Melendres v. Arpaio #1498 Oct 28 2015 TRANSCRIPT - DAY 16 Evidentiary Hearing

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

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

Defendants.
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(Evidentiary Hearing Day 16, Pages 3698-3970)
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Court Reporter:
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Phoenix, Arizona
October 28, 2015
9:03 a.m.
BEFORE THE HONORABLE G. MURRAY SNOW
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No. CV 07-2513-PHX-GMS
REPORTER'S TRANSCRIPT OF PROCEEDINGS
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Gary Moll
401 W. Washington Street, SPC #38
Phoenix, Arizona 85003
(602) 322-7263
Proceedings taken by stenographic court reporter

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

American Civil Liberties Union Foundation
Immigrants' Rights Project
By: Cecillia D. Wang, Esq.
39 Drumm Street
San Francisco, California 94111
American Civil Liberties Union Foundation
Immigrants' Rights Project
By: Andre Segura, Esq.
125 Broad Street, 18th Floor
New York, New York 10004
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American Civil Liberties Union of Arizona

By: Daniel J. Pochoda, Esq.
P.O. Box 17148
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For the Defendant Maricopa County:

Walker & Peskind, PLLC
By: Richard K. Walker, Esq.
SGA Corporate Center
16100 N. 7th Street, Suite 140
For the Defendant Joseph M. Arpaio and Maricopa County

Sheriff's Office:
Iafrate & Associates
By: Michele M. Iafrate, Esq.
649 N. 2nd Avenue
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Jones, Skelton & Hochuli, PLC

By: A. Melvin McDonald, Jr., Esq.
By: John T. Masterson, Esq.
By: Joseph T. Popolizio, Esq.
2901 N. Central Avenue, Suite 800
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Melendres v. Arpaio, 10/28/15 Evidentiary Hearing
A P P E A R A N C E S
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For the Movants Christine Stutz and Thomas P. Liddy:

Broening, Oberg, Woods & Wilson, PC
By: Terrence P. Woods, Esq.
P.O. Box 20527
For the Intervenor United States of America:

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

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

Sitton Nash
By: Alexandra Mijares Nash, Esq.
301 W. Warner Road, Suite 133
Tempe, Arizona 85284
Also present:
Sheriff Joseph M. Arpaio
Executive Chief Brian Sands
Lieutenant Joseph Sousa
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For Executive Chief Brian Sands:

Lewis, Brisbois, Bisgaard & Smith, LLP
By: M. Craig Murdy, Esq.
2929 N. Central Avenue, Suite 1700
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I N D E X
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Witness:
BRIAN MACKIEWICZ
Direct Examination Continued by Ms. Morin

Cross-Examination by Mr. Popolizio
Redirect Examination by Ms. Morin
Examination by the Court
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No.
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1000
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2050
2051
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2068
2085
Description
Admitted
Memorandum from Detective Frei to Steve Bailey

dated 5/23/14 and attached incident report
3855
MCSO Memorandum from Deputy Cosme to Captain

Bailey re Video/Audio re Melendres Court Order
dated 5/21/2014 (MELC098062-MELC098110)
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MCSO Memorandum from Lt. Seagraves (on behalf

3898
of Captain Bailey) to Chief Lopez re Video/Audio
re Melendres Court Order dated 5/21/2014
(MELC004088)
Documents from IA 14-0564
(MELC160986-MELC161056)
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Document created to keep track of various

expenditures (MELC199632-33)
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3798
3915
E X H I B I T S
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3713
3749
3784
3786
Direct Examination Continued by Ms. Wang

Cross-Examination by Mr. Masterson
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Page
STEVE BAILEY
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Findings of MCSO IA 2014-0547 (MELC160761-985)
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2263
E-mail from Brian Mackiewicz to Larry Klayman

copying Michael Zullo, David Webb, and Dina
James Re: DC dated 11/7/2014 (MELC202173-75)
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E X H I B I T S
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No.
2266
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2757
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Memorandum to Steve Bailey from Stephen Fax

Re: Documenting all personnel in HSU by year
and identifying the chain of command dated
6/21/2014 (MELC010882-MELC010883)
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MCSO Professional Standards Bureau IA

# 2014-0546 dated 11/12/2014
(MELC158578-MELC158624)
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Memorandum to Clint Doyle from Brian Mackiewicz 3887

re: Investigative Trip dated 10/25/2013
(MELC187301)
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Revised Call Signs dated 11/22/2013

(MELC112957)
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Video Arpaio Thomas Hearing
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E-mail from Brian Mackiewicz to Mike Re:

Updated Rev 3A dated 9/21/2014 (MELC202277)
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E-mail from Brian Mackiewicz to Jenise Moreno

Re: Confidential dated 1/9/2014 (MELC1386579)
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MCSO Memo from Travis Anglin to Brian

Mackiewicz re: Confidential Informant Payment
dated 8/12/2014 (MELC198465-MELC198466)
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E-mail from Brian Mackiewicz to Michael Zullo

FW: Response dated 11/14/2014 (MELC198226)
Memorandum to S. Bailey from K. Seagraves Re:

Action Plan - Reference to allegation of
Anabolic Steroids purchase(s) made by Deputies
Brian Mackiewicz and James Kempher dated
3/26/2015 (MELC186297-MELC186300)
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Admitted
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Description
Memorandum to Steven Bailey from Travis Anglin

re: Investigative Trip dated 1/16/2014
(MELC198476-MELC198477)
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E X H I B I T S
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No.
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dated 7/24/2014 (MELC198463-MELC198464)
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dated 7/24/2014 (MELC198461-MELC198462)
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dated 6/25/2014 (MELC198457-MELC198458)
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dated 6/9/2014 (MELC198455-MELC198446)
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dated 5/19/2014 (MELC198453-MELC198454)
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dated 5/16/2014 (MELC198451-MELC198452)
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dated 4/16/2014 (MELC198449-MELC198450)
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dated 3/29/2014 (MELC198448)
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Excerpt of PX 2082 - Document 1: "Joe Arpaio

Brief" Timeline dated 1/1/2014
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Excerpt of PX 2082 - Document 2: "Arpaio

Brief" Schematic dated 1/1/2014
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Excerpt of PX 2082 - Document 3:

"Whisleblower Chronicles" (CIA Chronicles)
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Admitted
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Description

dated 8/27/2014 (MELC198467-MELC198468)
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E X H I B I T S
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No.
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Description
Admitted
Excerpt of PX 2082 - Document 4: "Names of

People Involved" dated 2/17/2014
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Excerpt of PX 2082 - Document 5: "Check List

for Elmer" (Check List for Dennis) dated
3/27/2014
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Excerpt of PX 2082 - Document 6: "List 2"

Dated 3/27/2014
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Excerpt of PX 2082 - Document 7: "DOJ / Arpaio

Timeline" dated 12/4/2013
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MCSO Internal Affairs Division IA #13-0000,

Interview Confidential Informant dated
12/14/2013 (MELC185036 - MELC185144)
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E-mail from Steve Bailey to Benjamin Armer re

Briefing dated 4/23/2014 (MELC677919MELC677920)
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E-mail from Mike Zullo to Brian Mackiewicz re

Arpaio dated 12/16/2014
(ZULLO_001131-ZULLO_001135)
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and Mike Zullo re Sheriff dated 11/5/2014
(ZULLO_001479-ZULLO_001480)
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et al., re DC dated 11/3/2014
(ZULLO_002656-ZULLO_002663)
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E-mail from David Webb to Mike Zullo cc Brian

Mackiewicz re Work dated 11/6/2014
(ZULLO_003232-ZULLO_003233)
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Spreadsheet summarizing the status of

Armendariz spin-off investigations as of
9/30/2015
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P R O C E E D I N G S
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THE COURT:
Please be seated.
THE CLERK:
This is civil case CV-07-2513, Melendres,
et al., v. Arpaio, et al., on for continued evidentiary
hearing.
MS. WANG:
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Good morning.
MS. MORIN:
Good morning, Your Honor.
09:03:11
Michelle Morin
Good morning.
MR. POCHODA:
Good morning.
Dan Pochoda from the ACLU
of Arizona for plaintiffs.
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THE COURT:
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09:03:20
Good morning.
MR. KILLEBREW:
Paul
Killebrew and Cynthia Coe for the United States.
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THE COURT:
Good morning.
MR. POPOLIZIO:
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THE COURT:
THE COURT:
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Cecillia Wang
and Stan Young of Covington & Burling for plaintiffs.
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and Andre Segura of the ACLU for plaintiffs.
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Joe
Popolizio and John Masterson on behalf of Sheriff Arpaio, and
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with us is Holly McGee.
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THE COURT:
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MR. POPOLIZIO:
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MR. WALKER:
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09:03:03
Counsel, please announce your appearances.
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09:03:28
Good morning.
Good morning.
Richard Walker
09:03:35
on behalf of Maricopa County.
THE COURT:
Good morning.
MR. WOODS:
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Terry Woods on
behalf of nonparties Stutz and Liddy.

MR. McDONALD:
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Mel McDonald
making a special appearance for Sheriff Arpaio.

MR. MURDY:
behalf of retired Chief Brian Sands.
MS. MIJARES NASH:
Craig Murdy on
And good morning, Your Honor.
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Alexandra Mijares Nash specially appearing for Brian
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Mackiewicz.
MS. IAFRATE:
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Iafrate on behalf of Sheriff Arpaio and the alleged nonparty
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contemnors.
THE COURT:
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09:04:07
Mr. Walker, you have something you want to raise?

MR. WALKER:
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Yes, Your Honor.
Very briefly, a
housekeeping matter.
We received your order yesterday approving the
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Good morning.
Do I take it by your presence at the podium,
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monitor's most recent invoice for payment, and as I discussed
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with Chief Warshaw on Friday, this invoice takes us
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09:03:55
Michele
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09:03:45
09:04:16
approximately $15,000 over the annual contract amount.

Payment will be issued up to the full contract amount
today, but we need to get the board approval for the additional
09:04:41
15,000.
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I've reached out to the attorney for Chief Warshaw,
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and I told Chief Warshaw I was going to do this.
My hope is
that we can go to the board not just with a request for
approval for the additional 15,000, but for a supplemental
amount to cover the rest of the contract year.
And I expect, assuming we have that to present, we
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should be able to get the approval for at least the 15,000, if
not for an amount to cover the rest of the contract year by
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next week.
THE COURT:
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09:05:22
All right.
Mr. Walker, was there -- as
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I've told you before, I don't have any objection if you enter
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into a contract with the monitor that I've appointed, to the
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extent that he doesn't have any objection.
But I don't view this as a matter of contract; it's a
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matter of court order.
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the Maricopa County Board of Supervisors, that I am ordering
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that the monitor be paid.

MR. WALKER:
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Your Honor, I will certainly make that
The hoop that we have to jump through is by state law,
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we cannot make a payment unless the board has approved the
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contract amount.
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clear.
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THE COURT:
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MR. WALKER:
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we have to deal with.
09:05:37
And so I wish you would convey that to
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09:05:03
09:05:54
All right.
It's just a -- sort of a technical issue
09:06:09
THE COURT:
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I get it.
And I know you're aware of the
supremacy clause and everything like that.

MR. WALKER:
THE COURT:
I am, Your Honor.
The only other point I would make is I
understand and appreciate both your desire and your client's
desire to be as fiscally responsible with county funds as you
can be.
protect the constitutional rights of the members of the
plaintiff class in this case.
I share that desire, consistent with the need to
Towards that end, several months ago I offered you the
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opportunity to monitor -- held out several opportunities for
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you by which you could continue to monitor the detailed
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billing, and you haven't taken me up on any of those.
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renew that invitation, but to the extent that you don't take me
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up on it, I'm not going to review what I've already approved.
I would
and I'm willing to consider them, and we can raise them with
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all parties so that all the parties can consider what we come
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up with, so that you can feel and your clients can feel like
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they're doing their best to safeguard the county fisc.
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MR. WALKER:
Thank you.
09:07:19
And I'll be sure to convey
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THE COURT:
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Mr. Popolizio, do you have something?
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MR. POPOLIZIO:
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09:07:00
that offer to my client.
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09:06:37
I will, however, allow you to consider those options,
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09:06:18
All right.
Thank you.
I do, Your Honor.
Before we start,
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could we have a sidebar?

THE COURT:
Sure.
(Bench conference on the record.)
THE COURT:
We have more folks here today.
MR. POPOLIZIO:
THE COURT:
THE COURT:
No.
I could give you one.
That would be good.
MR. POPOLIZIO:
It isn't a good one.
He's laid up,
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the chief deputy, this week, and he may, I don't know, have to
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have an additional procedure when he goes back on Monday, but
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he'll -- he might have a procedure on Tuesday, but he doesn't
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know that.
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Tuesday?
-- what the procedure was.
That's all
Okay.
MR. POPOLIZIO:
09:08:38
With regard to the issue of the
sidebar that I was thinking of when I asked for it, it's with
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THE COURT:
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I know.
I don't -- I didn't ask --
All right.
MR. POPOLIZIO:
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09:08:33
THE COURT:
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This is another injection, maybe, on
MR. POPOLIZIO:
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respect to a potential exhibit that might be used with
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Detective Mackiewicz right now.
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and she may have a concern that she wants to address.
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09:08:16
It's a possibility.
THE COURT:
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09:08:01
Is this a health update?
MR. POPOLIZIO:
It's getting real tight in here.
And I talked to Attorney Nash,

09:08:56
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MS. MIJARES NASH:
There was one exhibit, Your Honor.
It was the transcript of the telephonic interview or
conversation with Sergeant Tennyson and Detective Mackiewicz on
August 5th of 2015.
was admitted under seal during Lieutenant Seagraves' testimony
and we sealed that portion of the deposition as well.
We did cover that in the deposition.
It
And since that is still remaining under seal, and I
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don't know that they intend to get into questions about that,
then I don't know if we need to take it under seal at that
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point, or what the best course of action would be.

THE COURT:
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Why?
Is there any reason it should remain
MS. MIJARES NASH:
I'm not aware of what the attorney
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general had submitted to Your Honor and what the conversation
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was between Your Honor and counsel for the parties addressing
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the testimony that was under seal and is still under seal, so I
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don't know that I have, necessarily, any idea what that
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conversation was about.
not present, but my understanding is that it was still -- and
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again, without the attorney general's position or knowledge of
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that, they don't know the answer to your question.
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09:09:43
I don't know if other counsel can address that with me
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09:09:26
under seal?
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09:09:11
THE COURT:
09:09:57
Any reason why that transcript should
remain under seal?

