Melendres v. Arpaio #1455 Oct 1 2015 TRANSCRIPT - DAY 9 Evidentiary Hearing

8/20/2019 Melendres v. Arpaio #1455 Oct 1 2015 TRANSCRIPT - DAY 9 Evidentiary Hearing

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2007

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Manuel de Jesus Ortega Melendres,et al.,

Plaintiffs,

vs.

Joseph M. Arpaio, et al.,

Defendants.

)))

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No. CV 07-2513-PHX-GMS

Phoenix, Arizona

October 1, 2015

9:01 a.m.

REPORTER'S TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE G. MURRAY SNOW

(Evidentiary Hearing Day 9, Pages 2007-2247)

Court Reporter: Gary Moll

401 W. Washington Street, SPC #38

Phoenix, Arizona 85003(602) 322-7263

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


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Melendres v. Arpaio, 10/1/15 Evidentiary Hearing 2008

A P P E A R A N C E S

For the Plaintiffs:American Civil Liberties Union Foundation

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

San Francisco, California 94111

American Civil Liberties Union Foundation

Immigrants' Rights Project

By: Andre Segura, Esq.

125 Broad Street, 18th FloorNew York, New York 10004

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

Phoenix, Arizona 85011

Covington & Burling, LLPBy: Tammy Albarran, Esq.

1 Front Street, 35th Floor

San Francisco, California 94111

Covington & Burling, LLP

By: Stanley Young, Esq.

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

Redwood Shores, California 94065

For the Defendant Maricopa County:

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

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

16100 N. 7th Street, Suite 140


For the Movants Maricopa County Attorney's Office and MaricopaCounty Attorney William Montgomery:

Ridenour Hienton, PLLC

By: April M. Hamilton, Esq.Chase Tower201 N. Central Avenue, Suite 3300



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A P P E A R A N C E S

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

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


Jones, Skelton & Hochuli, PLC

By: A. Melvin McDonald, Jr., Esq.

By: John T. Masterson, Esq.

By: Joseph T. Popolizio, Esq.2901 N. Central Avenue, Suite 800Phoenix, Arizona 85012

For the Movants Christine Stutz and Thomas P. Liddy:Broening, Oberg, Woods & Wilson, PC

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


For the Intervenor United States of America:

U.S. Department of Justice - Civil Rights DivisionBy: Paul Killebrew, Esq.950 Pennsylvania Avenue NW, 5th Floor

Washington, D.C. 20530

U.S. Department of Justice - Civil Rights Division

By: Cynthia Coe, Esq.601 D. Street NW, #5011

Washington, D.C. 20004

For Executive Chief Brian Sands:

Lewis, Brisbois, Bisgaard & Smith, LLPBy: Greg S. Como, Esq.

2929 N. Central Avenue, Suite 1700


Also present:Sheriff Joseph M. Arpaio

Executive Chief Brian Sands

Chief Deputy Gerard SheridanLieutenant Joseph SousaAlexandra Mijares Nash, Esq.


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I N D E X

Witness: Page

JOSEPH M. ARPAIO

Direct Examination Continued by Mr. Young 2015

SUZANNE KIMBERLY SEAGRAVES

Direct Examination by Mr. Segura 2076Cross-Examination by Mr. Popolizio 2215

Redirect Examination by Mr. Segura 2220

Recross-Examination by Mr. Popolizio 2232

Further Redirect Examination by Mr. Segura 2244

E X H I B I T S

No. Description Admitted

92 Letter to Charlie Armendariz from Joseph 2065

Arpaio dated 4/23/2011 (MELC004666)

2004 MCSO Memorandum from Lt Seagraves to Captain 2097

Bailey re Suspension of Administrative

Interviews of HSU personnel dated 7/2/2014(MELC005314)

2012 MCSO Memorandum from Sergeant Anglin to 2151

Lt Seagraves re Investigative lodging, signed

off by Chief Sheridan dated 1/28/2014(MELC233669)

2013 MCSO Memorandum from Sergeant Anglin to 2151

Lt Seagraves re Investigative lodging, signed

off by Chief Sheridan dated 2/2/2014(MELC234036)

2014 E-mail chain re Melendres Court Order dated 2162

5/5/2015 (MELC417670-MELC417672)

2015 MCSO Memorandum from Deputy Chief Lopez to 2183Chief Deputy Sheridan re Complaint against

Brian Mackiewicz dated 8/14/2014(MELC186196-MELC186197)


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E X H I B I T S

No. Description Admitted

2016 MCSO Memorandum from Jennifer Johnson to 2189Sergeant Tennyson re Complaint against Deputy

B. Mackiewicz dated 3/17/2015 (MELC186198)

2255 NY Times Article "Hiding Details of Dubious 2061

Deal, U.S. Invokes National Security" by EricLichtblau and James Rissen dated 2/9/2011(MELC184881-85)

2730 Case CV 07-02513-PHX-GMS - Defendant Arpaio's 2041

Response to Plaintiffs' Second Set ofInterrogatories and First Set of Requests forAdmission to Defendant Arpaio RE Contempt dated

9/15/20152828E Video Clip 5 DOJ Disc 1 of 2, April, 2012 2047to July 2012

2830C Video Clip 3 Fox News, DOJ dated 4/4/2012 2045

2832C Video Clip 3 Newsmaker with John Hook - Fox, 2018

Sheriff comments on Obama Investigation,

Immigration, Reaching out Hispanics, andPosse dated 1/27/13

2834A Video Clip 1 Fox News, Your World with Neil 2020

Cavuto, ICE Releasing Immigrants, DOJ Perezdated 3/18/13

2842 Transcript of Telephone Interview of Deputy 2205

Brian Mackiewicz by Dave Tennyson dated

8/5/2015 (MELC1397031-MELC1397042)

2858 Response to 7/22/2015 Monitor Document Request 2055Related to ITR 25 (MELC662424-MELC662437)

2887 February 2015 Memorandum from Tennyson to 2119Seagraves re closing out Cosme 15-21

Investigation

2890 Cosme Interview by Tennyson 2133


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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 continued

evidentiary hearing.

Counsel, please announce your appearance.

