Melendres # 1021 | 2015-04-22 Transcript REDACTED Melendres, Et Al., v. Arpaio, Et Al., Evidentiary Hearing Day 2 - 01

8/9/2019 Melendres # 1021 | 2015-04-22 Transcript REDACTED Melendres, Et Al., v. Arpaio, Et Al., Evidentiary Hearing Day …

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286

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Manuel de Jesus OrtegaMelendres, et al.,

Plaintiffs,

vs.

Joseph M. Arpaio, et al.,

Defendants.

)))))))))))

CV 07-2513-PHX-GMS

Phoenix, ArizonaApril 22, 20158:36 a.m.

REPORTER'S TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE G. MURRAY SNOW

(Evidentiary Hearing Day 2, pages 286-511)

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

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


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CV07-2513, Melendres v. Arpaio, 4/22/15 Evidentiary Hrg 287

A P P E A R A N C E S

For the Plaintiffs: Cecillia D. Wang, Esq.AMERICAN CIVIL LIBERTIES UNIONFOUNDATIONImmigrants' Rights Project39 Drumm StreetSan Francisco, California 94111(415) 343-0775

Stanley Young, Esq.Hyun S. Byun, Esq.COVINGTON & BURLING, L.L.P.333 Twin Dolphin Drive, Suite 700Redwood Shores, California 94065

(650) 632-4700

Daniel J. Pochoda, Esq.Joshua D. Bendor, Esq.AMERICAN CIVIL LIBERTIESFOUNDATION OF ARIZONA3707 N. 7th St., Suite 235Phoenix, Arizona 85014(602) 650-1854

Andre I. Segura, Esq.AMERICAN CIVIL LIBERTIES UNION

FOUNDATIONImmigrants' Rights Project125 Broad Street, 17th FloorNew York, New York 10004(212) 549-2676

For the Defendants: Michele M. Iafrate, Esq.IAFRATE & ASSOCIATES649 N. 2nd AvenuePhoenix, Arizona 85003(602) 234-9775

For the Defendant Maricopa County:

Richard K. Walker, Esq.WALKER & PESKIND, P.L.L.C.16100 N. 71st StreetSuite 140Scottsdale, Arizona 85254(480) 483-6336


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A P P E A R A N C E S

For the Defendant Arpaio: A. Melvin McDonald, Esq.JONES, SKELTON & HOCHULI, P.L.C.2901 N. Central Avenue, Suite 800Phoenix, Arizona 85012(602) 263-1700

For Chief Deputy Sheridan: Lee D. Stein, Esq.MITCHELL STEIN CAREYOne Renaissance Square2 North Central AvenueSuite 1900Phoenix, Arizona 85004(602) 358-0290

For Executive Chief Sands: Greg S. Como, Esq.LEWIS BRISBOIS BISGAARD& SMITH, L.L.P.Phoenix Plaza Tower II2929 N. Central AvenueSuite 1700Phoenix, Arizona 85012-2761(602) 385-1040

For Deputy Chief MacIntyre: Gary L. Birnbaum, Esq.DICKINSON WRIGHT, P.L.L.C.

Attorneys at Law1850 N. Central Avenue, Suite 1400Phoenix, Arizona 85004(602) 285-5000

For Lieutenant Sousa: David S. Eisenberg, Esq.DAVID EISENBERG, P.L.C.2702 N. 3rd StreetSuite 4003Phoenix, Arizona 85004(602) 237-5076

ALSO PRESENT: Chief Robert WarshawChief John GirvinChief Raul Martinez


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I N D E X

Witness: Page

BRIAN SANDS

Cross-Examination by Mr. Como 320Cross-Examination by Ms. Iafrate 336Redirect Examination by Mr. Young 348Recross-Examination by Mr. Como 352Cross-Examination by Mr. Walker 353Recross-Examination by Ms. Iafrate 354

BRIAN JAMES JAKOWINICZ

Direct Examination by Mr. Segura 361Cross-Examination by Ms. Iafrate 398

Cross-Examination by Mr. Walker 412Cross-Examination by Mr. Como 417Redirect Examination by Mr. Segura 420Examination by the Court 423

MICHAEL TROWBRIDGE

Direct Examination by Mr. Segura 428Cross-Examination by Ms. Iafrate 449Cross-Examination by Mr. Como 459Redirect Examination by Mr. Segura 460Recross-Examination by Ms. Iafrate 463

EMILY DOAN

Direct Examination by Mr. Byun 464Cross-Examination by Ms. Iafrate 468

JOSEPH M. ARPAIO

Direct Examination by Mr. Young 473


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E X H I B I T S

No. Description Admitted

1 Dkt 838-1 - Declaration of John ("Jack") 295MacIntyre - Ex. A to Partial Joinder dated1/8/2015

29 Dkt 806 - Defendant Joseph M. Arpaio and 295Maricopa County Sheriff's Office's Motion forDetermination of Counsel dated 12/1/2014

34 Melendres v. Arpaio Defendants' Privilege Log 295

35 Defendants Joseph M. Arpaio and Maricopa County 295Sheriff's Office's Response to Plaintiffs'

Amended First Set of Interrogatories toDefendants Regarding Contempt dated 3/13/2015

36 E-mail from Larry Farnsworth / Deputy Chief 295Trombi to All Sworn commanders re "FW:Video/Audio Recordings ResponsesCV-07-2513-PHX-GMS" dated 5/17/2014(MELC004554 - MELC004562)

37 Sealed portion of status conference transcript 295from proceedings pages 35-104 dated 5/14/2014

42 MCSO Memorandum to Steve Bailey from Dave 295Munley re Weekly Status Report dated 6/13/2014(MELC004993 - MELC004998)

43 MCSO Memorandum to Brian Jakowinicz from Glen 295Powe re Traffic Stop Videos dated 6/6/2014(MELC104078 - MELC104079)

44 MCSO Memorandum to Steve Bailey from Brian 295Jakowinicz re Video/Audio dated 5/29/2014(MELC004762 - MELC004766)

45 Spreadsheet showing MCSO personnel issued 295recording devices (MELCOl1650)

47 E-mail to Jerry Sheridan from Joe Sousa re 295"your request" dated 9/4/2008(Melendres MCSO 095936)


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E X H I B I T S


49 E-mail to Brian Sands and Frank Munnell from 295Jerry Sheridan re "FH Letter" dated 12/1/2009(Melendres MCSO 069074 - Melendres MCSO 069075)

51 MCSO News Release, First Time: ICE Refuses to 360Accept Illegal Aliens from Sheriffs DeputiesDuring Human Smuggling Operation dated 9/21/2012

52 MCSO News Release, Sheriffs Deputies Execute 360Search Warrant at Construction Company dated9/27/2012

53 Dkt 842 - Defendants Joseph M. Arpaio and 360Maricopa County Sheriffs Office's MemorandumPursuant to Court's December 4, 2014 Orderdated 1/8/2015