MR. POPOLIZIO:
Well, it's an ongoing -- I believe
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it's an ongoing Internal Affairs criminal investigation, and
just -- just for that, Your Honor, I think it should stay.

THE COURT:
But again, I mean, this is an internal
criminal investigation that the public has complete and full
knowledge of, including this witness.

MS. MIJARES NASH:
09:10:25
The topic of, perhaps, but not
necessarily the finer details, which I think some are included
in the transcript.
THE COURT:
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but -- do you want to be heard on this, Ms. Morin?

MS. MORIN:
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Well, I appreciate your raising this,
Your Honor, I understood your order --
sorry, this is Michelle Morin.
I understood your order to have unsealed things that
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had already come into the record, and also I believe there was
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testimony in open court by Sergeant Tennyson about the subject
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matter that we're talking about.
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a reason that it needs to go under seal.
So I think it -- I don't see
I'm not sure whether the questioning will require that the
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transcript actually be used as well.
DS
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THE COURT:
there.
IEN
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Well, all right.
09:11:12
We'll see when we get
But if you're asserting that I admitted that exhibit
23
under seal or that I otherwise prohibited testimony from being
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taken in open court regarding that transcript, I'd appreciate
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it if you'd show me, Ms. Nash, because at this point, my memory
FR
09:10:52
Also, I do intend to question Detective Mackiewicz.
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09:10:35
09:11:28
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is not perfect, but I do not remember restricting the testimony
taken concerning that transcript to be under seal.
is the case, I'm certainly not inclined to do it now.

MS. MIJARES NASH:
And if that
Now, and I can certainly, while
we -- we're doing this, perhaps I probably can take a look
through it, because I do distinctly remember it being admitted
under seal during Lieutenant Seagraves' testimony.

THE COURT:
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Well, you can take a look, but again,
after I -- even then, I was admitting things under seal out of

caution.
09:11:57
MS. MIJARES NASH:
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THE COURT:
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Understood.
And since then I've unsealed lots of
13
things, and unless you can give me a reason why I should
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unseal -- or why I should keep that under seal, I'm not
15
inclined to do it.
THE COURT:
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THE COURT:
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Thank you.
Thank you.
(Bench conference concluded.)
DS
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Understood.
All right.
MS. MIJARES NASH:
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09:12:09
MS. MIJARES NASH:
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09:11:45
THE COURT:
Whenever you're ready, Ms. Morin.
MS. MORIN:
Thank you, Your Honor.
09:12:56
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Mackiewicz - DX Morin, 10/28/15 Evidentiary Hearing
BRIAN MACKIEWICZ,
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recalled as a witness herein, having been previously duly
sworn, was examined and testified further as follows:

DIRECT EXAMINATION CONTINUED
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BY MS. MORIN:
Q.
Good morning, Detective Mackiewicz.
A.
Good morning, ma'am.
Q.
Sir, yesterday you testified about a time in early November
2013 when you and Mr. Zullo and Mr. Montgomery were in
10
Mr. Montgomery's office and searched for some version of
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Judge Snow's name in the database.
Do you recall that testimony?
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A.
Yes, I do.
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Q.
So I'd like to go back to that to clarify one point.
You testified at one point that you weren't sure, I
15
believe, whether it was Mr. Montgomery or Mr. Zullo that
17
actually typed the search into Google to find out what was the
18
name of the judge, is that correct?
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A.
Yes, it is.
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Q.
And we played a portion of your deposition where you had
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said that it was Mike Zullo's idea to do that.
DS
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A.
Yes, I do.
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Q.
And do you stand by that testimony today that it was
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actually Mike Zullo's idea to look for the name of the judge?
FR
09:13:22
09:13:36
Is that -- do you recall that?
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09:13:11
09:13:50
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A.
No.
Q.
You don't stand by that testimony?
A.
No, I don't.
Q.
Do you recall testifying several times at your deposition
that it was Mr. Zullo's idea to find out what the name of the
judge was?
A.
I do.
Q.
And you didn't object to that; you told me at your
deposition that you didn't object to that search, correct?
10
A.
I did not object to that search, no.
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Q.
But today you're telling me that you're changing your
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testimony about whose idea it was to look for the judge's name?
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A.
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but Dennis Montgomery is actually the one who Googled the name.
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That's what I said in my deposition, and that's what I'm
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standing by.
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Q.
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didn't recall whether Dennis Montgomery typed into his
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computer, into a Google search engine or something of that
20
sort, versus Mike Zullo typing on his phone into a Google
21
search engine.
09:14:16
What I'm saying is, is that it was Mike Zullo's idea,
09:14:35
And you did say also at your deposition that you
DS
Okay.
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A.
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further thought about it, it was actually Dennis Montgomery.
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Q.
FR
09:14:51
Do you recall that at your deposition?
IEN
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No.
09:14:05
Yes, I do.
Okay.
I originally thought that it was Mike.
Fair enough.
Thank you, sir.
After I
09:15:07
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A.
Thank you.
Q.
And then we had moved yesterday into December 2013, so I'd
like to continue that now, if you would.
A.
No problem.
Q.
If you could take a look, please, at Exhibit 2927.
A.
Yes, ma'am.
Q.
And this is the transcript of your December 11th, 2013
interview with Mr. Montgomery, correct?
A.
Yes, it is.
10
Q.
This is a transcript of the meeting that we've referred to
11
as the free talk, correct?
12
A.
Correct.
13
Q.
And you brought Mr. Montgomery from Seattle to Phoenix for
14
that meeting, correct?
15
A.
Yes, I did.
16
Q.
You drove down to Phoenix with him?
17
A.
Yes, we did.
18
Q.
And you kept this transcript in your files in the ordinary
19
course of your work on the Seattle investigation, right?
20
A.
09:16:16
Your Honor, we move for the admission of
Exhibit 2927.
IEN
22
MS. MORIN:
23
MR. POPOLIZIO:
24
MS. MORIN:
FR
25
09:15:55
09:16:05
Yes, I did.
DS
21
09:15:25
Objection, hearsay, foundation.
Your Honor, this is not offered for the
truth of -- truth of anything that Mr. Montgomery said, but
09:16:25
3716
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just to show what he said.

THE COURT:
All right.
I'll admit it on that basis.
(Exhibit No. 2927 is admitted into evidence.)
MS. MORIN:
BY MS. MORIN:
Q.
sheet that says document number 4, names of people involved, do
you recognize this is a document that you created?
A.
Sorry, wait one second.
10
Q.
Oh, I apologize.
11
A.
Yes, it is.
12
Q.
And you created this document after that free talk with the
13
Attorney General's Office, correct?
14
A.
Yes, I did.
15
Q.
And it's your list of the names that were brought up during
16
your first interview with Dennis Montgomery, as well as during
17
the free talk with the Attorney General's Office, correct?
18
A.
Yes, it is.
19
Q.
You created this document in the ordinary course of your
20
work on the investigation, correct?
21
A.
DS
Turn to Exhibit 2920, please, sir.
23
I have to catch up here.
09:17:01
MS. MORIN:
09:17:14
09:17:27
Exhibit 2920.
24
MR. POPOLIZIO:
25
MR. WALKER:
FR
And behind the cover
Yes, I did.
IEN
22
09:16:48
No objection.
No objection.
09:17:36
THE COURT:
3717
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Exhibit 2920 is admitted.
THE WITNESS:
Ma'am, I'd like to add one thing.
Some
of the names were also derived from some of the e-mails of
information Dennis Montgomery gave us.
this list were actually names within the e-mails he provided
that came from multiple sources.

MS. MORIN:
8
9
Fair enough.
So some of the names on
Thank you for that
clarification.
THE WITNESS:
10
Thank you.
11
BY MS. MORIN:
12
Q.
13
Murray Snow appeared on that second page.
09:18:00
And if you turn to the second page of your list, Judge
You see that?
14
A.
Yes, I do.
16
Q.
And you put Judge Snow's name on this list because Dennis
17
Montgomery mentioned Judge Snow's name frequently, is that
18
correct?
19
A.
Yes, he did.
20
Q.
Now, during the time you were in Seattle in late 2013, you
21
communicated with Chief Deputy Sheridan regularly, correct?
22
A.
DS
15
09:18:06
09:18:18
IEN
Yes, I did.
23
Q.
Approximately once a week?
24
A.
It was probably a little bit more than that, but yeah, at
25
least once a week.
FR
09:17:49
09:18:32
3718
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Q.
And you communicated with Sheriff Arpaio as well, correct?
A.
Yes, I did.
Q.
About twice a month with Sheriff Arpaio?
A.
I communicated with Sheriff Arpaio less than I did with
Chief Sheridan.
Q.
Was it --
A.
I couldn't -- I couldn't put a figure on it.
than Chief Deputy Sheridan.
Q.
So less than once a week?
10
A.
Yes.
11
Q.
And do you recall testifying at your deposition that you
12
probably talked with Sheriff Arpaio about twice a month?
13
A.
That would probably be about accurate.
14
Q.
Okay.
15
Sheridan updated in 2014 as well, correct?
16
A.
Yes, I did.
17
Q.
Same with Sheriff Arpaio?
18
A.
Not so much Sheriff Arpaio.
19
Chief Deputy Sheridan until about middle of February, and
20
then -- or, I'm sorry, before the second week of January, and
21
then everything went through Travis Anglin.
22
Q.
09:18:44
It was less
09:18:53
And you continued to talk with and keep Chief Deputy
DS
I mostly talked to
09:19:29
IEN
And you kept Sergeant Anglin updated as well, correct?
23
A.
Yes, I did.
24
Q.
And in late 2013 or early 2014, you participated in a
25
meeting about the Seattle investigation by speakerphone with
FR
09:19:10
09:19:46
3719
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several people in Phoenix, correct?
A.
Yes, I did.
Q.
And that meeting was called to discuss the information that
Dennis Montgomery was providing you in that investigation,
right?
A.
Yes, it was.
Q.
Mike Zullo was on the call as well?
A.
Yes, he was.
Q.
Was the sheriff on the line?
10
A.
I can't be certain who was on the line; I was actually in
11
Seattle at the time.
12
people on the phone in Phoenix.
13
who was on the phone or who wasn't on the phone.
14
Q.
Could you tell us if Chief Deputy Sheridan was online?
15
A.
I believe he was, but I can't say for certain.
16
Q.
And Mr. Montgomery did not participate, correct?
17
A.
No, he did not.
18
Q.
And you gave your update about what was going on in Seattle
19
and about Mr. Montgomery's information, correct?
20
A.
Yes, ma'am.
21
Q.
Turn to Exhibit 2085, please, sir.
And I knew that there was a bunch of
DS
I couldn't tell you exactly
23
A.
Yes, I do.
24
Q.
And you wrote this to try to keep an accounting of how much
25
money you were spending, or the Sheriff's Office was spending
FR
09:20:07
09:20:22
09:20:36
Do you recognize this as a document that you created?
IEN
22
09:20:00
09:21:00
3720
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on Mr. Montgomery, correct?
A.
Yes, I do.
Q.
And you created this in the ordinary course of your work on
the investigation?
A.
Yes, I did.
Q.
You had firsthand knowledge of the payments that you
recorded here, correct?
A.
Yes, I did.
Q.
And these payments that are listed in Exhibit 2085 all
10
occurred, correct?
11
A.
09:21:23
Yes, they did.
MS. MORIN:
12
13
09:21:12
Exhibit 2085.
MR. POPOLIZIO:
14
MR. WALKER:
15
THE COURT:
16
Objection, Your Honor, relevance, 403.
Join.
Overruled.
09:21:30
Is it 2085?
17
MS. MORIN:
18
Correct, 2085.
19
BY MS. MORIN:
21
Q.
DS
20
09:21:45
And on the first page of the -MS. MORIN:
Your Honor, could this be published?
23
THE COURT:
Yes, it may.
24
MS. MORIN:
Thank you.
IEN
22
FR
25
BY MS. MORIN:
09:21:52
Q.
see where it says December 6th, 2014, $2100 for video
processing card?
A.
Yes, I do.
Q.
Sir, should that be December 6, 2013?
A.
Yes, it is.
Q.
Thank you, sir.
So on the first page of the list of expenditures, do you
Is that a typo?
I'm sorry about that.
for Mr. Montgomery's computer, correct?
10
A.
Yes, it was.
11
Q.
And that came from Posse funds, correct?
12
A.
Yes, it did.
13
Q.
And on the second page you listed a total of approximately
14
$6700 in equipment at the bottom of the page.

Do you see that?
15
A.
Yes, I do.
17
Q.
That's also equipment for Mr. Montgomery?
18
A.
Yes, it is.
19
Q.
And this equipment represents a portion of -- or at least
20
some of this equipment, it represents a portion of the cost of
21
the 50 hard drives that were purchased for Mr. Montgomery, is
22
that correct?
IEN
DS
16
23
A.
24
but several hard drives were bought in the course of the
25
investigation.
FR
09:22:01
And that $2100 was spent on a video processing card
8
9
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09:22:13
09:22:28
09:22:44
I can't tell you exactly how many hard drives were bought,
09:22:57
3722
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Q.
And this is a part of that money, correct?
A.
Correct.
Q.
Thank you, sir.
And Mr. Montgomery was paid as a confidential
4
5
informant by the Sheriff's Office about twice a month, correct?
A.
Thereabout.
Q.
And that continued through September-October of 2014, is
that right?
A.
I believe end of September was the last payment.
10
Q.
Sir, if you could look at Exhibit 2906, please.
11
might want to pull out also 2907 through 29015.
12
looking at some of those.
13
14
15
And you
THE COURT:
Was that 2906?
MS. MORIN:
Yes, Your Honor, I apologize.
THE WITNESS:
2906 is the
09:23:55
I have 2906.
17
BY MS. MORIN:
18
Q.
19
County Sheriff's Office memoranda that you wrote relating to
20
and recording a confidential informant payment to
21
Mr. Montgomery?
22
A.
DS
And, sir, do you recognize this as one of the Maricopa
09:24:20
IEN
Yes, I do.
23
Q.
24
a handwritten receipt.
25
A.
FR
09:23:21
We'll be
one that we will look at for the time being.
16
09:23:08
And along with the first page memo, there's also a copy of
Yes, I did.
And you wrote that receipt, right?

