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

8/20/2019 Melendres v. Arpaio #1422 Sept 30 2015 TRANSCRIPT - DAY 8 Evidentiary Hearing

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1735

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Manuel de Jesus Ortega Melendres,et al.,

Plaintiffs,

vs.

Joseph M. Arpaio, et al.,

Defendants.

)))))))))))

No. CV 07-2513-PHX-GMS

Phoenix, ArizonaSeptember 30, 20158:50 a.m.

REPORTER'S TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE G. MURRAY SNOW

(Evidentiary Hearing Day 8, Pages 1735-2006)

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

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


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Melendres v. Arpaio, 9/30/15 Evidentiary Hearing 1736

A P P E A R A N C E S

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

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

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

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

Covington & Burling, LLPBy: Stanley Young, Esq.

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

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

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


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

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

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

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

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

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

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

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


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

I N D E X

Witness: Page

TIMOTHY J. CASEY

Cross-Examination by Mr. Masterson 1747Cross-Examination by Mr. Como 1808Cross-Examination by Mr. Walker 1828Redirect Examination by Ms. Wang 1831Examination by the Court 1850

JOHN MacINTYRE

Direct Examination by Mr. Pochoda 1864Cross-Examination by Mr. Popolizio 1937Redirect Examination by Mr. Pochoda 1943

BRIAN SANDS

Direct Examination by Mr. Young 1947Cross-Examination by Mr. Popolizio 1968Cross-Examination by Mr. Como 1971Examination by the Court 1978

JOSEPH M. ARPAIO

Direct Examination by Mr. Young 1982


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E X H I B I T S

No. Description Admitted

28 Phoenix New Times article by Ray Stern, 1893Arpaio's Request for Court-Appointed Lawyer

Not What It Seems, Sheriffs Official Says dated12/2/2014

30 Arizona Republic article by Daniel Gonzalez, 1885Federal judge halts Arpaio's worksite raids

dated 1/6/2015

32 Dkt. 235 - Defendants' Response in Opposition 1899to Plaintiffs' Motion for Sanctions dated12/11/2009

213 Email Chain from J. Sousa to B. Jakowinicz, 1827et al., re "Melendres Order on SummaryJudgment" dated October 19, 2012Sousa Depo Exhibit 193

2285 E-mail from Tim Casey to Amy Lake, Jerry 1845Sheridan, John MacIntyre, David Trombi, LarryFarnsworth, Russ Skinner copying Eileen Henry,Alana Borie, Thomas Liddy, Christine Stutz,and James Williams Re: Melendres - LegalQuestion about dated 6/3/2014 (MELC166742)

2536 E-mail from Joseph Sousa to Brett Palmer 1761copying Tim Casey, Rollie Seebert, Brian Sands,David Trombi, and Eileen Henry - Putting outtraining reference the court order dated1/11/2012 (CaseySub 000003)

2828A Video Clip 1 DOJ Disk 1 of 2, April 2012 to 1994July 2012

2829A Video Clip 1 CBS Evening News, DOJ, Racial 1997Profiling dated 4/5/2012

2831A Video Clip 1 Fox News, Follow the Money dated 19991/11/2012

2832B Video Clip 2 Newsmaker with John Hook - Fox, 2000Sheriff comments on Obama Investigation,Immigration, Reaching out Hispanics, and Possedated 1/27/2013


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P R O C E E D I N G S

THE COURT: Please be seated.

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

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

evidentiary hearing.

THE COURT: I guess we'll need to have the parties

announce as usual. Please do.

MS. WANG: I'm sorry, Your Honor. Good morning.

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

plaintiffs.

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

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

plaintiffs.

MS. COE: Good morning, Your Honor. Cynthia Coe and

Paul Killebrew for the United States.

THE COURT: Good morning.

MR. POCHODA: Good morning. Dan Pochoda of the ACLU

of Arizona for plaintiffs.

MR. MASTERSON: Good morning, Judge Snow. John

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

Holly McGee to assist us.

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

appearing on behalf of Maricopa County.

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


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appearing specially on behalf of Sheriff Joe Arpaio.


MR. COMO: Good morning, Judge. Greg Como on behalf

of Brian Sands.

MR. BIRNBAUM: Good morning, Your Honor. Gary

Birnbaum, special counsel for Deputy Chief MacIntyre.

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

morning.

MS. IAFRATE: Good morning, Your Honor. Michele

Iafrate on behalf of Sheriff Arpaio and the alleged unnamed

contemnors.

THE COURT: I've read defendants' response to the

motion to quash -- I'm sorry. I've read plaintiffs' response

to the motion to quash. Seems pretty reasonable to me.

MR. POPOLIZIO: Good morning, Your Honor. Plaintiff

did make several concessions, and there was an admission that

the wrong subpoena may have been filed with a return date of

September 30th as opposed to October 5th.

Even with that said, Your Honor, defendant -- excuse

me, plaintiffs' response reveals something that I think is

problematic and very important. They claim that the issue or

issues that may arise that would give them the right to seek

discovery of correspondence, e-mails, even metadata in their

native format and whatnot, leaving that issue aside for a

second, arose in April and then in May of 2015. We're at end


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of September, the very last day, we're in the midst of trial,

and a subpoena was served last Friday.

THE COURT: What about their argument that you just

informed them that you were going to insist on a separate

subpoena to Mr. Zullo a couple of weeks ago?

MR. POPOLIZIO: Well, that was a subpoena for his

appearance. However, there have been monitor requests for

information which the plaintiffs get on these very issues. So

they have information. I think what --

THE COURT: What, monitor requests for information

that the monitor has provided to plaintiffs, you're saying?

MR. POPOLIZIO: I believe that plaintiff has copies of

those also, Your Honor.

THE COURT: All right.

MR. POPOLIZIO: So I think what the focus should be

on, Your Honor, is if this did arise, if this was an idea in

their head in April and May of 2015, the subpoena or any other

discovery should have been sought earlier. It wasn't.