54 Illegal Immigration Operation Stat/Worksheet 360DR 10-060510 (MEL064120-121)

56 Incident Report, IR 12-171046 dated 9/21/2012 360

59 MCSO News Release, First Time: ICE Refuses to 360Accept Illegal Aliens from Sheriffs Deputies

During Human Smuggling Operation dated 9/21/2012

71 Dkt 948 - Expedited Motion to Vacate Hearing 475and Request for Entry of Judgment dated3/17/2015

72 Dkt 880 - Order to Show Cause dated 2/12/2015 476

75 MCSO News Release, Sheriffs Office Stops 28 496More Illegal Aliens Involved in Human Smuggling dated 12/30/2011

76 MCSO News Release, Sheriff Arpaio Continues 360Fight Against Illegal Immigration, Six MoreIllegal Aliens Arrested by Human Smuggling Detectives dated 2/9/2012


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E X H I B I T S


77 MCSO News Release, Sheriffs Deputies Discover 360Two Young Children Being Smuggled into theCountry by Human Smugglers, Children Knew No One in the Vehicle

82 MCSO News Release, 2nd Time ICE Refuses to 360Accept Illegal Alien From Sheriffs DeputiesSince September dated 10/9/2012

90 MCSO News Release, Seven Booked on Human 360Smuggling Charges by HSU Detectives in theMaricopa County Sheriffs Office dated 4/17/2013

93 MCSO Press Releases for 2013 360

94 MCSO Press Releases for 2011 from Internet 360Archive

95 MCSO Press Releases for 2012 from Internet 360Archive

96 MCSO Press Releases 2013, from Internet Archive 360

97 MCSO Press Releases year 2011 from Internet 360

Archive

98 MCSO Press Releases year 2012 from Internet 360Archive

99 MCSO Press Releases year 2013 from Internet 360Archive

100 Dkt 881, Order dated 2/12/2015 360

115 E-mail chain from Sousa re "FW: Updated stats" 360and attaching "Criminal Employments stats03-28-12.doc; 03-28-12.doc" dated 3/28/2012(MELC114928 - MELC11493l)

133 MCSO Memorandum from Trowbridge to Jakowinicz 394re Armendariz dated 2/13/2013(MELC003738 - MELC003739)


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E X H I B I T S


164 MCSO Memorandum from Sousa re "Video/Audio" 360dated 5/19/2014 MELC098120 - MELC098121)

165 Spreadsheet of video-recorded traffic stops 360(excerpted to only Sousa)

166 MCSO Memorandum from Sousa re "Missing 360Scorpion Micro Video Body Camera" dated5/21/2014 (MELC098123)

167 MCSO Memorandum from Madrid to Sousa re "Audio/ 360Video Recordings Response, SWAT Division"

dated 6/5/2014 (MELC098092 - MELC098093202B Video Clip 2 of Univision Interview published 501March 1, 2012

202C Video Clip 3 of Univision Interview published 505March 1, 2012

207 Spreadsheet re MCSO Master Incident Report Log 383from 2011, Brian Jakowinicz Depo Exhibit 181



214 Spreadsheet re Video Log of Discs from MCSO 466

215 Spreadsheet re Incident Reports 486


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08:36:

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P R O C E E D I N G S

THE COURT: Please be seated.

Have the parties stipulated to exhibits that we can

admit to make matters run more smoothly?

MR. YOUNG: Your Honor, we've been talking --

THE COURT: And by "parties," I hope that we're

remembering Mr. Walker and Mr. Como.

MR. YOUNG: Yes. Yes. And I can report on our

progress, and I'll report on the stages of our discussion.

Ms. Iafrate and plaintiffs agreed on a set of exhibits.

Mr. Walker and Mr. Como joined the discussion, and I think that

we have a list which all of us have agreed on.

THE COURT: All right.

MR. YOUNG: I believe that various of us are still

considering others, so we may have more stipulations. But as I

understand it, subject to correction by folks on the other side

here, I believe we've all stipulated to the introduction of the

following: Exhibits 1, 29, 34, 35, 36, 37, maybe 38, 42, 43,

44, 45, 47, and 49.

THE COURT: Okay. Do we have a stipulation as to 38?

MR. COMO: I have 38 as already being in evidence,

Your Honor.

THE COURT: It apparently is already in evidence.

MR. YOUNG: That solves that problem, then.


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08:38:

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THE COURT: All right. So does any party disagree

with the exhibits as they've been read by Mr. Young?

MR. COMO: I do not, Your Honor.

MR. WALKER: And neither do I, Your Honor.

MS. IAFRATE: No, Your Honor.

THE COURT: All right. So Exhibits 1 -- Nick, I'll

read these so you can get them down, and tell me if I need to

slow down -- 1, 29, 34, 35, 36, 37, 42, 43, 44, 45, 47, and 49

are admitted.

(Exhibits 1, 29, 34-37, 42-45, 47, and 49 admitted.)

THE COURT: All right. If you can arrive at other

stipulations, let me know, and we'll handle them in like

manner, and that way we can expedite matters.

I've also received from the parties their joint list,

so today --

Were you able to read last night, as I had hoped, the

deposition of Lieutenant Sousa, Ms. Iafrate?

MS. IAFRATE: I did the best I could, Your Honor.

THE COURT: Well, were you able to read the

deposition?

MS. IAFRATE: Not all of it, Your Honor, but I'm

prepared.

THE COURT: You are prepared.

MS. IAFRATE: I am.

THE COURT: All right. So we will have -- I assume


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08:39:

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we'll finish with Chief Sands this morning, and then we will go

Sousa -- and I assume that we're just going to proceed as

you've indicated. If you call them in your case in chief and

they were going to be your witnesses anyway, Ms. Iafrate, we'll

just go as we've gone with kind of the double-back procedure.

We haven't seemed to have a lot of problem with that.

Is that acceptable to you?

MS. IAFRATE: That is, with the -- I would just like

to put on the record also, Your Honor, that

Lieutenant Jakowinicz was not a witness that I was prepared,

and I explained that to plaintiffs yesterday.

However, I am prepared to proceed today. He was not a

witness that I defended in depositions, and he was not assigned

to me for this evidentiary hearing, but I am ready to proceed.

THE COURT: All right. Thank you.

So we will go -- how long do we anticipate with

Mr. Sousa?

MS. WANG: Your Honor, we have time estimates for all

of our witnesses I can give you now. For Lieutenant Sousa for

our direct --

THE COURT: Yes.

MS. WANG: -- I would estimate one and a half hours.


MS. WANG: For Lieutenant Jakowinicz, I'd estimate one

hour; for Sergeant Trowbridge, 45 minutes.


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08:40:

08:41:

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08:42:


Emily Doan, Your Honor, is a witness for plaintiffs

who will go through some pretrial discovery matters. We have

proposed a stipulation to the other parties that would obviate

the need for her to testify at all, and they're considering

that now.


