

Why don't we break now?

THE COURT:

All right.

MS. WANG:

As you like.

THE COURT:

15 minutes.

Thank you.

15:00:26

(Recess taken.)

16

THE COURT:

17

MS. WANG:

18

Please be seated.

May I proceed, Your Honor?

THE COURT:

You may.

MS. WANG:

Thank you.

DS

19

21

BY MS. WANG:

22

Q.

15:18:05

IEN

Mr. Casey, right before the break you testified that you

23

expressed concerns about the fact that Brett Palmer was the one

24

who was assigned to write up training scenarios to implement

25

the preliminary injunction.

FR

15:00:07

kind of looking for a good time to break.

12

20

All right.

THE COURT:

10
11

MS. WANG:

MS. WANG:

He had limited ability, limited --

15:18:20

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How did you convey that concern?

What did you say?

A.

My concern was we had an issue with him in the case where

he had done some research for some reason, and it was a

problem, and I was concerned that maybe there ought to be

someone else that can do this.

Q.

the response, but essentially they said he's going to be the

one, is that what happened?

A.

He's the one that's going to do it, so....

10

Q.

All right.

11

telling me about your conversation with Brett Palmer initially,

12

before Joe Sousa sent his e-mail to Brett Palmer directing him

13

to write the scenarios, so I'm not sure we finished that

14

testimony.

15

A.

I think we did.

16

Q.

Oh, we did?

17

A.

I think we did.

18

Q.

All right.

19

A.

I don't remember anything else.

20

Q.

All right.

21

Sergeant Palmer to write up the training, correct?

22

A.

DS

And what was -- I think you might have testified already on

24

FR

25

Q.

Now, I think right before the break you were

15:18:57

15:19:14

Okay.

So in Exhibit 2537, Lieutenant Sousa directed

15:19:20

That's correct.

IEN
23

15:18:41

All right.

And then turn to Exhibit 2538.

This was an e-mail chain that contains Brett Palmer's

draft dated January 19, 2012, correct?

15:19:55

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A.

It is.

Q.

And then there are some e-mails that follow where you were

forwarding this on, correct?

A.

There -- that's true.


MS. WANG:

5
6

All right.

Your Honor, I'd move the

admission of Exhibit 2538.


MR. MASTERSON:

MR. WALKER:

MR. COMO:

THE COURT:

10

No objection.

No objection.

No objection.

2538 is admitted.

15:20:26

(Exhibit No. 2538 is admitted into evidence.)

11
12

BY MS. WANG:

13

Q.

All right, sir.

Why don't we look at Brett Palmer's draft.

Do you see that Brett Palmer wrote to

14
15

Lieutenant Sousa, copying you and Sergeant Trowbridge:

16

is a rough construction of an E Learning segment based on Judge

17

Snow's order.

18

conversations you and I have had, as well as taking into

19

account the information conveyed to us both from Tim Casey

20

concerning Judge Snow's order."

I constructed this in accordance with the many

A.

15:20:59

I do see that.

23

Q.

24

Brett Palmer about the preliminary injunction order?

25

A.

FR

15:20:42

Do you see that?

IEN

22

"Below

DS

21

15:20:09

And did you take this to refer to your conversation with

Yes, and Joe Sousa.

15:21:09

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Q.

Okay.

Now, you testified a few minutes ago before the

break that there came a time when you were concerned that Brett

Palmer did not understand correctly what you were conveying

about the substance of the preliminary injunction order.


Do you recall that?

5
6

A.

I do.

Q.

All right.

concern?

A.

It is.

10

Q.

All right.

11

concerns were?

12

A.

I called him directly.

13

Q.

Okay.

Is this the e-mail that gave rise to that

Did you express to Brett Palmer what your

THE COURT:

15

Objection, hearsay.

Overruled.

THE WITNESS:

16

15:21:42

This is going back years, so I can't

tell you precisely, but I can tell you when I looked at this

18

again, responding to your subpoena, it was clear.

19

when I read the scenarios.

20

and 50 percent of them had problems.

It was clear

There were four scenarios in there,

15:22:01

Problem number -- scenario number 3 was a problem

because it talked about turning them over to ICE.

IEN

22

DS

17

21

Holding them

23

because they're simply here unlawfully and turning them over to

24

the federal government.

25

it was completely contrary to our discussion, and we discussed

FR

15:21:32

Tell me what you said to him.

MR. MASTERSON:

14

15:21:26

That was completely contrary to AOR,


15:22:16

that.

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It was -- discussed that.

Then scenario number 4, I remember that I thought

2
3

there was not enough meat in there for a probable cause

discussion.

BY MS. WANG:

Q.

characterization of the preliminary injunction order, as arrest

or release?

A.

15:22:32

And you mentioned just now AOR.

Was that your

That's how I tried to keep it simple to remember.

It's

10

either/or, no other options.

11

Q.

12

Brett Palmer's draft about transporting individuals to federal

13

authorities?

14

A.

Yes.

15

Q.

And did you tell him anything in response to that?

16

A.

You can't do it.

17

release.

18

that's an arrest under Fourth Amendment.

19

them or you arrest them.

20

very clear.

21

Q.

22

told him all that?

All right.

DS
All right.

IEN

And did you tell -- was there any content in

15:22:57

You cannot -- it's either arrest or

You cannot transport because that's a detention;

23

A.

24

essentially:

25

used to do.

FR

15:22:43

So you either release

Those are the two options, to make it

15:23:16

And what was Brett Palmer's response when you

I don't remember specifically, but it's -- it was


Yes, I get it.

I understand.

This is what we

Okay, I'm going to make the changes.

And it was,

15:23:31

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as I phrased to you in the deposition, it was a done deal after

that.

Q.

you thought it was a done deal?

A.

going to correct scenario number 3, he was going to add some

facts to number 4, and it was going to be used for training.

Q.

receive this training?

And what did you mean by -- what do you mean when you say

We made corrections, I made corrections, he said he was

Okay.

Did you have an understanding about who was going to

10

A.

11

discussions with Chief Sheridan -- not Sheridan, because he had

12

nothing to do with it, it was Sands, is that first it was going

13

to be HSU, and then it was going to roll out to Patrol.

14

Q.

Do you recall when you gave Brett Palmer this feedback?

15

A.

No.

16

there were some records showing that I did not operate on this

17

quickly.

18

but I can't tell you when it was done.

19

Q.

All right.

20

A.

I do know I got one follow-up from Joe Sousa.

21

Q.

All right.

My understanding, yes, going back to the original

I think I told you originally I tried to be quick, but

DS

15:24:34

This is not in evidence.

It's an e-mail from you dated January 30th, 2012, to John

24

MacIntyre, Jerry Sheridan, Brian Sands, and Joseph Sousa.

FR

15:24:19

Let's move on.

23

25

15:23:56

So I know it was done in the first quarter of 2012,

Take a look at Exhibit 2541.

IEN

22

15:23:47

Do you see that?

15:25:08

A.

I do.

Q.

Okay.

second sentence of the third paragraph.

I want you to focus on a sentence in -- it's the

Do you see that sentence?

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It starts "I reminded him."

A.

Yes.

Q.

Sir, is that a reference to the Court's preliminary

injunction order?

A.

re -- I'm going to call it DiPietro was the officer.

10

15:25:27

I'm not sure it is.

I think -- for some reason, I think it


DiPietro,

Louis DiPietro that made the stop.

And I think that's what I was referring to on the

11
12

narrow Fourth Amendment.

13

Fourth-Amendment-related issue, but that's what I remember that

14

referring to.

15

Q.

16

reference to the summary judgment order, correct?

17

A.

18

relates to the injunction.

19

Q.

20

MacIntyre, Jerry Sheridan, Brian Sands, and Joseph Sousa?

21

A.

Okay.

23
24

FR

25

I mean, the injunction was a

But you do -- you do think that that sentence is a

15:25:51

Definitely to the summary judgment order; I'm not sure it

And you sent this e-mail to, again, John

DS

All right.

15:26:08

Yes.

MS. WANG:

IEN

22

15:25:40

Your Honor, I'd move the admission of

Exhibit 2541.
MR. MASTERSON:

basis of privilege.

Your Honor, I'm going to object on the

The witness has said he's not certain it

15:26:22

applies to the injunction.


MS. WANG:

2
3

Honor.

4
5
6

It does refer to the same order, Your

THE COURT:

Well --

MS. CLARK:

Judge, if you rule with Mr. Masterson, it

THE COURT:

Before I admit this I'm going to need more

clarification from Mr. Casey -MS. WANG:

All right.

THE COURT:

10

MS. WANG:

11

-- about what that refers to.

15:26:48

Okay.

12

BY MS. WANG:

13

Q.

14

23rd, 2011, ruled on the parties' cross-motions for summary

15

judgment?

16

A.

Yes.

17

Q.

I think it also ruled on plaintiffs' motion for class

18

certification, correct?

19

A.

That's my memory.

20

Q.

And in that same order of December 23rd, 2011, there was a

21

preliminary injunction issued, correct?

22

A.

Mr. Casey, is it true that the Court's order of December

DS

15:27:03

15:27:09

IEN

Yes.

23

Q.

24

related to plaintiffs' Fourth Amendment claim, is that right?

25

A.

FR

15:26:36

would also invoke confidentiality, 1.6.

7
8

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All right.

And the preliminary injunction in this case

That's -- yes.

15:27:30

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Q.

And the preliminary injunction, in summary -- well, you

summarized it as arrest or release, correct?

A.

That's my summary.

Q.

It also, in a lengthier way, said:

based solely on suspected illegal presence in the United

States, correct?

A.

That's correct.

Q.

And the sentence that you wrote here in Exhibit 2541 is

referring to relief on Fourth Amendment claim as to detentions,

Do not detain someone

10

correct?

11

A.

12

this was about a conversation I had with Stan Young about

13

settlement --

15:28:01

Yes, but you're taking it out of context, Cecillia, because

MR. MASTERSON:

14

Excuse me, Your Honor.

Object to the

15

witness and counsel reading from the exhibit that is not in

16

evidence.

17

on Mr. Casey's last statement.

MS. WANG:

19

MS. WANG:
THE COURT:

IEN

22

THE COURT:

DS

21

23

MS. WANG:

Well, nobody's read from anything.

I'm sorry, Your Honor?

I didn't hear anybody read this.

15:28:27

I don't think I did.


There was a sentence read earlier.
Your Honor, I also note that defendants

24

produced this document to us without redaction, and therefore

25

waived any privilege associated with it.