MR. YOUNG: Good morning, Your Honor. For plaintiffs

from Covington & Burling, Stanley Young, Tammy Albarran, and

Michelle Morin.

THE COURT: Good morning.

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

and Andre Segura of the ACLU for plaintiffs.

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

of Arizona for plaintiffs.

MR. KILLEBREW: Good morning, Your Honor. Paul

Killebrew and Cynthia Coe for the United States.


MR. MASTERSON: Good morning, Judge. John Masterson,

Joe Popolizio, and Michele Iafrate for Sheriff Arpaio and the

individual contemnors, and with us is Holly McGee.


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

and Charles Jirauch appearing on behalf of Maricopa County.



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MR. McDONALD: Good morning, Your Honor. Mel McDonald

making a special appearance for Sheriff Arpaio.


MR. COMO: Good morning, Judge. Greg Como

representing Chief Brian Sands.


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

behalf of nonparties Stutz and Liddy.


MS. HAMILTON: Good morning, Your Honor. April

Hamilton on behalf of the Maricopa County Attorney's Office and

Maricopa County Attorney William Montgomery.

MR. YOUNG: Your Honor, a bit of housekeeping.

We have had some discussions about Ms. Seagraves'

appearance --

THE COURT: Yes.

MR. YOUNG: -- given her schedule, and I believe she

will be here at the morning break, so with your permission, we

would ask that we take a break in Sheriff Arpaio's testimony at

that time and proceed with Ms. Seagraves' examination after the

morning break.

THE COURT: That's acceptable to everyone?

MR. MASTERSON: That's acceptable to me, Judge. I

just wanted to point out that Mr. Eisenberg is not here this

morning but Lieutenant Sousa is present.


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We can proceed that way. I did note that I think

pursuant to my request, defendants last night filed a

reconciliation under seal of investigative documents.

I was trying to reconcile that with some of the

exhibits that have been admitted into evidence and I was not

able to do it, and so I may have some questions that I'd just

like to resolve with the parties, unless they otherwise get

ironed out for me, which they may do.

MS. WANG: Your Honor, plaintiffs do not have a copy

of what was lodged under seal by defendants.

THE COURT: Do you know what we're talking about,

Mr. Masterson? I think maybe Ms. Iafrate did it.

MR. MASTERSON: She did. And I saw the e-mail, but

I've not seen the document.

THE COURT: All right. Well --

MR. MASTERSON: She's going to be here in just a few

minutes, Judge.

THE COURT: All right. Work it out.

You may resume, Mr. Young.

MR. YOUNG: Thank you.


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Arpaio - DX Young, 10/1/15 Evidentiary Hearing 2015

JOSEPH M. ARPAIO,

recalled as a witness herein, having been previously duly

sworn, was examined and testified further as follows:

DIRECT EXAMINATION CONTINUED

BY MR. YOUNG:

Q. Good morning, Sheriff.

A. Good morning.

Q. So I'm going to show you a video. This time, I do promise,

it is John Hook, and we'll ask you some questions about it. It

is Exhibit 2832C. And I'll represent to you, at least based on

what your office as given us, it's a January 27, 2013 interview

on Newsmaker with John Hook.

MR. YOUNG: Your Honor, may we play the video and then

I'll ask the sheriff about it?

THE COURT: You may do so.

(Video clip played as follows:)

JOHN HOOK: 30 percent of Maricopa County, roughly, is

Hispanic. You are the sheriff of all the people. So do you

owe that community some extension of an olive branch, and I

think you started to give it on election night.

What concretely have you done to try to reach out to

that community since the election?

SHERIFF ARPAIO: Well, I've put the hand out to a

couple elected officials.

JOHN HOOK: Were they receptive?


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SHERIFF ARPAIO: No. Because there are a certain

group here that don't want me to enforce the illegal

immigration laws. I'm like the poster boy. They want to

aggravate the situation constantly, especially now with the new

philosophy with the Republican Party and everybody else to get

back the Latino vote.

I've always worked closely with the Latinos, and they

know it, and I do have support from that group. But there's

certain agitators, whatever you want to call it, that don't

like what I'm doing.

JOHN HOOK: So you think that the majority of

Hispanics support you?

SHERIFF ARPAIO: Well, you know one reason I want to

reach out, very simple, I want to get to them, given it's the

truth.

JOHN HOOK: What is the truth as you see it?

SHERIFF ARPAIO: Well, the truth is that I served four

years as a head of the federal drug enforcement in Mexico City,

South America, I covered the Texas border, I covered the

Arizona -- Arizona border as a head of the federal drug

enforcement. I know Mexico. I know the Latinos. I've always

got great cooperation from the President of Mexico down.

So I like to at least let them know, the community,

why we enforce the immigration laws, why I'm doing what I am

doing, and try to get the message out that way.


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(Video clip concludes.)

BY MR. YOUNG:

Q. Sheriff, is that you talking to John Hook not too long

after your 2012 reelection?

A. What year was the segment?

Q. I'll represent to you that the date information we have on

the disk that was given to us by your attorneys was January 27,

2013. Does that sound right to you?

A. Yes.

MR. YOUNG: Your Honor, I move the admission of

Exhibit 2832C.

MR. MASTERSON: Objection, relevance; cumulative; 403.

THE COURT: I'm going to overrule the relevance

objection.

I didn't understand initially what Mr. Masterson was

talking about yesterday when he said "cumulative." But I did

go back and review Sheriff Arpaio's testimony from the first

iteration of the contempt hearing, and I did note that you

placed in a number of similar video recordings that were

admitted into evidence.

I'm not going to prevent you, I suppose, if

Mr. Masterson wants to stipulate putting them in, to putting

them in, but at some point it does become cumulative. And I

don't think we need to play them all here in court; I get the

message, I think.


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MR. YOUNG: Understood, Your Honor. I just have one

more in that vein.

THE COURT: All right.

2832C is admitted.

(Exhibit No. 2832C is admitted into evidence.)

MR. YOUNG: Thank you, Your Honor.

May we play now 2834A.

(Video clip played as follows:)

UNKNOWN SPEAKER: You know, you mentioned this Labor

Secretary designate, Perez, of course, who comes really from

the Justice Department, going after your methods in Arizona and

elsewhere, but what do you think of him running Labor? That

just seems like an odd choice.