MS. WANG: If we don't reach a stipulation, that will

only take 15 minutes, I think.

For Sheriff Arpaio, we estimate three hours on direct,

and for Chief Sheridan, one and a half hours.

THE COURT: Okay. Then in addition I take it the

defendants were going to call MacIntyre, Jones, Tiffany Shaw,

Steve Bailey, and Steve Fax?

MS. IAFRATE: I discussed with plaintiffs' counsel

that depending on what plaintiffs do in their case in chief,

some of those will likely be either eliminated or deferred.

THE COURT: All right. So it looks to me, by best

guess -- well, let me ask you, Ms. Iafrate: Any estimates on

Sousa's cross?

MS. IAFRATE: An hour.

THE COURT: Jakowinicz, or Jakowinicz, sorry. I am so

sorry to Lieutenant Jakowinicz.

MS. IAFRATE: Jakowinicz.

THE COURT: Jakowinicz, with a V? I will get his name

right.


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08:42:

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Lieutenant Jakowinicz, how long --

MS. IAFRATE: Half hour.

THE COURT: Trowbridge?

MS. IAFRATE: 15 minutes.

THE COURT: Doan, if there's no stipulation?

MS. IAFRATE: I don't know.

THE COURT: You know what her testimony's about,

apparently?

MS. IAFRATE: I do.

THE COURT: So is it going to be long?

MS. IAFRATE: No.

THE COURT: Sheriff Arpaio?

MS. IAFRATE: An hour and a half.

THE COURT: Deputy Chief Sheridan?

MS. IAFRATE: An hour and a half.

THE COURT: Mr. Walker, do you anticipate -- you

haven't questioned yet. Do you anticipate doing questioning?

You certainly have the right.

MR. WALKER: Thank you, Your Honor. If I have

questions for any of the witnesses, they will probably be very

few, and I would anticipate they would add no more to the

cross-examination than 10 to 15 minutes.

THE COURT: As the total, or in each case?

MR. WALKER: In each case. But there's some of these

witnesses I'm fairly sure I'll have no questions for.


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08:43:

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THE COURT: All right. Thank you.

Mr. Como?

MR. COMO: Your Honor, obviously Brian Sands will be

testifying today on direct, and I anticipate that going

approximately 45 minutes.


MR. COMO: Lieutenant Sousa, I anticipate a half an

hour; Lieutenant Jakowinicz, a half an hour; Trowbridge, I

would estimate probably 15 minutes, at most; and Sheriff Arpaio

and Chief Sheridan, I would say half an hour or less for each

of those witnesses.

Presently, I would estimate about 15 minutes, but I

don't know, obviously, what their testimony's going to be,

so...

THE COURT: All right. Let me say that it seems to me

that the remain -- we can then finish going through Friday.

The one single wrinkle on the complication, and I don't know if

he -- I assume that he copied you on the e-mail to the Court,

which was Mr. McDonald's request because he's been asked to

speak at the funeral involving a tragic situation. Looks to me

like given your order, Sheriff Arpaio will be up to testify

tomorrow, so that should not interfere with Mr. McDonald's need

to attend the funeral.

Mr. McDonald, I think that what we can do is make sure

you're here for Sheriff Arpaio's testimony, which will be the


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08:45:

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most important aspect of that.

MR. McDONALD: Right. He and Chief Sheridan are the

two that are critical for me to be present at.

THE COURT: Well, I can't guaranty, of course, that

you'll be here for Chief Sheridan. But fortunately you work at

a large law firm and maybe you can have somebody cover. We'll

have you -- it looks to me, and we're all going to be sensitive

to the fact, you definitely need to be here when Sheriff

Arpaio's testifying, and we'll have you here. You may have to

have somebody cover for a little bit of Chief Sheridan, but

we'll try and accommodate that funeral request.

MR. McDONALD: Thank you, Judge.

THE COURT: Are there any other matters that would

be -- that should be taken up before we begin at 9 o'clock?

MR. COMO: I have one issue I'd like to raise, Your

Honor.


MR. COMO: This is an evidentiary motion; I'll style

it as a verbal motion in limine. I apologize that we didn't --

THE COURT: Can you get right to it, Mr. Como?

MR. COMO: Sure. The issue, Your Honor, concerns

evidence relating to the ongoing application of the LEAR policy

and the detention of individuals to be turned over to ICE and

Border Patrol after this Court's preliminary injunction ruling.

THE COURT: Right.


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08:46:

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MR. COMO: It's our position that evidence of that

should be excluded from this hearing based on relevance and 403

grounds. The Court made it very clear in its May 2013 ruling

that that LEAR policy was a violation of the preliminary

injunction. It's our position that the plaintiffs should have

brought the contempt claim, if they had one, at that time

rather than waiting a year and a half to do so.

THE COURT: Motion's overruled.

MR. COMO: I would like the opportunity to make a full

record on this, Your Honor.

THE COURT: You have.

MR. COMO: Well, then I'll have to object every time

one of those exhibits is offered. I'm trying to make a

record --

THE COURT: I'll give you a continuing objection.

MR. COMO: Thank you, Your Honor.

THE COURT: Yes, sir.

MR. SCHWAB: Your Honor, briefly, Doug Schwab on

behalf of the County Attorney's Office representing Sheriff

Arpaio.


MR. SCHWAB: Yesterday after the discussion of

conflicts I had concerns of my own. I addressed those with the

county attorney and I was referred to independent ethics

counsel, briefly last night and at more length this morning,


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08:47:

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and she is reaching and analyzing that issue right now.

THE COURT: Well, all right.

MR. SCHWAB: Just wanted to let the Court know.

THE COURT: Are you comfortable staying at counsel

table? As I said, I think it's pretty clear that -- I've

reread it again. I think the Ninth Circuit is only talking

about the appropriate party that -- in terms of name only, and

the difference, there is no difference in the representation.

Ms. Iafrate's doing a beautiful job. That doesn't mean that I

am going to dictate to Mr. Casey or to you whatever your

ethical obligations are. But we're proceeding.

MR. SCHWAB: I would think it best if I sat behind the

bar so I don't --

THE COURT: That's fine.

Mr. Como, I'm going to give you a chance, if you can

do it briefly, to state whatever you want to state to make your

full record.


THE COURT: I would ask you to do it expeditiously.

MR. COMO: I think the only point that I didn't get

to, Your Honor, is the basis for the argument is a res judicata

argument. It's a principle of merger, which is that they had a

final judgment that there had been a violation of the

preliminary injunction, their claims at that time merged. They

should have brought the contempt claim at that time. Their


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08:49:

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failure to do so, I believe, bars them from doing it a year and

a half to two years later.

I'd be happy to submit a brief on this issue. I

simply wanted to do it because there are a lot of evidence,

exhibits that go to this issue, and I don't want to waive the

issue by allowing in all this testimony in evidence.