09:24:33
3723
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Q.
You signed it?
A.
Yes, I did.
Q.
And there's a -- is there a witness signature as well?
A.
Yes, ma'am.
Q.
Is that Mr. Zullo's signature?
A.
I believe so.
Q.
Okay.
take a look at those, please, sir, and just confirm that those
are also copies of spending memoranda that you wrote, similar
10
to 2906.
11
A.
Yes.
And I mentioned 2907 through 2915.
09:24:40
If you could
09:25:01
I'd just like to add on 2915 there is no handwritten
12
13
receipt, and there would have had to have been a handwritten
14
receipt attached with that.
15
there would have had to been one produced to turn in the memo
16
in the first place.
17
Q.
Okay.
18
A.
You're welcome.
21
MR. POPOLIZIO:
MR. WALKER:
IEN
22
23
24
FR
25
Exhibit 2906 through 2915.
DS
20
09:25:23
Thank you, sir.
MS. MORIN:
19
I don't know where that went, but
THE COURT:
09:25:33
Objection, relevance, 403.
Join.
Overruled.
Exhibit 2906 through 2915 are
admitted.
(Exhibits Nos. 2906 - 2915 are admitted in evidence.)
09:25:45
3724
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MS. MORIN:
Sir, you can put those aside.
THE WITNESS:
Thank you.
BY MS. MORIN:
Q.
If you could turn, please, to Exhibit 2921.
A.
Yes, ma'am.
Q.
And behind the cover sheet that says document number 5,
quote, checklist for Elmer, checklist for Dennis, do you see
that cover sheet?
09:25:55
10
A.
Yes, I do.
11
Q.
And "Elmer," it refers to Dennis Montgomery, correct?
12
A.
Yes, it does.
13
Q.
And do you recognize the document behind the cover sheet as
14
a document that you saw during the Seattle investigation?
15
A.
Yes, I do.
16
Q.
And this document was created by Mr. Zullo, correct?
17
A.
Mike Zullo, correct.

MS. MORIN:
18
20
21
MR. POPOLIZIO:
THE COURT:
Objection, foundation.
You want to lay some more foundation?
23
Q.
Did you receive this document from Mr. Zullo?
24
A.
I don't remember actually receiving it.
25
recognize the document.
FR
09:26:39
BY MS. MORIN:
IEN
22
09:26:28
Exhibit 2921.
DS
19
09:26:16
I recognize -- I
I know Mike Zullo authored it.
09:26:57
3725
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don't know anything more than that.
Q.
monitors in this case?
A.
Everything reference the Seattle case was in the files.
Q.
And that was then produced to the monitors in this case
from your files, correct?
A.
really too sure what he did with those.
Q.
But you had it in your files, correct, to produce to the
I gave all the information to Chief Knight, and I'm not
And you're familiar with the contents of the checklist,
10
correct?
11
A.
Some of the items.
12
Q.
But generally what they are?
13
A.
Yes.
14
Q.
And this is a list of items that in this case Mr. Zullo
15
created, because they're items that Mr. Montgomery was
16
promising to provide, correct?
09:27:25
MR. POPOLIZIO:
17
THE COURT:
18
I'm sorry, can you repeat the question?
20
BY MS. MORIN:
21
Q.
22
Dennis Montgomery was promising to provide, and that in this
DS
09:27:48
IEN
So to your knowledge, this is a list reflecting items that
case Mr. Zullo was keeping track of, correct?
24
MR. POPOLIZIO:
25
THE COURT:
FR
09:27:32
If you know, you may answer the question.
THE WITNESS:
19
23
09:27:11
Overruled.
09:28:01
THE WITNESS:
Some of the items on this list are
things that Dennis Montgomery had mentioned.
testify to; I can't tell you any more than that.

MS. MORIN:
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Fair enough.
That's all I can
Thank you, sir.
Your Honor, we move for the admission of 2921.
MR. POPOLIZIO:
THE COURT:
I'll allow it.
MS. MORIN:
9
10
BY MS. MORIN:
11
Q.
09:28:30
Sir, you can turn to 2922, please.
And do you see there behind the cover sheet that says
12
13
document number 6, quote, list 2, a document that you authored?
14
A.
Yes.
15
Q.
And this is your checklist that you created in relation to
16
items that Mr. Montgomery was promising to provide, correct?
17
A.
Yes, ma'am.
18
Q.
Items that you wanted to potentially follow up with with
19
Mr. Montgomery, correct?
20
A.
21
free talk agreement that he had to provide to us so we could
22
turn it over to the AG's office to satisfy the free talk
IEN
DS
I believe these were the things that were mentioned in the
23
agreement that was on December 6th of 2013.
24
Q.
25
correct?
FR
09:28:19
09:28:53
09:29:07
And Mr. Montgomery never produced any of those items,

09:29:28
A.
No.
MS. MORIN:
2
3
Exhibit 2922.
MR. POPOLIZIO:
MR. WALKER:
THE COURT:
No objection, Your Honor.
No objection.
BY MS. MORIN:
Q.
Now, Mr. Montgomery did produce a number of documents in
10
the course of the investigation, correct?
11
A.
Yes, he did.
12
Q.
If you could turn to Exhibit 2917, please.
13
A.
Yes, ma'am.
14
Q.
And this is one of the documents provided to you by
15
16
A.
MS. MORIN:
2917.
DS
THE COURT:
MS. MORIN:
23
Overruled.
MR. POPOLIZIO:
IEN
22
09:30:19
MR. POPOLIZIO:
19
21
09:30:27
Hearsay.
Your Honor, it's not offered for the truth
of the matters.
24
THE COURT:
25
FR
09:29:49
Yes, it was.
17
20
09:29:39
18
3727
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Overruled.

09:30:35
3728
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BY MS. MORIN:
Q.
correct?
A.
Yes, I did.
Q.
You can turn to Exhibit 2918, please.
A.
Yes, ma'am.
Q.
This is another document that came from Mr. Montgomery,
correct?
A.
Yes, it is.
10
Q.
And to your knowledge, Chief Deputy Sheridan and Sheriff
11
Arpaio were also aware of this document, right?
12
A.
Yes, they were.
13
Q.
You discussed this document with them, correct?
14
A.
Yes, I did.
15
Q.
Late 2013 or early 2014?
16
A.
Around that time frame, correct.
And you discussed this document with Chief Deputy Sheridan,
MS. MORIN:
17
18
2918.
21
THE COURT:
23
MS. MORIN:
24
BY MS. MORIN:
25
Q.
FR
Objection, foundation, 403,
09:31:35
Overruled.
IEN
22
09:31:25
cumulative.
DS
20
09:31:13
MR. POPOLIZIO:
19
09:30:44
You can put that aside, sir.
09:31:43
3729
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1
2
A.
Yes, ma'am.
Q.
Do you see this is an e-mail from yourself to Jenise Moreno
dated January 9th, 2014?
A.
Yes, I do.
Q.
Did you send this e-mail?
A.
Yes, I did.
Q.
And you kept this e-mail in your files as part of your work
on the investigation?
10
A.
I must have.
MS. MORIN:
11
12
09:32:14
09:32:22
Your Honor, I move for the admission of
Exhibit 2904.
MR. POPOLIZIO:
13
THE COURT:
14
Objection, relevance.
Overruled.
15
16
BY MS. MORIN:
17
Q.
18
Exhibit 2904 it says there were two attachments there?
19
A.
I see that, correct.
20
Q.
The first one is entitled JoeWeb.rev.1.5.a.pdf?
21
A.
Yes, I do.
22
Q.
And the second one is JoeArpaio.rev1.5a.pdf.
DS
And do you see in the attachments that are listed on
IEN
23
09:32:49
Do you see that?
24
A.
Yes, I do.
25
Q.
If you could turn back to Exhibit 2918, please.
FR
09:32:35
09:33:04
Which is in evidence, so I'll ask that it be
1
2
3730
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published.
3
4
THE COURT:
It may be published.
MS. MORIN:
THE WITNESS:
Yes, ma'am.
09:33:30
BY MS. MORIN:
Q.
on it entitled "Arpaio Brief."
Page is Still Under Construction rev(1.5a)"?
And do you see at the bottom of the page it has a diagram
There is a line that says "This
10
A.
Yes, I do.
11
Q.
Is this, to your recollection, the attachment that you --
12
one of the attachments to Exhibit 2904 that you e-mailed?
13
A.
Yes, ma'am.
14
Q.
Okay.
09:33:44
And you can turn back to Exhibit 2904.
Do you see that it says to Ms. Moreno:
15
"Can you
please print these in color.
17
the information contained in them.
18
A.
Yes, I do.
19
Q.
Sir, you didn't want everyone to know about this
20
investigation, right?
21
A.
22
know about investigations.
DS
16
IEN
It was an investigation.
Please make sure NO ONE else sees

Thanks."
09:34:44
We typically don't like people to
23
Q.
24
else sees the attachment that you had -- you had e-mailed to
25
her, correct?
FR
09:34:02
So you made sure to tell Ms. Moreno to make sure no one
09:35:00
A.
Correct.
Q.
And you're aware of who Ms. Moreno is, correct?
A.
Secretary up on the fifth floor.
she works for.
Q.
She's Chief MacIntyre's secretary, correct?
A.
Could be.
Q.
Sir, if you could turn, please, to Exhibit 2919.

MS. MORIN:
8
9
arrow on the monitor.

THE COURT:
10
11
MS. MORIN:
THE COURT:
THE CLERK:
I'd like to ask if that --
Have you been told how you can get rid of
I do not know how to get rid of that.
09:35:53
It's this one over here; that one doesn't
THE CLERK:
Hit the arrow part itself.
There's an area that says "clear," so
DS
touch the monitor in that area.
09:36:22
MS. MORIN:
It's okay.
23
THE CLERK:
I'll just clear it up here.
24
MS. MORIN:
I apologize.
25
Thank you.
FR
It does not appear to be
working.
IEN
22
If you touch the monitor, the screen over
MR. MASTERSON:
19
21
09:35:43
have one.
18
20
There is an
here, you can get rid of any --
16
17
Your Honor, I apologize.
09:35:11
apologize.
14
15
I don't know exactly who
that yourself?
12
13
3731
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09:36:33
3732
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THE CLERK:
You're welcome.
BY MS. MORIN:
Q.
Sir, are we looking at -- are you looking at Exhibit 2919?
A.
Yes, I am.
Q.
Thank you.
09:36:41
So behind the cover sheet of Exhibit 2919 that says
6
7
"Document #3, 'Whistleblower Chronicles' (CIA Chronicles)" --
A.
Yes, ma'am.
Q.
-- do you see a document that was also provided to you by
10
Mr. Montgomery?
11
A.
Yes, ma'am.
12
Q.
And you kept this document in your Seattle investigation
13
files as well, correct?
14
A.
Yes, I did.
MS. MORIN:
15
16
09:37:04
Exhibit 2919.
MR. POPOLIZIO:
17
THE COURT:
18
Relevance, foundation, 403.
Overruled.
19
BY MS. MORIN:
21
Q.
22
document in Exhibit 2919 several times, correct?
DS
20
09:37:23
IEN
And to your knowledge, Mr. Montgomery actually revised the
23
A.
He could have.
24
Q.
Well, that's a practice you actually observed him to follow
25
with a lot of his documents, right?
FR
09:37:10
09:37:34
3733
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A.
Yes.
Q.
And you've seen other versions of a document that looks
like this Whistleblower Chronicles document, correct?
A.
I'm sorry?
Q.
You've seen other versions of a document that resembles the
Whistleblower Chronicles from Mr. Montgomery, correct?
A.
I could, correct.
Q.
Okay.
A.
Yes, ma'am.
10
Q.
So do you see behind the cover sheet that says
11
"Document #7, 'DOJ/Arpaio Timeline,'" another document that was
12
provided by Mr. Montgomery?
13
A.
Yes, it was.
14
Q.
And this is another document you kept in your files for the
15
Seattle investigation, correct?
16
A.
MS. MORIN:
23
THE COURT:
Overruled.
MS. MORIN:
MS. MORIN:
24
BY MS. MORIN:
25
Q.
FR
Objection, relevance, foundation, 403.

09:38:58
IEN
22
09:38:48
MR. POPOLIZIO:
DS
21
09:38:32
Exhibit 2923.
19
20
Let's turn to Exhibit 2923, please.
Yes, ma'am.
17
18
09:37:52
Sir, you can put that aside.
Turn, please, to Exhibit 2901.
09:39:20
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Sir, this is an e-mail you sent to Mike Zullo on
1
2
September 21st, 2014, is that correct?
A.
Yes, it is.
Q.
And it says:
sorry.
"Can you please make sure all the --" I'm
I'm going to withdraw that.
09:39:43
And you see that there is an e-mail that you forwarded
6
7
in the body of your message that's from David Webb, which is
A.
Yes, I do.
MS. MORIN:
10
11
MR. POPOLIZIO:
THE COURT:
13
Relevance, Your Honor.
Overruled.
14
MS. MORIN:
15
Your Honor, if that could be -- could that
09:40:09
be published, please?
17
18
THE COURT:
It may.
MS. MORIN:
Thank you.
19
BY MS. MORIN:
20
Q.
21
make sure all the info on this timelike --"
22
Is that supposed to be "timeline"?
IEN
DS
Do you see that you wrote to Mr. Zullo:
"Can you please
23
A.
Timeline, I'm sorry.
24
Q.
Okay.
25
timeline is true and accurate to Elmer knowledge."
FR
09:39:56
Exhibit 2901.
12
16
09:40:17
"Can you please make sure all the info on this