So now we're basically on the eve of a scheduled

deposition of next week, and I know that they say that they had

moved that deposition. We're in the midst of this contempt

hearing that's been ongoing, and this is the first time that

they've asked for anything like this.

I think that a motion for protective order is in order

here, Your Honor, and that the subpoena should be quashed.


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THE COURT: Ms. Morin.

MS. MORIN: Yes, Your Honor. First, the --

THE COURT: Would you please approach the podium.

MS. MORIN: Sorry.

Thank you, Your Honor. I apologize for that.

First of all, the information that the e-mail

production and the production of documents to the monitor was

made at the discretion of the person providing the information.

That revelation was made in September, and the transcript

excerpt from Sergeant Anglin's deposition is included in our

response. So that the need for additional discovery requests

to make sure that all of the relevant and responsive documents

are produced was known long ago, that's not an accurate

statement.

Also, the PST production that MCSO made was not

provided until late August, I believe, and early September, and

only upon review of that does it become clear that the e-mail

productions by MCSO have not included --

THE COURT: Cold Case Posse.

MS. MORIN: -- comprehensively the personal e-mail

accounts of both Posseman Zullo and Detective Mackiewicz.

So, for example, you can see when you have one copy

that was sent to an MCSO request from, for example, a

Detective Mackiewicz -- sorry, to an MCSO e-mail account from a

Detective Mackiewicz personal e-mail account, if there's not


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another copy that is produced, that other personal e-mail

account hasn't been comprehensively searched.

So upon review, it becomes clear -- it has become

clear more recently that we did need to serve these additional

document requests to make sure that we get all the relevant

documents.

THE COURT: Thank you.

Mr. Popolizio, do you have any final words?

MR. POPOLIZIO: No, Your Honor. I just ask that

motion be granted. And I'll step up here so that everybody can

hear me. And I would like to bring to light that plaintiffs'

argument is that there isn't an official policy with regard to

the gathering of information, but when they cite information --

or excuse me, testimony of Detective Anglin, he states that he

had desired to be thorough. That's the only testimony that

they cite.

The other reason they cite for wanting this

information is that basically, they want discovery on the

targeting of elected officials, Your Honor. I know that

there's been discussion --

THE COURT: Well, I'm not sure that I'm going to admit

that, but I'm not sure that it's not discoverable, if any of it

turns up.

MR. POPOLIZIO: Well, I would just bring -- I would

just submit to the Court that I don't believe that that's an


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defendants in their response.

Defendants -- I'm sorry. I keep mixing the parties.

When plaintiffs have narrowed the scope of their

subpoena, I'm going to enforce that narrowed scope of subpoena.

MR. POPOLIZIO: Will the timeline be --

THE COURT: Time line's the same.

MR. POPOLIZIO: -- enforced, too?

THE COURT: Time lines the same.

MR. POPOLIZIO: I just want to just -- I know that

you've denied it, but the burden placed on Mr. Zullo, basically

even with this extended time limit, it gives him six business

days.

THE COURT: Well, if you're going to respond to me --

I mean, it seems to me like the request has been pretty

narrowed to matters that are quite relevant to this lawsuit.

If you are going to come back and tell me that it involves

thousands of documents, then I'll consider that.

MR. POPOLIZIO: Okay. Very well, Your Honor. Thank

you.

THE COURT: Um-hum.

MS. WANG: Thank you, Your Honor.

THE COURT: Are we ready to proceed? Is Mr. Casey

here? I know --

He's here. All right. So we can go ahead.

(Pause in proceedings.)


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Casey - CX Masterson, 9/30/15 Evidentiary Hearing 1747

THE COURT: Who's conducting the cross-examination?

Is that going to be you, Mr. Popolizio?

MR. POPOLIZIO: No, Your Honor. I'm making room --

THE COURT: Oh, okay.

MR. POPOLIZIO: -- right now.

THE COURT: Are you doing the cross-examination,

Mr. Masterson?

MR. MASTERSON: I am, Judge.


MR. CASEY: Good morning, Your Honor.



THE COURT: Just to remind you, Mr. Casey, I'm sure I

don't need to, but I'm going to remind you anyway that the oath

that you took yesterday is still effective for the remainder of

your testimony.

MR. CASEY: I understand.

THE COURT: Mr. Masterson.

MR. MASTERSON: Thank you, Judge.

TIMOTHY J. CASEY,

recalled as a witness herein, having been previously duly

sworn, was examined and testified further as follows:

CROSS-EXAMINATION

BY MR. MASTERSON:

Q. Good morning, Mr. Casey.


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A. Good morning.

Q. You still have some exhibits up there in front of you?

A. I do.

Q. Would you please take a look at Exhibit 187.

A. I have it.

Q. And that's an e-mail you sent to various folks at MCSO?

A. It is.

Q. And what's the date of that, please?

MS. CLARK: Excuse me. I don't have that exhibit.

THE COURT: You remember, we kind of need --

MR. MASTERSON: Oh, yeah.

THE COURT: -- to put them up.


BY MR. MASTERSON:

Q. Okay. I think I just asked you whether you sent that to

various people at MCSO informing them of the preliminary

injunction, is that accurate?

A. That is.

Q. And you sent that to Chief Sands, Chief MacIntyre, Chief

Sheridan, and Lieutenant Sousa.

MS. WANG: Objection, leading.

THE COURT: I'm going to allow that.

MR. MASTERSON: Judge, I'm cross-examining, so I think

I can lead all day.

MS. WANG: I don't think that's right, Your Honor.


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THE COURT: Well, I'm going to allow a fair amount of

leeway.

THE WITNESS: Yes, those are the people I sent it to.

BY MR. MASTERSON:

Q. You did not send this to Sheriff Arpaio, correct?

A. No, I did not.

Q. And you did not send it to his assistant, Amy Lake.

A. That's correct.

Q. And I think you told us you sent it to Chief Sands because

he was your primary contact.