THE COURT: Yeah, you haven't waived it. I'm going to

give you a continuing objection. It does seem to me to be

highly relevant, and certainly, while I was aware at trial and

I became aware during some of the testimony and I noted it in

my May 13th order that there were violations of the preliminary

injunction, I'm not sure that even I was aware of the vast

scope of those violations. And I noted the violations in the

order, so I'm not sure where your res judicata argument would

come in. But again, I want you to be able to preserve it in

full, but I am denying your motion.

MR. COMO: Thank you for allowing me to make a record

on it, Your Honor.

THE COURT: You bet.

Mr. Walker.

MR. WALKER: For the record, Your Honor, I'd like to

note that the County joins Mr. Como's motion. I understand the

judge's ruling.

THE COURT: But he joined the County, if you didn't

hear it. I'm sorry, he joined Chief Sands in the motion.


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08:50:

08:51:

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MR. McDONALD: Your Honor, could I just say one thing

about Mr. Liddy's withdrawal?

THE COURT: Sure.

MR. McDONALD: You'll notice in the paperwork that was

filed that Sheriff Arpaio did not sign on consenting the

withdrawal. It's my belief, and I think Your Honor one time

recognized it, Mr. Liddy is probably one of the most

knowledgeable people in the case. And even though I have great

respect for Michele Iafrate, I think to put the responsibility

of Mr. Liddy's witnesses on her shoulders with less than 24

hours' time to prepare is burdensome.

If there is a conflict, the sheriff would waive the

conflict, and we would ask the -- we think it could prejudice

Ms. Iafrate's ability to find out information and to bring out

information that Mr. Liddy may know that would help the Court

in its findings, and I would simply ask that the Court not

grant Mr. Liddy's request to withdraw.

THE COURT: I've just been handed that. Apparently

you did file it, Mr. Liddy. I haven't had a chance to read it.

Let me tell you where I'm coming from. And this is

not really about your request, Mr. Liddy, but I will read it,

and I read it -- but coming to work this morning I was a

witness to an automobile accident that looked like it might

have resulted in serious injuries. I had to get here 'cause I

told you I'd be here by 8:30 and I had to review some matters.


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I told the police I'd come back and fill out a witness

statement. I'm going to do that right now. It's very close to

here. I hopefully will be back, but I'm not probably going to

make 9 o'clock. I'll try to be back 9:05, 9:10.

On the way from talking to the police I'm going to

review your motion, Mr. Liddy, but let me just ask you: Is

there anything about your conflict that you perceive prevents

you in your desire to withdraw, that you perceive prevents you

from cooperating with Ms. Iafrate in terms of information that

she might seek that would assist her in this representation or

access to documents, or information that might be within your

knowledge and possession? And if your position is that there

is a conflict, then we're going to address that right now.

MR. LIDDY: Your Honor, the vast majority of the

information I have about this case I have no problem sharing

with Ms. Iafrate or Mr. Walker. However, I do have some

knowledge which I have received pursuant to my confidential

relationship with both the sheriff and the County that I can

share with neither.

THE COURT: All right. Let me ask you, would you feel

comfortable disclosing that to me at sidebar?

MR. LIDDY: No, Your Honor. I'm bound by the ethical

canons not to disclose that information.

THE COURT: Well --

MR. LIDDY: I could disclose the nature of it without


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disclosing --

THE COURT: Yeah, that's all I meant was the nature of

it. And I think as I recall the canons I could require you to

disclose it. You can disclose it upon court order. I don't

want to do that. I just want to -- let me ask you: Are you

comfortable disclosing the nature of the information in open

court?

MR. LIDDY: No, Your Honor, but I am comfortable

disclosing it at sidebar with the Court and with --

THE COURT: Other counsel.

MR. LIDDY: -- defense counsel, not with plaintiffs'

counsel.

THE COURT: Well, when you say defense counsel, we

also have Maricopa County and we have Chief Sands. Are you

comfortable disclosing it in front of Maricopa County and

Chief Sands? And I'm not really sure why we would exclude

plaintiffs' counsel in that instance.

MR. LIDDY: Caution would -- I'd feel comfortable

disclosing the nature of the information to the Court.

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

unless any party objects, and I'm going to try to evaluate

whether or not there's a reason then, in light of the

information, that I should -- and just to be frank, Mr. Liddy,

so you know what I'm doing, I would be -- I need to evaluate

that information in terms of evaluating your request to


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withdraw, and then I may need to evaluate it to see if I think

the parties need to know what it is in order to be heard on

your request to withdraw in a knowledgeable way.

MR. LIDDY: Understood, Your Honor.

THE COURT: All right. So why don't you approach

sidebar and I'll hear it.

MR. WALKER: I'd just like to note for the record the

County does not object to the disclosure so long as it is

confined to a description of the categorical nature of the

information with which Mr. Liddy is concerned.

THE COURT: When you say object to disclosure, you

mean the disclosure publicly?

MR. WALKER: No, the disclosure to the Court.

THE COURT: All right. Ms. Iafrate?

MS. IAFRATE: I would agree, Your Honor.

THE COURT: All right. Are you both -- are you both

apprised of the nature of this?

MS. IAFRATE: No, Your Honor.

THE COURT: All right. Well, then, I think we need to

have defense come.

MR. LIDDY: I'm comfortable with that, Your Honor.


(Bench conference on the record.)

(Page 307, line 24, through page 311, line 15, sealed

by court order.)


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(Bench conference concluded.)

THE COURT: All right. I've spoken with Mr. Liddy,

Ms. Iafrate and Mr. Walker. In the course of his duties,

Mr. Liddy has been actively involved in the preparation of this

case in terms of factual and legal preparation and legal

positions. I believe I am correctly stating his position to

say that he has no problem fully cooperating with Ms. Iafrate

and Mr. Walker and giving them access to everything he knows

regarding the facts and the legal preparation and the legal

memorandum in this case.


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He, however, has also, in his capacity within Maricopa

County, had occasion to consult with the board of supervisors

and received direction from them and County executive

management. He is restricted from discussing the advice he

received in that capacity with the sheriff, but that in no way

restricts him in his ability as it pertains -- or his

willingness as it pertains to the facts, the law, or anything

else with respect to this case.

Is that a correct statement of your position,

Mr. Liddy?

MR. LIDDY: Except that I would not categorize the

information I received in confidence from my client, the

County, as "direction."

THE COURT: Thank you.

MR. LIDDY: Nor did I receive advice from the board of

supervisors.


At sidebar Ms. Iafrate said she needs a day to absorb

from Mr. Liddy information pertaining to Mr. Sousa and who

else?

MS. IAFRATE: Lieutenant Jakowinicz.

THE COURT: Okay. I'm not going to give her a day,

but I am going to give you two hours, and we will resume at

11 o'clock with the deposition -- or with the testimony of

Chief Sands. Then we'll move into Sousa and Jakowinicz --


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Jakowinicz, as we've indicated. All right? So we will resume

court at 11 o'clock.