09:40:29
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Do you see that?
1
2
A.
Yes, I do.
Q.
And you were talking about the time line that Dennis
Montgomery -- or a time line that Dennis Montgomery had
provided, correct?
A.
Yes, I am.
Q.
So moving now to September 2014, around the time of this
e-mail, by this time Mr. Montgomery had still not provided what
he was promising to provide, correct?
09:40:38
A.
Correct.
11
Q.
You couldn't corroborate what he had been telling you?
12
A.
I could not.
13
Q.
So by September 2014, you were at the point where you
14
wanted to be done with the Montgomery investigation, correct?
15
A.
Yes, ma'am.
16
Q.
But you had not written a final report on that
17
investigation at that time, right?
18
A.
I did not.
19
Q.
And to your knowledge, Mr. Zullo continued to stay in touch
20
with Mr. Montgomery after September 2014, correct?
21
A.
Yes, he did.
22
Q.
I'd like to move ahead a bit to November 2014.
IEN
DS
10
09:41:08
09:41:17
09:41:28
If you
could turn to Exhibit 2938, please.
24
A.
Yes, ma'am.
25
Q.
You see that this is an e-mail that you sent to Larry
FR
23
09:42:18
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Klayman, cc'ing Michael Zullo, Dennis Montgomery using his
David Webb e-mail address, Dina James, as well as e-mail chains
that follow the first e-mail, those e-mail chains coming from
Larry Klayman and Dennis Montgomery?
A.
Yes, I do.
Q.
And in the e-mail that you wrote to Mr. Klayman, you
expressed your unhappiness with Mr. Montgomery's failure to
complete his work, correct?
A.
Yes, I do.
MS. MORIN:
10
11
09:42:41
Exhibit 2938.
MR. POPOLIZIO:
12
THE COURT:
13
Objection, relevance, foundation, 805.
Overruled.
14
15
BY MS. MORIN:
16
Q.
17
Mr. Klayman about everything that -- or about things that the
18
Sheriff's Office had done for Mr. Montgomery, correct?
19
A.
Yes, we did.
20
Q.
Paid him a lot of money?
21
A.
Yes.
22
Q.
Opened the door to a federal judge?
09:43:12
IEN
DS
So in November you went into some detail in your e-mail to
23
A.
There was a federal judge, correct.
24
Q.
That's because you believed Mr. Montgomery's story, right?
25
A.
I believed parts of Dennis Montgomery's story.
FR
09:42:56
09:43:27
09:43:39
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Q.
Okay.
And if you look at the November 3rd, 10:25 e-mail --
sorry.
"Gentlemen" that begins in the middle of the first page.
The November 3rd, 8:16 a.m. e-mail from yourself to
Do you see that?
4
5
A.
Yes, I do.
Q.
And in the third paragraph of that e-mail it begins:
day one."
09:44:01
"From
Do you see that paragraph?
8
9
A.
Yes, I do.
10
Q.
And do you see where you say:
11
Federal Judge to give you as much protection as possible.
12
and I went to the Administration several times and asked for
13
extensions to continue this investigation because we believed
14
your 'STORY' and the information you provided."
09:44:32
16
A.
Yes, I do.
17
Q.
You wrote those words, right?
18
A.
Yes, I did.
19
Q.
You can put that aside.
Thank you.
DS
Can you turn to Exhibit 2937, please.
A.
Yes, ma'am.
22
Q.
Do you see this is another e-mail that you wrote to
IEN
21
Mr. Klayman, this one you also sent to Mike Zullo, on November
24
5th, 2014?
25
A.
FR
23
Yes, it is.
09:44:10
Mike
Do you see that?
15
20
"... we opened the door to a
09:44:41
09:45:11
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Q.
And you forwarded an e-mail that you sent only to
Mr. Klayman below that, as well an e-mail from Mr. Klayman.

Do you see that?
3
4
A.
Correct.
Q.
And looking at the bottom of the first page going onto the
second page, that's another e-mail that you sent to Larry
Klayman, correct?
A.
Yes, it is.
MS. MORIN:
9
10
Exhibit 2937.
09:45:43
MR. POPOLIZIO:
11
12
Objection, relevance, foundation,
hearsay, 805.
THE COURT:
13
Overruled.
14
MS. MORIN:
15
16
BY MS. MORIN:
17
Q.
18
the bottom of the first page and primarily on the second page,
19
do you see that you refer to Mr. Klayman's having called
20
Sheriff Arpaio about the work with Mr. Montgomery?
21
A.
Yes, I do.
22
Q.
And you also informed Mr. Klayman that Mike Zullo was not
09:46:36
IEN
DS
So looking at the e-mail that you sent on -- starting on
23
happy with the way Mr. Klayman threatened him, threatened Mike
24
Zullo, is that correct?
25
A.
FR
09:45:28
Yes.
09:46:49
09:47:04
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Q.
And at the bottom of that e-mail you say that, "Oh bye the
way the Sheriff wants an update on Wednesday at 1600 hours."

Do you see that?
3
4
A.
Correct.
Q.
So in November of 2014 you were conferring with the sheriff
about the work Mr. Montgomery was doing, is that correct?
A.
There was times that I conferred with the sheriff, correct.
Q.
Thank you.
9
10
A.
Yes, ma'am.
11
Q.
And do you see this is also an e-mail -- or this is an
12
e-mail dated November 6, 2014, this one from Mr. Montgomery to
13
Mike Zullo, copying yourself?
14
A.
Yes, ma'am.
15
Q.
Do you recognize this document as an e-mail that you
16
received?
17
A.
Yes.
MS. MORIN:
18
20
21
Objection, foundation, relevance, 403,
09:48:43
805.
THE COURT:
Overruled.
I'll let you reserve any 805
23
objections you want to make if they come up.
24
Can you identify them now?
25
MR. POPOLIZIO:
FR
09:48:34
MR. POPOLIZIO:
IEN
22
09:48:22
Exhibit 2940.
DS
19
09:47:24
I believe there's -- we have e-mails
09:49:11
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here from Dennis Montgomery coming in, so that's -- this would
be hearsay within hearsay, Your Honor.

THE COURT:
Well, Dennis Montgomery was a confidential
informant for the MCSO, correct?
MR. POPOLIZIO:
THE COURT:
But it is still hearsay.
Is it being offered -- are those
statements being offered for the truth of the matter asserted,
Ms. Morin?
MS. MORIN:
9
10
The statements by Mr. Montgomery are not
offered for the truth.

THE COURT:
11
09:49:45
Overruled.
12
MS. MORIN:
13
14
BY MS. MORIN:
15
Q.
16
and turn to Exhibit 2263.
17
A.
That's 2263?
18
Q.
Yes, sir.
19
A.
Yes, ma'am.
20
Q.
And do you see that this is an e-mail that you sent to
21
Mr. Klayman on November 7th, 2014, also copying Mike Zullo,
22
Dennis Montgomery, Dina James?
Can you put that aside, please,
IEN
DS
You know, let's move on.
23
A.
Yes, ma'am.
24
Q.
And in this e-mail you again expressed to Mr. Klayman your
25
dissatisfaction with Mr. Montgomery's failure to provide what
FR
09:49:36
09:50:05
09:50:36
09:50:53
he promised, correct?
A.
Correct.
MS. MORIN:
3
4
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Exhibit 2263.
MR. POPOLIZIO:
THE COURT:
Objection, relevance, hearsay.
Overruled.
7
8
BY MS. MORIN:
Q.
And do you see, sir, that you refer to the 50 hard drives
Dennis Montgomery provided to the Montgomery -- or to the
11
Maricopa County Sheriff's Office at the beginning of your
12
e-mail?
13
A.
Yes, I do.
14
Q.
Moving forward, if you could turn to Exhibit 2266, please.
15
A.
I'm sorry.
16
Q.
Could you turn to Exhibit 2266, please.
17
A.
Yes, ma'am.
18
Q.
And this is an e-mail that you sent to Mr. Zullo on
19
November 14th, 2014, correct?
20
A.
Yes, it is.
21
Q.
And you wrote that --
DS
10
23
Can you repeat that?
MS. MORIN:
IEN
22
09:51:16
09:51:42
09:52:11
Well, Your Honor, I move for the admission
of Exhibit 2266.
24
MR. POPOLIZIO:
25
Objection, relevance, hearsay.
FR
09:51:03
One moment, Your Honor.

09:52:32
THE COURT:
Overruled.
MS. MORIN:
If this could be published, please.
4
5
6
THE COURT:
It may be.
MS. MORIN:
Thank you.
BY MS. MORIN:
Q.
14th, 2014:
10
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Detective Mackiewicz, you wrote to Mr. Zullo on November
"This is going to burn Klayman and Elmer's house
down to the ground."
09:52:57
Do you see that?
11
A.
Yes, I do.
13
Q.
And you forwarded an e-mail along with that message, and
14
the e-mail was from Thomas Drake referring to a summary
15
provided by Thomas Drake and Kirk Wiebe, correct?
16
A.
Yes.
17
Q.
And that summary was a document that, according to Thomas
18
Drake, found that Mr. Montgomery is a complete and total fraud,
19
correct?
20
A.
Correct.
21
Q.
And when you wrote "This is going to burn Klayman and
22
Elmer's house down to the ground," you meant that that report
IEN
DS
12
23
destroyed any credibility of Montgomery and Klayman regarding
24
the investigation, right?
25
A.
FR
09:52:42
Yes, ma'am.
09:53:06
09:53:18
09:53:31
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Q.
Proved that that investigation was not going to be
fruitful, correct?
A.
Correct.
Q.
And had not been fruitful, in fact, correct?
A.
Correct.
Q.
If we could move forward to December 2014 at this point.
If you could please turn to Exhibit 2935.
A.
Yes, ma'am.
Q.
Do you see that this is an e-mail from Mr. Zullo to
09:53:41
10
yourself, dated December 16th, 2014, with the subject line,
11
"Forward Arpaio"?
12
A.
Yes, ma'am.
13
Q.
And this is an e-mail you did receive from Mr. Zullo,
14
correct?
15
A.
Yes, ma'am.
16
Q.
And among the e-mails that he forwards are an e-mail chain
17
from Dennis Montgomery, correct, using the David Webb e-mail
18
address?
19
A.
21
MS. MORIN:
Your Honor, I move for the admission of
MR. POPOLIZIO:
23
THE COURT:
24
FR
25
09:54:57
Exhibit 2935.
IEN
22
09:54:42
Yes, it is.
DS
20
09:54:29
BY MS. MORIN:
Overruled.
09:55:09
Q.
subject line is "Arpaio."
Do you see that?
A.
And in the top e-mail from Mr. Zullo to Mr. Montgomery, the
Yes, ma'am.
5
6
Honor?
7
8
9
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MS. MORIN:
Actually, could this be published, Your
THE COURT:
It may be.
MS. MORIN:
Thank you.
BY MS. MORIN:
10
Q.
11
second paragraph he refers to "the phony information you handed
12
MCSO about Snow."
Do you see in your -- or in Mr. Zullo's e-mail in the
A.
Yes, ma'am.
15
Q.
He's speaking to Mr. Montgomery there, or writing an e-mail
16
to Mr. Montgomery?
17
A.
Yes, he is.
18
Q.
And that reference is to Judge Snow, correct?
19
A.
I would imagine.
20
Q.
DS
14
Thank you.
questioning for you at this moment.
McKessy has made certain allegations against you, allegations
24
that gave rise to an MCSO investigation, correct?
FR
09:55:54
You're aware that Mary Ann
23
25
09:55:36
Sir, I'm going to shift gears to another line of
IEN
22
09:55:25
Do you see that?
13
21
09:55:19
MR. POPOLIZIO:
09:56:16
THE COURT:
Overruled.
THE WITNESS:
3745
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You know what, ma'am?
I was read a
notice of investigation I received ordering me not to discuss
anything about the investigation.
failure to comply with this order will result in disciplinary
action.
respectfully decline to answer any question.
Your Honor, I'd ask for an order that
Mr. -- or, sorry, that Detective Mackiewicz answer the
10
question, which I believe in this case was just a yes or no
11
question.
THE COURT:
12
13
Ms. Nash, on what authority do you say
MS. MIJARES NASH:

THE COURT:
15
Your Honor, the policy of the
Sheriff's Office, specifically GH-2, does require anybody who
19
is under a notice of investigation not to discuss the subject
20
of that investigation or anything about the investigation, with
21
limited exception.
22
subject any subject, including Detective Mackiewicz, to any
DS
18
IEN
09:57:11
Thank you.
MS. MIJARES NASH:
17
Your Honor, I would --
You need to get a microphone.
Not that one.
16
09:57:29
And any violation of that order would
kind of disciplinary action, including termination.
24
THE COURT:
25
Detective Mackiewicz, I'm going to direct you to
FR
09:56:59
binds this Court from entering such an order?
14
23
09:56:39
Therefore, at the instruction of my counsel, I
MS. MORIN:
I've been informed that
All right.
09:57:44
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answer the question.
And if the Sheriff's Office attempts to
discipline you because you've answered the question, you may
raise the matter with the Court.

THE WITNESS:
Okay.
BY MS. MORIN:
Q.
Mary Ann McKessy has made certain allegations against you,
giving rise to an investigation?
A.
Yes, I do.
10
Q.
And at some point Sheriff Arpaio wanted to find out whether
11
Mary Ann McKessy was, quote-unquote, the snitch, is that right?
09:58:01
So the question that I asked was:
MR. POPOLIZIO:
12
13
14
You're aware that
Objection, foundation, relevance.
THE COURT:
Do you want to lay some foundation?
MS. MORIN:
Sure.
15
BY MS. MORIN:
16
Q.
17
was a telephone interview between yourself and Detective
18
Tennyson on August 5th, 2015, right?
19
A.
Yes, I do.
20
Q.
And you're familiar with the fact that there's a transcript
21
of that interview?
22
A.
09:58:27
DS
Sir, you had an interview, or -- you're aware that there
09:58:45
IEN
Yes, I do.
23
Q.
And you've seen that transcript, right?
24
A.
Yes, I have.
25
Q.
And do you recall telling Mr. Tennyson about a comment that
FR
09:58:11
09:58:52
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Sheriff Arpaio made regarding finding out who the snitch was?
A.
Yes, I do.
Q.
So did Sheriff Arpaio, in fact, want to find out who was
the snitch, and whether Mary Ann McKessy was the snitch?
MR. POPOLIZIO:
THE COURT:
6
7
I think you're going to have to lay
MS. MORIN:
Sure, Your Honor.
BY MS. MORIN:
10
Q.
11
was information that you relayed to Sergeant Tennyson, correct?
12
A.
13
I wasn't privy to that conversation in the first place.
14
Q.
15
telephone call with Detective Tennyson, you did relay to
16
Detective Tennyson that the sheriff wanted to find out who the
17
snitch was, right?
18
A.
Yes, ma'am.
19
Q.
And you had a basis for saying that, right?
20
A.
I don't understand your question.
21
Q.
You had a basis for making that comment to Detective
22
Tennyson when you were speaking with Detective Tennyson, right?
Those were words that you told -- you relayed -- or that
09:59:24
I can't tell you what the sheriff did want or didn't want;
But returning to your August -- August 5th, 2015
IEN
09:59:44
That's something you said?
DS
Right.
23
A.
Yes, ma'am.
24
Q.
What was your basis?
25
A.
The Sheriff's Office wondered who was leaking information
FR
09:59:10
foundation as to how he knows that.
8
9
09:59:57
10:00:10
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to the media.
That's what our -- that's -- that's what our
concern was.
that shouldn't have been produced in the media because it was
affecting our investigation.
There was information being produced in the media
The whole reason why you keep a criminal investigation
5
6
secret is so it won't affect the criminal investigation in the
long run.
Q.
were -- you are referring to information relating to the
That's exactly what was happening.
And when you say information was leaking to the media, you
10
Seattle investigation involving Mr. Montgomery, right?
11
A.
Just in general.
12
Q.
What do you mean, "just in general"?
13
A.
Just --
14
Q.
Withdraw that.
When you said to Detective Tennyson the sheriff wanted
15
16
to find out who the snitch was, you were referring to who a
17
snitch was with respect to leaking information about the
18
Seattle investigation to the press, correct?
19
A.
21
23
MS. MORIN:
Your Honor, if I could have a moment.
THE COURT:
You may.
MS. MORIN:
24
BY MS. MORIN:
25
Q.
FR
10:01:04
10:01:43
(Pause in proceedings.)
IEN
22
10:00:50
Correct.
DS
20
10:00:34
So a moment ago when you responded to my questions about
10:01:57
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Mackiewicz - CX Popolizio, 10/28/15 Evidentiary Hearing 3749
this, you said that the MCSO was concerned about finding out
who was leaking information to the press, right?
A.
Correct.
Q.
Who did you talk to about this issue of the MCSO and the
sheriff wanted to find out who the snitch was at MCSO?
A.
I specifically didn't talk to anyone.
Q.
But you said you were aware that MCSO wanted to -- was
concerned about who was leaking information to the press.
A.
Everyone's aware of that; that's not a secret.
10
Q.
Sir, when you spoke with Detective Tennyson, you actually
11
said the sheriff wanted to find out who the snitch was, right?
12
A.
13
conversation.
I was saying it globally.
MS. MORIN:
have.
Cross-examination?
MR. POPOLIZIO:
17
That's all we
10:03:29
THE COURT:
16
Yes, Your Honor.
CROSS-EXAMINATION
18
BY MR. POPOLIZIO:
20
Q.
Good morning, Detective Mackiewicz.
21
A.
Good morning, sir.
22
Q.
Just a moment ago you were talking about a leak.
IEN
DS
19
23
10:03:51
Do you recall that?
24
A.
Yes.
25
Q.
And you said something to the effect that there was a
FR
10:02:59
That's what I said; that's not what I meant in the
14
15
10:02:12
Yes, sir.
10:04:10
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concern that would affect a criminal investigation.