FR

15:28:13

And also, I think we have a 408 problem here, based

THE COURT:

18

20

15:27:46

15:28:43

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MR. MASTERSON:

1
2
3

Well, Your Honor, 408 still applies.

THE COURT:

One moment, please.

All right.

I'm going to overrule 408.

This isn't

being offered, as I read it, for evidence of settlement

discussions.

15:29:25

And because I cannot recall, despite Mr. Casey's --

6
7

well, I'm not sure that I understand Mr. Casey's testimony, but

I don't recall granting anybody any relief on the Fourth

Amendment claim that wasn't related to the preliminary

10

injunction.

MR. MASTERSON:

11
12

I cannot, Your Honor.

15:29:44

I was just

basing it on Mr. Casey's testimony a couple minutes ago.


THE COURT:

13
14

Can you inform me where I did?

overruled.

Well, then the objection is

I'm going to admit the exhibit.

MS. WANG:

15

Okay.

Thank you, Your Honor.

(Exhibit No. 2541 is admitted into evidence.)

16
17

BY MS. WANG:

18

Q.

19

your billing records that you met with Chief Sheridan about

20

this case on December 6th, 2011, is that correct?

21

A.

Yes.

22

Q.

And you said that -- well, did there come a time in this

IEN

DS

Mr. Casey, you said that -- well, we've seen evidence in

23

case when you began to meet with him more often about it?

24

A.

25

trial in 2012, and then very frequently after Chief Sands

FR

15:29:59

15:30:12

Met with him more often as we were getting close to the


15:30:27

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departed.

Q.

Sheridan more often?

A.

Yes.

Q.

All right.

billing records for -- in Exhibit 2533, and look at your time

entry for April 3rd, 2012.

So as you were preparing for trial you met with Chief

Take a look again at your -- excuse me, your

March 23rd, 2012.

10

A.

Could you give me those dates again, please?

11

Q.

Sure.

Let's start with March 23rd, 2012.

12

A.

Okay.

I'm there.

13

Q.

Okay.

Do you see an indication that you met with Chiefs

14

MacIntyre and Sheridan --

15

A.

I see that.

16

Q.

-- about this case on March 23rd, 2012?

17

A.

Yes.

18

Q.

Okay.

19

Circuit appeal from the preliminary injunction order was filed?

20

A.

I do not.

21

Q.

All right.

22

period?

DS

IEN

15:31:16

15:31:37

Do you recall when the reply brief in the Ninth

23

A.

I do not.

24

Q.

Okay.

25

2012.

FR

15:30:49

Actually, first take a look at your billing entry for

8
9

He retired shortly after the May 13 order came out.

15:31:55

You don't recall it being around that time

And now let's turn to your entry for April 3rd,


15:32:11

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A.

I'm there.

Q.

Okay.

that on April 3rd, 2012, you met with Chiefs Sheridan,

MacIntyre, and Sands about this case?

A.

Yes.

Q.

All right.

me ask you this:

in the Ninth Circuit appeal from the preliminary injunction

order around this time frame in April of 2012?

Is there an indication here in your billing records

15:32:27

I think I actually asked you the wrong -- let

Do you recall whether there was any activity

10

A.

I don't remember.

I remember going to the hearing on the

11

interlocutory appeal, but I do not remember the dates or

12

filings.

13

Q.

14

case in your time entry for April 2nd, 2012?

15

A.

16

office.

17

Q.

Do you see any indications referring to the Ninth Circuit

It doesn't look like I had an entry; that was someone in my

Oh, I see.

I didn't hear a response if there was one.

A.

I'm sorry.

20

Q.

I said -- I was referring to the time entry for April 2nd,

21

and you said that was someone else in your office, and I asked

22

whether that was Eileen Henry's time entry.

IEN

I apologize.

24

FR

25

You said --

DS

19

A.

Q.

Okay.

15:33:07

That was Eileen Henry?

I'm sorry.

18

23

15:32:46

15:33:46

I didn't realize that was a question.

Yes, that's Eileen Henry, my paralegal.


15:33:58

A.

I apologize.

Q.

That's all right.

It's my fault.

Mr. Casey, did there come a time when you learned that

3
4

MCSO was in violation of the Court's preliminary injunction

order?

A.

very concerned, and that it was my private assessment, my

judgment, that it likely was a violation.

Q.

Okay.

10

A.

Well, yeah.

11

I think it was a witness that I had.

12

a detention and a transporta- -- I don't remember.

13

remember thinking:

14

injunction.

15

Q.

And did you take any action to address that?

16

A.

Yes, my co-counsel and I did.

17

Q.

What did you do?

15:34:16

The best way to phrase it is there came a time that I was

18
19

And did that happen during the trial in this case?

I mean, I think I was standing where you were.

I just

That's a violation of the preliminary

Objection, Judge, work product.

THE COURT:

Overruled.

THE WITNESS:

You know, my guess is it was probably

during a break, but we went into -- we had in this courtroom

22

the east witness room, and went in there with Brian Sands, and

IEN

21

23

we said:

24

happened, who it happened with, see if we can get reports, that

25

sort of thing, but let's figure out why this has happened.

FR

15:34:33

It came up that there was

MS. CLARK:

DS

20

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15:34:49

15:35:03

We need to find out why this happened, how it

15:35:21

1677

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BY MS. WANG:

Q.

And did you find out anything as a result of that?

A.

Not during the trial.

Q.

Did there come a time when you did find out something about

it?

A.

15:35:33

Yes.

MS. CLARK:

7
8

BY MS. WANG:

Q.

Objection, Judge, privilege.

When was that?


Sorry.

10

There was a pending objection.

THE COURT:

11

Overruled.

THE WITNESS:

12

15:35:37

We never did hear what happened

13

afterwards.

When the trial ended, I know that I made phone

14

calls to HSU.

15

at SWAT, but I'm not certain about that.

16

find out what happened, and we were told what the story was.

17

BY MS. WANG:

18

Q.

19

again at that point after the trial?

20

A.

21

soon -- I forget exactly what we did, but we did talk to him

22

about that and there was some disagreement about how it

Joe Sousa was no longer at HSU.

I think he was

But we were trying to

Did you take any steps to ensure that it would not happen

IEN

DS

We talked with Brian Sands about -- about that, but he was

23

happened.

24

Q.

25

Lieutenant Sousa's successor at HSU is Lieutenant Jakowinicz?

FR

15:35:52

15:36:06

Did you talk with -- well, do you -- do you know that


15:36:28

1678

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Casey - Direct, 9/29/15 Evidentiary Hearing

A.

Yes.

Q.

All right.

up about this testimony that came up at trial?

A.

with Brian Jakowinicz as I did with Joe Sousa, but I do know

that I did have contact with him.

Q.

the testimony that concerned you, that the preliminary

injunction order had been violated?

Did you talk to Lieutenant Jakowinicz to follow

I cannot tell you if I did.

All right.

I did not have as much contact

And -- well, did you follow up with HSU about

10

A.

Yes.

11

Q.

And did you give them any direction about what action to

12

take going forward?

13

A.

Yes.

14

Q.

What did you say?

15

A.

Same thing as --

15:36:56

15:37:02

MR. MASTERSON:

16

THE COURT:

17

Objection, hearsay.

Overruled.

THE WITNESS:

18

It was the same thing as before:

It

19

needs to go out to the troops.

20

troops.

21

did send it out -- he actually told me he briefed the troops on

22

that.

DS

IEN

I was told it went out to the

I think that Brett Palmer was still there.

23

BY MS. WANG:

24

Q.

25

on?

FR

15:36:41

He said he

15:37:12

And did he say what they briefed -- what he briefed them


15:37:22

1679

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A.

Yeah -- well, it goes back to the scenarios that we went

over earlier in the year, the training scenarios.

make sure, since the scenarios weren't correct, did he brief

the troops correctly?

Wanted to

And the impression that I got is yes, he did brief

5
6

them correctly, that he did understand that, and that correct

understanding was imparted to the troops in HSU.

Q.

And what was that understanding that was imparted to --

A.

That you don't -- you do not detain, and you don't take

10

people in and transport them; you either arrest or you release.

11

Q.

And was that reinforced during or after the trial?

12

A.

It eventually was later that year.

13

Q.

Do you know when?

14

A.

In the fall of 2012.

15

Q.

Okay.

16

that you do recall the oral argument before the Ninth Circuit

17

on the appeal from the preliminary injunction order, correct?

18

A.

I do remember.

19

Q.

Was that on September 13th of 2012?

20

A.

I couldn't tell you the date; I do remember.

21

Q.

All right.

22

A.

I do remember it was before your partner's letter.

IEN

DS

Speaking of the fall of 2012, you mentioned earlier

Q.

24

about whether MCSO was detaining people based solely on

25

immigration status?

FR

23

15:37:33

15:37:50

15:38:07

15:38:25

Did you make any representations to the Ninth Circuit panel

15:38:38

1680

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A.

I did.

Q.

What did you say to the Ninth Circuit?

A.

Told them the MCSO is no longer doing that.

Q.

And what basis did you have for making that representation

to the Ninth Circuit?

A.

My clients' assurances that that was not happening.

Q.

Who individually did you speak to and get that

representation from?

A.

From Brett Palmer; from Joe -- not Joe, because he was

10

gone.

11

Q.

12

Exhibit 2533, and I'll refer you to the entry for September

13

25th, 2012.

14

A.

What was the date?

15

Q.

September 25th, 2012.

Brett Palmer; from Brian Sands; from Joe Arpaio.

15:39:01

And take a look at your billing records again,

15:39:25

Do you recall that was the day that the Ninth Circuit

16
17

opinion on the preliminary injunction order came down?

18

A.

No, I don't remember that.

19

Q.

All right.

20

A.

You want me to look at the entry on the -- entry on the

21

25th?

22

Q.

DS

Well, take a look at the --

15:39:53

IEN

Yes.

23

A.

Yeah, I'm reading my entry.

24

Q.

Okay.

25

the PI appeal had come down?

FR

15:38:48

Does that indicate that the Ninth Circuit opinion on


15:40:07

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A.

Yes, on the interlocutory appeal.

Q.

And does it also indicate that you conferred with MCSO

client representatives that day?

A.

It does.

Q.

All right.

A.

Okay.

Q.

Okay.

you to John MacIntyre, Gerard Sheridan, Brian Sands, and Amy

Lake, dated September 25, 2012.

Take a look at Exhibit 2511, please.

Exhibit 2511, not yet in evidence, is an e-mail from

Do you see that?

10

15:40:47

11

A.

Yes.

12

Q.

Is this an e-mail that you sent to those recipients

13

advising them of the Ninth Circuit opinion on the preliminary

14

injunction order?

15

A.