A. That's correct.

Q. You sent it to Chief Sheridan as a courtesy copy?

A. That's correct.

Q. Chief MacIntyre as a courtesy copy?

A. That's also correct.

Q. And Lieutenant Sousa because you were told to do so by

Chief Sands.

A. I believe that -- that's my best memory as why I would have

copied him on it.

Q. Now, I think you told us that you believe you spoke with

Chief Sands, Chief MacIntyre, and Sheriff Arpaio, on the 23rd,

December 23rd, and told them about the preliminary injunction?

A. As I mentioned yesterday, John, I am -- I know that I

talked to Chief Sands. I did not remember talking to MacIntyre

or Arpaio until I did a document search pursuant to the


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plaintiffs' subpoena and found the e-mail that was referenced

yesterday between my partner and I. And that indicates to me

that I had a -- I must have had a communication with them on

the 23rd, because I wrote the e-mail at 9:26 at night about

their responses to the injunction.

Q. Okay. You're right. I recall you saying that now.

And I think you told us -- I don't remember if you

told us in your deposition or whether you told us yesterday

that you -- you believe you talked with Chief Sands first

because he would have been your primary contact at that time.

A. It would have been, yes.

Q. And Chief Sands was very supportive and had absolutely no

resistance whatsoever to the preliminary injunction.

A. That's correct.


THE COURT: I'm going to allow it.

BY MR. MASTERSON:

Q. Now, I know you said that you -- you looked at some e-mails

and that kind of refreshed your recollection about possibly

meeting with some people on December 23rd.

Do you remember that?

A. I can tell you it wasn't a meeting on December 23rd; I

believe this is all done telephonically.

Q. Ah, okay. And your recollection was refreshed when you saw

the meeting to Mr. Williams.


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A. Yes.

Q. But are you still telling me today you don't recall those

telephone conversations?


THE COURT: I'm going to allow it.

THE WITNESS: I do not to this day remember talking to

either Jack MacIntyre or Sheriff Arpaio on the 23rd.

BY MR. MASTERSON:

Q. And yesterday we looked at Exhibit 2534. And you don't

need to take a look at that; I'm just going to ask you a quick

question: Was it your testimony yesterday that there were not

any billing entries for December 23rd, 2011, in your billing

records that are reflected in Exhibit 2534?

A. Yes. Yeah, for whatever reason, I did not bill for that

time.

Q. Christmas spirit?

A. I don't think that was the reason; I just didn't do it, I

forgot.

Q. All right. I want to ask you about -- and this may be a

little difficult for you, because I think you just told me you

really don't remember a telephone call with the sheriff, but

I'm going to try to maybe see if I can prod your memory a

little.

Do you recall talking with us at your deposition about

reporting to the sheriff an adverse ruling from the court?


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MS. WANG: Objection, compound; leading.

THE COURT: I'll allow it.

THE WITNESS: I know at some point I did speak to

Sheriff Arpaio between the 23rd and the beginning of the year.

BY MR. MASTERSON:

Q. Okay. Did you report what you characterized as an adverse

ruling to him?

A. Yes. Yes.

Q. And I think you told us you don't particularly like

delivering bad news like adverse rulings to clients.

A. I don't think any lawyer likes to deliver bad news, but's

part of what we have to do, yeah.

Q. But in this instance, you were pleasantly by surprised by

Sheriff Arpaio's response, correct?

MS. WANG: Objection, leading; mischaracterizes the

testimony.

MS. COE: Join, Your Honor.

MS. CLARK: Objection, mental impressions, Judge.

THE COURT: Well, let me just deal with the mental

impression first. If Masterson's asking the question,

Masterson can waive any mental impression privilege, can he

not?

MS. CLARK: Judge, I would like to make a record on

this. What I would like to assert is that if Mr. Masterson

asks any questions of Mr. Casey, it waives not only mental


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THE COURT: What was the other objection?

MS. WANG: I believe it was leading and

mischaracterizes the testimony.

THE COURT: All right. Do you know, Ms. Wang, I'm

going to tell you in response to that what I often tell juries:

It's their job to pay close attention, and so they need to pay

close attention. I have paid very close attention.

Mr. Masterson can ask whatever he wants. I remember

the testimony. I happen to have been there in the deposition,

as you know, and I'm going to allow him to ask the question.

MS. WANG: Yes, Your Honor.

BY MR. MASTERSON:

Q. I don't want to mischaracterize your testimony.

Did you tell us in your deposition that to your,

quote, great pleasure, end quote, quote, there was absolutely

no resistance, end quote, to the preliminary injunction from

Sheriff Arpaio when you --

A. Yes.

Q. -- first told him about the preliminary injunction?

A. Yes.

Q. But he didn't like losing, right?

A. That's correct.

Q. And in your experience as a lawyer with your clients

over -- 26 years, was that it?

A. This is the 26th year. I'm starting my 26th; I finished


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25.

Q. Based on your experience, do your clients like losing? I'm

not saying your clients lose all the time. I'm just asking if

that happens, do they like it?

A. No client likes to lose, but it is -- it's why we have this

civil justice system. There will be a winner; there will be a

loser.

Q. And do they sometimes express their dismay to you when you

tell them they lost a particular issue, whether it be a motion

or otherwise?

A. They do, it's not unusual.

Q. Now, you sent a copy of the preliminary injunction to

Deputy Chief MacIntyre as a courtesy.

A. Yes.

Q. But it was not your expectation that Deputy Chief MacIntyre

would do anything about the preliminary injunction.

A. That's right. He was not in the chain of command. He had

no -- to my knowledge, he had absolutely no authority to do

anything. I copied him on the reasons I told the plaintiffs'

lawyer, Cecillia, yesterday.

Q. And you also sent a copy of the preliminary injunction to

Chief Deputy Sheridan as a courtesy.

A. Yes.

Q. And again, you told us yesterday that you had no

expectations of Chief Sheridan to do anything about the


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preliminary injunction.