SHERIFF ARPAIO: Well, he ought to be thanking me,

because we raided 74 businesses, my office, and arrested 500

people in those businesses here illegally with fake IDs. So he

ought to say, Thank you, sheriff. You're making up openings

for those here legally that they need a job, and as you say, we

do have an unemployment problem. So why would you want to give

these jobs to people that violated the law coming here

illegally? Let's save the jobs for U.S. citizens.

UNKNOWN SPEAKER: Amazing. Sheriff, feel better. Get

that shoulder back up to speed. You've got a lot of weight on

it there. Always good seeing you. Joe Arpaio, thank you.

All right. In the meantime --


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BY MR. YOUNG:

Q. Sheriff, is that you?

A. Said I had a lot of weight. What year was that?

Q. Well, you remember you having your shoulder injured in

March 2013, and then talking to --

A. That's why I was in that shirt.

Q. That's right. And that was in about March 2013, correct?

A. Probably.

Q. And that is you on the video?

A. Yes.

MR. YOUNG: Your Honor, I move the admission of 2834A.

MR. MASTERSON: The same objection, but I'm going to

also add all I heard was reference to arrests for state --

Arizona state crimes, so that's an additional relevance factor.

THE COURT: I wasn't sure I heard anything about

federal immigration laws, either, on that one.

Do you want to replay it for me?

MR. YOUNG: Sure, Your Honor.

(Video clip played.)

UNKNOWN SPEAKER: You know, you mentioned this Labor

Secretary designate, Perez, of course, who comes really from

the Justice Department, going after your methods in Arizona and

elsewhere, but what do you think of him running Labor? That

just seems like an odd choice.


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SHERIFF ARPAIO: Well, he ought to be thanking me,

because we raided 74 businesses, my office, and arrested 500

people in those businesses here illegally with fake IDs. So he

ought to say, Thank you, sheriff. You're making up openings

for those here legally that they need a job, and as you say, we

do have an unemployment problem. So why would you want to give

these jobs to people that violated the law coming here

illegally? Let's save the jobs for U.S. citizens.

UNKNOWN SPEAKER: Amazing. Sheriff, feel better. Get

that shoulder back up to speed. You've got a lot of weight on

it there. Always good seeing you. Joe Arpaio, thank you.

All right. In the meantime --


THE COURT: I'll admit the exhibit. You can argue its

relevance.

(Exhibit No. 2834A is admitted into evidence.)


BY MR. YOUNG:

Q. Sheriff, what you said about saving jobs for American

citizens, that was a political statement on your part, correct?

A. I don't know if you call it political. It makes common

sense. It was just my opinion speaking out on national TV.

Q. Well, didn't you say that your statements on political --

on unemployment issues, as they might be affected by your

immigration related enforcement efforts, were political


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statements?

A. Yes. That's a side issue. The main issue was to enforce

that program and arrest people with fake identification. That

was what our mission was.

MR. YOUNG: Your Honor, I may address this next

question to Mr. Masterson. I had an e-mail exchange about a

number of exhibits which I would like to have admitted, which I

can examine the sheriff on, but we could save time if we could

achieve a stipulation. And they are Exhibits 79, 80, 81, 83,

86, and 89.

MR. MASTERSON: I think we had another e-mail on my

way down here, but -- I don't know what you want me to do,

Judge. I can, I guess, try to look through all of them.

THE COURT: You haven't looked at them yet?

MR. MASTERSON: No, sir.

THE COURT: All right. Then proceed, Mr. Young.

MR. YOUNG: Perhaps I'll defer that question until

Mr. Masterson has more of a chance. Would that -- let's do

that.

THE COURT: All right.

BY MR. YOUNG:

Q. Sheriff, as a result of this Court's December 23, 2011

preliminary injunction, you did not tell anyone in your office

to change anything about how your office was doing its work, is

that correct?


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A. No, I -- after this preliminary injunction came out, we did

delegate that to Brian Sands, and the lawyer was keeping track

of it, so there were, I'm sure, many discussions between those

people regarding this order.

Q. But you yourself did not tell anyone to change anything as

a result of the injunction, is that correct?

A. Well, I didn't go out to every employee, but that, once

again, was delegated to my subordinates to carry that message

out.

Q. Sheriff, do you remember having your deposition taken

earlier this month on April 15 -- actually, no. September 18.

Actually, last month at this point.

Actually, sorry, it is September 17. You remember

having a deposition, correct?

A. Yes.

Q. Okay. I'm going to direct your attention -- and we can

play it on the screen -- to page 358, line 16, to 359, line 1.

And I'm going to have Mr. Klein play that video. It's

clip number 6.

(Deposition video clip played as follows:)

"Question: Did you, yourself, ask anyone to change

anything in what your office was doing as a result of the

injunction?

"Answer: What do you mean by change?

"Question: Do anything different from what your


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office was doing before the injunction was issued?

"Answer: No. I didn't tell them to change anything

differently."

(Deposition video clip concluded.)

BY MR. YOUNG:

Q. Sheriff, do you recall -- is that the testimony you gave on

September 17 of this year?

A. I think I mentioned I delegated that responsibility to my

subordinates.

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

106, could we have the next question and answer on page 359,

lines 3 through 6.

(Cell phone heard in courtroom.)

THE COURT: Mr. Jirauch?

MR. JIRAUCH: Yes, Your Honor.

THE COURT: Why don't you leave the courtroom and take

your call?

MR. JIRAUCH: I won't take the call, Your Honor. I

don't need it. I thought it was off.

MR. YOUNG: Well, I'm happy to read it, Your Honor,

if --

THE COURT: Will reading it be adequate if we don't

have it on the video clip?

MR. MASTERSON: If he has it on video, that would be

wonderful; if not, reading would be adequate.


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THE COURT: Okay.

I do think in fairness, if you have it on video, you

ought to show it on video.

MR. YOUNG: Mr. Klein, are you able to do that as to

page 359, lines 3 through 6?

THE COURT: And this is before or after the clip we

just saw?

MR. MASTERSON: Immediately after.

THE COURT: Thank you.