Yes.

17

MR. MASTERSON:
MR. WALKER:

19

THE COURT:

No objection.

No objection.

No objection.
Exhibit 2511 is admitted.

23

BY MS. WANG:

24

Q.

All right.

25

A.

My memory is that she is Sheriff Arpaio's administrative

FR

15:41:03

(Exhibit No. 2511 is admitted into evidence.)

IEN

22

MR. COMO:

DS

21

Your Honor, I'd move the admission of

Exhibit 2511.

18

20

15:40:55

MS. WANG:

16

15:40:16

Who is Amy Lake, Mr. Casey?


15:41:12

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assistant.

Q.

And why did you send this e-mail to her?

A.

I wanted to make sure the sheriff got this directly.

Q.

Now, in this e-mail you wrote:

change the status quo, nor does it have any direct effect on

Judge Snow's ruling on the trial.

release/decision."

A.

Yes, I think "release" is a typo.

Q.

Okay.

"This ruling does not

We are still waiting for a

Do you see that?

Well, I'm just going to ask you about the first part

10

of this.

11

Circuit's opinion does not change the status quo?

12

A.

13

anything about the preliminary injunction.

14

it doesn't reverse it; it doesn't do anything.

What did you mean when you said that the Ninth

15:41:47

It doesn't change anything to do -- it does not change

It doesn't lift it;

The injunction was about an interpretation that we

15
16

had, or I had as counsel, about what Judge Snow had ordered

17

about certain things in the human smuggling statute, and I

18

wanted to make sure that it was clear that this doesn't have

19

anything to do with the preliminary injunction.

20

my memory.

21

Q.

And did you convey that the injunction was still in place?

22

A.

I mean -- I mean, I didn't say that here, but that's --

15:42:20

DS

IEN

15:42:04

Well, that's

23

that was sort of ceteris paribus, the Latin for "the one thing

24

that's held constant."

25

I needed to say that again.

FR

15:41:30

That was always there so I don't think


15:42:38

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Q.

You did not have any reason to -- you didn't say anything

to suggest that the injunction had been lifted.

A.

No.

Q.

All right.

time in the fall of 2012 when the instruction about the

preliminary injunction order was reissued or reiterated, is

that right?

A.

That's correct.

Q.

Okay.

10

A.

Okay.

11

Q.

Is Exhibit 2512 an e-mail string that is triggered by a

12

letter from plaintiffs' counsel, Mr. Segura, on October 11th,

13

2012?

14

A.

Yes.

15

Q.

And were the plaintiffs alleging that MCSO had violated the

16

preliminary injunction order?

17

A.

Yes.

18

Q.

And did you forward that letter to Gerard Sheridan, John

19

MacIntyre, and Brian Sands?

20

A.

Yes.

21

Q.

All right.

22

correct?

24

FR

25

A.

You mentioned a moment ago that there came a

15:42:54

Take a look at Exhibit 2512.

15:43:18

DS

IEN
23

No.

15:43:31

15:43:45

And that's what this e-mail chain is about,

Correct.
MS. WANG:

Exhibit 2512.

Your Honor, I'd move the admission of


15:43:51

MR. MASTERSON:

MR. WALKER:

MR. COMO:

THE COURT:

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No objection.

No objection.

No objection.

Exhibit 2512 is admitted.

(Exhibit No. 2512 is admitted into evidence.)

5
6

BY MS. WANG:

Q.

press release that is attached to Mr. Segura's letter and is

part of Exhibit 2512, page MCAO00033.

So, sir, I'm going to direct your attention to the MCSO

Do you see that?

10

A.

I do.

11

Q.

Okay.

12

were forwarding on to your clients, correct?

13

A.

It was.

14

Q.

All right.

15

let me ask you this:

16

whether the sheriff is directly involved in the issuance of

17

MCSO news releases during the time period of September 21st,

18

2012?

I'm going to call your atten- -- well, first


Do you have an understanding as to

THE COURT:
MS. WANG:

15:44:47

I'll sustain the objection.


All right.

23

BY MS. WANG:

24

Q.

25

of this news release, the paragraph that begins "Three members

FR

15:44:31

Objection, Judge, client confidentiality,

1.6.

IEN

22

And this is part of Mr. Segura's letter which you

DS

21

15:44:20

MS. CLARK:

19
20

15:43:57

Mr. Casey, let me direct your attention to the second page


15:45:00

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of the group."

A.

Yes.

Q.

All right.

was reporting that there were individuals who had been taken

into custody by MCSO where there were no state charges against

them, and then the sheriff's office attempted to turn the

suspects over to ICE?

A.

Yes.

Q.

All right.

Did you understand that the MCSO news release

And do you see where it indicates that that was

10

consistent with MCSO's practice over the last six years?

11

A.

I see where that's reported.

12

Q.

Okay.

13

quotation attributed to Sheriff Arpaio.

15:45:38

And then looking at the next paragraph, there is a

Do you see that?

14
15

A.

I see that quote.

16

Q.

And the quote reads:

17

eventually, so I had a back up plan in place, which was to take

18

these illegal immigrants not accepted by ICE to the Border

19

Patrol."

20

A.

I do.

21

Q.

All right.

22

you read this press release?

"I expected that it would happen

Do you see that?

DS

IEN

15:45:51

15:46:04

Sir, when you received Mr. Segura's letter, did

23

A.

I did.

24

Q.

Did you have any -- did you have an understanding about

25

whether this backup plan, as described in the news release, was

FR

15:45:21

15:46:14

consistent with the preliminary injunction order?

2
3
4

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MS. CLARK:

Objection, Judge.

Mental impressions.

THE COURT:

To the extent you're only asking for his

mental impression, I'm going to sustain the objection.


MS. WANG:

All right.

15:46:30

BY MS. WANG:

Q.

activity described in this news release was inconsistent with

the preliminary injunction order?

Sir, did you convey to your clients a concern that the

MR. MASTERSON:

10
11

time frame, please?

12

THE COURT:

14

Could we have a

She asked:

Did you tell your clients

this was --

THE COURT:

15

All right.

16

BY MS. WANG:

17

Q.

18

October 11th, 2012.

19

A.

I did.

20

Q.

All right.

21

A.

That would be attorney-client privilege.

23
24

FR

25

15:46:50

DS

And let's say on October 11th and the days following

IEN

22

15:46:41

Time frame on his --

MR. MASTERSON:

13

Excuse me.

What did you tell them?

THE COURT:

I'm going to direct you to answer.

MS. CLARK:

Objection also on client confidentiality,

15:46:59

1.6, Judge.
THE COURT:

I'm still directing him to answer.

15:47:11

THE WITNESS:

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I immediately called that day Brian

Sands, told him about this.

is true, if you guys -- "you guys" being plaintiffs' counsel --

are accurate, this could be a potential problem.

to get our arms around the facts.

How do I get some sort of police report on this to figure out

whether there's any merit to this?

And we needed

How do I get a CAD report?

Brian J.

10

BY MS. WANG:

11

Q.

Brian Jakowinicz?

12

A.

Yes.

13

Q.

All right.

14

2012, to Gerard Sheridan, John MacIntyre, and Brian Sands,

15

correct?

16

A.

In bold I did.

17

Q.

And you said you intentionally made this bold face?

18

A.

I did.

19

Q.

And you marked it "high importance," correct?

20

A.

I did.

21

Q.

You thought it was very important to convey that to these

22

folks?

15:47:50

And you also sent this e-mail dated October 11,

15:47:59

IEN

DS

15:48:08

23

A.

Yes.

24

Q.

All right.

25

A.

Of the press release?

FR

15:47:29

And I believe he referred me to the new head of HSU,

8
9

Our initial assessment is if this

Let's turn to the second page.


15:48:21

Q.

e-mail, page MCAO00029.

A.

Yes.

Q.

And let's highlight the paragraph that begins "While I

would not be surprised."

Of the -- I'm sorry, your e-mail of October 11, 2012,

MS. WANG:

6
7

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published.

MS. WANG:

Your Honor, I don't know if this is being

May I request that it be published?

THE COURT:

15:48:32

It may be published.

Thank you.

10

BY MS. WANG:

11

Q.

12

if plaintiffs are using the attached letter as a springboard

13

for electoral-related negative press toward the sheriff, I

14

expect that they will move quickly to raise this issue with

15

Judge Snow sometime next week either for electoral or

16

legitimate reasons.

17

on this issue."

18

A.

Those are my words.

19

Q.

What did you mean by that?

21

MS. CLARK:

23

"While I would not be surprised

We will need to get 'ahead of the curve'

Objection, mental impressions;

THE COURT:

15:49:09

Overruled.

THE WITNESS:

We did not have any data by the time I

24

sent this out to know whether or not this was a legitimate good

25

faith -- well, I assumed everything you sent over was good

FR

15:48:57

confidentiality.

IEN

22

So, Mr. Casey, you wrote:

DS

20

15:48:43

15:49:17

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faith, but whether or not it was factually supported.

So this

was to alert the client that either there's going to be some

sort of electoral news, political news, or you're going to have

a real factual problem.

BY MS. WANG:

Q.

2012, campaigning for reelection, is that right?

A.

Yes.

Q.

And you informed the client -- reminded the client of that

15:49:35

And the sheriff was at this point in time, October 11,

10

fact when conveying the news of plaintiffs' allegations,

11

correct?

MR. MASTERSON:

12

MS. CLARK:

13
14

Objection, leading.

Continuing objection for the reasons

stated, Judge.

THE COURT:

15

Sustain the leading objection.

16

BY MS. WANG:

17

Q.

18

your e-mail reporting plaintiffs' allegations that the

19

preliminary injunction order had been violated?

21

MS. CLARK:

Objection, mental impressions.

THE COURT:

Overruled.

THE WITNESS:

IEN

22
23

attention for certain.

24

BY MS. WANG:

25

Q.

FR

15:49:57

Why did you convey this information about the election in

DS

20

15:49:49

15:50:11

Because that would catch the sheriff's

And sir, did you have a concern, based on what you learned,

15:50:21

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that the sheriff had issued the press release for reasons

related to the election?

A.

That's what --

MS. CLARK:

Objection, mental impressions, Judge.

MR. MASTERSON:

MS. WANG:

Objection, leading; foundation.

Your Honor, I do think that what Mr. Casey

had in mind goes to the issue of what he was informing his

clients and the advice that he was giving them.


THE COURT:

MS. WANG:

10

I'm going to still sustain the objection.

All right.

15:51:04

11

BY MS. WANG:

12

Q.

13

allegations in October of 2012, that the activities described

14

in the MCSO news release were related to the election campaign?