A. Chief Sheridan was -- yes, he was not involved at this

stage in anything to do with the preliminary injunction.

Q. You know, when you -- and maybe you're just not going to

know the answer to this, but when you -- you recall having

conversations, telephone conversations -- and this is where I

may be muddying it up since I'm still not sure whether you

remember this or not -- but if you remember having telephone

conversations with MCSO folks about the preliminary injunction

on December 23rd, 2011, do you know where you were?

A. Yeah, I was in -- I was in my office.

Q. Okay.

A. Yes.

Q. Did you use your office phone or cell phone? Do you have

any recollection on that?

A. I can't tell you for certain, but I will tell you that I

had Brian Sands -- I had almost everyone's cell phone number in

my phone so I could call them, and my -- my best estimate here

is that it was on my cell phone going to Brian Sands'

cell phone.

Q. At the time -- and we're talking about December 23, 2011 --

at the time the preliminary injunction came out, is it your

testimony that Chief Sheridan was largely an unknown person to

you? And I think yesterday you said an unknown commodity.

Is that accurate?


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A. It is.

Q. You never met with Chief Sheridan about the preliminary

injunction.

A. I have no memory of that, and I do not believe I ever met

with Jerry Sheridan about the preliminary injunction. He just

was not involved at that stage.

Q. Now, Ms. Wang asked you several questions about meetings

you might have had before December 23, 2011. I know it was

yesterday, but do you remember a little bit about that?

A. I do remember that.

Q. Obviously, none of those meetings or conversations would

have been about the preliminary injunction because it hadn't

happened yet, right?

A. That's correct.

Q. And after December 23, 2011, you do recall talking to the

sheriff, and I'm thinking you told us within a couple weeks,

maybe?

A. I have a time record on -- I'm going off of memory; I know

it's in these exhibits -- the 26th, the 27th, something like

that, for a .4, which is no more than 24 minutes. And I know

for certain we talked about the Court's injunction, and I know

for certain we talked about the effects of the injunction on

the office.

Q. And you know for certain that the sheriff's response was

absolutely no resistance whatsoever to the order.


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A. Yes.

Q. Could you please take a look at Exhibit 2534.

A. 2534?

Q. Yes, sir.

A. I'm sorry. I've got the wrong one.

Yes, I have it.

Q. Ms. Wang asked you a few questions about -- well, let's

look at the sentence that says: "Arpaio is conflicted on how

he feels."

Do you see that?

A. I do.

Q. Ms. Wang asked you a couple of questions about that

yesterday. Again, in your deposition you told us there was no

resistance from Sheriff Arpaio when you told him about the

preliminary injunction, right?

A. That's correct.

Q. But he didn't like to lose, right?

A. That's right.

Q. And that was what you were talking about when you said he

was conflicted; you weren't talking about him being conflicted

over the preliminary injunction.

A. That's --


THE COURT: I'll allow it.

THE WITNESS: That is my best memory. That's exactly


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what that's about.

BY MR. MASTERSON:

Q. Yesterday -- or, excuse me, at the deposition Ms. Wang

asked you if the sheriff was conflicted about the preliminary

injunction. Your testimony was no -- I don't want to

mischaracterize. Your testimony was, quote, No, I can't say

that, end quote.

Is that accurate?

A. That is accurate.

Q. Yesterday you told us Sheriff Arpaio had no reservations

about the preliminary injunction, that he was not conflicted

about that, but that he did not like to lose, and that's what

he conveyed to you when you told him about the preliminary

injunction.

A. Yes, plus the other things I shared yesterday, but yes,

that is true.


A. Yes, I have it.

Q. Do you recall this particular e-mail? You're copied. It's

an e-mail from Lieutenant Sousa, you're copied, and the subject

is: "Putting out training reference the court order."

You see that?

A. Yes.

Q. Do you recall this e-mail?

A. I did not until I had it pulled up earlier this year when I


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was told that this was an issue. I didn't remember this until

then, but I re -- my memory was jogged when I saw Brett

Palmer's scenarios.

Q. So when you say "I pulled this up earlier this year," do

you mean out of your own e-mail system?

A. Yeah. I got word that there was some issue about whether

or not I had reviewed scenarios and signed off on scenarios.

And I believe I indicated in my deposition, I think it was Tom

Liddy who shared that there was some finger-pointing, and I

asked my paralegal to see if we had, since the file was over at

Michele Iafrate's office, my original file, if we had anything

on the system dated this time period, because Tom had given me

some dates.

Q. Okay. So you found this in your own e-mail system at your

office.

A. Yes.

Q. And I assume you keep e-mails such as this as a regular

part of your law practice.

A. Yeah. During the case, yes.

Q. And this was an e-mail from Lieutenant Sousa copying you

that had to do with Melendres versus Arpaio, correct?

A. It is.

MR. MASTERSON: Move to admit Exhibit 2536, Your

Honor.

MS. WANG: No objection.


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MS. CLARK: No objection, Your Honor.

MR. WALKER: No objection.

MR. COMO: No objection.

THE COURT: Admitted. Exhibit 2536 is admitted.

(Exhibit No. 2536 is admitted into evidence.)

BY MR. MASTERSON:

Q. Now, I already told you about the subject line. It's

"Putting out training reference the court order."

You see that?

A. I do.

Q. And in that, Lieutenant Sousa is --

MR. MASTERSON: Could we publish this, please, Judge?

THE COURT: Yes.

BY MR. MASTERSON:

Q. Do you see the paragraph that's headed "Judge Snow's

order"?

A. Yes.

Q. And then the language below says: "The Court is enjoining

MCSO from detaining any person based solely on knowledge,

without more, that the person is in the country without

unlawful authority."

A. I do see that.

Q. And then it goes on to say: "To be clear, the Court is not

enjoining MCSO from enforcing valid state laws or detaining

individuals when officer" -- probably should say 'officers' --


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but "when officer have reasonable suspicion that individuals

are violating a state criminal law."

See that?