MR. YOUNG: Actually, Your Honor, if I can add on to

that, so I'm going to ask Mr. Klein to play page 359, lines 3

through 20.


"Answer: No. I didn't tell them to change anything

differently.

"Question: Well, why didn't you tell anyone to change

anything?

"Answer: Because they were following the Judge's

orders, court orders.

"Question: Well, actually, Sheriff, your office was

not following the Judge's order, and you've admitted that it

was not and that's why you've previously said that you were

willing to have civil contempt found against you for violating

that order.

"Do you remember that?


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"MR. MASTERSON: Form, foundation.

"THE WITNESS: No. I said as the leader, I take

responsibility but not the nuts and bolts. So in the

actual --"


THE COURT: It cut off the last line, but I got it.

"In the actual compliance, that was delegated," is what it

said.

BY MR. YOUNG:

Q. Sheriff, was that testimony accurate?

A. Yes.

Q. Your office had some internal investigations relating to --

well, actually, one internal investigation relating to

violation of the preliminary injunction.

Do you recall that?

A. No.

Q. Well, you gave an interview to Don Vogel in connection with

the 453 investigation, which was about the violation of the

injunction. Do you recall that?

A. Is that the one you're referring to?

Q. Yes.

A. Yes.

Q. Okay. And you recall the purpose of that investigation was

to determine whether there were any violations of your

department's policies in connection with the failure to comply


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with the Court's injunction, correct?

A. I believe that was the stimulus behind that.

Q. Now, you never considered subjecting yourself to become a

principal of that investigation, correct?

A. I did appear before the private investigator.

Q. I understand you were interviewed by Mr. Vogel, but you

yourself were never, and you never subjected yourself to, a

potential finding of violation or potential discipline in that

investigation, is that correct?

A. Well, I don't know if I could make that decision on myself,

but when you say "principal," I'm not sure what you're talking

about.

Q. Well, you'd agree with me that you yourself were never

potentially subject to discipline in that investigation, is

that correct?

A. Yes.

Q. Chief Olson was the person who was in charge of making the

final decisions about violation and discipline in that

investigation, correct?

A. Yes.

Q. You and Chief Sheridan made the decision to appoint

Chief Olson to that role, correct?

A. I made the final decision.

Q. You chose not to do that yourself, is that right?

A. Yes.


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Q. Why not?

A. Because I never get involved in those type of situations.

I always delegate.

Q. Did you ever think about having somebody outside the agency

make those final determinations?

A. No.

Q. You recognize that there was also an investigation, also

done by Mr. Vogel, with respect to the issue of supervision of

Deputy Armendariz, correct?

A. I vaguely remember that.

Q. Did you ever think about having anybody outside the MCSO

play the role of final decision maker on that investigation?

A. No.

Q. That was also a final investigation where Chief Olson was

the final decision maker, correct?

A. Yes.

Q. Now, with respect to the 543 investigation, which is the

one about the violation of the injunction, you knew when you

decided to make Chief Olson the final decision maker that he

would be making a decision with respect to Chief Sheridan,

correct?

A. Yes.

Q. You knew that Chief Sheridan was Chief Olson's superior,

and that Chief Olson reported to Chief Sheridan, correct?

A. Yes.


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Q. So you knew that when you appointed Chief Olson, that he

would have to pass judgment on someone who was his superior, is

that right?

A. Yes.

Q. You realize that as to Chief Sheridan -- or actually I

should ask you: Did you hear, do you know, that as to Chief

Sheridan there were some initial findings of violation that

Chief Olson then later reversed?

A. I heard about it, but I never did get involved.

Q. You did not think that there would be any conflict in

having Chief Olson make those final decisions as to Chief

Sheridan, his superior, is that right?

A. No. Can I elaborate?

Q. Well, let me just make sure I understand your answer.

Is it correct that you did not think there was a

conflict?

A. No, because of the character of the person making that

decision --

Q. Okay.

A. -- and his experience.

Q. Well, let me make sure I've clarified here. Did you think

there was a conflict as a result of their reporting

relationship?

A. No.

Q. Now, you yourself have not imposed any penalty or any


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discipline on Chief Sheridan relating to violation of the

injunction --

A. No.

Q. -- is that correct?

A. No.

Q. Have you imposed any penalty or discipline on Chief

Sheridan?

A. No.

Q. Have you imposed any penalty or discipline on anybody in

your department as a result of the violation of the injunction?

A. That's my -- not my decision. As I say, I delegated that

to appropriate officials.

Q. Well, Chief Sheridan serves at your pleasure, correct?

A. Yes.

Q. And you could also -- well, as to Chief Sheridan, it's

possible that you -- you could make a decision to do something

with respect to him, even dismiss him, for violating the

Court's orders, correct?

A. Yes.

Q. But you've chosen not to do that --

A. Yes.

Q. -- is that right?

A. Chief Sheridan is a very professional, dedicated employee

of this office with a tremendous background. And I stand by

him, unless something else comes up in the future, and that's


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the way it is.

Q. Can you imagine anything that would cause you to dismiss

Chief Sheridan?

A. Well, if he sticks up a --

MR. MASTERSON: Objection, relevance to "anything."

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

BY MR. YOUNG:

Q. Sheriff, do you stand by Chief Olson's final findings that

no one in your department violated any policy of your

department with respect to failure to comply with the

injunction?

A. Once again, I did not get into the details, but I do have

confidence in Chief Olson. He's been through this before.

He's a voting member of POST, which is a state agency that

decides on discipline. I have confidence in him. And I told

him, when I agreed to ask him to do that assignment, that you

call it like you see it. And I'm convinced, with his ethics,

that he did that.

Q. So you stand by Chief Olson's final findings, correct?

A. I don't have all the details, but I stand by his decisions.

Q. Sheriff, it's at least possible that it would be better to

have someone outside the agency, such as the monitor, perform

the function that Chief Olson performed in that investigation.

Would you agree with that?

A. I don't know if the monitor had any authority to


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investigate our people.

Q. Well, you could agree to have the monitor make final

decisions on discipline and violation with respect to, say,

issues arising out of violation of this Court's orders,

correct?