Did anyone convey to you, in connection with plaintiffs'

15
16

MS. CLARK:

Objection, confidentiality.

THE COURT:

Overruled.

THE WITNESS:

17

15:51:36

Yes.

BY MS. WANG:

19

Q.

Can you tell me about that.

20

A.

I remember working cooperatively and quickly with Chief

21

Brian Sands to try to find out if we had a problem.

22

point he told me that somehow he learned that these were --

IEN

DS

18

15:51:42

At some

23

this was issued solely for political purposes for the election,

24

the press releases.

25

BY MS. WANG:

FR

15:50:44

15:52:01

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Q.

Did he convey to you that these facts actually didn't

happen?

A.

working on.

underlying activity was done to generate publicity.

Q.

activity described in the press release violated the

preliminary injunction?

A.

We didn't know about facts yet, because that's what I was

I see.

He was just telling me the press releases and the

Did you convey to your clients that the underlying

Eventually, I got enough facts that there was a meeting,

and it was my preliminary view that it was likely, not

11

definitive, but it was likely a violation of the preliminary

12

injunction.

13

Q.

And who did you have that meeting with?

14

A.

Brian Sands and the sheriff.

15

Q.

Were both of them present throughout that meeting?

16

A.

No.

17

Q.

Was there a point where you spoke just with the sheriff

18

one-on-one?

19

A.

Yes.

20

Q.

Did you tell the sheriff during that meeting that his,

21

quote, backup plan, violated the preliminary injunction?

22

A.

DS

10

15:52:35

15:52:52

15:53:01

IEN

I'd never heard of a backup plan until I read of this.

23

Q.

24

it, did you convey to him that that activity violated the

25

preliminary injunction?

FR

15:52:12

Okay.

But as described in the press release, once you saw

15:53:23

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A.

That it was my judgment that you cannot, you cannot turn

them over to ICE; you cannot turn them over to Border Patrol;

you can't turn them over to anyone.

Q.

news release indicated that had been the consistent practice of

MCSO over six years?

A.

Yes.

Q.

What did he say?

A.

I don't remember.

10

Q.

All right.

11

telling him?

12

A.

Yes.

13

Q.

What did he -- how did he react?

14

A.

Initially, that he was the sheriff and he made the

15

decisions.

16

Q.

17

on the subject of the activities described in the press

18

release?

19

A.

Yes.

20

Q.

Was that a heated discussion?

21

A.

Yes.

22

Q.

Did you take the position with the sheriff that the

It is arrest or release.

Did you raise with him any concern about the fact that the

Did Sheriff Arpaio react to what you were

15:53:47

15:54:00

IEN

DS

And did you have a further discussion with Sheriff Arpaio

23

activity should end because it was in violation of the

24

preliminary injunction order?

25

A.

FR

15:53:39

I took that position.

15:54:10

15:54:29

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Q.

Did anyone else during the meeting take the position?

A.

Brian Sands took it.

Q.

And what was the outcome of that meeting at the end?

A.

That's attorney-client privilege and client

confidentiality.

I'm not able to answer that unless ordered.

THE COURT:

You are so ordered.

THE WITNESS:

It was not a pleasant conversation, and

Brian was not in when we had this, but it was relayed to him

that this is a problem.

This cannot go on.

And the response was:

10

The City of Phoenix is doing

11

it; some other metropolitans are doing it.

12

under a court order.

13

cannot happen.

people.

But they're not

We're under a court order, MCSO.

It

It doesn't matter.

15:55:31

And I was assured before I left there that this was

16
17

the end of it.

18

to argue over a mistake or not, that it would not happen again.

It was a, quote, mistake.

Not whether we want

And I felt confident, even though this time Brian

19

Sands excused himself for the reasons we discussed at my depo,

21

that I had the full support of Chief Brian Sands, because he

22

didn't know about this before it happened.

IEN

DS

20

23

told.

24

BY MS. WANG:

25

Q.

FR

15:55:15

There was something like it only involved a handful of

14
15

15:54:49

15:55:52

That's what I was

You said that this was a heated discussion with Sheriff

15:56:04

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Arpaio?

A.

It did.

Q.

Did you and Chief Sands threaten to resign during the

course of that heated discussion?

A.

right, he'll resign, and I told him that I would.

Q.

during that meeting was to say, "I'm the sheriff, I make the

decisions here," but that you won him over by the end of the

It was.

I remember Brian Sands telling me that if it doesn't go

So is it fair to say that the sheriff's initial reaction

10

conversation?

11

A.

I would not say I won him over.

12

Q.

All right.

13

conversation?

14

A.

15

fall of '12 -- that you and I spoke after the injunction came

16

over and you said:

17

doing saturation patrols; we're not turning people over to the

18

federal government.

19

going to happen.

20

Q.

21

understanding that the sheriff would stop that activity?

22

A.

15:56:31

How would you describe the course of that

I think the conversation harkened back -- this is in the

We're not doing it any more.

Now we are.

We can't.

And it's gotta stop.

15:56:44

We're not

You said it's not

It must stop.

DS

And at the end of the conversation did -- was it your

15:57:06

IEN

He assured me that it was a mistake, that it wasn't going

23

to happen again.

24

point until I got off this case in the -- I think Judge Snow

25

released me in November of '14, I'm not aware of this happening

FR

15:56:12

And to his credit, to my knowledge, to the

15:57:26

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again.

Q.

that heated discussion that he had done this for political

purposes?

A.

He did not.

Q.

All right.

A.

From Chief Sands.

Q.

Okay.

Did you raise with him -- well, did he acknowledge during

15:57:40

But you heard that from someone else.

And take a look at the top e-mail in Exhibit 2512.

You forwarded this e-mail string about plaintiffs'

9
10

allegations that the preliminary injunction order had been

11

violated to Lisa Allen.

12

A.

I do.

13

Q.

Who is Lisa Allen?

14

A.

She was his main -- the sheriff's main public information

15

officer.

16

Q.

17

closely with Lisa Allen at that time?

18

A.

He did.

19

Q.

Did you raise with Sheriff Arpaio during the heated

20

discussion the fact that you had not seen the press releases

21

before they were sent to you by plaintiffs?

Do you see that?

15:58:11

DS

And were you aware of whether the sheriff worked very

MS. CLARK:

Objection, client confidentiality.

23

THE COURT:

Overruled.

24

THE WITNESS:

IEN

22

FR

25

15:57:59

Yes.

15:58:22

As we discussed in our deposition,

Mr. Liddy and I suggested after the trial in July and August of

15:58:37

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2012 that it would be advisable that we receive any press

releases that dealt with anything what I'm going to call "south

of the border" issues, and I thought that those would be

circulated, and I don't believe we ever see these until Andre

Segura sent those.

BY MS. WANG:

Q.

surprised by those press releases?

A.

And you raised with the sheriff the fact that you had been

Yes, because the month earlier I had been in the Ninth

10

Circuit representing the contrary, based on what I had been

11

told.

12

Q.

13

sheriff agree that he would thereafter let you and Mr. Liddy

14

see press releases relating to detentions of suspected

15

undocumented immigrants before they went out?

16

A.

17

that day, about seeing press releases.

18

Q.

19

subsequently?

20

A.

21

was the blow back, if you will, of my meeting with the sheriff.

22

Q.

15:59:15

And during the course of that heated discussion, did the

15:59:30

I don't -- that was not the subject of our conversation

All right.

Did you discuss that with Lisa Allen

DS

I don't remember, but this was in response to the -- this

15:59:45

IEN

What do you mean by that, blow back?

23

A.

24

trickled to Lisa Allen that was a problem and wanted to know

25

why it was a problem.

FR

15:59:04

Well, whatever time we met, I assume that something got

16:00:03

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Q.

And did you discuss that with Lisa Allen?

A.

I tried not to.

Q.

All right.

Take a look at Exhibit 2514 now.

Exhibit 2514 is an e-mail from you to Brian Sands,

4
5

Gerard Sheridan, Brian Jakowinicz, and John MacIntyre dated

October 18, 2012.

A.

I do.

Q.

Was this your e-mail forwarding them your response to

plaintiffs' letter alleging violations of the preliminary

10

injunction order?

11

A.

It was.

12

Q.

All right.

Do you see that?

MS. WANG:

13

16:00:49

Your Honor, I'd move 2514 into evidence.

MR. MASTERSON:

14

MR. WALKER:

15

MR. COMO:

16

THE COURT:

17

No objection.

No objection.

16:01:04

No objection, Your Honor.


2514 is admitted.

(Exhibit No. 2514 is admitted into evidence.)

18

MS. WANG:

19

BY MS. WANG:

21

Q.

22

e-mail.

Thank you.

DS

20

16:01:13

IEN

Sir, let's highlight the second paragraph here on your


Do you see where you wrote in your e-mail to these

23

chiefs:

24

very public court filing and issue a new release right before

25

the election"?

FR

16:00:33

"I still anticipate that they will 'cry foul' in a

16:01:38

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A.

I do see that.

Q.

Okay.

A.

You know, I don't remember specifically, but I do remember

believing that you folks were going to file a, what, an OSC, an

order to show cause of some sort on that.

Q.

to the recipients of this e-mail?

A.

Yes.

Q.

And again, the reelection campaign was ongoing at that

What were you conveying here?

And you thought that was something that would be of concern

10

time, correct?

11

A.

I just know that November was the general election.

12

Q.

All right.

16:02:06

Let's turn to Exhibit 2557.

2557 consists of two e-mail chains.

13
14

A.

Yes.

15

Q.

They're essentially two e-mails you sent to Joe Sousa

16

within a minute of each other at 11:51 a.m. on October 15,

17

2012.

18

A.

MS. WANG:

Okay.

Your Honor, I'd move the admission

of Exhibit 2557.

IEN

22

Do you see that?

DS

21

16:02:53

MR. MASTERSON:
MR. WALKER:

No objection.

No objection.

23

MR. COMO:

24

THE COURT:

25

(Exhibit No. 2557 is admitted into evidence.)

FR

16:02:36

I do.

19
20

16:01:53

No objection.
2557 is admitted.
16:03:01

MS. WANG:

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Thank you.

BY MS. WANG:

Q.

correspondence with Lieutenant Sousa in connection with the

plaintiffs' allegations about violations of the preliminary

injunction order, correct?

A.

Yes.

Q.

And can you describe why you did that?

A.

This was -- my memory here -- and again, it's been a

So Mr. Casey, on October 18, 2012, you had e-mail

10

while -- is that Brian Sands and I, we dealt with the chief

11

decision maker.

12

troops understood this doesn't happen.

13

especially after the trial that we have.