A. I do.

Q. And I know the order was 40 pages, but does that accurately

reflect at least a part of that order?

A. Yes. My memory is this was taken off of my December 23rd

e-mail where -- I know they're typos -- but this is right from

the Court's order, because I think this cite is where I got it

from.

Q. Okay. So this did come from something you sent to MCSO.

A. On December 23rd.

Q. And right now, when you take a look at this e-mail of

January 11, 2012, what MCSO is trying to do is comply with

Judge Snow's order of December 23, 2011.

MS. COE: Objection, lack --

MS. WANG: Objection; foundation, leading.

MS. COE: Lacks foundation.

THE COURT: Sustained.

BY MR. MASTERSON:

Q. Well, let's talk about what was going on during this period

of time. Did you send information to MCSO that contains the

language that's in the paragraph under Judge Snow's order to

MCSO?

A. Yes. That's Exhibit 187 that you showed me earlier.


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Q. And did you give MCSO any instructions on what to do with

it?

A. Jerry -- excuse me, I said "Jerry." I apologize.

Brian Sands and I talked, as I mentioned, I believe,

yesterday, about things that we thought would be appropriate to

make sure MCSO was in compliance. What's up on the screen

right now was one of the things Brian Sands and I talked about.

The Court did not order MCSO to undergo voluntary

training, but if I remember correctly, I recommended that that

would be a good thing to do. Brian Sands was supportive,

agreed that it was a good thing to do.

My understanding is that this document that is on the

screen is in response to Brian Sands' and my communication

about going that next extra step of having training. This was

to try to implement that training protocol that I suggested and

Brian concurred in and authorized.

Q. And was all of that an effort to comply with Judge Snow's

December 23, 2011 order?

A. Yes, it was.

Q. So within 19 days -- and you might even have an earlier

date in mind that I don't know about, and feel free to share

it -- but within 18 days, MCSO is attempting to set up some

training to comply with Judge Snow's order.

A. From December 23rd to January 11, this is the start of

that, yes.


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Q. I think I said 18 -- I think I said 19. 18. Let's go back

to 19. I think that's what the math says, but anyway...

And I think you just told me that you and Chief Sands

agreed that it would be a prudent thing to do at this point to

get some training going for the troops at MCSO.

A. Yes.

Q. And I think you also just told me that Judge Snow did not

order any additional training or any changes to training.

A. He did not in that preliminary injunction.

Q. I think you characterized it as a prophylactic effort.

A. I'm sorry.

THE COURT: I'm just going to repeat what I believe

has been said, which is cell phones need to be turned off. I

don't know if that was a cell phone or what it was.

MR. McDONALD: Your Honor, I apologize. I was turning

it off and I hit the wrong button. I apologize.

THE COURT: All right.

THE WITNESS: I'm sorry. Could you repeat your

question?

BY MR. MASTERSON:

Q. Probably not, but I'll give it a shot.

I think what I was saying was: Did you view this as a

prophylactic effort to start the ball rolling with efforts to

comply with Judge Snow's order by working with MCSO on

training?


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A. I did.

Q. And you were helping with this process, correct?

A. I'm not sure what you mean by "helping," but I made the

recommendation. I remember that they wanted me to review it.

I did review it, as I discussed yesterday, made corrections

directly with Brett Palmer, so helping in that way, yes.

Q. Chief Sands, he was the primary person you were working

with with respect to this issue, correct?

A. He was that and the sheriff, yes.

Q. And everybody's completely supportive at this time.

A. At this time, absolutely.

Q. All right. Everyone at MCSO at the time you're starting

this -- and again, refer to 2536 here -- at the time you're

starting this training preparation process, everyone at MCSO is

on board and supportive.

MS. COE: Objection, lack of foundation.

MS. WANG: Objection, leading, foun --


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

court reporter.)

THE COURT: Yes. We need to have you repeat your

objections individually so we can get them on the record,

please.

MS. COE: Yes. Mine was foundation.

MS. WANG: Foundation and leading.


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MR. MASTERSON: Which one?

THE COURT: Foundation.

BY MR. MASTERSON:

Q. To your knowledge, did Sheriff Arpaio oppose what you and

Chief Sands were doing on January 11, 2012, to start the

training process in order to help MCSO comply with Judge Snow's

order?

A. I have no information that -- one way or the other on that.

I assume that there was absolutely no opposition, because we

were going forward with it.

Q. I'm not going to go through all of them because, frankly, I

probably would forget half the names, but did any of the deputy

chiefs resist your efforts to develop training with Chief Sands

in order to comply with Judge Snow's order?

MS. WANG: Objection, foundation.

THE COURT: I assume you're asking about his personal

knowledge.

MR. MASTERSON: I am.

THE COURT: You may answer.

THE WITNESS: To my personal knowledge, no other chief

was involved other than Brian Sands.

BY MR. MASTERSON:

Q. Did you get word in any fashion that any of the other

chiefs opposed this idea?


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A. No.

Q. Did you get word in any fashion that anyone in command

staff -- and when I say "command staff," I'm talking sergeants

up.

A. There was absolutely no resistance to the idea of training.

Q. Now, could you look further in Exhibit 2536 and do you see

where Lieutenant Sousa is writing to Sergeant Palmer saying:

"Per our phone conversation, write up a couple of scenarios,

right way and wrong way, based on Judge Snow's order to MCSO

and your conversation with Tim Casey."

You see that?

A. Yeah. It says plural, "conversations."

Q. Okay. You're right. So do my notes.

Tell me about those conversations.

A. My conversations with Joe Sousa and Brett Palmer?

Q. Yes, sir.

A. Well, I'm going off of my memory refreshed based on my time

sheets, but I know that I had time entries on several times in

between December 23rd and December 31st, '11, involving Joe

Sousa, including on December 30th an over one-hour meeting with

Chief Sands and Joe Sousa, where we went over -- in my

judgment, exhaustively -- what the judge's injunction was; and

specifically what MCSO could and could not do under the human

smuggling statute, because there's a nuance there on the arrest

or release and we talked about that.