A. I think that is the function of the elected sheriff who

runs the third-largest sheriff's office in the country with

tremendous work, and as I say again, I support Olson. I don't

know all the facts doing his evaluation, but I support the

person. The person. I have faith in him for doing the right

thing.

Q. You're the elected sheriff, right?

A. Yes.

Q. So you could, as the elected sheriff, make the decision to

have the monitor, to appoint the monitor be the final

decision maker in an internal investigation relating to

violations of this Court's orders, is that right?

A. Well, you know, our employees do have merit protection;

some people will call it Civil Service. So there are mechanics

in order to decide on these type of decisions, discipline and

so on, so I don't know where the monitor would fit in.

On the other hand -- and once again, I don't get

involved in internal securities; I delegate that. But on the

other hand, I have confidence in my organization. We've gone

through many, many hundreds of investigations, Internal


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Affairs.

Q. So you have confidence in a final finding made by

Chief Olson that even though your office violated this Court's

preliminary injunction, there was no violation of your

policies. Is that what you're saying?

A. I don't have all the facts where he came to his conclusion.

Maybe that would --

Q. But you agree with that conclusion, though, that there was

no violation of your office's policies as a result of the

violation of this Court's orders, is that right?

MR. MASTERSON: Objection, foundation.

THE WITNESS: As of now, I don't --

THE COURT: Sheriff -- Sheriff, please.

I'm going to overrule the objection.

BY MR. YOUNG:

Q. Do you have the question in mind, Sheriff?

A. Could you repeat it?

Q. You agree that there was no violation of your office's

policies resulting from the violation of this Court's

injunction.

A. Once again, I am going on what Chief Olson's examination

slash investigation was. I don't have all the details on what

his decision was --

Q. Okay.

A. -- as far as the facts during the course of his


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investigation.

THE COURT: Can I interrupt?

MR. YOUNG: Yes, Your Honor.

THE COURT: This will just save me having to ask a

question later on and maybe bring something to a conclusion.

You understand, Sheriff, that one of the things I'm

doing here is evaluating whether changes need to be made in

light of the failures that led to my order not being

implemented.

THE WITNESS: Yes.

THE COURT: You understand that.

THE WITNESS: Yes, sir.

THE COURT: All right. And you understand that one of

the things I'm doing is looking at how your office investigates

itself, correct?

THE WITNESS: Yes.

THE COURT: And I think you've indicated that you are

willing to be bound by Chief Olson's determination as your

office's final determination about what the appropriate

determination was with respect to any of your policies being

violated, is that correct?

THE WITNESS: Yes, sir.

THE COURT: Okay.

MR. YOUNG: Your Honor, I would ask that we play the

video from the sheriff's March 25, 2015 deposition, page 258,


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line 15, to 259, line 29.

THE COURT: That was the March 15 dep --

MR. YOUNG: March 25, 2015, page 258, line 15, to 259,

line 29.

And for Mr. Klein's benefit, that's clip number 76.


"Question: Well, wouldn't it be better if the monitor

were to take over the authority for dispositions on discipline

actions for violations of the Court's orders?

"Answer: That would be a possibility.

"Question: As a matter of principle, that -- that's a

better possibility or better solution than leaving the

disposition authority in the hands of the people who were

responsible for violating the Court's orders in the first

place; correct?"

MR. MASTERSON: Objection.

"THE WITNESS: Without getting into the --"


MR. MASTERSON: Judge, I'm going to assert the

objection. I made an objection in the transcript at this

point.

THE COURT: I don't -- oh, is there an objection

that's been deleted from the transcript?

MR. YOUNG: It's possible the video has an objection

deleted, Your Honor, but --


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THE COURT: Well, let's go back and see that. I --

Mr. Masterson?

MR. YOUNG: Mr. Klein, do you think you can do the --

MR. MASTERSON: Are we on -- I'm sorry. May I ask --

may I ask counsel a question?

THE COURT: Sure. But I don't even think you were in

this case yet.

MR. MASTERSON: No, but there's an objection by

defense counsel.

THE COURT: That's fine.

MR. MASTERSON: Are we at line 21 on page 258? Is

that your question?

MR. YOUNG: Well, I'm going to flip to 258 at line 15,

and I think Ms. Iafrate made a form objection at line 10.

THE COURT: At line 10?

MR. MASTERSON: Line 25's the one I'm looking at,

Judge, because I think that's the question Mr. Young just read.

MR. YOUNG: And there is another one at line 25.

THE COURT: And what is -- it's a form objection? Is

it a form objection?

MR. YOUNG: Yes.

THE COURT: All right. So what's your objection now,

Mr. Masterson?

MR. MASTERSON: My objection is to the use of the

phrase, leaving disposition authority in the hands of people


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who were responsible for violating the Court's order in the

first place. Foundation.

THE COURT: I'll sustain that objection.

MR. YOUNG: All right. Well, then let's go to line 6

on page 259.

Actually, maybe I should -- before we play the video,

perhaps I should give Mr. Masterson a chance, going all the way

down to line 29 at page 259, whether there are any other

objections that he wants to assert at this point.

MR. MASTERSON: And you're going to read the question

at line 6 through 10?

MR. YOUNG: Yes. No. Well -- yes.

And actually, it will go from line 6 down to line 25

at page 259.

MR. MASTERSON: Objection, foundation, legal

conclusions, and relevance.

Do you have the -- well, would you like my copy for --

THE COURT: I would like somebody's copy.

MR. MASTERSON: As long as you give it back, I'll give

you this one.

THE COURT: Thank you.

MR. MASTERSON: (Handing).

(Pause in proceedings.)

THE COURT: All right. So what are your objections,

again, Mr. Masterson?


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MR. MASTERSON: Foundation as to the -- foundation, in

that the question calls for a legal conclusion; and also its

relevance, since the Court will be making these ultimate

rulings on effective relief.

THE COURT: I'm going to overrule the objections.

Well, I'm going to overrule the objections to the

extent that the sheriff is the final decision maker in Maricopa

County. And so I think he does have the foundation to offer

opinions about appropriate ways to handle discipline within his

office.

Did you have other objections?

MR. MASTERSON: No, sir.

THE COURT: Okay. You can play the tape.


So Mr. Klein, could you start at line 6 of page 259,

and go to line 25.