Now we needed to make sure that the line


It cannot happen,

15

resolved with the -- with Sheriff Arpaio, and making sure it

16

doesn't happen with HSU.

17

so I'm not sure why he's involved.

18

Q.

19

to follow up on getting word out once again -- well, withdrawn.

All right.

Do you know whether Lieutenant Sousa was asked

DS

Do you know whether at that time, around October 18,

22

preliminary injunction order out to MCSO troops?

IEN

2012, Lieutenant Sousa was tasked with getting word of the

23

A.

24

a great history.

25

Q.

16:03:43

But Joe Sousa's not in HSU any more,

21

FR

16:03:24

So this was part of the response to getting it

14

20

16:03:11

16:04:13

I don't know why he was involved in this, other than he had

Okay.

Fair enough.

16:04:29

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Mr. Casey, did you ever advise your client, Sheriff

1
2

Arpaio, that his so-called backup plan violated the preliminary

injunction order?

A.

Yes.

Q.

And did he ever express to you the view that, in fact, his

backup plan did comply with the preliminary injunction order?

A.

or other lawyers had told him, it was fine.

Q.

He told me, and I'm paraphrasing, that others had told him,

Okay.

But did he express to you a view that the backup

10

plan as described in that news release complied with the

11

preliminary injunction order?

12

A.

13

that was the language that we used for advocacy purposes, to

14

argue that it was not clearly spelled out, but I gave him my

15

opinion on, well, that's an argument, but I gave him my opinion

16

on the likelihood of that argument being successful before this

17

Court or any court.

18

Q.

19

argue with you about the legal merits of whether the backup

20

plan complied with Judge Snow's preliminary injunction order?

21

A.

22

The backup plan, he thought it was okay.

16:05:10

That the judge's order said "without something more," and

But my question, I guess, is:

16:05:30

Did Sheriff Arpaio

DS

Okay.

16:05:46

IEN

Yeah, he -- yes, he was re -- I remember he was resistant.

23

Q.

24

discussion, agreed that he would stop that activity, correct?

25

A.

FR

16:04:44

But he ultimately, over the course of that heated

He did.

16:06:03

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Q.

All right.

Did anyone ever ask you, in advance of the

activities described in those news releases, whether those

activities would comply with the preliminary injunction order?

A.

No.

Q.

Now, the trial ruling in this case came down on May 24th,

2013.

A.

May of '13, I am.

Q.

Okay.

evidence.

Are you aware of that?

Take a look at Exhibit 103, which is already in

MS. WANG:

10
11
12

And Your Honor, may I publish this one?

THE COURT:

You may.

MS. WANG:

Thank you.

16:06:48

13

BY MS. WANG:

14

Q.

15

Briefing Board dated May 28, 2013, correct?

16

A.

I'm sorry.

17

Q.

That's okay.

18

A.

I do.

19

Q.

All right.

20

28th, 2013, is that right?

21

A.

Correct.

22

Q.

And this Briefing Board effectively summarizes the Court's

Do you see the first paragraph -- well, this is a

16:06:54

I was --

Do you have Exhibit 103 in front of you?

This was a Briefing Board that issued on May

16:07:10

DS

IEN
23

trial ruling of May 2013, correct?

24

A.

Yes.

25

Q.

Sir, are you aware -- well, let me ask you this first.

FR

16:06:20

The

16:07:19

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first paragraph here says:

"By order of Sheriff Arpaio,

effective immediately, no MCSO personnel shall detain any

person for turn over to ICE unless probable cause to arrest or

detain exists under Arizona criminal law."


Do you see that?

16:07:41

A.

I do read that.

Q.

That comports with your description of the preliminary

injunction order to your clients, correct?

A.

That does.

10

Q.

That you had given since that order issued in December of

11

2011, right?

12

A.

December 23rd.

13

Q.

Okay.

14

direction go out to MCSO prior to May 28th, 2013?

15

A.

I did not see.

16

Q.

Let's turn to Exhibit 2567.

17

A.

2567?

18

Q.

Correct.

Sir, did you ever see a Briefing Board giving that

16:08:06

Two five six seven.

All right.

19

This is an e-mail chain between you and

Larry Farnsworth on March 28th, 2014.

21

A.

I do.

22

Q.

All right.

IEN

DS

20

Do you see that?

16:08:38

At that time -- well, who was Larry Farnsworth?

23

What was his position?

24

A.

25

commander of the Court Compliance Implementation Division that

FR

16:07:49

Like it says there in the letter, he was the -- he was


16:08:53

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was set up by MCSO.

Q.

this e-mail chain, correct?

A.

Yes.

Q.

Do you read this e-mail chain as indicating that Captain

Farnsworth was unaware of the preliminary injunction order at

this time?

A.

That's what it looks like from his March 28th, 2014 e-mail.

Q.

Okay.

And Captain Farnsworth was asking for a copy of an order in

MS. WANG:

10
11

MR. MASTERSON:
MR. WALKER:

13

MR. COMO:

14

THE COURT:

15

No objection.

No objection.

No objection.

Exhibit 2567 is admitted.

17

BY MS. WANG:

18

Q.

All right.

19

A.

I'm there.

20

Q.

Yes.

I'm going to have you turn now to Exhibit 2543.

DS

Thank you.

16:09:57

So this is an e-mail chain dated April 4th, 2014,

IEN

between you and Paul Chagolla and others?

23

Do you see that?

24

A.

I do.

25

Q.

And starting with the earlier e-mail from Paul Chagolla to

FR

16:09:35

(Exhibit No. 2567 is admitted into evidence.)

16

22

16:09:24

Exhibit 2567.

12

21

Your Honor, I'd move the admission of

16:09:05

16:10:08

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Tom Liddy where he copies you, is it fair to say that Chief

Chagolla was informing counsel about an E Learning training

that would require mandatory review by deputy sheriff chiefs,

captains, and lieutenants of the Court's orders in this case,

including the preliminary injunction order?

A.

That's what it looks like.

Q.

And then turning to your e-mail in response, let's

highlight on the first page --

I'm sorry, this is not in evidence yet.

MS. WANG:

10
11

16:10:37

Your Honor, may I move Exhibit 2543 into

evidence?

MR. MASTERSON:

12

MR. WALKER:

13

MR. COMO:

14

THE COURT:

15

No objection.

No objection.

No objection.

2543 is admitted.

16:10:57

(Exhibit No. 2543 is admitted into evidence.)

16

MS. WANG:

17

THE COURT:

18

May I publish it, Your Honor?


You may.

19

BY MS. WANG:

20

Q.

21

2543.

22

strongly recommend that Sheriff Arpaio voluntarily review these

IEN

DS

Let's highlight that last paragraph on the first page of


Do you see, Mr. Casey, where you wrote:

16:11:04

"I also

23

orders, but not under internal MCSO compulsion or

24

certification.

25

official.

FR

16:10:49

It is voluntary for the sheriff as an elected

In my judgment, however, Sheriff Arpaio needs to be

16:11:22

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able to testify under oath in the future in any contempt

proceedings against him that he has read all three of the

orders.

some degree the nature and extent of the punishment issued

against the sheriff following a contempt finding, and

incidentally, prove less publicly embarrassing in the public's

eyes."

The fact of reading them could or might mitigate to

Do you see that?

8
9

A.

I see that.

10

Q.

You put this in bold face and underscore, correct?

11

A.

Yes.

12

Q.

Why did you say that in this e-mail?

13

A.

It was my judgment that it was in my best interest -- in my

14

client's best interest for him to be advised by his lawyer that

15

it was prudent for him to read these things.

16

Q.

17

there might be contempt proceedings against the sheriff?


MS. CLARK:

impressions, Judge.

20

THE COURT:

DS

19

MS. WANG:

Object -- I'm sorry.

Objection, mental

I'm going to sustain that objection.

Q.

24

there might be contempt proceedings against the sheriff?

FR

16:12:16

All right.

23

25

16:12:01

BY MS. WANG:

IEN

22

16:11:47

Did you anticipate at this point, April 4th, 2014, that

18

21

16:11:38

Were you conveying to the recipients of this e-mail that

MS. CLARK:

Same objection, Judge.

16:12:32

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THE COURT:

Overruled.

THE WITNESS:

Yes.

BY MS. WANG:

Q.

Why did you convey that?

A.

I'm not able to answer that question without going into

attorney-client privileged information and client

confidentiality that would relate to the reasons I gave Sheriff

Arpaio for my withdrawal.

Q.

Sir, did your withdrawal as counsel in this case relate in

10

any way to the preliminary injunction order?

11

A.

MS. CLARK:

Objection, mental impressions; work

product; privilege; confidentiality.


THE COURT:

14

The answer was "not directly"?

Did you have something to say, Mr. --

15

MR. MASTERSON:

16

18

a question which they could answer yes or no they sometimes

19

blurt out an answer, anyway, so I wanted to stop that before it

20

happened, because I am going to assert a privilege on the next

21

question that I believe is on the way here.

DS

objection, but only because sometimes when witnesses are asked

IEN

THE COURT:

16:13:29

All right.

23

BY MS. WANG:

24

Q.

25

indirectly relate to the preliminary injunction order in this

FR

16:13:16

Well, I was going to join in the

17

22

16:13:01

Not directly.

12
13

16:12:39

Well, the next question is:

Did your withdrawal as counsel


16:13:40

case?

2
3
4

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MS. CLARK:

Same objections, Judge.

THE COURT:

Overruled.

Nevertheless -- well, the

answer is a yes or no answer.


THE WITNESS:

Could you read the question back?

apologize.

BY MS. WANG:

Q.

preliminary injunction order in this case?

Did your withdrawal from this case relate indirectly to the

10

A.

Yes.

11

Q.

So, sir, I will ask you:

12

to withdraw as counsel in this case related in any way to the

13

preliminary injunction order, can you tell me what the reason

14

was?

16:14:00

MS. CLARK:

15

foundation as to the answer.

18

THE COURT:

Overruled.

Let me just check one thing.

19

DS

I'm going to overrule the objection as the -- to the

MR. MASTERSON:

Your Honor, request a couple of

23

things.

24

have the deposition of Mr. Casey up there.

FR

25

16:14:46

extent that the question was worded the way it was.

IEN

22

16:14:18

Join in the privilege objection, and

17

21

To the extent that your decision

Same objections, Judge, all four.

MR. MASTERSON:

16

20

16:13:52

One, if the Court could look at -- I don't know if you

THE COURT:

I don't.

16:15:02

MR. MASTERSON:

I could give you a copy.

What I'd

like to refer you to is a page and line cite or ask for a

minute to voir dire the witness.