THE CLERK: All rise, please.

(Recess taken.)

THE CLERK: All rise, please. Court is now in

session.

THE COURT: Please be seated.

Mr. Liddy, will you please come forward. Take the

podium for a minute.

Mr. Liddy, I do want to state as you're coming forward

that you have been in this case a long time, and I do, as I've

indicated before, while I haven't always accepted your

positions, you've been an ardent advocate for the sheriff's

positions.

I am not going to immediately grant your motion. I

want to explain why. And want to acknowledge your right and

obligation to act as you see fit ethically, and I want to

outline why I'm not going to immediately grant your motion to

withdraw.

You have in your motion designated as the reason that

necessitates your withdrawal 1.7(a)(2). And I was able to look

at that during the little break we've had, and it is you're

obligated to withdraw if there is a significant risk that the

representation of one or more clients will be materially

limited by the lawyer's responsibilities to another client, a


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former client, or a third person, or by a personal interest of

the lawyer, and I understand why that may pose a problem for

you.

I have stated several times that I think that the

position that the County has taken in various ways is an odd

one, and that's partly because we have an odd system of

government in Arizona that allows the sheriff to be

independently elected but the County in many ways financially

responsible for the sheriff's choices.

I do believe that the County has taken the position

and received an order from the court of appeals that MCSO is

not a jural entity, and that according to the court of appeals'

opinions, the proper party, being the County, should be

substituted in when that determination is made, and that's how

I determine what the Ninth Circuit did as substitute in the

County.

I understand by the presence of Mr. Walker here that

the County wants to take, perhaps, or preserve the right to

take, certain substantive or legal opinions that would be

separate, or that would argue that there is a separation that

would be inconsistent with the -- perhaps inconsistent in some

ways with the jural entity argument and all that stuff.

However, just before we went to break Mr. Walker said

the County was willing to waive any conflict with respect to

your ongoing representation, and the sheriff indicated that he


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was not going to sign off on your withdrawal. And it seems to

me, as I look at it, as you have outlined the conflict and the

reasons for your concern, I understand what you're telling me,

that the -- certain of your interactions with respect to the

Melendres case with the board of supervisors and County

management are things that you cannot now disclose to the

sheriff in light of the possibly differing opinions.

But you've also said there is no reason why you can't

advocate all of the facts and all of the law that pertains to

this case in favor of the sheriff. And so I'm not sure that

the sheriff doesn't have a valid basis, Ms. Iafrate, to argue

that 1.7(a)(2) just does not apply in this circumstance,

because there's not a significant risk that you're -- that

you're going to, in your representation, in any way impair the

sheriff's interests.

And Mr. Walker apparently doesn't believe you're going

to impair the County's interests. And you seem to me to be

quite attuned to your ethical obligations insofar as it

pertains to not disclosing confidential communications you've

had with the board of supervisors. And so if the sheriff wants

you to go forward on that basis, I think I'm going to have to

allow them to make that argument.

And as far as I'm concerned, if all the parties want

to stipulate, you can cross-examine and do the examination of

Lieutenant Sousa if you're comfortable with it; if you're not,


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I understand. If you're not, though, we've just given you the

two hours, and you'll also have the lunch break, which we're

going to take at 1 o'clock, to further deal -- or inform

Ms. Iafrate, consistent with your indication that you would

fully cooperate in that respect.

Do you understand what I'm saying?

MR. LIDDY: I do, Your Honor.

THE COURT: All right. Mr. Walker.

MR. WALKER: Your Honor, just to clarify, if I said

that I was --

THE COURT: Well, and let me say I may have misstated

what you said. I'm just stating what I recall --

MR. WALKER: Okay.

THE COURT: -- and so please clarify.

MR. WALKER: Yes. What I meant to say is that I had

no objection to Mr. Liddy participating to the extent of

assisting both the County and Ms. Iafrate with his knowledge of

the history of the case, and the issues, and the facts in the

case. I'm not authorized at this moment to waive a conflict in

a formal sense, and I would have to seek my client's permission

to do that.

THE COURT: I understand. And so I understand,

Mr. Liddy, while you may or may not -- I mean, it's up to you,

first, whether or not you feel like you can cross-examine or do

the examination of Lieutenant Sousa. But if you determine that


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you can, and none of the parties object, then I'm going to

allow you to do it.

If you determine that wisdom suggests that you not do

that, I completely understand. We've given you the opportunity

now to bring Ms. Iafrate up to speed; she's had the ability to

read the deposition. I'm just telling you that.

But we're in the middle now of the testimony of

Chief Sands, so you'll have a little bit of time to think about

it.

Did you have anything you wanted to say?

MR. LIDDY: Yes, Your Honor. I would like to clarify

one point that I never said that I would be -- that I was able

to advocate on behalf of the sheriff. I said I would be

unencumbered in meeting my ethical obligation to assist --

THE COURT: Okay.

MR. LIDDY: -- the sheriff in the transition, and I

can do that with factual knowledge that I have.

I also would like to place on the record that I am in

possession of confidential information which I may not share

with this Court that I received from --

THE COURT: Yeah, that's fine.

MR. LIDDY: -- client.

THE COURT: That's fine.

MR. LIDDY: I cannot get that information out of my

head, and I cannot advocate -- the substantial risk is a -- is


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real. It is in fact there, and I'm obligated to withdraw. I

have no discretion.


MR. LIDDY: And I have legal advice from ethics

counsel that so states.

THE COURT: All right. I respect that. Then we

will -- I'm going to require you to fully cooperate with

Ms. Iafrate, as you've indicated you will.

Do you have any problem with that?

MR. LIDDY: None whatsoever. It's my obligation and

my honor.

THE COURT: All right. Then we will proceed on that

basis. However, I'm still not going to grant your formal

motion to withdraw until the parties have had a chance to weigh

in on that.

MR. LIDDY: I appreciate that, Your Honor.

THE COURT: Thank you very much, Mr. Liddy.

I believe, Ms. Iafrate, we're at the cross-examination

of Chief Sands.

MR. YOUNG: Your Honor, a brief housekeeping matter to

actually add an attorney to the -- and introduce an attorney to

Your Honor. Hyun Byun, my colleague at Covington & Burling,

has joined us at counsel table.

THE COURT: Welcome.

Ms. Iafrate.


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MS. IAFRATE: Your Honor, just a couple housekeeping

matters. Before the break I was informed that the witnesses

are going to change order, so we're actually taking

Lieutenant Jakowinicz after Chief Sands. Lieutenant Jakowinicz

is another one that I was not prepared for, so Mr. Liddy and I

used the time during the break to prepare for

Lieutenant Jakowinicz rather than Lieutenant Sousa.

THE COURT: Thank you for that clarification.

Is that correct?

MS. WANG: That is correct, Your Honor.