"Answer: ... study, the protection of our employees.

Merit rules. I can go on and on.

"Question: Well, assuming that all of the state law

protections are abided by by the monitor, it would be a good

solution for the monitor to assume responsibility for deciding

how to discipline people within your office for violations of

the Court's orders; correct?

"MS. IAFRATE: Form.


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"THE WITNESS: I have no objection for the monitor

conducting investigations. As far as who -- the disciplinary

action following that information or evidence, I still haven't

decided which way to go on that.

"BY MR. YOUNG:

"Question: Okay. So, in your view, it's possible

that it would be better if the monitor took over those

disposition decisions; correct?

"MS. IAFRATE: Form.

"THE WITNESS: I don't know if it's better or not,

but, once again, I haven't decided.

"BY MR. YOUNG:

'Question: Is that something you're actively

considering now?

Answer: It's a possibility."


BY MR. YOUNG:

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

March 25, 2015?

A. Yes. I said it's a possibility. Everything changes when

you run a large organization, so nothing is impossible.

Q. Is it possible now, in your view?

A. Pardon?

Q. Is it possible now, in your view, that it would be better

to have the monitor take over that decision-making?


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A. No.

MR. YOUNG: Your Honor, there's some dep- -- well,

some interrogatory responses. I'm wondering whether we could

get -- well, I can show them to the sheriff. It's

Exhibit 2730. I believe he verified them. Although if counsel

are willing to stipulate to the admission of those

interrogatory responses, I'd be happy to spare the sheriff the

time.

THE COURT: Have you designated them to Mr. Masterson?

Does he know which interrogatory responses you're talking

about?

MR. YOUNG: Well, he verified the whole thing, so I'm

going to ask --

THE COURT: Mr. Masterson verified it or the sheriff

verified it?

MR. YOUNG: The sheriff verified the whole thing --

THE COURT: Well --

MR. YOUNG: -- Exhibit 2730.

THE COURT: 2730.

Can you take a look at that, Mr. Masterson?


MR. MASTERSON: Well, I'm going to object to the

introduction of the entire document. If counsel wants to ask

specific questions concerning them then I'll address any

appropriate objections at that time.


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THE COURT: Please proceed, Mr. Young.

BY MR. YOUNG:

Q. Sheriff, do you have Exhibit 2730 in front of you?

A. Where is -- oh, here?

Q. I think it might be one of those folders.

A. What number?

Q. 2730.

A. Yes.

Q. Exhibit 2730 has the title "Defendant Arpaio's Response to

Plaintiffs' Second Set of Interrogatories and First Set of

Requests For Admission to Defendant Arpaio Re Contempt."

If you go to the last page, you'll see something that

says that you "verify that the matters and things contained

therein are true to the best of your knowledge and belief,

except such matters as are stated upon information and belief,

and as to such matters, you believe them to be true."

Do you see that language there?

A. Yes.

Q. Okay. Is that your signature under that language?

A. Yes.

MR. YOUNG: Your Honor, I'd move to admit

Exhibit 2730.

MR. MASTERSON: No objection.

MR. WALKER: No objection, Your Honor.

MR. COMO: No objection.


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THE COURT: Exhibit 2730 is admitted.

(Exhibit No. 2730 is admitted into evidence.)

BY MR. YOUNG:

Q. Now, going back to the discussion we just had about whether

the monitor would be --

Sheriff, we're done with that exhibit, so --

A. We're done?

Q. We're finished with that exhibit.

A. Did you say we're done?

Q. We're finished with that Exhibit --

A. Oh.

Q. -- 2730; we're not done with the questioning.

A. Okay.

Q. Going back to our discussion about the monitor, at least in

March, it appears from your deposition, that you thought it

would be at least possible that it would be better for monitor

to make the decisions about discipline for violation of this

Court's orders, but you now think that that's not a

possibility?

Did I capture your testimony correctly?

A. No. Oh, I said anything is possible. When you run a large

organization, some changes can be made. I think that's what my

thrust of my comment was.

Q. Now do you think the change could be made, that the monitor

could assume responsibility for final dispositions on


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disciplinary matters involving violations of this Court's

orders?

MR. MASTERSON: Objection, asked and answered.

THE COURT: Overruled.

THE WITNESS: Right now, as I said, we have not made a

decision.

BY MR. YOUNG:

Q. Are you still in the process of making a decision about

whether it would be acceptable from your standpoint to have the

monitor take over that responsibility?

A. We're still looking at all the aspects of that situation.

Q. Would you object if the monitor were to take over that

responsibility?

A. I've not made the decision.

Q. You thought about the issue of having a monitor oversee

your office's operations in 2012 after the Department of

Justice filed its lawsuit, is that right?

Do you recall that?

And in particular, do you recall thinking that you did

not want a monitor overseeing your office?

A. You are speaking on the Department of Justice?

Q. Well, right now I'm actually asking about your -- your

views about having a monitor oversee your office.

During the course of 2012, do you recall that you

thought that that would be a bad idea, to have a monitor


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overseeing your office?

A. Yes. And the DOJ ruled in our favor --

MR. YOUNG: Your Honor --

THE WITNESS: -- not having a monitor.

MR. YOUNG: Your Honor, I would ask that we look at

Exhibit 2830C.


UNKNOWN SPEAKER: But I want to ask you, because they

seem to be suggesting the thing that is making the negotiations

break down is your -- this is their characterization -- your

sudden objection to having this independent monitor, something

that you hadn't objected to before, so they --

SHERIFF ARPAIO: And that --

UNKNOWN SPEAKER: -- think it's you who's making the

conflict come to a head right now.

SHERIFF ARPAIO: That is garbage. That is garbage. I

publicly in the past said I will never give in to a control by

the federal government. That is false -- which many other

statements they make are false -- that's not true.

(Video clip concluded.)

BY MR. YOUNG:

Q. Sheriff, is that you?

A. I don't even know what the beginning of that conversation

was about; you just showed parts of it. So it's hard to answer

just a little sound bite that you show without the whole


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context of that interview.

Q. Well, your office gave us the whole interview and your

lawyers have it now, and if you want, you can have them play it

for you, or we could play the whole thing for you if you

wanted, but my question is: Was that you?