Do you recall that?
2
3
A.
Yes, sir.
Q.
You've been a detective with Maricopa County Sheriff's
Office for how long?
A.
Fifteen years.
Q.
And within those 15 years you've conducted criminal
investigations, I'm sure.
A.
Hundreds, if not thousands.
10
Q.
Okay.
11
criminal investigations to keep information confidential?
12
A.
Of course.
13
Q.
And why is that?
14
A.
Because sometimes the law enforcement are the only ones
15
that know certain answers to certain questions, and if that
16
information leaks out, then potentially when you go to
17
interview someone or you find evidence related to that crime,
18
it's known to multiple people instead of just known to the
19
investigators themselves.
20
Q.
21
investigation pose a problem?
22
A.
So would leaks to the media regarding a criminal
DS
Okay.
Is there a concern when it comes to conducting
10:04:39
10:04:58
10:05:18
IEN
Absolutely.
23
Q.
And what would that problem be?
24
A.
It could destroy the investigation in the long run.
25
Q.
I'm sorry, I couldn't understand what you just said.
FR
10:04:26
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A.
It could destroy the investigation in the long run.
Q.
How could that happen?
A.
Because if only certain people know certain information,
and that leaks out and it's exposed, then other people could
come forward with false statements, and that could definitely
hamper the investigation.
Q.
it's Exhibit 2938 --
Also, in one of the exhibits that was admitted, I believe
MR. POPOLIZIO:
9
10
Could we show that to the witness,
Your Honor?
10:06:16
THE WITNESS:
11
Yes, sir.
12
BY MR. POPOLIZIO:
13
Q.
14
federal judge.
15
A.
Yes.
16
Q.
What federal judge does that refer to?
17
A.
Joyce -- Royce Lamberth in Washington, D.C.
18
Q.
And who is he?
19
A.
He's a federal judge in the District Court of Washington,
20
D.C.
21
Q.
Okay.
22
A.
No, it didn't.
There's a reference in this e-mail to opening a door to a
IEN
DS
10:06:37
10:06:53
That didn't refer to Judge Snow?
23
Q.
24
Judge Lamberth?
25
A.
FR
10:05:49
And did there come a time that there was a meeting with
Several.
10:07:04
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Q.
Okay.
A.
Yes, I did.
Q.
Who else participated in those meetings?
A.
There were several different meetings, and the players were
different at every meeting.
Q.
Okay.
A.
Yes, I was.
Q.
-- at these meetings?
A.
Yes, I was.
10
Q.
Who set these meetings up?
11
A.
Larry Klayman.
12
Q.
Who's Larry Klayman?
13
A.
Larry Klayman is representing Dennis Montgomery.
14
Q.
So Mr. Klayman set up the meetings with Judge Lamberth?
15
A.
Yes, he did.
16
Q.
Is that the opening of the door to which you refer in this
17
e-mail?
18
A.
Yes, it is.
19
Q.
There was also some testimony regarding your asking a woman
20
by the name Jenise to make a copy for you.
A.
10:07:34
10:08:08
Yes, I do.
23
Q.
24
from Mr. Montgomery?
25
A.
FR
10:07:21
Do you recall that?
IEN
22
10:07:14
Were you there --
DS
21
Did you participate in those meetings?
Okay.
And this copy was of a document that you received
Yes, it was.
10:08:24
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Q.
Did you ask him to make that document?
A.
I did not.
Q.
How did you come about to receive this document?
A.
He sent it to us in an e-mail.
Q.
Did you ask him for it?
A.
No.
Q.
It just appeared in an e-mail?
A.
Correct.
Q.
And again, you saw another exhibit, I believe it was
10
Exhibit 2920.
10:08:36
It listed a lot of names.
10:09:12
Do you recall that?
11
12
A.
Yes, I do.
13
Q.
Okay.
14
A.
Is that the -- 2920.
15
referencing the right document.
And those names came from whom?
I just want to make sure I'm
10:09:30
What happened early on in the investigation was Dennis
16
17
Montgomery provided me with e-mails to corroborate his story,
18
his history.
19
names.
20
try to wrap my head around all the people that were -- he was
21
discussing in his conversations with me.
So I wanted to
DS
I have no idea who these people were.
23
through e-mail, listed out all the people that I had never
24
heard before so I could understand what each person was and
25
what part they played in Dennis's history and his story, so to
FR
10:09:55
Therefore, I went and made a list, I went by e-mail
IEN
22
And within those e-mails there were a lot of
10:10:17
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speak.
So it was a combination of a lot of things.
Q.
Montgomery?
A.
No.
Q.
Did you ask Dennis Montgomery to investigate any of those
people on the list?
A.
Absolutely not.
Q.
Now, you said you've been with the Sheriff's Office for 15
years?
Did you provide any names on that list to Dennis
10
A.
No, I've been with the Sheriff's Office almost 19 years.
11
I've been a detective for 15 out of the 19.
12
Q.
13
right now, correct?
14
A.
Yes, I am.
15
Q.
Generally, just over the years, give me an overview, if you
16
can, what types of investigations have you been involved in?
17
A.
18
years.
19
reference minors and adults.
20
reference employees.
21
victims within the jail system.
22
detectives, which is pretty much a conglomerate of everything
Okay.
24
FR
25
10:11:04
And you're a detective with the Sheriff's Office
I've had a very unique career.
10:11:15
I worked homicide for six
I've worked special victims, which is sex crimes
DS
IEN
23
10:10:30
I worked criminal investigations
I've worked jail crimes reference any
10:11:43
I've worked district
besides specialized crimes.

And for the last five years I've done -- I've been
tasked with investigating mostly death threats for any judges
10:12:07
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in Maricopa County, Maricopa County employees, along with the
Sheriff's Office employees.
Q.
involved in investigations of computer crimes?
A.
Yes.
Q.
Okay.
A.
One of the things that I've been doing the last couple
years is a lot of cases reference Craig's Lists, different
e-mails, stuff like that, as far as a lot of we call it
Aside from the Seattle investigation, have you ever been
10:12:26
And could you tell me a little bit about that.
10
computer tampering cases, 'cause that's where it falls under
11
Title 13 in Arizona state statutes.
12
Q.
13
November 2013?
14
A.
Yes, I did.
15
Q.
So there came a time that you became involved in what we've
16
been referring to as the Seattle investigation?
17
A.
Yes, I did.
18
Q.
Okay.
19
Seattle investigation?
20
A.
Beginning of November of 2013.
21
Q.
Because you were actually involved in the investigation,
22
could you please tell me, what was the purpose of the Seattle
And did you conduct these types of investigations before
DS
IEN
10:13:02
And around when did you become involved in the
23
investigation?
24
A.
25
Dennis Montgomery's claims that 150,000 residents within
FR
10:12:48
10:13:18
My purpose of the Seattle investigation was to validate

10:13:43
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Maricopa County, and 400,000 residents within the state of
Arizona, had their identities stolen.
I was investigating.
looking into this case.
Q.
you're talking -- are you saying that that's what the
investigation was in Seattle?
A.
Yes, it was, sir.
Q.
You said identity theft.
10
A.
Correct.
11
Q.
And is identity theft a crime?
12
A.
Yes, it is.
13
Q.
And in this particular instance, was there a certain type
14
of identity theft that you were looking into?
15
A.
16
identities were stolen, as in not as in their physical identity
17
like a license, but personal information was stolen reference
18
Social Security numbers, bank accounts, things like that.
19
Q.
20
these numbers?
21
A.
Dennis Montgomery provided us those numbers.
22
Q.
So it was Dennis Montgomery provided you with a number of
Okay.
And that's the case that
That's where the Sheriff's Office was
And when you say it was looking into this case,
Dennis Montgomery's allegations were that people's
10:14:19
10:14:30
IEN
DS
And these numbers that you just gave me, who provided you
23
150,000 people who had their identities stolen in Maricopa
24
County?
25
A.
FR
10:14:06
I actually never physically saw a list of 150,000 people or
10:14:55
10:15:11
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the 400,000, but that's the numbers that Dennis Montgomery
were -- was telling us, alleging to us.
Q.
Did he tell you that verbally?
A.
Yes, he did.
Q.
And could you tell me, do you know -- well, could you tell
me, did Dennis Montgomery tell you how he came into possession
of this information?
A.
work for the CIA years ago.
He stated that he used to be a contractor and did contract
That's how he came in contact with
10
this information.
11
Q.
12
this information?
13
A.
No, I was not able to.
14
Q.
Now, how did you become connected with Dennis Montgomery?
15
A.
Through Tim Blixseth.
16
Q.
Who is he?
17
A.
Tim Blixseth was the one that came forward.
18
Mike Zullo, and he wanted to discuss the information with Mike
19
Zullo in the Sheriff's Office.
20
meeting to understand the allegations that Tim Blixseth was
21
alleging.
22
Q.
10:15:49
Did you ever actually determine how he came in contact with
10:16:04
DS
IEN
Okay.
He had known
So I was asked to sit in on a
10:16:27
And so you met with Mr. Blixseth?
23
A.
Yes, I did.
24
Q.
Was Mr. Montgomery there at the time?
25
A.
No, he was not.
FR
10:15:29
10:16:41
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Q.
But he told you about Mr. Montgomery.
A.
Yes, he did.
Q.
So when you began to work with Mr. Montgomery, did he ever
show you any documentation with the names of Maricopa County
citizens on it?
A.
Yes, he did.
Q.
And what else was on this document, if you recall?
A.
He produced so many documents, I don't know exactly what
they were, but there were names, addresses, of people within
10:16:59
10
Maricopa County.
11
Q.
12
bank account information of people in Maricopa County?
13
A.
Yes, I did.
14
Q.
And could you describe what he showed you.
15
A.
It was in a PDF format.
16
name, bank account information, and other personal information
17
reference that individual person.
18
Q.
Did it have dollar amounts?
19
A.
I believe one of the spreadsheets did, but I've looked at
20
so many different spreadsheets from Dennis Montgomery I can't
21
be specific, but I believe one of the spreadsheets did.
22
Q.
10:17:18
Did you ever see anything from Mr. Montgomery relating to
DS
Basically, it would contain a
10:17:55
IEN
But when he showed you some PDF that contained names that
23
were part of his -- were these names part of 150,000 he was
24
referring to?
25
A.
FR
10:17:32
Yes, sir.
10:18:19
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Q.
Okay.
And that's what your understanding was, that what he
was showing you -- or was that your understanding?
A.
That was my understanding, correct.
Q.
That these people were from Maricopa County?
A.
Correct.
Q.
And they had their bank account information breached
somehow?
A.
Yes, sir.
Q.
Now, when you started going up to Seattle at first, would
10
you go up there alone?
11
A.
12
then Travis Anglin was assigned to the case.
13
Q.
14
investigation?
15
A.
I was.
16
Q.
And then when Sergeant Anglin entered -- well, when did
17
Sergeant Anglin enter the scene?
18
A.
19
and then actually our first trip was middle of January of 2014
20
with him to Seattle.
21
Q.
22
investigation?
10:18:46
Originally, it was Mike Zullo and I until mid-January, and
Before Sergeant Anglin became involved, who was running the
10:19:02
DS
I believe he was briefed in the very beginning of January,
10:19:24
IEN
And what was his role when he became involved in the
23
A.
To be a supervisor.
24
Q.
And he was supervising you and Mr. Zullo?
25
A.
Correct.
FR
10:18:29
10:19:35
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Q.
Did Sheriff Arpaio have any part in running this
investigation?
A.
No.
Q.
So when Sergeant Anglin became involved, who was running
the investigation?
A.
Sergeant Anglin.
Q.
You were still working on it?
A.
Yes.
case.
10:19:52
It -- to my knowledge.
I was doing the day-to-day routines reference the
10
Q.
But as the -- the ranks went to the people involved in this
11
investigation, could you tell me a little bit about that?