THE COURT:

4
5

to --

THE COURT:

MS. WANG:

8
9
10
11

I have copies, Your Honor.

-- need to bring it to me.

May I hand them up?

THE COURT:

Sure.

MS. CLARK:

Judge, I don't have a copy of the

MS. WANG:

13
14

I have one you for you, too, Ms. Clark.

MS. CLARK:

Well, thank you.

THE COURT:

Are you going to give me the page and line

cite, please?

16:15:31

MR. MASTERSON:

16

Yes, Judge.

Page 143, lines 9 through

17

11, and my objection is as to the foundation for the answer I

18

believe Mr. Casey is about to give.


THE COURT:

19

21

MR. MASTERSON:
THE COURT:

IEN

22
23
24

FR

25

Okay.

143, 9 through 11.

And what's your objection?

DS

20

16:15:21

deposition transcript.

12

15

Sure, but I don't have it, so you're going

16:15:12

MS. WANG:

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16:16:00

Foundation.

I mean, are you saying he didn't observe

these things?
MR. MASTERSON:

Well, he's observing subjective things

and then making an interpretation based on those very

16:16:11

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subjective, highly subjective things.

And he goes further to say that -- well, on the same

2
3

page, line -- well, actually, I'm sorry, Judge.

page 142, line 12, and move on to the section I cited to you on

through 143, lines 13 through 14.


MS. WANG:

6
7

for now.

I think I can lay a better foundation.

MS. WANG:

16:16:38

Your Honor, let me withdraw the question

THE COURT:

Let's start at

All right.

We may come back to this point, but let me

10

come to it at a later time.

11

BY MS. WANG:

12

Q.

13

your recommendation in that last paragraph of your e-mail that

14

the sheriff read the orders, was that based in part, in any

15

part, on discussions you had had with the sheriff in the past?

16

A.

Mr. Casey, can you -- now looking again at Exhibit 2543,

Yes.

MS. CLARK:

17
18

16:16:53

Mental impressions, Judge.

And

confidentiality also.
MS. WANG:

Well, you --

THE COURT:

Overruled.

MS. CLARK:

I should have objected also on privilege,

23

THE COURT:

Overruled.

24

THE WITNESS:

21

FR

25

16:17:30

Judge.

IEN

22

DS

19
20

16:17:18

BY MS. WANG:

Yes.
16:17:42

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Q.

Can you tell me what that was?

A.

I think it goes back to the history from the first

conversation after the preliminary injunction all the way up to

what we had in the fall of '12, going back, you know, it's a

space of 18 months or more, but I think that's what it relates

to.

Q.

the sheriff in October of 2012?

A.

And you're referring to the heated discussion you had with

Yes.

MR. MASTERSON:

10

THE COURT:

11

Objection, leading.

BY MS. WANG:

13

Q.

14

recommended on April 4th of 2014?

15

A.

I do not.

16

Q.

All right.

Do you know whether the sheriff read those orders, as you

DS

MS. WANG:

MS. WANG:

IEN

FR

I --

You may.

Thank you.

THE WITNESS:

23

25

May I have a moment, Your Honor?

(Pause in proceedings.)

19

24

Let's turn to Exhibit 2566.

THE COURT:

18

22

16:18:27

MS. WANG:

17

21

16:18:14

I'll allow that one.

12

20

16:18:03

I apologize.

16:19:11

I don't think I have that up here.

I apologize.

Ms. Zoratti, would you mind giving the witness a copy

of 2566?
THE CLERK:

(Handing).

16:19:34

THE WITNESS:

THE CLERK:

MS. WANG:

Thank you.

You're welcome.

Thank you.

BY MS. WANG:

Q.

starts with Chief Chagolla's April 4th, 2014 e-mail?

A.

Yes.

Q.

Okay.

Mr. Liddy and Mr. Williams:

All right, sir.

10

read it"?

11

A.

Yes.

13

exhibit.

"The troops need to have it and

I'm sorry to interrupt.

Can we put that on the screen for --

16

BY MS. WANG:

17

Q.

18

Chief Chagolla's e-mail to your co-counsel?

19

A.

21

Yes.

MS. WANG:

MR. MASTERSON:

23

MR. WALKER:

24

MR. COMO:

25

THE COURT:

FR

All right.

Your Honor, I'd move the

16:20:42

admission of Exhibit 2566.

IEN

22

16:20:30

Was this an e-mail string in which you were forwarding

DS

20

I don't have this

(Pause in proceedings.)

15

16:19:45

16:20:17

MS. WANG:

14

Is Exhibit 2566 a different chain that

And do you see where in the top e-mail you wrote to

MS. CLARK:

12

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No objection.

No objection.
No objection.
Exhibit 2566 is admitted.

16:20:52

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(Exhibit No. 2566 is admitted into evidence.)

MS. WANG:

2
3
4

May we publish it, Your Honor?

THE COURT:

You may.

MS. WANG:

Thank you.

BY MS. WANG:

Q.

Mr. Williams:

A.

Yes.

Q.

And then the next sentence reads:

All right.

16:21:00

Do you see we are you wrote to Mr. Liddy and

"The troops need to have it and read it"?

"It maybe overinclusive,

10

but the next round of problems will be over whether they ever

11

read the preliminary injunction"?

12

A.

Yes.

13

Q.

All right.

14

"the troops need to have it and read it," you were referring to

15

the preliminary injunction order, correct?

16

A.

17

issues earlier that year with some executives not having read

18

it.

19

Q.

20

were you reacting to Chief Chagolla's original suggestion that

21

only certain commanders read the orders?

22

A.

That was a reference to -- well, when you say

DS

And when you said "the troops need to have it and read it,"

16:21:36

IEN

Yes.

Q.

24

read the preliminary injunction order as well?

FR

16:21:22

I think it was that and everything, because we had some

23

25

16:21:11

All right.

Why did you think that the troops needed to

MS. CLARK:

Mental impressions.

16:21:53

THE COURT:

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Sustained.

BY MS. WANG:

Q.

at MCSO below the lieutenant rank needed to read the

preliminary injunction order?

A.

Yes.

Q.

All right.

A.

I believe I did.

recommended the sergeants.

All right.

Did you convey to anyone that the rank and file

Did you say why?

I think we saw one of the e-mails here I

10

Q.

And why did you do that?

11

A.

Because they're -- they're the first line of review for the

12

people underneath them.

13

Q.

14

events, also go into your judgment as expressed to the troops

15

that they needed to read it?

16

MS. CLARK:

Objection, mental impressions.

THE COURT:

Do you want to ask what was conveyed and

MS. WANG:

DS

THE COURT:

21

BY MS. WANG:

22

Q.

Sure.

-- what Mr. Casey thought?

16:22:42

IEN

Did you convey to anyone whether the history of your

23

discussions with your clients about the preliminary injunction

24

order also led you to believe that the sergeants needed to read

25

that order?

FR

16:22:28

communicated and not --

19
20

16:22:12

And did any of the history, including the October 2012

17
18

16:22:04

16:22:58

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A.

I don't know if I conveyed that.

Q.

All right.

to make sure that various MCSO personnel read the order because

some executives had not read it?

A.

That's my memory.

Q.

And are you referring to the instances when Chiefs Trombi

and Sheridan had clearly not read the court orders?

A.

I just remember there was testimony that they -- I remember

You said that at this time there was an effort

Was that your testimony?

I don't know about clearly, but I could just tell you that

10

Dave Trombi testifying he had not read it.

11

Q.

12

corrective statement to go out to MCSO because of the ways that

13

Chiefs Trombi and Sheridan had characterized the Court's

14

orders, is that right?

15

A.

I remember that.

16

Q.

All right.

17

time you withdrew from this case, there were still HSU

18

personnel who were unaware of the preliminary injunction order?

19

A.

20

it at that time.

21

Q.

22

the preliminary injunction order issued, the sheriff made --

All right.

16:23:34

And you're aware that the Court had ordered a

16:23:52

Are you aware of any information that at the

DS

I have no information indicating that anyone was unaware of

IEN

All right.

16:24:20

Now, I think you've testified that at the time

23

assured you that MCSO was not detaining people based solely on

24

immigration status, is that right?

25

A.

FR

16:23:19

He said, We're not doing that any more, and the bottom line

16:24:39

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is the federal government won't take it.

do it.

Q.

MCSO was doing that?

A.

testimony from a witness --

Q.

Okay.

A.

-- or two.

Q.

And at that time did Sheriff Arpaio tell you anything about

Okay.

Obama, ICE, will not

And during the trial did you learn that, in fact,

I think we went over that maybe an hour ago, and I remember

10

whether he would continue to conduct those kinds of detentions?

11

A.

12

he clearly understood what the preliminary injunction order

13

required.

14

Q.

15

assure you that he would stop the detentions based solely on

16

immigration status?

17

A.

18

was the -- that was absolutely the message that was received,

19

that we're not sure what happened, but it was not supposed to.

20

Q.

21

Arpaio?

22

A.

16:25:02

I don't believe the sheriff understood the LEAR policy, but

Well, when it came up during the trial, did Sheriff Arpaio

16:25:23

I think we handled that through Chief Sheridan, and that

DS

All right.

And was that message conveyed to Sheriff

16:25:37

IEN

My understanding is that's where it was from.

23

Q.

24

activity would stop.

25

A.

FR

16:24:52

All right.

That Sheriff Arpaio was conveying that that

That's correct.

16:25:47

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Q.

Okay.

Ninth Circuit that you did, right?

A.

my client it wasn't happening, it wasn't going to happen, ICE

wouldn't do it.

them.

Q.

again you learned MCSO was detaining people based solely on

immigration status, correct?

Yeah.

And that was why you made the representation to the

Well, the whole host of times I've communicated with

Even if we wanted to do it, ICE won't take

And in October of 2012 we've heard your testimony that once

MR. MASTERSON:

10

MS. WANG:

11

THE COURT:

12

Objection, leading.

I know you're trying to sum up, but I do

think that we need to be very sensitive to that concern, so I'm

14

going to sustain the objection.


MS. WANG:

15

Very well.

16

BY MS. WANG:

17

Q.

18

violating the preliminary injunction order?

19

A.

20

likely a violation; not definitively, likely.

21

Q.

But that's the message you conveyed to the sheriff?

22

A.

Yes.

16:26:28

In October of 2012, did you learn whether MCSO was

IEN

DS

Like I said some time ago, it was my view that it was

23

Q.

All right.

24

A.

Same thing that we went over some time ago.

FR

16:26:15

I'm trying to just sum up, Your Honor.

13

25

16:26:02

16:26:39

And what did the sheriff tell you in response?