A. It was me and it was Kelly of Fox.

Q. And that was in approximately April 2012 when you were

talking about the dispute you were having with the Department

of Justice at that time, correct?

A. I believe so.

MR. YOUNG: Your Honor, I move for the admission of

2830C.

MR. MASTERSON: Objection, relevance.

THE COURT: I guess, Mr. Young, I don't understand

what the relevance is. I mean, if I determine that the monitor

needs to appropriate control over matters that relate to this

lawsuit or the plaintiff class, and that if I have the

jurisdiction to do it, I'll do it. I don't care whether the

sheriff --

MR. YOUNG: Your Honor, this relates --

THE COURT: I don't care whether the sheriff objects

or not.

MR. YOUNG: I understand that, Your Honor.

This issue goes to the state of mind issue as to the

contempt, and it relates to the sheriff's views about having a


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monitor, which relates to, for example, how he interacted with

a monitor on May 14, 2014, and how he's reacted to having a

monitor generally. I think it's quite relevant to the contempt

issue.

THE COURT: All right. I'll admit the exhibit on that

basis.

(Exhibit No. 2830C is admitted into evidence.)

BY MR. YOUNG:

Q. Did that video accurately reflect how you felt about the

idea of having a monitor, Sheriff?

A. I believe -- I'm not sure of the confines of that monitor

on the Department of Justice issue, whether it was to monitor

my whole organization, every aspect. I do have a

constitutional right, as the elected sheriff that reports to 4

million people in this county, to serve them as the elected

sheriff. So when you say that someone can take over my

organization, I think that may be a legal problem, too, when

you're dealing with an elected constitutional sheriff.

So I think that's what I may have had in my mind at

that time, and I don't recall everything in that segment to

draw to that question. But basically that's how I felt at that

time.

MR. YOUNG: Could we play Exhibit 2828E.


SHERIFF ARPAIO: But don't go around taking over my


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office, and every time I want to do something we have to talk

to them and see if it's okay to go lock up some illegals, or

the tents, and everything else.


BY MR. YOUNG:

Q. Sheriff, is that you also objecting to having a monitor in

connection with your dispute with the DOJ?

A. Once again, that was, what, two seconds? Three seconds?

What about the whole context of that interview? Very difficult

to answer that when I don't remember the whole interview.

Q. Sheriff, you can't tell whether that's you or not?

A. I know it's me.

MR. YOUNG: I move to admit 2828E.

MR. MASTERSON: I'm going to make the same objection

as to relevance and cumulative, but in addition, as the sheriff

pointed out, in the DOJ case -- and I can tell you this, I was

counsel for the sheriff in the DOJ case -- DOJ wanted to take

over the entire department. They wanted a monitor. They

wanted an inspector general. That's what the sheriff's talking

about here, not a monitor over disciplinary matters and IA

matters.

THE COURT: Well, I do think that after the admission

of the first, the second starts to get a little cumulative.

I'll allow it, but I'm not going to allow any more. So I will

admit this for a limited purpose. And, you know, we've already


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heard argument from Mr. Masterson as to why its relevance is

limited, but you can make argument on the other side.

(Exhibit No. 2828E is admitted into evidence.)

BY MR. YOUNG:

Q. So Sheriff, you said something about not wanting to have to

go talk to a monitor before locking up some illegals.

Do you recall that? We just saw it on the video.

A. Well, once again, I don't know what led into that comment,

but -- whether it had to do with illegal immigration or not, or

the Department of Justice zeroing in on taking over my

organization.

MR. YOUNG: Actually, Your Honor, I may have

overstepped -- or stepped on your -- did we admit -- did you

admit 2828E?

THE COURT: What was that?

MR. YOUNG: The video we just saw, Exhibit 2828E?

THE COURT: Yes, I admitted --

MR. YOUNG: Thank you.

THE COURT: -- 2828E.

BY MR. YOUNG:

Q. Well, Sheriff, when you refer to illegals in statements to

the press, you're referring to people who are in the country

without permission, correct?

A. Yes.

Q. We can play it again, if you'd like, but I think you


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objected to having to ask someone any time you want to go lock

up some illegals, and my question is: Is that something that

you were unhappy about as to the prospect of having a monitor

oversee your activities with respect to your immigration

enforcement?

A. No. I don't know if that, illegal immigration, was part of

this segment that I use. I was concerned about the federal

government taking over the office of the sheriff. And I may

have used that as one -- many different crimes. Wasn't just

illegal immigration. The management -- I can go on and on.

Q. Do you have anything further to add to your answer?

A. No. I haven't seen the whole segment, but I will respond

to that portion, and I have.

Q. You said that you would fight to the bitter end before

having a monitor oversee your office, is that right?

A. I was speaking on the Department of Justice wanting to take

over my whole organization, the federal government running my

office in total. That's what I was talking about.

Q. So you settled your dispute with the DOJ, correct?

A. Can you repeat?

Q. Recently, just recently you reached an agreement with the

Department of Justice, correct?

A. Very proud of that agreement.

Q. And that agreement came about in part because there is a

monitor currently overseeing your office under the orders of


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this Court, is that right?

MR. MASTERSON: Objection, foundation. Relevance.

THE COURT: You may answer if you know.

THE WITNESS: I'll agree the monitor is monitoring the

three positions that we agreed to.

BY MR. YOUNG:

Q. Well, the Department of Justice lawsuit involved racial

profiling issues that are similar to the issues, or identical

to the issues in this case, correct?

A. Yes.

Q. Okay. So at least as to that portion of what the DOJ was

concerned with, there is currently a monitor overseeing your

office, is that right?

MR. MASTERSON: Objection, foundation, relevance.

THE COURT: Overruled.

THE WITNESS: I don't know the legal aspects of a

transfer of that concept to our office regarding monitors.

BY MR. YOUNG:

Q. Well, let me ask you again, Sheriff. It was your view,

when you were talking about monitors with the DOJ in 2012, that

you would fight to the bitter end, is that right?

A. To take over the office of the sheriff completely, the

federal government taking over the office of the sheriff.

That's what I was responding to.

Q. And you said you would fight that to the bitter end, is


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that right?