Just by way of brief explanation, our late start this

morning, combined with Mr. McDonald's announcement that he'll

be absent Friday, led us to be concerned that we want to finish

with Sheriff Arpaio's testimony by the end of the day tomorrow.

So we proposed that we will simply move Lieutenant Sousa till

after Sheriff Arpaio to make sure that happens.

THE COURT: That's fine. Let me just clarify.

I do think it's very important that in light of

Mr. McDonald's personal circumstances we accommodate him how we

can, but even he has not asked not to be here all day on

Friday. He has acknowledged that there would be two -- an

hour, I think, before the lunch hour, an hour afterwards, maybe

two, that he would need to be gone.

I've indicated, I think, that for that brief time he

can have one of his associates doing the coverage. But I do


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Sands - Cross, Melendres v. Arpaio, 4/22/15 320

think it's important that while Sheriff Arpaio's on the stand,

Mr. McDonald be here. So just for that clarification.

All right. We ready to proceed, then?

MS. IAFRATE: No, Your Honor. One more piece of

information.

We would request that Mr. Como handle the

cross-examination first and then I follow, because this is

Mr. Como's client.

THE COURT: I think that's fair. That's fair.


THE COURT: Sure. Please, Mr. Como.

BRIAN SANDS,

recalled as a witness herein, having been previously duly

sworn, was examined and testified further as follows:

CROSS-EXAMINATION

BY MR. COMO:

Q. Chief Sands, you worked approximately 30 years at the

Sheriff's Office before you retired?

A. Just short of 30 years, yes.

Q. Was your retirement voluntary?

A. Yes.

Q. During your entire career at the Sheriff's Office were you

ever disciplined for any reason?

A. No.

Q. Since your retirement do you have -- did you go on to work


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at another job?

A. No, I did not.

Q. Is your primary source of income your pension from the

County?

A. Correct.

Q. Who presently lives with you?

A. My wife and my son.

Q. Before your -- your work with the County Sheriff's Office,

what did you do?

A. I served for eight years in the United States Army.

Q. Were you honorably discharged?

A. Yes, I was, yes.

Q. I'd like to go back in time to when you were the chief of

enforcement in 2011. What divisions reported to you at that

time?

A. I had three bureau commanders that reported to me. One was

primarily over patrol operations, the other one was primarily

over investigative operations, and the other one was in charge

of training per -- I'm sorry, not personnel, but records and ID

and civil and criminal warrants.

Q. Who was the person in charge of the training bureau, the

bureau that included training?

A. Well, it changed. After we reorganized, the person

directly -- the director over training primarily during my time

was Director Rollie Seebert.


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Q. And who did Rollie Seebert report to?

A. He reported at one time to Chief Trombi, and then later to

Chief Chagolla.

Q. Okay. You remember in early 2012 who -- who -- did you say

Detective Seibert, or what was his title?

A. Director.

Q. I'm sorry, Director Seibert.

Do you remember in early 2012 who Director Seebert was

reporting to?

A. Would have been Chief Trombi.

Q. How many sworn deputies worked under your ultimate command

back in 2011, 2012?

A. At that time it would have been just under 800.

Q. Is that all the sworn deputies at the Sheriff's Office?

A. Primarily, yes.

Q. Where was your office physically located?

A. My office was at the 19th floor of the Wells Fargo

building.

Q. Did the sworn deputies that you just mentioned, did they

actually work in your office?

A. Other than the command staff, no, they worked out in

various off-site locations.

Q. So, for example, the deputies in the Human Smuggling Unit,

they wouldn't be located in the same physical building as you?

A. No, sir. They were located primarily out on Durango.


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Q. Was your job primarily an office job?

A. For the most part, yes.

Q. How would you spend your -- most of your days?

A. Mainly in meetings.

Q. Okay. Were you going out on patrol and doing interdiction

and that type of thing?

A. No.

Q. I'd like to switch gears now and talk a little bit about

the training department. That was one of the departments that

was under you, correct?

A. Correct.

Q. Is that the right word for it, "department," or is there

some other word I should use?

A. Training division.

Q. Division. Okay.

And how many employees were in the training division

back in 2011-2012?

A. As I remember, it varied between 10 and 15.

Q. What was the function of the training division?

A. They were responsible for training throughout the office

for all members, including detention, and the academy training

also.

Q. When you say responsible for training, what types of

training are we talking about? Can you give us an overview?

A. It would vary from basic training involving the academy


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through any issues that might affect the day-to-day operations

of the Sheriff's Office, as in legislative enactments by the

state law, information that needed to go out about policy, that

type of thing.

Q. What about field training, firearms training, that type of

thing?

A. Yes, that was also included.

Q. Was the training of the posse included in that as well?

A. The approval and the management of the training was -- for

the posse did go through the training, but primarily the

enforcement support division did the actual training.

Q. How many -- oh. E learning programs, would those go

through the training division?

A. Yes.

Q. How many different types of training programs would the

training division put on in a year, just an approximate number?

A. Oh, it was probably, including the basic programs, well

over a hundred.

Q. Would you personally review all of those training materials

that were put together and final -- and made final by the

training division?

A. No, sir.

Q. Is there any way that you could have physically done that

and met all of your other duties?

A. No, there would be no way I could do that.


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Q. Describe for me -- we're going to talk about the specific

training materials that were being put together for the Court's

order in a moment, but I'd like you to describe the more

general process of how -- let's say there was a new law passed,

new criminal law passed. What would be the typical process of

how that information would be put out to the deputies and the

training materials put together for those deputies?

A. Typically, that would go through the policy people that

worked in the administrative division. And if updated training

was needed, they oftentimes would contact the staff that worked

for, at that time, Seebert to develop new training.

Q. Who would -- let's say again, using this generic new

statute, who would typically put together the initial training

materials, the substantive information?

A. Normally, the training staff would try to develop the needs

and the Best Management Practice to develop the training

itself, and then put out to the staff.

Q. Would you typically see the final product of these training

programs that are put together by the training staff?

A. Not typically, no.

Q. Okay. I assume that you had your own ongoing training

requirements?

A. Yes, for my POST certification I did.

Q. Is that typically one that you would see the final

product of the training materials?


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A. Typically, yes.

Q. There was some E learning that was mandatory, right?

A. Yes.

Q. Okay. So what would be your role in a typical training

program, if any, development of a typical training program?

A. Normally, I didn't have much involvement in that. However,

for instance, the training staff might develop some type of

need for firearms training that involves more tasking that can

be accomplished by the staff that's at the range, and so they

would reach out to other certified firearms instructors. And

oftentimes, because it is a bureaucracy, people aren't willing

to give up their staff. And so when it became a needs

requirement outside of that training unit's possession, they

would come to me and I would try to get them -- get them the

resources they needed.

Q. That sounds like a specific example that you're recalling.

A. Yes.

Q. So is it fair to say that you would get involved in these

putting together training materials or training programs only

when a need arose for you to assist in getting the resources

put together or some similar problem solved?