You were there, correct?
12
13
A.
I was in Seattle most of the time.
14
Q.
Okay.
15
A.
Case agent.
16
Q.
Detective?
17
A.
Correct.
18
Q.
Okay.
19
A.
Sergeant.
20
Q.
So did he outrank you?
21
A.
Yes, he did.
22
Q.
Okay.
And your position is --
DS
IEN
10:20:19
And Travis Anglin, his rank is what?
10:20:27
Did he outrank Mr. Zullo?
23
A.
Yes, he did.
24
Q.
Did you outrank Mr. Zullo?
25
A.
Yes, I did.
FR
10:20:03
10:20:38
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Q.
Now, when you worked with Mr. Zullo -- well, let's back up
a little bit.
position does he have?
A.
Support.
Q.
Is he a Posse member?
A.
Yes, he is.
Q.
Now, in terms of his working on this case, would he have to
run things by you?
A.
Yes.
10
Q.
Okay.
11
A.
Because as a Posse member, he only gets his authority
12
through me, basically per state statute, so I was not going to
13
let a volunteer make decisions in reference to a criminal
14
investigation that was ultimately going to fall on me.
15
Q.
16
focus of that investigation was identity theft, right?
17
A.
Yes, sir.
18
Q.
Okay.
19
A.
No.
20
Q.
Were you there to investigate Judge Snow?
21
A.
No.
22
Q.
Were you there to investigate Covington & Burling?
How was Mr. Zullo involved in this?
What
Support staff to me, basically.
And why is that?
So I believe you stated that the Seattle investigation, the
DS
IEN
10:21:13
10:21:34
Were you in Seattle to investigate anything else?
23
A.
No.
24
Q.
When you were up in Seattle conducting the investigation,
25
did you even know who Covington & Burling was?
FR
10:21:00
10:21:48
10:22:06
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A.
I didn't.
Q.
Do you know now?
A.
I do now.
Q.
Okay.
investigation, did the investigation that you were conducting
ever involve Eric Holder?
A.
Eric Holder.
mix.
I found that out at the deposition.
When you were up in Seattle conducting the
His name came up, but it never -- we never investigated
It was just another name that was thrown into the
10
Q.
How about Lanny Breuer?
11
A.
Same thing.
12
Q.
How about the Department of Justice?
13
A.
Same thing.
14
Q.
How about any conspiracies that could have been alleged
15
between any of these individuals or entities?
16
A.
17
theories; they weren't ours.
18
Q.
Did you ever look into any of these conspiracy theories?
19
A.
Absolutely not.
20
Q.
Did you investigate them?
21
A.
No.
22
Q.
Did you ever tell Dennis Montgomery to investigate any of
10:22:38
10:22:49
IEN
DS
All the conspiracy theories were Dennis Montgomery's
23
these individuals or entities?
24
A.
No.
25
Q.
Did you ever receive an order from Chief Deputy Sheridan to
FR
10:22:22
10:23:01
10:23:13
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investigate Judge Snow?
A.
Quite the con -- quite the contrary.
Q.
Why do you say that?
A.
On several different occasions Chief Sheridan said
absolutely not under any circumstances were we to investigate
Judge Snow.
Q.
He told you that on more than one occasion?
A.
Multiple.
Q.
More than two occasions?
10
A.
Correct.
11
Q.
More than three?
12
A.
I remember at least three times.
13
Q.
Anybody else give you that type of an order?
14
A.
No one else needed to.
15
concerned, that was straight from the top, 'cause that was
16
Chief Jerry Sheridan.
17
Q.
18
19
A.
20
Jerry Sheridan said that we were not investigating the judge,
21
then we weren't investigating the judge.
22
Q.
More than one occasion, correct.
10:23:59
It came -- as far as I was
10:24:11
Did you ever receive an order from Sheriff Arpaio not to
DS
I don't remember him ever saying that, but obviously, if
10:24:31
IEN
Did you ever receive an order from Chief Deputy Sheridan to
23
investigate Covington & Burling?
24
A.
No.
25
Q.
Or Eric Holder?
FR
10:23:47
10:24:42
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A.
Absolutely not.
Q.
Or Lanny Breuer?
A.
No.
Q.
Or the Department of Justice?
A.
No.
Q.
Or any alleged conspiracy that Mr. Montgomery came up with?
A.
No.
Q.
Did you ever receive an order from Sheriff Arpaio to

A.
No.
11
Q.
Did the sheriff ever order you to investigate Covington &
12
Burling?
13
A.
No.
14
Q.
How about Eric Holder?
15
A.
No.
16
Q.
Lanny Breuer?
17
A.
No.
18
Q.
The Department of Justice?
19
A.
No.
20
Q.
Any conspiracy that Mr. Montgomery would come up involving
21
these individuals and entities?
22
A.
DS
10
10:25:01
10:25:14
10:25:17
IEN
No.
23
Q.
24
Judge?
25
A.
FR
10:24:50
You said you received this order not to investigate the
Yes, sir.
10:25:41
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Q.
Did it apply to anyone else?
A.
Applied to everyone.
Q.
And who would everyone entail with regard to this
investigation?
A.
'cause Travis Anglin wasn't involved in the case at that time.
And I don't know exactly what orders Travis got, because I
can't speak for that, but Mike Zullo was also present for at
least one of the conversations that Judge Snow was not to be
The first time it would apply to myself and Mike Zullo,
10
investigated.
11
Q.
12
that involved who?
13
A.
Chief Deputy Sheridan, myself, and Mike Zullo.
14
Q.
So when you received the order not to investigate
15
Judge Snow, Mike Zullo was also present?
16
A.
For at least one of the conversations I recall, correct.
17
Q.
Did you understand that order to apply to both of you?
18
A.
Absolutely.
MS. MORIN:
I asked if he understood.
He asked for his understanding, so I'll
23
BY MR. POPOLIZIO:
24
Q.
25
of identity theft, did you investigate the birth certificate?
FR
10:26:37
allow it.
IEN
22
THE COURT:
10:26:23
MR. POPOLIZIO:
DS
21
10:26:10
And when you say "one of the conversations," conversations
19
20
10:25:49
When you were up in Seattle conducting your investigation

10:27:02
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A.
I did not, no.
Q.
Okay.
A.
That was another order that came from Chief Jerry Sheridan,
that Travis and I were to have nothing to do with the birth
certificate.
Q.
putting the judge's name into a database.
That wasn't a part of your investigation?
10:27:20
Now, we had a little discussion about this before about
Do you remember that?
8
9
A.
Yes, I do.
10
Q.
Okay.
11
Dennis Montgomery gave you demonstrations?
12
A.
Yes.
13
Q.
Okay.
14
Montgomery do while you were out there?
15
A.
16
in there.
17
Q.
18
into the database, see if it was in there, was?
19
A.
20
which was searchable, basically, but if you put a person in
21
that database, it would give very limited information.
What did he show you?
10:27:53
And did he tell you what the purpose of plugging a name
DS
His explanation was is that he had one master database
Prime example.
10:28:08
Stacy Sheridan, Chief Sheridan's wife,
23
was in the database.
24
address, and had an old telephone number from, like, 10 years
25
ago.
FR
10:27:34
And what types of demonstrations did Dennis
He would put a name in his database and we'd see if it was
IEN
22
Now, during this investigation were there times that
It had her name, had an old business
I had no idea if that information was correct or not.
10:28:33
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And basically, what it would state is what was
1
2
collected: bank information, phone records, or financial
information.
would have to be done on a totally separate computer system,
hence, the reason why it would take so long.
But to actually access anything further, that
10:29:01
That's why this process, this investigation, took so
6
7
long, because it was very difficult for him, that's what he
told us, to put the information back together.
sense.
If that makes
10
Q.
And when you say "him," who are you referring to?
11
A.
Dennis Montgomery.
12
Q.
And what you just explained to me, that information, who
13
was the source of that information?
14
A.
Dennis Montgomery.
15
Q.
So when you were up there and Mr. Montgomery would perform
16
this demonstration plugging in names, Judge Snow wasn't the
17
only name that was plugged in, was he?
18
A.
No.
19
Q.
Okay.
20
A.
I did.
21
Q.
And --
22
A.
I was not in there.
DS
IEN
10:29:28
Did you search for your name?
23
Q.
You said Stacy Sheridan's name was plugged in.
24
A.
Yes.
25
Q.
Okay.
FR
10:29:19
Who decided to do that?
10:29:42
10:29:53
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A.
let's see if they're in there.
there.
a -- some kind of CI company 10, 15 years ago, and it was under
the CI company that his name fell under, which I didn't even
know about Mike Zullo.
Q.
So who elected to put Mr. Zullo's name in there?
A.
Mike.
Q.
Is there anybody else you can recall putting in?
10
A.
I can't recall, no.
11
Q.
But there was a time when Judge Snow's name was entered.
12
A.
The last name of Snow, the summary of Snow was entered.
13
Q.
How did that come up?
14
A.
We were in the office, and like I said before in my
15
deposition, the Melendres matter didn't really affect me.
16
never -- I was never in a position within the office that it
17
affected my day-to-day operations.
18
date and really didn't understand what this Melendres thing was
19
all about.
Mike Zullo was actually in
I didn't even know this about Mike, but he used to own
That's all I
knew at that point.
22
the dealings of the DOJ and the lawsuit than I did.
IEN
10:30:58
So I wasn't really up to
21
10:31:18
Dennis Montgomery actually knew more about

What had
23
happened was is we were in the garage, and Mike Zullo -- the
24
biggest problem we were trying to do was to corroborate
25
anything Dennis Montgomery stated he had, because he had
FR
10:30:14
10:30:29
I had known that we were in a lawsuit.
DS
20
It was just someone that I knew, and wondered -- figured,
10:31:44
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credibility issues.
So Mike Zullo said:
Hey, you know what?
What's the
judge's name that's in the lawsuit?
And I remember Dennis
Montgomery getting on the Internet and searching that.
actually, I believe Judge Silver came up in an article.
remember I did know very little that DO -- that I believe
Judge Silver was the judge overseeing the DOJ matter, I
believe, and I said:
and that's not the judge that's over the Melendres issue.
And
And I
That name doesn't -- I know Judge Silver,
So he did another search, and the last name of Snow, I
10
11
don't know how it came up, Murray Snow, G. Murray Snow, I'm not
12
really sure.
13
database and several Snows came up.
14
Snows were actually "the" Judge Snow.
15
went, as far as I was concerned.
16
Q.
17
was done?
18
A.
Yes, I did.
19
Q.
Okay.
20
in of Judge Snow's name into a computer?
21
A.
Yes.
22
Q.
What was his reaction?
10:32:30
So then he put the surname of Snow in his
I don't know if any of the