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We also went over, I'm sure, about the training,

although I don't specifically remember. I think we went over

everything Brian and I had previously discussed. I eventually

ended up talking about -- and I do not have time records for

this; I looked for them. But eventually I did have

conversations, plural, with Brett Palmer to explain to him,

because he was a sergeant in HSU, what the order allowed and

did not allow; also, what it allowed under the human smuggling

statute. Because there -- one of the elements on the human

smuggling statute was unlawful presence, and there was a -- one

of the nuances I mentioned was you can't use that to justify a,

quote-unquote, Terry stop. Okay? That's not sufficient.

Unlawful presence is not a criminal issue, it's a

civil violation, and there were some issues in MCSO about

whether unlawful presence -- being an illegal alien,

undocumented migrant, whatever term you give to it -- whether

or not that was a crime or a civil violation. So we needed to

make sure it was clear that it was a civil. And you couldn't

just look at unlawful presence and use that as a springboard to

do a human smuggling investigation.

And then that led to, obviously, the scenarios

eventually being sent out.

Q. Now, you used the word "nuance" a minute ago.

A. Yeah.

Q. You said there was a nuance.


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Were you referring to the preliminary injunction?

A. Yeah. I mean, I tried to summarize it, as I said, as AOR,

arrest or release. I think it captured -- I mean, my view is I

think it captured it.

But there was an issue in the preliminary injunction

that basically said that if I come across John Masterson

unlawfully in the country, I know, you tell me you're in the

country unlawfully, that is not grounds for reasonable

suspicion, certainly not probable cause, to allow me, under a

Terry stop, to start investigating whether or not there's a

human smuggling law violation under Arizona law.

Because just being unlawfully present was civil, not

criminal. So you had to have some reasonable suspicion on

other elements, and that's what -- one of the things I drew

from the Court's order that MCSO needed to be briefed on as

well.

Q. And did you do that briefing?

A. Yeah. I mean, I was not asked to brief anyone, but when I

talked to Brett Palmer, and I also know that Brian Sands and I

talked about it, Joe Sousa and I talked about it, because that

was one of the things. But when I -- when I boiled everything

down it was arrest or release.

Q. Did it seem to you that folks you talked to at MCSO were

having some difficulties understanding the nuance, for example,

you just mentioned?


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A. No.

Q. What about -- you said there was an issue between whether

there's a civil violation or a criminal violation. Were there

some issues -- and I think you said there were some issues

about that. Could you please describe that a little bit more

for me.

A. Under the INA, as I understand it, as being on this case

for seven years under the Immigration and Naturalization Act,

the term of art used is "illegal alien." And in the public

comment you have all sorts of different euphemisms for that

term, but the legal term is "illegal alien."

So when you think of illegal, you think crime; you

don't think of a civil violation. And I believe, my memory is

at the time there were some people that held the belief that if

you were here illegally, that was a crime. If you were an

illegal alien for whatever period of time, that was a crime, so

that was part of the arrest or release under the human

smuggling.

That in itself was not sufficient to launch into a

Terry stop investigation on whether the crime -- the state

crime of human smuggling existed. And that was part and

parcel, but it was pretty well understood, the law really, in

my judgment, didn't become clear until '12, when the Supreme

Court issued some things, but the Ninth Circuit had previously

come out, so we needed to make sure that was clear. And it


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was clear.

Q. Now, were these issues that you encountered when you were

discussing the preliminary injunction with the MCSO folks back

during this, I guess I'm going to call it --

THE COURT REPORTER: Mr. Masterson, could you start

your question over?

MR. MASTERSON: Sure. I think I'm just going to have

to make up a new question here because I don't remember what I

was saying.

BY MR. MASTERSON:

Q. At the time you were starting this rollout of training

referenced in Exhibit 2536, were there issues in MCSO with the

criminal versus civil illegal alien unlawful presence crime

civil violation, did you have all those discussions, I guess,

with MCSO folks during this period of time?

A. Let me start off by saying the predicate was, when I

started rolling out this, this is MCSO rolling out, my job was

to assist. This was not an issue at the time, but it had

previously been a -- I don't want to say it's a dominant

thought, but it was a common thought that in my judgment as a

lawyer, to do my job I felt that I needed to make sure that

they understood that "illegal" did not mean "criminal," it was

civil, so there was no confusion. Because very often -- I

mean, it is a very common -- I think to lay people, it's a very

common misbelief that if you're unlawfully in the country


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you've committed a crime, and that's not what the law is.

And sometimes that had permeated, from my genesis or

my start in the case from '07 until this preliminary injunction

came out, that's what I -- I would find sometimes some people

holding that view at MCSO. And part of the preliminary

injunction was to make clear that unlawful presence wasn't a

crime, so you can't use it as a springboard for investigating

state crimes.

Q. Were you still doing battle with that issue with the

troops, though, in --

A. Not with the troops, no.

Q. Okay. And in Exhibit 2536, this -- this references

training that is specific to compliance with Judge Snow's

order, correct?

A. Yes.

Q. This is not some general training that you're working on

with Brian Sands to give to MCSO; it's specific to comply with

Judge Snow's December 23, 2011, preliminary injunction.

A. That is correct.

Q. When you first -- this might not be accurate, so you may

have to correct me, because I don't know if it's when you first

talked to Sergeant Palmer or not, but at some point when you

were having discussions with Sergeant Palmer about drafting

scenarios, he asked you if the sheriff was on board with this.

Do you remember that?


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A. I do remember that.

Q. And what was your response to Sergeant Palmer?

A. That absolutely he was on board. It was not a question.

That I personally talked to him after the order came out and it

was not a problem, and I repeated what the sheriff had shared

with me.

Q. And were you telling him that the sheriff was absolutely on

board with this proposed training?

A. I remember it coming up -- I don't remember anything about:

Are you sure the sheriff is on board with the training. I

remember talking to him about that you have to release them.