A. Typically, yes.

Q. Okay. All right. Let's turn now to the training program

that was -- was being put together in light of the Court's

preliminary injunction order, and I'd like --


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MR. COMO: Does the witness have Exhibit 189?

BY MR. COMO:

Q. If you could turn, please, to Exhibit 189, which is in

evidence. Do you recognize this e-mail chain?

A. Yes, I do.

Q. Let's go to the last page -- or, I'm sorry, the

next-to-the-last page of Exhibit 189, please.

Let's start with the e-mail at the bottom there from

Lieutenant Sousa to Brett Palmer dated January 11, 2012.

Are you with me?

A. Yes, sir.

Q. Do you have an independent memory of this e-mail?

I'm sorry, of receiving this e-mail back in January of

2012?

A. No, I don't.

Q. There's a number of people that are copied on the e-mail,

including yourself, Mr. Casey, and then Rollie Seebert. And

you indicated previously that he was the director of training

at that time?

A. Correct.

Q. Do those people that are on the cc list, do those all make

sense in terms of who would be typically involved in putting

together training materials on something of this nature?

A. Yes.

Q. And again, I'm not talking necessarily about any generic


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training, but something like this where we're dealing with a

court order.

A. Yes.

Q. Okay. Mr. -- Lieutenant Sousa's e-mail talks about -- is

directing Sergeant Palmer to put together some training

scenarios and that he should be discussing them with Tim Casey.

Do you see that?

A. Yes.

Q. Was that consistent with your understanding of how this

December order was going to be put out in terms of training?

In other words, that somebody in the HSU would work

with Mr. Casey to develop the materials?

A. The process typifies a training development.

Q. Lieutenant Sousa's e-mail, at the last line of it, talks

about E learning. And there's already been testimony about it.

That's an office-wide program, right?

A. It was at the time, yes.

Q. All right. Now, on examination yesterday you testified

that after your meeting with Sheriff Arpaio, he said that he

wanted to only have HSU deputies trained. That was your

understanding after the meeting, right?

A. Correct.

Q. This seems different, in that they're talking about

E learning and office-wide program. Do you have any idea of

why -- can you explain that, the difference?


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A. Well, it's obvious -- obvious to me that the communication

is going out to put this out to -- to all the deputies.

Q. Okay. Now, you testified yesterday that your -- that you

had spoken with Lieutenant Sousa about getting together with

Mr. Casey to put together the training, right?

A. Correct.

Q. Is this consistent -- is this e-mail consistent with --

with your memory of how that was going to happen, essentially

consistent with it?

A. Well, again, I don't have any independent recollection of

the -- the exact verbiage in here. It would be consistent with

that conversation, yeah.

Q. Okay.

Now, when you gave that testimony originally, I think

you were actually interviewed by a monitor back in December

2014 about these events, and your -- the testimony that you

gave yesterday about the conversations you had with the sheriff

and Lieutenant Sousa is essentially the same testimony that you

gave back to the monitor in December 2014, right?

A. Correct.

Q. Did you have the benefit of being able to refresh your

memory with these e-mails when you were interviewed by the

monitor?

A. No.

Q. Let's go now to the next e-mail. We have to flip all the


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way to the first page. And this is Sergeant Palmer's

scenarios, and he directs them to Lieutenant Sousa, and then

Mr. Casey and Michael Trowbridge are copied on that.

Do you see that? Goes on to the second page to see

the copies.

A. Oh, yes, I see.

Q. You were not copied on that e-mail, correct?

A. No.

Q. Is that typical, that you would not receive the actual

training materials at this stage in the process? The draft --

sort of the draft training materials that are being put

together?

A. I rarely saw any training as it developed in its written

form.

Q. Okay. So this isn't unusual in that sense, correct?

A. No.

Q. Again, this -- Sergeant Palmer's e-mail, we're not going to

go through the scenarios, but he does say in the first

paragraph that he's had the many conversations that he's had,

as well as taking into account the information from -- provided

to both of us from Tim Casey. Do you see that?

I'm sorry. It's on the top paragraph of the second

page of the e-mail before we start the actual discussion.

Do you see what I'm referring to?

A. I'm sorry. The question --


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Q. Do you see the language about him having conversations with

Lieutenant Sousa, as well as both of them having conversations

with Tim Casey about the order?

A. Yes, I do.

Q. Is that consistent with what you would expect

Sergeant Palmer to be doing at this stage in the process of

preparing these materials?

A. I would believe that, yes.

Q. Why would you expect him to be getting advice or review

from an attorney on something of this nature?

A. Largely because of the impact on the office and the -- the

need for a clear understanding for the staff about the order.

Q. Is it also because the order has legal issues and is a

legal ruling?

A. Oh, correctly, yes.

Q. The next thing on this -- and we're now on the first page

of Exhibit 189. The next e-mail in this chain is one from

Lieutenant Sousa to Mr. Casey dated January 24, 2012.

Do you see that one?

A. Yes.

Q. And you are copied on that one, correct?

A. Yes.

Q. And the other individuals that were copied on

Lieutenant Sousa's initial e-mail to -- to Sergeant Palmer are

on there as well, correct?


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A. Correct.

Q. In addition, Lieutenant Jakowinicz is on there.

Do you see that?

A. Yes.

Q. Do you know why Lieutenant Jakowinicz would have been on

there at that time? And if you don't know, that's fine.

A. I can only speculate that was at the time that he was being

transferred.

Q. All right. Well, he'll have an opportunity to tell us.

In this e-mail is it accurate to say that

Lieutenant Sousa's asking Mr. Casey to review the scenarios and

get back to him?

A. Yes.

Q. Is that what, again, what you would expect to have happen

with materials like this before they're put out to the

deputies?

A. Yes.

Q. Is this e-mail asking for any action on your part at this

time?

A. No.

Q. Do you recall ever receiving a response, being copied on

any response to Lieutenant Sousa's e-mail to Mr. Casey of

January 24, 2012?

A. No, sir.

Q. Let's turn now to Exhibit 156. This has also been admitted


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into evidence.

Do you have that in front of you, sir?

A. Yes, I do.

Q. Now, this is an e-mail from Lieutenant Sousa to

Sergeant Palmer on March 27, 2012.

You are not copied on this e-mail, correct?

A. Correct.

Q. According to this e-mail, Lieutenant Sousa was still

waiting to hear back from Mr. Casey on the training scenarios,

right?

A. Yes.

Q. And it was only after that that they anticipated having you

and sergeant -- sorry, Lieutenant Trombi review the training

scenarios after they received Mr. Casey's feedback, correct?

A. Correct.

Q. Again, did you ever hear back from Mr. Casey or any other

attorney about these training scenarios at this time frame?

A. I don't recall ever hearing back from him, no.

Q. Was Lieutenant Sousa generally good about following up on

things?

A. He was excellent.

Q. How would you describe his overall work performance and

work ethic?