MR. MASTERSON:

Objection, asked and answered.

16:26:51

THE COURT:

I'll allow it this one additional time.

THE WITNESS:

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That gets into the whole heated argument

that we had in October of 2012 after Mr. Segura's letter.

BY MS. WANG:

Q.

December 23rd, 2011 order, how many times did Sheriff Arpaio

communicate to you that there would no longer be detentions

based solely on suspected illegal presence in the United

States?

All right.

So Mr. Casey, since the Court issued its

10

A.

Three.

11

Q.

I want to get back now to the question about whether the

12

preliminary injunction order was -- gave rise to your decision

13

to withdraw as counsel.

16:27:22

Was your decision to withdraw as counsel for the

14
15

sheriff related in any way to what you've just discussed in the

16

last two minutes?

MS. CLARK:

17

MR. MASTERSON:

19

THE COURT:

Okay.

23

THE WITNESS:

24

THE COURT:

FR

25

Judge, I don't object to the yes or no

16:27:59

I'm going to overrule the objection

and direct the witness to answer.

IEN

22

One moment.

question, but I'll probably be up here again in a second.

DS

21

Objection, Judge.

16:27:42

Confidentiality, privilege, and work product, Judge.

18

20

16:27:03

no, please.

As I mentioned before --

Well, would you answer the question yes or


16:28:11

THE WITNESS:

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Yes.

BY MS. WANG:

Q.

decision to withdraw as Sheriff Arpaio's lawyer in this case

was based on that history relating to the preliminary

injunction order, why did you withdraw?

All right.

MS. CLARK:

10

I'm going to object on the basis of

foundation, refer the Court again to the deposition page and


lines cited.

16:28:42

THE COURT:

11

All right.

I'm going to instruct the

12

witness that he is to answer the question based only on the

13

extent to which it involves communications with his client.


THE WITNESS:

14

Very indirectly, just resistance from my

15

client.

16

BY MS. WANG:

17

Q.

Who expressed that resistance?

18

A.

That was the sheriff.

19

Q.

And resistance to what?

20

A.

Being told what to do.

21

Q.

Including the preliminary injunction order?

22

A.

Eventually.

IEN

DS

16:29:01

23

Q.

24

topic.

25

the confidential informant Dennis Montgomery, correct?

FR

16:28:26

Same three bases for the objection, Judge.

MR. MASTERSON:

8
9

And can you explain, to the extent that your

All right.

16:29:10

Mr. Casey, I'm going to move on to a different

You're familiar with the MCSO's investigation involving


16:29:32

A.

I remember attending a meeting.

Q.

Okay.

And what was discussed during that meeting?

Well, let me back up.

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Who was present at the meeting?

A.

I'm going to start off with the lawyers:

It was myself; my

co-counsel, Tom Liddy; at this meeting I do not believe my

partner, James Williams, was present; John Masterson was

present; Joe Popolizio was present; I believe Steve Bailey was

present.

said at my deposition, I can't be certain about Jerry Sheridan.

I believe that Jerry Sheridan was present, but as I

10

And I believe that Jack MacIntyre was present, but I cannot be

11

certain about his presence.

12

present, but I'm not certain.

13

Q.

14

Montgomery investigation was discussed?

15

A.

I only remember one meeting.

16

Q.

All right.

17

people you named?

18

A.

Well, the sheriff was there.

19

Q.

Anyone else?

20

A.

Did I mention Bailey?

21

Q.

Yes.

22

A.

And there were two guys that were on a speakerphone.

16:30:19

I believe that Lisa Allen was

Did you attend more than one meeting where the Dennis

DS

IEN

16:30:39

And was anyone else present other than the

23

Q.

24

on the speakerphone?

25

A.

FR

16:29:55

16:30:51

Did you have an understanding about who those people were

My understanding is they were both employees of MCSO.

16:31:07

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Q.

And you don't know who they were?

A.

No.

re -- I don't remember.

Q.

from the same location?

A.

Yes.

Q.

And do you know whether that was in the Seattle, Washington

area?

A.

That's my memory.

10

Q.

Okay.

Okay.

Was it your impression that they were calling in

16:31:21

Tell me everything you remember about this meeting.

MS. CLARK:

11
12

You mentioned in the deposition the names, but I don't

Objection, confidentiality; ER 1.6; work

product; as applicable, attorney-client privilege.


THE COURT:

13

I've already ruled that there is a waiver

14

as to this meeting, and so the attorney-client privilege

15

objection is overruled; the 1.6 objection is overruled; and the

16

confidentiality objection is overruled without prejudice to its

17

renewal, or any of the above, depending upon the question.


MR. MASTERSON:

18

20
21

THE COURT:

Well, he testified that the two guys on

MR. MASTERSON:

23

THE COURT:

24

MR. MASTERSON:

FR

25

Your Honor, I make a hearsay objection

16:32:11

the speakerphone were MCSO employees in Seattle, right?

IEN

22

16:31:48

to statements made by the two guys on the speakerphone.

DS

19

16:31:27

it's an admission?

He did.

Overruled.
Is the Court's basis for this that
16:32:25

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THE COURT:

It's a statement, not an admission.

It's

a statement.

investigation and they were sent up to work with Montgomery, I

believe it is a statement under -- well, it's called admission

in the title, but it says statement is offered against a party.

It's 801(d)(2).

THE WITNESS:

10

Just a brief record that I don't think

these two people have the -- or had the status in MCSO to make
an admission on behalf of the organization.
THE COURT:

11

read the rule to require an admission; it merely refers to

13

statements.

MR. MASTERSON:

14

MS. WANG:

15

Thank you.

And Your Honor, in response to

16

Mr. Masterson's argument, under Rule 801(d)(2)(D), a statement

17

offered against an opposing party that is made by the party's

18

agent or employee on a matter within the scope of that

19

relationship and while it existed is not hearsay.

I believe I've already ruled in your

MS. WANG:

16:33:32

Thank you, Judge.

23

THE WITNESS:

24

MS. WANG:

25

THE COURT:

FR

16:33:13

favor, Ms. Wang.

IEN

22

DS

21

THE COURT:

16:33:03

And I will -- I accept that, but I don't

12

20

16:32:45

Am I ordered to answer?

MR. MASTERSON:

8
9

To the extent that it involves the Montgomery

Am I ordered to answer, Your Honor?

Sorry.
You are.

16:33:39

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THE WITNESS:

My memory of this is there was an offer

of proof, if you will, that the MCSO folks on the phone were

explaining what this CI, the confidential informant, could

offer MCSO if MCSO continued to seek his services, his

consultation, his informant status, whatever.

16:34:07

And I do remember there was a discussion about him --

6
7

the CI wanting to have some type of immunity.

the details of that or what that's about.

lawyer; I don't practice in that area.

I don't remember

I'm not a criminal

I remember that there were discussions about him

10
11

having access to a duplicate set of NSA or CIA data that he

12

could mine, m-i-n-e.

13

indicated from that data that he could mine that there was

14

either telephone or e-mail surveillance on, I think it was Joe

15

Popolizio at Jones, Skelton.

16

also was discussion about a connection between the Court, DOJ,

17

and people in the federal administration.

18

BY MS. WANG:

19

Q.

20

that the confidential informant had evidence of a conspiracy

21

among those parties: this Court, the Department of Justice, and

22

the law firm of Covington & Burling against Sheriff Arpaio?

And that his preliminary research

Could be other people.

There

16:35:13

IEN

DS

On the latter point, Mr. Casey, did you hear anyone purport

23

A.

That's what was being reported.

24

Q.

Was that report -- who was that reported by?

25

A.

One or both of the fellows on the phone were reporting that

FR

16:34:36

16:35:35

16:35:56

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there was this collusion involving the Court that had an

adverse effect on Joe Arpaio, and that it could be proven if

MCSO would go forward with using the CI's services.

Q.

between the Department of Justice and Judge Snow's chambers?

A.

Yes.

Q.

And was it purported that that information came out of data

that Dennis Montgomery had mined from the NSA or the CIA?

A.

Yes.

10

Q.

Did you hear any mention that former U.S. Attorney Dennis

11

Burke was involved in that same conspiracy?

12

A.

Yes.

13

Q.

Did you hear any mention of the then-Attorney General of

14

the United States, Eric Holder?

15

A.

Yes.

16

Q.

Was it alleged that he was involved in that purported

17

conspiracy?

18

A.

Yes.

19

Q.

Did you hear any mention of then-Deputy Attorney General

20

Lanny Breuer being involved in that purported conspiracy?

21

A.

I believe he was included in that, but I'm not certain.

22

Q.

I'm going to have you turn to Exhibit 2072.

Did you hear any mention of a purported telephone call

16:37:06

Take a look at Exhibit 2072 and let me know if you saw

24

a copy of those documents during this meeting.

25

A.

FR

16:36:36

16:36:54

DS

IEN
23

16:36:20

I have it, and I did see it.

16:37:40

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Q.

All right.

and then there's also something labeled "Arpaio brief."

you see both of those documents during this meeting?

A.

I do remember seeing a graphic that looked like this Arpaio

brief.

Q.

appeared on those documents?

A.

Yes.

10

Q.

Was that discussed during the meeting?

11

A.

I don't remember the judge specifically being addressed,

12

but he had either a law clerk or a former law clerk that was

13

supposedly a conduit for communications.

14

Q.

15

sheriff?

16

A.

All right.

16:38:31

MS. WANG:

Your Honor, I'd move the admission of

Exhibit 2072 at this time.


MR. MASTERSON:
MR. WALKER:
MR. COMO:
THE COURT:

No objection.

No objection, Your Honor.

Exhibit 2072 is admitted.

(Exhibit No. 2072 is admitted into evidence.)

24

MS. WANG:

FR

BY MS. WANG:

16:38:39

No objection.

23

25

16:38:11

That was my impression.

IEN

22

And do you recall that Judge Snow's name

DS

21

16:38:02

In connection with this purported conspiracy against the

19
20

Did

As I told you in my depo, I remember seeing a timeline, and

17
18

There's something that is labeled a timeline,

Thank you.
16:38:48

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Q.

You mentioned that the MCSO personnel on the phone said

that the source of this information was data that the CI had

mined from the CIA or the NSA, is that right?

A.

That's my memory.

Q.

Did anyone express a concern that that use of that data

might be illegal?

A.

Yes.

Q.

Who expressed that concern?

A.

I did, and I know that -- I believe that a couple of the

10

other lawyers also did.

11

Q.

Did anyone in the room react to that?

12

A.

It was not said during the meeting; it was said as we're

13

breaking up.

14

Q.