That's as far as it
10:32:54
Did you report to the chief deputy that this type of search
IEN
DS
And did you report to him that there was a plugging
23
A.
24
the judge to be investigated.
25
Q.
FR
10:32:04
Like I already said:
10:33:09
Absolutely under no circumstances is
Was there any hesitation --
10:33:23
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A.
No.
Q.
-- that you observed?
A.
Absolutely not.
THE COURT:
MR. POPOLIZIO:
THE COURT:
6
7
time.
THE COURT:
Yes, sir.
We could break.
But if you want to go to a better stopping
point, it's up to you.
10:33:38
MR. POPOLIZIO:
11
THE COURT:
12
This is fine.
All right.
THE WITNESS:
13
We'll be back in 15 minutes.
Thank you.
(Recess taken.)
14
THE COURT:
15
Please be seated.
10:53:55
Mr. Popolizio, please resume.
16
MR. POPOLIZIO:
17
18
BY MR. POPOLIZIO:
19
Q.
20
mentioned an individual by the name of Tim Blixseth?
21
A.
Yes, sir.
22
Q.
I believe you testified he was the individual that
IEN
DS
Detective Mackiewicz, earlier in your testimony you
23
connected the Sheriff's Office with Mr. Montgomery, is that
24
right?
25
A.
FR
10:33:31
We're a few minutes past our normal break
MR. POPOLIZIO:
10
Mr. Popolizio?
Yes, sir.
10:54:19
10:54:29
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Q.
Okay.
And so who is Tim Blixseth?
A.
Tim Blixseth is someone that lives in Bellevue, Washington,
not too far away from Dennis Montgomery.
friends, and that's how the information came to us.
Q.
for a living?
A.
business, and he was actually one of the top hundred richest
people in the United States.
Somehow, they became
Do you know anything else about Mr. Blixseth, what he does
Well, I know what he used to do.
He was in the timber
He was worth two and a half
10
billion dollars at one point before his divorce.
11
through the divorce he lost more than half his assets.
12
Q.
And he also is from Washington, is that right?
13
A.
Yes, he is.
14
Q.
Okay.
15
investigation involving Maricopa County citizens.
It was
10:55:10
Let's go back to the -- this identity theft
10:55:26
Did Mr. Montgomery provide you some names of
16
individuals in Maricopa County who he claimed were victims of
18
identity fraud?
19
A.
Yes, he did.
20
Q.
And then once he did that, did you try to do anything to
21
verify the information that he provided you?
22
A.
DS
17
10:55:49
IEN
Yes, I did.
23
Q.
Okay.
24
A.
He gave us a PDF file containing a couple thousand people,
25
I believe.
FR
10:54:49
What did you do?
I basically did a cross-section of 40 people that
10:56:02
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were contained within that file.
I tried to pick people across
the board: different people, different towns, different
addresses, all within Maricopa County.
And what I did is made up packets that were given to
4
5
detectives, and they were to go out and ask these specific
people certain questions in reference to the information that
was contained on the spreadsheet.
Q.
of names?
When you said -- so you selected names from a larger list
10
A.
Yes.
11
Q.
Okay.
12
A.
It was random.
13
were on there, it would just be too time intensive, so we tried
14
to just do just a cross-section of what was contained in that
15
document.
16
Q.
17
what did you then do?
18
A.
19
everyone, because a lot of this information was old so that
20
their addresses had changed, they moved.
21
packets together as far as how to contact these people, and
22
then detectives were sent out to conduct interviews with those
Okay.
10:56:44
And how did you go about the selection?
I knew that we couldn't do thousands that
10:57:02
And then after you identified these 40 individuals,
IEN
DS
It took approximately a month to basically get packets on
So we had to put
23
people to see if any of the information on the spreadsheet was
24
correct.
25
Q.
FR
10:56:26
Do you know how many detectives were involved in this part
10:57:21
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of the investigation?
A.
I do not.
Q.
Do you know if individuals were actually contacted?
A.
I know of at least 40, I believe.
Q.
Were actually contacted?
A.
Yes, sir.
Q.
And were they contacted by detectives?
A.
Yes, they were.
Q.
And during -- and then do you know if the detectives
I was not part of that.
10
interviewed those people?
11
A.
Yes, they did.
12
Q.
Was the interview process with respect to these 40 people,
13
was it discussed ahead of time?
14
A.
15
questions that needed to be asked, because I was the one that
16
knew everything about the investigation.
17
Q.
Okay.
18
A.
Yes, I did.
19
Q.
What did you provide?
20
A.
It was basically a Word document with, like, 10 questions
21
that I needed answered to move forward.
22
Q.
Yes, it was.
10:58:01
I was actually the one that made the
10:58:17
DS
So did you provide something to the deputies to use?
10:58:31
IEN
Do you recall what types of questions were asked?
23
A.
I don't, sir.
24
Q.
Do you recall if the questions had to do with theft of bank
25
accounts?
FR
10:57:49
10:58:53
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A.
Yes, they pertained to the investigation.
Q.
Could you describe generally what you were looking to find
out from these people?
A.
Montgomery provided us.
any of the information that were contained in these documents,
then that would lend some credibility to Dennis Montgomery.
Q.
information that Mr. Montgomery said he had?
I was trying to corroborate the information that Dennis
And if these people could corroborate
Did any of these interviews result in confirming
10
A.
I believe so.
11
Q.
Okay.
12
A.
Not exactly.
13
Q.
Like what?
14
A.
Old addresses, old telephone numbers, old e-mail addresses,
15
things like that.
16
amount figure included in the spreadsheet, and I don't believe
17
any one victim came out and exactly said, That's exactly what
18
was in my account on this date at this time, because obviously,
19
they couldn't do that.
10:59:29
Explain that to me.
Generalized information was confirmed.
There was a money -- there was a dollar
But some stated, Yeah, that would make sense; no, that
DS
20
21
wouldn't make any sense at all.
22
Q.
10:59:48
11:00:06
So we moved forward.
IEN
But did some of the identity theft victims identify that,
23
yes, that was their bank account?
24
A.
Yes.
25
Q.
Now, with the selection of the 40 people randomly, let's go
FR
10:59:10
11:00:35
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back to when you plug some names into -- well, not you,
Mr. Montgomery, plugged some names into the computer up in
Washington.
Were any of the people whose names were plugged into
4
5
the computer put on this list of 40?
A.
I wouldn't know that, no.
Q.
Well, was Stacy Sheridan's name on that?
A.
I never looked --
Q.
No, I'm talking about on the list of 40 people that you
10
randomly selected.
11
A.
No, not at all.
12
Q.
Okay.
13
A.
No.
14
Q.
Was Judge Snow's put on that list of 40?
15
A.
No.
16
Q.
Why not?
17
A.
I didn't even look to see -- their names were in that PDF
18
sheet.
19
highlighted another one.
20
of what this document contained.
21
Q.
22
Dennis Montgomery had in Washington, and he showed you
11:01:07
Was Mr. Zullo's name put on that list of 40?
11:01:16
I literally took page by page and just highlighted one,
DS
I wanted to get a good cross-section
11:01:33
IEN
When you looked at information on computer screens that
23
Judge Snow's name, or a Snow name on the computer, did you ever
24
look to see whether Judge Snow's name was on the list of people
25
whose bank accounts were compromised?
FR
11:00:53
11:02:03
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A.
No.
Q.
Did you ever look into Judge Snow's bank account
information?
A.
No.
Q.
How come?
A.
I didn't get that information till June of 2014, and I was
given a direct order from Jerry Sheridan back in November that
Judge Snow was not to be investigated.
Q.
Did you ever specifically tell Dennis Montgomery not to
10
look into Judge Snow?
11
A.
No.
12
Q.
Did you think you needed to?
13
A.
No.
14
Q.
Why not?
15
A.
Dennis Montgomery, I think, always was under the impression
16
that that was important to us, but we had never actually told
17
Dennis Montgomery that under no circumstances were we going to
18
investigate any of the information that he gave us.
19
Q.
20
information?
21
A.
Yes.
22
Q.
Would he ever provide you with information that was
11:02:37
11:02:49
IEN
DS
At times, Mr. Montgomery would provide you with
23
irrelevant to the purpose of the Seattle investigation?
24
A.
Yes.
25
Q.
Okay.
FR
11:02:09
What did you do with that information?
11:03:16
11:03:23
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A.
Put it in a three-ring binder and there it sat.
Q.
Did you ever look into any of it?
A.
No.
Q.
During the course of your investigation, the Seattle
investigation, did Dennis Montgomery allege that Sheriff Arpaio
and chief deputy -- Chief Deputy Sheridan had been wiretapped?
A.
That was one of the allegations.
Q.
Okay.
A.
I don't remember exactly when it was.
And when did he first claim that, do you know?
I believe it was in
10
the beginning of the investigation.
11
Q.
How did he present that information to you?
12
A.
It was in one of the sheets that he gave us.
13
Q.
And what did this sheet have on it, generally?
14
A.
If I remember, it had a telephone number on it, and then it
15
had some kind of number after it, and I had no idea what the
16
number after it stood for.
17
Q.
How did it appear?
18
A.
Just in a typed -- on like a sheet, typed sheet.
19
Q.
Did you verify whether any numbers on that sheet were from
20
anybody that you knew?
21
A.
Yes, I did.
22
Q.
Whose numbers appeared on there?
24
cell phone.
25
Q.
11:04:15
11:04:32
What format?
DS
IEN
A.
FR
23
11:03:54
11:04:50
Sheriff Arpaio's cell phone and Chief Jerry Sheridan's
Did you verify that it was, in fact, their numbers?
11:05:04
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A.
Yes, I did.
Q.
Aside from verifying that those numbers were actually the
numbers of Sheriff Arpaio and Chief Deputy Sheridan, did you do
anything else to investigate the wiretapping claims that
Mr. Montgomery presented?
A.
No, sir.
Q.
Did you speak to the chief deputy about these wiretap
claims?
A.
Yes, I did.
10
Q.
Did you speak to the sheriff?
11
A.
Yes, I did.
12
Q.
Was it together or separately?
13
A.
Could have been together, could have been separate, I'm not
14
really too sure.
15
Q.
16
when you told him about that, the wiretap?
17
A.
18
second look I think he became a little concerned that, Oh, my
19
God, what if this information is really true and accurate?
20
What's really going on here?
21
Q.
How about the sheriff?
22
A.
Pretty much the same way.
11:05:27
11:05:35
Do you remember what Chief Deputy Sheridan's reaction was

Alleged wiretap.
IEN
DS
I believe at first he just dismissed it, and then at a
11:06:05
How did he react?
23
Q.
24
concerned that Judge Snow was wiretapping the chief deputy?
25
A.
FR
11:05:45
During the course of this investigation were you ever
There was never an allegation, no.
11:06:24
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Q.
Or the sheriff?
A.
No.
Q.
Did anybody at MCSO express concern to you that Judge Snow
may be wiretapping the chief deputy or the sheriff?
A.
No.
Q.
So how did this whole issue of wiretapping come up in the
first place?
A.
Something that Dennis Montgomery fed us.
Q.
Did you ask him to look into wiretapping?
10
A.
No.
11
Q.
I just want to get a picture of Seattle.
12
that.
13
off that.
11:06:39
11:06:57
Well, strike
Let's go back to the wiretap for a second before we get
Was there ever any investigation conducted in Seattle
14
15
to determine whether Judge Snow authorized any wiretaps?
16
A.
No.
17
Q.
You said earlier in your testimony that there are some
18
credibility issues with Mr. Montgomery?
19
A.
Yes, sir.
20
Q.
Okay.
21
A.
Yes, he was.
22
Q.
In your career, before you had worked with Mr. Montgomery,
IEN
DS
Mr. Montgomery was a confidential informant?
had you worked with confidential informants?
24
A.
Yes, I have.
25
Q.
How many times, if you know?
FR
23
11:07:49
11:08:20
11:08:31
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A.
Several.
Q.
In your experience, have you found that confidential
informant have credibility issues?
A.
They all have credibility issues.
Q.
Explain that to me.
A.
It's the whole reason why they're a confidential informant.
Q.
What do you mean by that?
A.
You don't become a confidential informant because you
always tell the truth.
11:08:47
I mean, confidential informants usually
10
throw in a little bit of truth with a whole bunch of lies, and
11
it's our job to decipher what's what.
12
Q.
13
were?
14
A.
15
known what the credibility issues were when we went into it.
16
Q.
17
Mr. Montgomery?
18
A.
Several occasions.
19
Q.
Okay.
20
A.
Yes, sir.
21
Q.
With Sheriff Arpaio?
22
A.
Yes, sir.
So do you remember what Mr. Montgomery's credibility issues
Well, they were well known.
They were published.
We had
11:09:18
Did you discuss these credibility issues with
IEN
DS
How about with the chief deputy?
23
Q.
24
with Mr. Montgomery.
25
A.
FR
11:08:59
11:09:32
But you continued -- well, you went into an investigation
Yes, sir.
11:09:46
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Q.
Despite the credibility issues?
A.
Yes, sir.
Q.
I mean, you're working with a confidential informant here,
Mr. Montgomery.
A.
information that would explain the credibility -- the
credibility issues that was brought forward.
Q.
the AG's office --
Was that odd to you?
No, because when pressed, Dennis Montgomery provided us
Okay.
And there came a time when there was a meeting at
10
A.
Correct.
11
Q.
-- is that right?
12
A.
Yes, sir.
13
Q.
And that meeting, the purpose of that meeting was what?
14
A.
It was basically to give Dennis Montgomery the ability to
15
tell the attorney from the state's attorney's office what
16
information he had and tell his story.
17
the documents that he stated that he was going to provide to
18
further our investigation, then the Attorney General's Office
19
would, I don't want to say give him immunity, but anything that
20
was said under the free talk agreement would not be used
21
against him later on.
22
Q.
11:10:20
11:10:58
In your experience as a detective with Maricopa
23
County Sheriff's Office, had you ever gone to a free talk
24
before this?
25
A.
FR
11:10:30
And if he provided all
DS
IEN
Okay.
11:09:57
Several, yes.
11:11:16
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Q.
And was it -- is it fair to say that people engage in a
free talk to see if they can get immunity from prosecution?
A.
Correct.
Q.
Okay.
A.
Has nothing to do with us.
Q.
Who makes that call?
A.
It's the attorney general, or the county attorney, or
whatever office is overseeing the free talk agreement in the
first place.
Is it your call if the individual get immunity?
10
Q.
And at this meeting at the Attorney General's Office, were
11
Mr. Montgomery's credibility issues again addressed?
12
A.
Yes, sir.
13
Q.
Okay.
14
A.
We brought it out.
15
Q.
Who brought it out?
16
A.
I did.
17
Montgomery to get him to answer questions and speak, and I'm
18
the one that brought up the credibility issues that he had.
19
Q.
20
Office, representing the Attorney General's Office, at this
21
meeting?
22
A.
11:11:49
And how did that come about?
11:12:04
I was pretty much the one questioning Dennis
DS
Do you recall who was present from the Attorney General's
11:12:25
IEN
I believe his last name was Waters; I don't know his first
23
name.
24
Q.
25
Judge Snow's name ever come up?
FR
11:11:39
During this meeting at the Attorney General's Office did

11:12:39
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A.
No.
Q.
Was this case, the Melendres case, ever discussed?
A.
No.
Q.
Now, I think when I interrupted myself and went back to
another -- another issue, I forgot that I was going to ask you
about something else.
Could you just tell me, when you were up in Seattle
7
8
and this computer work was occurring through Mr. Montgomery,
could you just kind of describe, if you can paint a picture for
10
us, what kind of setup computer-wise Mr. Montgomery had?
11
A.
12
inside of his home.
13
have been a four-car garage, and half of the four-car garage
14
consisted of pretty much a computer system, disk arrays, I
15
think probably about 70 or 80 disk -- or 70 or 80 hard drives
16
could be online at one time.
17
as far as I was concerned.
THE WITNESS:
DS
MR. WALKER:
MR. MURDY:
It was a pretty elaborate setup,
Okay.
Thank you, Detective.
You're welcome.
The county has no questions, Your Honor.
11:14:23
No questions on behalf of Chief Sands,
23
THE COURT:
Redirect, Ms. Wang, or Ms. Morin?
24
MS. MORIN:
Your Honor, could I have a moment, please?
25
THE COURT:
You may.
FR
11:14:03
Your Honor.
IEN
22
Then outside he had, I believe it would
MR. POPOLIZIO:
19
21
11:13:38
He had several computers in his office, which was located
18
20
11:13:17
11:14:38
3784
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Mackiewicz - RDX Morin, 10/28/15 Evidentiary Hearing
MS. MORIN:

REDIRECT EXAMINATION
3
4
BY MS. MORIN:
Q.
counsel's questioning about Sheriff Arpaio's role in the
investigation and said something to the effect that the sheriff
didn't run the day-to-day operations, right?
A.
Correct.
10
Q.
But you are aware that Mr. Zullo had conversations with
11
Sheriff Arpaio that you were not a part of, correct?
12
A.
Correct.
13
Q.
And you are not claiming to be aware of everything that
14
Sheriff Arpaio and Mr. Zullo were doing in relation to the
15
investigation, right?
16
A.
Absolutely not.
17
Q.
I think you told us that Mike Zullo actually talked with
18
Sheriff Arpaio more often than you did, right?
19
A.
He did.
20
Q.
You also testified that -- I think you said that you didn't
21
know whether any of the versions of Judge Snow's name -- or
22
strike that.
IEN
DS
Detective Mackiewicz, you testified during defense
23
11:15:25
11:15:45
11:15:58
I apologize.
You testified with respect to looking at the different
24
versions of the name Snow in Dennis Montgomery's database,
25
right?
FR
11:15:11
11:16:23
3785
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Mackiewicz - RDX Morin, 10/28/15 Evidentiary Hearing
A.
Yes, ma'am.
Q.
And I think you said something to the effect that you
didn't know if any of those versions of the name Snow were
actually "the" Judge Snow, right?
A.
Correct.
Q.
But you also testified at your deposition that you actually
believed one of -- one of those iterations of the name Snow was
actually "the" Judge Snow from this litigation, right?
A.
It could have been.
10
Q.
Do you recall that?
11
A.
I do recall that.
12
investigated it any further to make -- to see if it was "the"
13
Judge Snow.
14
Q.
15
it could have been, but that you thought you were looking at,
16
among those names Snow, you thought you were looking at one of
17
them being Judge Snow's name, right?
18
A.
19
further, so I can't tell you if it exactly was Judge Snow or
20
not.
21
Q.
22
42, line 45, through page 43, line 2.
11:16:34
It could have been.
We never
In fact, you told me at your deposition that not only that
11:17:08
We never took it any
DS
It could be Judge Snow's name.
11:17:26
Well, let's take a look at your deposition, sir, at page
IEN
23
And if we could play clip 72, please.
24
A.
I'm sorry, that was 42?
25
Q.
Yes, page 42, line 45.
FR
11:16:45
11:17:41
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Mackiewicz - X The Court, 10/28/15 Evidentiary Hearing 3786
(Deposition audio clip played as follows:)
"Question:
2
3
And you understood that -- or you thought
you were seeing among those names Judge Snow's name?