And that's when the question came up: Are you sure that he's

on board with this? And I said: Absolutely, I talked to him.

He said: We're not doing saturation patrols, we don't do this

any more, ICE, Obama won't take them, so it was in that

context. It wasn't: Are you sure he's on board with the

training. It wasn't about training and whether the sheriff was

in agreement or not.

Q. Now, did the sheriff express to you at some point, and

you're going to have to tell me when, about a concern he had

about compliance with the order and leaving people in the

middle of the desert.

A. Yeah. I mentioned that -- I don't know if this was at the

preliminary injunction stage or if this was after the permanent

injunction was entered, but Sheriff Arpaio indicated -- told


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me: So you're telling me I've got to leave them in the desert

to die. And I responded to him on that, and I -- I think

somewhere in the file that's at your co-counsel's office

there's actually an opinion letter that I wrote on that in

follow-up.

Q. What did you tell the sheriff on that issue?

A. Well, I told the sheriff that I said it -- there is nothing

under Judge Snow's order that prevents you from providing

humanitarian assistance. If humanitarian assistance is giving

them food, water, shelter, and transportation, that's not an

issue. But if the idea is transportation, food, water, shelter

and transportation to ICE, that's gaming the system; that's not

going to work.

And my prediction was, and I -- maybe it's

presumptuous -- but I told him, I said: Neither Judge Snow or

any other federal judge is going to hold you in contempt for

providing humanitarian assistance. And I think I told him, I

said: I will put that in writing in an opinion letter to you

so you have that as advice of counsel.

And I believe there is a letter on that, but it's

purely humanitarian; it's not transportation to federal

authorities.

Q. And was the sheriff on board with that?

A. He had no -- yeah, he -- as soon as he heard that he could

provide humanitarian assistance, he was good with it.


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Q. Now, when you first spoke to Sergeant Palmer in January

2012 about the preliminary injunction, had he already been

briefed by Lieutenant Sousa?

A. That's what he told me.

Q. Did you have any discussions with him about the nature of

the briefing, the extent of the briefing, or any of the facts

about the briefing?

A. We may have, but I don't remember.

Q. Okay. So within -- well, let me ask you this first: Do

you know where Sergeant Palmer was assigned at the time?

A. He was at HSU.

Q. How about Lieutenant Sousa?

A. At this time I believe Lieutenant Sousa was still

lieutenant in charge of HSU. We had our trial in July and

August, and sometime between -- sometime, I think, in the first

quarter, and certainly before the trial, he transferred out of

HSU.

Q. So within a couple of weeks, two, three weeks of the

preliminary injunction coming out, has the word gotten down to

HSU?

A. What word?

MS. COE: Objection, lacking in foundation.

BY MR. MASTERSON:

Q. Has the word gotten down to HSU?

MS. COE: Same objection,


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MS. WANG: I'll join.

THE COURT: And the objection is sustained.

Ms. Coe, I would just point out, if you can pull that

microphone over to you a little closer when you make an

objection it will be easier for the court reporter to hear it.

MS. COE: Thank you, Your Honor.

BY MR. MASTERSON:

Q. Well, you just told me when you first spoke to

Sergeant Palmer he had been briefed by Lieutenant Sousa,

correct?

A. That is correct.

Q. And your testimony is that both Sousa and Palmer are in HSU

at this time.

A. Yes.

Q. And maybe I'm making an assumption that's not justified,

but are we talking about the briefing being about the

preliminary injunction?

A. The briefing.

Q. That Sousa gave to Palmer.

A. Oh, yeah. That was about -- yes. My understanding is by

the time I talked to Brett Palmer, he had been briefed sometime

earlier by Joe Sousa. By the time I talked to Brett, Brett had

already told me he had briefed the troops.

Q. So word of the preliminary injunction had gotten to the

troops, including HSU, by the time of this e-mail we're looking


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at here in Exhibit 2536.

A. Yes.

Q. And -- well, you just told us that Sousa briefed Palmer and

Palmer briefed his people. Are those the troops you're talking

about?

A. Yes, sir.

Q. And that's HSU.

A. That is HSU.

Q. Now, my understanding is that you had not given -- well,

let me ask you this: Did you provide to Sergeant Palmer the

information that he briefed the troops on?

A. Yes.

Q. How did you convey that information to him?

A. My under- -- well, I have to take the "yes" back because

it's been so long.

My understanding is at some point he told me that he

had already briefed the troops, and I don't remember if that

was the first conversation or if it was after we talked, but I

just don't remember the specifics now.

Q. I'm going to ask you about your deposition testimony, and

if you need to take a look at it, I'll grab it for you.

Oh, you've got it. Great.

A. Yeah, it's up here.

Q. Can you take a look at page 83, please.

A. Okay.


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Q. Somewhere around line 7 to 14, do you recall testifying

that you had not been consulted on the substance of the

briefing by Sergeant Palmer to the troops?

A. Yeah, I see that.

Q. And I know this is a long time ago, but can you explain

what you do remember about talking with Sergeant Palmer and

briefing him on issues concerning the preliminary --

preliminary injunction --

A. Yeah --

Q. -- before January 11, 2012, or at least before, in your

memory, he provided this briefing to the troops.

A. Yeah. I mean, my testimony was that the initial time that

we spoke, that he had already briefed the troops, and the

question was whether I had concerns whether that was accurate.

Q. Okay. And there was a time when you became concerned about

whether Sergeant Palmer understood the injunction and/or what

you told him.

A. Yes.

Q. Now -- well, let's do it this way. When did that concern

first hit your mind?

A. Well, my memory was refreshed when I looked at the

scenarios. When I got the scenarios and read them is when I

thought -- I became frustrated, because we had spent some time.

And then I remember what I described as 50 percent of the

scenarios being incorrect.


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Really, it's 25 percent were incorrect, and then the

other 25 percent needed more -- more detail.

Q. Okay. But he is drafting scenarios in an attempt to

provide training to MCSO law enforcement officers to comply

with Judge Snow's order, correct?