Okay.

15

A.

Yes.

16

Q.

All right.

17

A.

I don't remem- -- I know I should remember it because it

18

was just -- I thought this was November of '13, by the way, but

19

I don't remember who it was, but it would have been one of the

20

executives.

21

Q.

16:39:32

And who did you express that concern to?

DS

It would not have been the sheriff himself.

16:39:46

And did that, whoever you expressed it to --

One of the chiefs?

23

A.

Yes.

24

Q.

Okay.

25

about the use --

FR

16:39:22

As you were leaving that meeting?

All right.

IEN

22

16:39:05

Did that chief respond to your expression of concern


16:39:56

MR. MASTERSON:

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Objection, Your Honor.

I think we're

beyond the scope of the Court's ruling on the waiver in that

meeting.

THE COURT:

4
5

Was your testimony that it was while the

meeting was breaking up?


THE WITNESS:

THE COURT:

Yes, sir.

I honestly don't remember, but whoever

it was I think had that concern and was going to -- my

10

expression -- run it to ground.

11

BY MS. WANG:

12

Q.

I didn't hear you.

13

A.

Run it to ground.

14

Q.

Okay.

15

A.

Make sure that the MCSO had looked into that.

16

Q.

All right.

MS. CLARK:

17

clarification that by allowing the testimony you were ordering

19

it from the witness?

DS

THE COURT:

21

BY MS. WANG:

22

Q.

I was ordering the witness to testify.

16:40:39

16:40:46

IEN

Mr. Casey, during the course of this meeting, did anyone

23

express a view on the reliability of the information about the

24

purported conspiracy against Sheriff Arpaio?

25

A.

FR

16:40:29

Your Honor, if I could just get a

18

20

16:40:17

I'm going to allow it.

THE WITNESS:

8
9

We're at some post meeting activity now.

Yes.

16:41:01

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Q.

Who expressed that view?

A.

The lawyers.

Q.

What was expressed?

4
5

MS. CLARK:

Objection, client confidentiality, Judge.

THE COURT:

Overruled.

16:41:09

The witness will answer.

THE WITNESS:

I'll tell you my conclusion, what I

mentioned in the deposition:

unbelievable.

It was hogwash.

It was

And I believe that the other lawyers shared that

10

same sentiment, that same conclusion, and that was expressed.

11

This is someone to be avoided.

12

BY MS. WANG:

13

Q.

14

reliability of the information about the purported conspiracy?

15

A.

16

silent during this.

17

Q.

Did the sheriff speak?

18

A.

He did.

19

Q.

What did he say?

20

A.

He said something that indicated that he was enthusiastic

21

and it needed to be looked into.

22

Q.

Did anyone else in the room express a view as to the

DS

I remember MCSO people, except for the sheriff, being

16:41:38

16:41:46

IEN

The purported conspiracy involving the Court?

23

A.

That was my impression.

24

Q.

Did you have any further involvement in the Dennis

25

Montgomery investigation after this meeting?

FR

16:41:22

16:42:16

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A.

None.

Q.

Why not?

MS. CLARK:

Objection, client confidentiality, Judge.

MR. MASTERSON:

THE COURT:

MS. WANG:

Join.

I'm going to sustain that objection.

All right.

BY MS. WANG:

Q.

about the evidence of the purported conspiracy?

Mr. Casey, did Sheriff Arpaio express to you any emotions

10
11

MS. CLARK:

Same objection, Judge.

THE COURT:

Overruled.

MR. MASTERSON:

12

where talking about.

14

out -- post-meeting, we're outside the Court's order.


THE COURT:

15

If we're talking post-meeting, we're

I will agree.

If it's post-meeting,

16

you're not to answer; if it's during the meeting or while the

17

meeting is breaking up, you are to answer.


THE WITNESS:

18

20

BY MS. WANG:

21

Q.

DS

was while we were breaking up walking out of the meeting.

16:43:08

And what did he convey to you?


MS. CLARK:

Continuing objection, Judge.

23

THE COURT:

Overruled.

24

THE WITNESS:

IEN

FR

16:42:55

It was not during the meeting, but it

19

25

16:42:45

I'm going to -- I'm not sure when

13

22

16:42:26

BY MS. WANG:

The witness will answer.

He added an additional fact.


16:43:15

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Q.

What's that?

A.

He had his finger out and he says:

is at Covington, and Kyle got the judge his job.

Q.

did you -- did you hear anything indicating why the sheriff was

interested in following up on this information about a

purported conspiracy?

THE WITNESS:

You know that Jon Kyle

During the meeting, or as it was breaking up, Mr. Casey,

Your Honor, I cannot answer that

question without violating attorney-client privilege and client

10

confidentiality, because the information I have is outside that

11

meeting, outside the exiting of that meeting.

12

BY MS. WANG:

13

Q.

When did you get that information?

14

A.

I think it was a course of about 30 or 40 days.

15

thought this is November of '13, not January '14, but it would

16

have been in 30 to 40 days is when I gathered that.

17

Q.

After the meeting or before?

18

A.

It was after the meeting.

19

Q.

During the meeting or as it was breaking up, did Sheriff

20

Arpaio express any attitude towards Judge Snow?

21

A.

22

while it was breaking up.

DS

Q.

And I

16:44:12

16:44:31

Did he do so at some other time?

24

MS. CLARK:

Same objection, Judge.

25

THE COURT:

Sustained.

FR

16:43:52

He did not express any attitude during that meeting or

IEN
23

16:43:32

16:44:46

MS. WANG:

1
2
3

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Your Honor, may I have a moment?

THE COURT:

You may.

MS. WANG:

Thank you.

(Pause in proceedings.)

4
5

BY MS. WANG:

Q.

meeting, or as it was breaking up, did you have a sense that

the sheriff was being vindictive?

16:45:11

Mr. Casey, based on what you heard and saw during this

9
10

MS. CLARK:

Objection, mental impression, Judge.

THE COURT:

Sustained.

MS. WANG:

11

16:45:23

I'm not sure this is a different question,

12

Judge, but I'll try.

13

BY MS. WANG:

14

Q.

15

or otherwise during that meeting or as it was breaking up, a

16

vindictive attitude?

Did the sheriff say anything, or otherwise express verbally

MR. MASTERSON:

17

THE COURT:

18

21

MS. WANG:
THE COURT:

IEN

22

The only thing I remember him saying was

that it needed to be followed up on.

DS

20

Objection, foundation.

I'll allow it.

THE WITNESS:

19

All right.

Mr. Masterson.

Do you want to start again tomorrow?

24

MR. MASTERSON:

FR

16:45:54

Nothing further.

23

25

16:45:40

If it's not too presumptuous, I'd just

as soon take an early break tonight.

16:46:10

THE COURT:

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I'll allow you to do that.

What I am going to require, though, is I just got

2
3

notice that you'd filed a motion to quash a subpoena sometime

today.

MS. WANG:

5
6

Have you seen that, Ms. Wang?

I know it was filed, but I have not looked

at the motion.

THE COURT:

7
8

tomorrow.

some urgency to it.

All right.

Well, if we can deal with it

I did read the motion to quash.

I gathered it has

We need to deal with it tomorrow, so if

10

you can take a look at it tonight.

11

here 15 minutes early tomorrow, since we're ending 15 minutes

12

early today we can start 8:45 tomorrow and we will deal with

13

the motion to quash, and then we will proceed with testimony.

And then if you can both be

16:46:37

Is there an issue?

14

MS. MORIN:

15

Yes, Your Honor.

I have looked briefly at

the motion to quash, and I just wanted to clarify because Your

17

Honor may have read this, and it looks like the defendants have

18

referred to -- excuse me -- the wrong date, the return date

19

that's on the motion, which might be relevant to your

20

consideration of that.

21

at the right subpoena date, they might have a misimpression of

22

what -- what their motion was about as well.

IEN

DS

16

And if the defendants are not looking

23

So the motion -- or the subpoena that we served, the

24

document subpoena, has a return date of October 5th, and that

25

was what I noticed in the motion.

FR

16:46:23

16:46:54

16:47:10

16:47:27

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1
2
3

THE COURT:

Return date of October 5th?

MS. MORIN:

Correct.

THE COURT:

All right.

Well, let me just say, here's

what interests me, and obviously I'm going to give you a chance

to respond.

objection as it pertains to overbreadth might have some

purchase to it.

relevant and appropriate.

But it did seem to me that the date

10

pertains -- that tracks from the preliminary injunction date

11

might be a little early, and it also might be more targeted

12

than talking about every MCSO employee.

13

that we could narrow it down and not make it so onerous on --

MR. MASTERSON:

15

THE COURT:

16

I mean, it seems to me

Mr. Zullo.

Yeah, Mr. Zullo.

telling you that I did read it over the break.

19

issues that interested me.

20

to address it if you want tomorrow.

IEN

DS

18

23
24

FR

25

16:48:12

Anyway, you haven't had a chance to read it.

17

22

16:47:50

Who was it served on?

14

21

16:47:37

I do think that the material sought seems to me to be

8
9

But it did seem to me like the nature of the

I'm just

Those were the

You can take a look at, be prepared

MS. MORIN:

Yes, Your Honor.

THE COURT:

Ms. Clark.

MS. CLARK:

It sounds like preliminary matters will be

handled tomorrow at 8:45.


THE COURT:

16:48:29

What time would you like --

The testimony's going to resume at

16:48:35

9 o'clock, hopefully.

2
3

MS. CLARK:

Thank you, Judge.

THE COURT:

Anything else by anybody?

MR. MASTERSON:

THE COURT:

THE COURT:

Nothing from me.

Your Honor, just one personal matter.

Your Honor has noted that I've walked in a few minutes

9
10

late on a couple of occasions.

11

morning.

12

9:00?

THE COURT:

23
24

FR

25

16:49:05

And so, as welcome as you are, you're not

MR. JIRAUCH:

I've been told that many times during my

Thank you.

THE COURT:

Anything else?

All right.

See you tomorrow at quarter to 9:00.

DS

career.

IEN

22

I do.

necessary as long as co-counsel's here.

18

21

Well, it seems to me like you have

MR. JIRAUCH:

16

20

16:48:52

co-counsel here.

15

19

I have an appointment tomorrow

Could I be relieved of being here at 8:45 and come at

THE COURT:

13

17

16:48:44

Okay.

MR. JIRAUCH:

Nothing from me, Judge.

What?

MR. MASTERSON:

14

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(Proceedings concluded at 4:49 p.m.)

16:49:14

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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 30th day of

17
18

September, 2015.

20
21

IEN

22

DS

19

23
24

FR

25

s/Gary Moll