A. Taking over the office, the constitutional office of the

sheriff, yes. And I don't even think it would be legal for

that to ever happen.

Q. Sheriff, I'm going to show you an exhibit, which is an

Arizona Republic article dated June 28, 2012. It has a

quotation from you in it, and I'm going to ask you to take a

look at it. It should be in a folder on your table or we can

put it up on the screen.

Actually, let's put it up on the screen, if Your Honor

will permit.

THE COURT: What's the exhibit number?

MR. YOUNG: 2283.

Now, if we can blow that up a little bit on the

screen. And feel free to scroll down. Actually, let the

sheriff read the whole thing.

THE WITNESS: Do you want me to read the whole thing?

BY MR. YOUNG:

Q. Yes, you can go ahead and read the whole thing if you'd

like. I'm going to ask you some questions, and it might be

better if you read the whole thing.

A. Yes.

Q. Sheriff, before the trial in this action in 2012 -- and in

particular around June 28, 2012, the date of that article --

you knew that Judge Snow's brother-in-law worked at the


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Covington & Burling law firm, correct?

MR. MASTERSON: Objection, relevance.

THE COURT: What is the relevance? We've already

dealt with this in context -- in the context of the motion to

recuse. I've denied that motion.

MR. YOUNG: Understood, Your Honor. This relates to

the sheriff's state of mind later on with respect to the

Montgomery investigation.

THE COURT: Well, how does it relate to the

Montgom- -- oh, the Montgomery investigation?

MR. YOUNG: Correct.

THE COURT: Are you going to be able to tie this up?

MR. YOUNG: I believe so, Your Honor.

THE COURT: All right. I'm going to give you a

limited leeway, but it's very limited. We're not reopening the

motion to recuse that I've already ruled on.

MR. YOUNG: Understood.

BY MR. YOUNG:

Q. Did you know that fact, in June 2012, Sheriff, that Judge

Snow's brother-in-law worked at Covington & Burling?

A. It may have -- I didn't pay much attention to it, but let

me just say this. My advice of my lawyer that we would not

oppose this.

Q. The Arizona Republic story quotes you as saying, quote, I'm

confident in this judge and the judicial system, and I'm not


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asking for the judge to be removed from this case.

Was that an accurate quotation?

A. On advice of my lawyer, yes.

Q. Now, you testified in the trial that happened in this case

following that story. The trial was in July and early August

2012, correct?

A. Yes.

Q. There was evidence presented on both sides, right?

A. Yes.

Q. Okay. Then the judge made a decision in May 2013 that your

office violated the Constitution, correct?

A. Yes.

Q. Then in October -- specifically October 2, 2013 -- Judge

Snow issued a supplemental injunction where he decided he was

going to require certain changes in your office, and that would

include appointment of a monitor to oversee those changes.

Do you recall that?

A. Yes.

Q. Now, that same month you, for the first time, heard about

Dennis Montgomery, correct?

A. I believe so.

Q. You had a meeting with Timothy Blixseth, Mike Zullo,

Detective Mackiewicz, where you talked about Mr. Montgomery,

who was someone who used to work for a federal intelligence

agency, correct?


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A. I'm not sure as to the date, but I believe we did meet.

Q. Okay. Let's take a look at Exhibit 2858.

THE COURT: Was that 2858?

MR. YOUNG: Yes.

BY MR. YOUNG:

Q. And I'll tell you, Sheriff, this is a -- has a cover sheet

that indicates it's your office's response to July 22, 2015

monitor document request related to ITR 25.

Do you have Exhibit 2858 in front of you, Sheriff?

A. Yes.

Q. Okay. And if you look at the third page, MELC662425, do

you see a document with your signature on it?

A. Do I have the right -- is it 2858?

Q. Yes.

A. Yes.

Q. That is your signature on that page?

A. Yes.

Q. Okay. Is this your office's response to the monitor's

requests for documents, identifying dates, times, et cetera --

and I'm paraphrasing the first page -- relating to the Seattle

investigation?

A. Yes.

MR. YOUNG: Your Honor, I'd move for the admission of

2858.

MR. MASTERSON: Well, if he's moving in that one page


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that the sheriff signed, I have no objection; if it's the rest

of the document, foundation.

MR. YOUNG: Your Honor, the -- would you like argument

on that?

THE COURT: Well, I guess I'd like argument, but I

don't have the exhibit in front of me, so I don't know how many

other pages there are, and I don't see that exhibit here in my

box.

MR. YOUNG: Let me try to get that for Your Honor.


MR. YOUNG: (Handing).

Your Honor, the sheriff has identified this document,

Exhibit 2858, as his office's response to the monitor's request

for information relating to dates, times, et cetera, of

meetings relating to the Seattle investigation, and I think

there's foundation for that in that testimony.

THE COURT: Let me go back and see what his -- what

your question and his actual testimony was.

MR. MASTERSON: Judge, I want to point out that you'll

note once you get down to I believe page 8 or 9, that we're

seeing different signature lines from different people that are

not this witness.

MR. YOUNG: That's true, but the sheriff is able to

specify that his office responded --

THE COURT: Do you know what, gentlemen? From now on,


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I'm going to strictly enforce my rule about one- or two-word

objections. If you really feel like you need to expound, then

we'll do it at sidebar, which I hate to do. And the

congregation over there is as big as the rest of the crowd so

we might as well do it in open -- but I'm not going to do it in

open court.

So I'm going to look and see what the sheriff's

testimony was. Please give me a minute.


THE COURT: The exhibit is admitted.

(Exhibit No. 2858 is admitted into evidence.)

THE CLERK: That's 2858?

THE COURT: 2858 is admitted.

BY MR. YOUNG:

Q. Sheriff, if you look at the page with the last three digits

on the bottom right, 430 --

A. Yes.

Q. -- you'll see something that has a date of October 18,

2013, at 8:30 a.m. Do you see that?

A. Yes.

Q. And actually, up at the top, Amy Lake, does she maintain

your calendar in Outlook?

A. Yes.

Q. The note says that you had an interview with Brian

Mackiewicz here in your office. Do you see that?


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Documents

Melendres v. Arpaio #1455 Oct 1 2015 TRANSCRIPT - DAY 9 Evidentiary Hearing