A. He was very hard working, one of the best division

commanders that worked for -- for me and with me. He was a


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self-starter, and had experience in things like SWAT, so his

leadership skills were -- were very high.

Q. Did you find that when you gave him an assignment, or he

had an assignment, that -- that he needed a lot of prompting to

do it?

A. No.

Q. Did you find that you could rely on him to follow through

and finish assignments that were given to him?

A. Yes. He was a self-starter and basically drove his own

vehicle when it came to leadership.

Q. From the e-mails that we've been looking at, including

Exhibit 189, is it obvious to you that the task of preparing

the training materials and getting them ready was -- was

assigned to Lieutenant Sousa?

A. Yes, sir.

Q. And did you believe that Lieutenant Sousa would carry out

that task without any need for follow-up from you?

A. I would believe that, yes, sir.

Q. Did anyone ever come to you and say: Hey, we're having a

problem. Mr. Casey's not getting back to us about these

training scenarios?

A. No, I recall nothing like that.

Q. If anyone had come to you and presented that as a problem

or an issue, what would you have done, sir?

A. I would have brought the parties together to get the job


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done.

Q. Had you done that with respect to other issues that had

been brought to your attention in the past?

A. Oh, yes. Yes.

Q. Did you ever -- was it ever your intent to not comply with

the Court's preliminary injunction order?

A. No.

Q. Did you ever direct anyone not to put on those training

materials?

A. No, sir.

Q. Do you believe that it's important to comply with a court

order such as that?

A. Oh, very important.

Q. Do you know why the E learning program that was being put

together was not finished?

A. No, I do not.

Q. Back in that time frame of 2012, did anyone bring to your

attention the fact that it was not finished?

A. No.

Q. After tasking Lieutenant Sousa with that assignment, was it

your assumption that the materials had been prepared?

A. I would believe that he would finish the task, yes.

Q. Do you feel that you took reasonable steps to communicate

the Court's order to the appropriate people within the

Sheriff's Office?


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A. I do.

MR. COMO: Nothing further at this time. Thank you,

Chief.

THE COURT: Mr. Walker.

MR. WALKER: No questions, Your Honor.

THE COURT: Ms. Iafrate.

CROSS-EXAMINATION

BY MS. IAFRATE:

Q. Chief Sands, you were deposed on April 1, 2015, in this

case, correct?

A. Correct.

Q. And in fact, on direct examination plaintiffs' counsel

showed you some of your transcript, correct?

A. Yes.

Q. I want to go back to that and ask you a couple questions

regarding the portion that they read to you. Okay?

A. Yes.

Q. First of all, let me show you the front page. That appears

to be the page of your deposition, correct?

A. Yes.

Q. And then plaintiffs read to you starting at page 76,

starting at line 4 and said: "Okay. Did you ever discuss that

backup plan with the sheriff?"

And your answer was: "No. I discussed that with him

prior to the injunction."


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Correct?

A. Correct.

Q. So this wasn't a conversation about any sort of plan B

based on the injunction, correct?

A. That's correct.

Q. Then it goes on to say: "Okay." Then you expressed: "--

that I had a problem with the -- with the premise of detaining

somebody that long to turn them over to the Border Patrol,

unless we were in close proximity of the Border Patrol. But to

drive somebody halfway across the state, I had a problem with

the detention part."

So let me ask you this, Chief Sands: How far away was

Border Patrol from Phoenix?

A. Well, depending on -- excuse me -- where they were located

at the time, and that could mean going to a patrol unit itself.

At that time I -- I think that Casa Grande was the closest

location they normally were at, or down in the area south of

Gila Bend.

Q. So your estimated time to get to Casa Grande or Gila Bend

would be in minutes or hours from this location. Do you have

an understanding --

A. More like -- more like closer to hours than minutes.

Q. So your problem was if it was a lengthy period of time to

transport someone, that was your problem, correct?

A. Correct.


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Q. You now know that any detention longer than necessary

violates the preliminary injunction, whether it be short or

long, correct?

A. Correct.

Q. You didn't know that back when you received the preliminary

injunction, did you?

A. No, you're con -- you're confusing me. Ask me the question

again, please.

Q. Okay. You received the preliminary injunction from Tim

Casey, correct?

A. Correct.

Q. And in fact, you had a conversation with him on the phone

shortly thereafter it was generated, correct?

A. I had a conversation with him, yes.

Q. Was it a telephone conversation?

A. I can't remember exactly. I think it was.

Q. No one else was present for that --

A. No.

Q. -- conversation, correct?

A. Correct.

Q. And so based on your conversation with Tim Casey, you

didn't understand that any detention, whether short or long,

longer than necessary, violated the preliminary injunction at

that time, did you?

A. Right.


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Q. But now that you're here today, you understand that any

detention longer than necessary, or longer than the usual

traffic stop, violated the preliminary injunction, correct?

A. Correct.

Q. Was your conversation with Tim Casey the same day that the

preliminary injunction was generated?

A. I believe it was, but I'm not sure.

Q. On that day did you brief anyone regarding your

conversation with Tim Casey?

A. I can't recall doing that.

Q. There was some discussion on direct examination regarding a

conversation that you had with Jack MacIntyre at the copier.

Do you recall that?

A. Yes.

Q. So you had received the preliminary injunction from Tim

Casey, correct?

A. Correct.

Q. And tell me what was your interaction with Chief MacIntyre.

A. My interaction was a discussion about me receiving the

preliminary injunction.

Q. Did he talk to you about the substance?

A. I don't recall that, no.

Q. What was his role as far as the preliminary injunction is

concerned?

A. I'm really not quite sure.


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Q. Did you two discuss the preliminary injunction, other than

did you receive it?

A. Yes. I remember him asking me if the deputies knew about

it.

Q. How about the content of the preliminary injunction?

A. No, I don't believe we had a conversation about it.

Q. Was that his job, to brief you on the substance of the

preliminary injunction?

A. It might have been.

Q. Why do you say "it might have been"?

A. Outside of that, that particular item, I'm not sure if he

was told to come and brief me on it, or there were other issues

that he might come to me about and --

Q. As you sit here today, he never briefed you on the content

of the preliminary injunction, did he?

A. No.

Q. You don't know if Tim Casey briefed Chief Deputy Sheridan

on the preliminary injunction, do you?

A. I wasn't present, so I don't know that, no.

Q. I want to back up and I'm kind of jumping all around. When

you go third, you kind of have to pick up the pieces as you go,

so I apologize.

Let's go back to even before the preliminary

injunction when the Melendres case was filed.

Do you recall that?


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A. Yes.

Q. What was your title at that time?

A. I was -- I was a chief at that time, yes.

Q. And was human smug

Documents

Melendres # 1021 | 2015-04-22 Transcript REDACTED Melendres, Et Al., v. Arpaio, Et Al., Evidentiary Hearing Day 2 - 01