A. The judge didn't order it, but he -- but in order to make

sure that the troops had training about it, yes, that's

correct.

Q. You're right. And I understand that Judge Snow did not

order the training, but at the time Sergeant Palmer gave you

the scenarios, even though there were -- there was information

in the scenarios that was wrong, this was all a part of trying

to comply with Judge Snow's order.

MS. WANG: Objection, foundation; leading.

MS. COE: Same objection, Your Honor.

THE COURT: Well, who are you talking about? Whose

attempts to comply with the order?

MR. MASTERSON: Well, certainly Sergeant Palmer, and

MCSO as a whole.

THE COURT: I'm going to sustain the objection, then.

BY MR. MASTERSON:

Q. Do you have any knowledge as to what was going to be done

with this training after it was completed?

And when I say "completed," I don't mean completed

with everybody in MCSO gets the training; I mean the scenarios,


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a training syllabus, or whatever was in the works here, when

that was completed, do you have any idea what was to happen to

it? What were they going to do with it?

A. I do know.

Q. Tell us, please.

A. My memory, my understanding is what they were going to do

is put together the scenarios and have -- I forget what the

term was, but it's basically online training. I think it's

E Learning, they call it, at MCSO, and first it was going to

start off with the -- what I describe as the tip of the spear,

HSU undergoing that, and then it was going to go out

patrol-wise. Anyone that can make a traffic stop was going to

be required to do it.

Q. Okay. So it was going to go MCSO-wide at least to those

personnel who were engaged in law enforcement/traffic stops?

A. On the patrol side, not detention, yes.

Q. Okay. So they weren't doing this training just for

funsies; they were doing it to comply with Judge Snow's order.

A. Yes. Yes.

Q. So at this time when these training scenarios are being

prepared and passed on to you, in your opinion, was MCSO

ignoring Judge Snow's order?

MS. COE: Objection, Your Honor, irrelevant.

MS. WANG: I'll object on foundation grounds as well.

THE COURT: I'm going to sus- -- well, he's asked him


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about his opinion, I assume he has foundation to know his

opinion, and I'm going to overrule the relevance objection.

THE WITNESS: I'm sorry. Could you repeat it? I

apologize.

MR. MASTERSON: Actually, Mr. Moll, can you read that

question back, please?

THE COURT: Yes.

(The record was read as follows: So at this time when

these training scenarios are being prepared and passed on to

you, in your opinion, was MCSO ignoring Judge Snow's order?)

THE WITNESS: They were not ignoring judge order --

the judge's order.

BY MR. MASTERSON:

Q. In fact, in your opinion, they were trying to comply with

the order.

MS. WANG: Objection, Your Honor. Calls for

speculation; irrelevant; 403; leading; foundation.

MS. COE: Join, Your Honor. Calls for expert

testimony.

THE COURT: Well, I'm going to overrule the objection

because it only asks for Mr. Casey's opinion. And I know

perfectly well how to evaluate somebody's opinion and the

limits of somebody's personal opinion, so the objection is

overruled for whatever value it has.

THE WITNESS: MCSO was trying to comply with the court


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order.

BY MR. MASTERSON:

Q. Now, you've mentioned just a minute ago that you had some

concern about Sergeant Palmer's knowledge or understanding when

you got the draft scenarios, is that correct?

A. That's true.

Q. And when you saw the scenarios, you were concerned that

Sergeant Palmer did not understand the Court's order.

A. Yes, and he did not understand what I had shared with him.

Q. My next question. You had explained the court order to

Sergeant Palmer, correct?

A. Yes.

Q. And when you saw the scenarios, it became clear to you that

it didn't sink in.

A. Yes.

Q. Do you see in Exhibit 2536 the paragraph, or sentence, that

says: "I will have Tim review what you write up and have Chief

Sands sign off on that"?

A. I do see that.

Q. Tell me about that. What is that talking about? What's

that mean?

A. My understanding is that whatever Brett was to write up,

they wanted me to look at, make sure it was accurate, because

you don't want to have bad training; and that in order for it

to actually go into -- in order for it to go into E Learning,


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it has to be approved by the command structure.

Q. And the intent was, I think -- and I think you just told us

a second ago, and possibly just now -- that once that was done,

it was going to go out on E Learning?

A. Yes, sir.

Q. You might not know this, but do you know what E Learning

is?

A. I did at one time, but I do not remember now.

Q. Okay. So was it your understanding that you were going to

provide input into the training scenarios; then it was going to

go to Chief Sands, he was going to sign off, and then to

E Learning? Was that how it was to work, or do you remember?

A. Generally, it had to be approved by the command. My

understanding is that Brian Sands had to sign off on it after I

reviewed it.

Q. At this point, to your knowledge, was anyone in MCSO

command staff interfering with this effort at training for

compliance with Judge Snow's order?

A. No.


A. I have it.

Q. Do you recall this e-mail?

A. Excuse me. Yes.

Q. Is this the e-mail that that has Sergeant Palmer's draft

training scenarios?


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A. The January -- at the end of this, it's not shown on the

screen, but the January 19th Brett Palmer scenarios, the

e-mail.

Q. Okay. Can you take a look at the scenarios themselves,

please.

A. Yes, I did during the depo.

Q. Okay. You've already told us that there was something

wrong with some of them. Can you tell us what's wrong --

A. Yes.

Q. -- with the scenarios.

A. I'm not going to re -- unless I'm told to, I don't think I

need to review these again, but I believe scenario 1 was fine;

scenario 2 was fine; scenario 3 was a problem. It was

basically: If ICE says "hold them and take them in," or

something like that, then you can do it, and that is not what

the order allowed. You cannot do that. There's no lawful

authority to do that. That was contrary to the order. It was

certainly contrary to what I conveyed. And that was the issue

on number 3.

As you can see, there's some discussions there about

getting overtime to drive people to Florence, but there's no

authority under the order, under the law, to detain someo

Documents

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