"Answer:
Correct."
(Deposition audio clip concluded.)
5
6
BY MS. MORIN:
Q.
Sir, that's what you said at your deposition, right?
A.
Yes, that's what I said.
Q.
You stand by that testimony today?
10
A.
Yeah, I've already said I've never -- I don't know if it
11
was "the" Judge Snow or not, so...

MS. MORIN:
12
11:18:06
That's all I have, Your Honor.

EXAMINATION
13
14
BY THE COURT:
15
Q.
Detective Mackiewicz --
16
A.
Yes, sir.
17
Q.
-- on occasion I ask a few questions as well after all the
18
parties have had a chance; I'm going to do that with you.
19
A.
No problem, sir.
20
Q.
I don't think I have many questions, but I do have a few,
21
and what I want to talk to you about are the trips that you
22
mentioned to see a federal judge in Washington, D.C.
11:18:27
DS
IEN
23
A.
Okay, sir.
24
Q.
You mentioned several such trips.
25
there?
FR
11:18:01
11:18:29
How many were
Well, I think you mentioned -- tell me if I'm wrong --
11:18:46
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I think you mentioned several such trips, several such
meetings, with several different individuals being involved in
each meeting, was that correct?
A.
Yes, sir.
Q.
Okay.
when your first meeting was with the federal judge in
Washington, D.C.?
A.
I believe it was the end of August, beginning of September.
Q.
And this would be end of August 2014?
10
A.
'14, correct, sir.
11
Q.
And who was at that meeting, to the best of your
12
recollection?
13
A.
14
assistant, Dina James, I believe -- her name came up earlier --
15
Mike Zullo, and myself.
16
Q.
But Mr. Montgomery was not present at that meeting?
17
A.
No, he was not.
18
Q.
And what was discussed at that meeting?
19
A.
Basically, Larry Klayman was trying to ask Judge Lamberth
20
different questions on how he could get his client some kind of
21
federal immunity for the claims that Dennis Montgomery was
22
making as far as all his -- all the times he went to make the
Can you tell me, to the best of your recollection,
Correct, '14.
11:19:15
IEN
DS
The first meeting would have been Larry Klayman, his
23
whistle-blower complaints to all the different agencies, and
24
no one was taking a look at them, basically.
25
Q.
FR
11:18:59
Do you remember what Judge Lamberth said?
11:19:32
11:19:44
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A.
You know what?
Q.
Is it "Lambert" or "Lamberth"?
A.
Sir, I couldn't tell you.
Q.
That's all right.
A.
The first meeting wasn't very long.
we went back and Dennis Montgomery actually was on the second
meeting with -- with Judge Lambert.
Q.
anything else you remember at all about the first meeting?
All right.
Judge Lambert --
A subsequent meeting,
Before we move to that second meeting, is there
10
A.
Not really.
11
a very short meeting.
12
Q.
13
you said the end of August, beginning of September 2014, you
14
still thought there might be some credibility to what
15
Mr. Montgomery was telling you.
16
A.
17
of credibility somewhere of what Dennis Montgomery was saying.
18
To which parts, I can't tell you.
19
Q.
Okay.
20
A.
No, it was pretty short.
21
Q.
Where did it occur?
22
A.
In his chambers.
All right.
I mean, it was -- it wasn't very long.
It was
11:20:34
So at least as of the end of October -- well,
11:20:50
Judge, I still think to this day that there's a little bit
IEN
DS
Do you remember anything else about that meeting?
23
Q.
24
Mr. Klayman?
25
A.
FR
11:20:18
All right.
It wasn't not eventful.
11:21:08
And it was set up, I think you testified, by
Yes, it was.
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Q.
Do you know at this time whether Mr. Klayman was also
representing Sheriff Arpaio?
A.
not.
Q.
You've never been aware of whether or not --
A.
No.
Q.
-- Mr. Klayman represents Sheriff Arpaio?
A.
Absolutely not.
Q.
Okay.
I have no idea if Larry Klayman represents the sheriff or

I'm not aware of that.
When was the next meeting between -- or that you
10
attended that involved Judge Lamberth?
11
A.
I believe two weeks later, approximately two weeks.
12
Q.
And Dennis Montgomery was at that meeting?
13
A.
Correct.
14
Q.
Who else was at that meeting?
15
A.
It was myself and Mike, Dina James, Larry Klayman, the
16
judge, Dennis Montgomery, and Dennis Montgomery's son-in-law.
17
Because by that time, Dennis Montgomery had already suffered a
18
stroke, and he needed someone there to help him around.
19
Q.
20
meeting?
21
A.
22
history, laid out his story.
DS
All right.
11:21:41
11:21:53
And what was the topic of discussion at that
11:22:15
IEN
Basically, at that meeting Dennis Montgomery laid out his

The story was pretty much exactly
23
the same that he told me on our first interview back in
24
November, and then the free talk agreement that he did in
25
December, and he pretty much went through his history and told
FR
11:21:31
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the judge his history, and why he wanted to get some kind of
federal immunity for all the whistle-blower stuff that he was
trying to put forward.
Q.
recall anything that anybody else said?
A.
was -- Dennis Montgomery went on and discussed a lot of things
with -- with the judge, and basically the judge was -- played
very neutral.
And what else can you recall about that meeting?
No, it was -- it was probably a two-hour meeting.
Can you
11:23:00
It
Didn't really say one thing one way or the
10
other.
11
Q.
12
judge?
13
A.
Not to my knowledge, no.
14
Q.
Did you attend any other meetings with the judge?
15
A.
Yes, one more meeting.
16
Q.
And when was that?
17
A.
Probably about two weeks after that.
18
Q.
And who was at that meeting?
19
A.
I don't remember who exactly was at the meeting, but I know
20
Dennis Montgomery was not.
21
Larry, and probably Dina James again, because they were always
22
together.
11:23:18
IEN
DS
Did Mr. Montgomery attend any other meetings with the
11:23:28
I believe it was Mike, myself, and
Q.
24
these e-mails in which you were seriously questioning the
25
credibility of Mr. Montgomery to Mr. Klayman?
FR
23
11:23:38
And was that meeting after or before you began sending
11:23:57
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A.
Before.
Q.
All right.
A.
Larry Klayman was asking the judge basically what he
thought our options were, and basically the judge was honest.
He said:
options:
immunity; you go to the CIA; or you wait and see if you can get
in front of, like, the Senate Intelligence Committee.
And what happened at that meeting?
You know what?
The way I see it, you have three
Either you go to the FBI and ask for some kind of
This was around the same time I think -- I believe
9
10
2014 was a voting year, so they were trying to figure out who
11
was going to be in office, and that's the last meeting I was
12
present for with the judge.
13
Q.
14
evidence you express some concern about false statements made
15
to a federal judge that needed to be corrected by
16
Mr. Montgomery.
11:24:36
In one of the e-mails that we've just admitted into
11:24:51
I assume that that was in, then, the second meeting
17
18
that he made false statements that you thought needed to be
19
corrected?
20
A.
21
want the Sheriff's Office, nor the sheriff or myself, anyone
22
from the Sheriff's Office, look like we went ahead and
Basically, at that point I was not -- I didn't
IEN
DS
Correct.
23
validated Dennis Montgomery on any level, because that was not
24
the truth.
25
were validating anything that Dennis Montgomery stated, because
FR
11:24:13
11:25:01
And we didn't want Judge Lambert to think that we

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I didn't want to put the Sheriff's Office in that predicament.
Q.
Mr. Montgomery made that you thought he needed to correct?
A.
on the information that he never provided us, because he -- the
whole problem with this case was Dennis never provided what he
agreed to provide in the free talk agreement.
I get you.
Do you know what?
It was more of a general statement based
statements and same allegations, and at this point I was
10
basically -- I was frustrated that they had gone on this long,
11
and that we -- that he never provided what he said he was going
12
to provide.
13
statement in the e-mail.
14
Q.
15
Arpaio?
16
A.
17
Washington, D.C., and meeting with a judge, but I don't -- I
18
can't specifically say if he knew about -- I never told him the
19
exact details of what was transpiring or what was going on.
20
Q.
21
meetings?
22
A.
11:26:09
So that was -- that's what I meant by that
Did you ever -- did you report these meetings to Sheriff
11:26:29
I believe Sheriff Arpaio knew that we were going to
DS
Did you ever report to Chief Deputy Sheridan about these
11:26:45
IEN
Yes.
23
Q.
And did you report to him after each of these meetings?
24
A.
I believe so.
25
Q.
To your knowledge, did either Chief Deputy Sheridan or
FR
11:25:43
So still, up until this point, he was making the same
8
9
But what were the statements that
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Sheriff Arpaio have any discussions with Judge Lamberth outside
of what they would have heard from what you told them about
those meetings?
A.
Sheridan, and I actually wanted him to meet the judge, and he
said absolutely not.
way at all.
Q.
had any communications with the judge?
I can tell you that I had a conversation with Chief Jerry
He did not want to insert himself in that
So to your knowledge, Chief Deputy Sheridan never met or
A.
Not to my knowledge, correct.
11
Q.
And the only knowledge that he would have concerning what
12
the judge said would be knowledge that you would have given
13
him.
14
A.
Correct.
15
Q.
Or that Mr. Zullo might have given him.
16
A.
Correct, sir.
17
Q.
But there wasn't anybody affiliated with the MCSO other
18
than you and Mr. Zullo in those meetings.
19
A.
Correct.
20
Q.
And I suppose Mr. Klayman, to the extent he might have had
21
separate discussions with Sheriff Arpaio?
22
A.
DS
10
11:27:28
11:27:37
11:27:48
IEN
Could have, I don't know.
23
Q.
24
Judge Lamberth ever discuss his term as being on the FISA Court
25
during any of those meetings?
FR
11:27:16
Did you ever discuss with Judge Lamberth or did
11:28:05
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A.
He did not.
I knew, basically because I researched who he
was, 'cause I was kind of curious to see who we were meeting,
that he had a stint in the FISA Court.
didn't even understand what that really meant until I looked it
up.
Q.
So what does a FISA court mean?
A.
It's something ser -- it's a federal surveillance,
something; I don't even know what it really stands for.
the concept of it, but I don't know exactly what it stands for.
And to be honest, I
11:28:22
10
But he didn't get into his past history with us.
11
it wasn't an issue, so to speak.
12
Q.
13
numbers, or did -- not you.
14
the wiretap numbers that he attributed to this Court?
15
A.
Yes.
16
Q.
And what --
17
A.
I'm sorry, Judge.
18
Court," because I don't think that's a correct statement.
19
Q.
All right.
20
A.
No, no, no.
21
Q.
What wiretap numbers were shown to Judge Lamberth?
22
A.
Whatever, the ones that were on the sheet.
I don't know,
11:28:33
Did he ever con -- did you ever show him the wiretap
11:28:57
DS
IEN
Okay.
Did Mr. Montgomery ever show him
I don't want to say "attributed to this
Well, correct me.
I don't mean to correct you.
23
Q.
24
schematic sheet that's been introduced into evidence that
25
Mr. Montgomery provided you?
FR
I know
11:29:08
When you say "the sheet," you're talking about that
11:29:23
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A.
Correct.
Q.
And what did Judge Lamberth say about those numbers?
A.
He didn't say anything.
Dennis the piece of paper back, that was it.
Q.
and testified in this court, that Judge Lamberth confirmed that
those were wire -- those were similar to wiretap numbers used
by the court, that wouldn't have been information he received
from you?
He just looked at them and gave
And so if Chief Deputy Sheridan was under the impression,
10
A.
You know, I could understand if --
11
Q.
I'm just asking you to answer yes or no.
12
discussion with Chief Deputy Sheridan in which you indicated to
13
him that Judge Lamberth confirmed that those were wire -- those
14
were similar to wiretap numbers that were commonly used?
15
A.
16
were wiretap numbers, but therefore, they weren't dismissed,
17
either.
18
Sheridan, I would have never said he absolutely confirmed that
19
those were wiretap numbers, because Judge Lamberth never said
20
that.
21
Q.
22
Judge Lamberth?
11:29:48
Did you have any
I don't believe that my words were "confirmed" that they
11:30:12
The conversation that I would have had with Chief
DS
11:30:34
IEN
Well, what did Judge Lamberth say and what did you ask
23
A.
24
the numbers, kind of, Oh, that's kind of interesting, and then
25
gave the sheet back.
FR
11:29:32
Like I said, he didn't really say anything.
He looked at
He didn't really go into it, inquire.
11:30:46
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Again, I wasn't in a position to ask him:
Are those
real wiretap numbers?
I didn't -- I didn't know what they
meant.
Q.
you had with Chief Lamberth -- or with Judge Lamberth?
A.
Second, correct.
Q.
And that was about middle of September of 2014?
A.
Correct.
Q.
And at that time you were still discussing the wiretap
And this discussion occurred in that second conversation
11:30:58
10
numbers with Chief Deputy Sheridan.
11
A.
12
exactly that was true or not true.
13
Q.
14
you'd seen attributed me as being one who ordered one of those
15
wiretaps.
16
A.
17
that's what it says, I never even looked at it.
18
information, as soon as I received it, I didn't even look at
19
it.
20
Q.
How long have you known Mike Bailey?
21
A.
Mike Bailey?
22
Q.
Well, Captain Bailey.
It was something that they were interested in to see if
And you knew that at least Mr. Montgomery's sheet that
11:31:29
To be honest, Judge, I didn't even -- if
IEN
DS
You know what?
23
apologize.
24
A.
Steve Bailey?
25
Q.
Yes, thank you.
FR
11:31:09
A lot of this
I may have his name wrong.
11:31:45
Do you know who I'm talking about when I say -Captain Steve Bailey?
Steve Bailey.
11:32:01
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A.
How long have I known him?
office, I mean, I've known of him.
Q.
office?
A.
serial number is, so around the same time.
Q.
Serial number would indicate how long he's served?
A.
Correct.
But he has been in the office as long as you've been in the
About, yeah.
THE COURT:
16
17
18
FR
25
MR. MURDY:
No, Your Honor.
MS. MORIN:
No, Your Honor.
THE COURT:
Thanks.
DS
MS. WANG:
11:32:29
You may step down.
11:33:11
Your Honor, plaintiffs call Captain Steve
Bailey back to the stand for the continuation of his testimony.
IEN
24
No, Your Honor.
THE WITNESS:
19
No, Your Honor.
Mr. Walker?
MR. WALKER:
15
23
Any follow-up, Mr. Popolizio?
THE COURT:
14
22
I have no more
MR. POPOLIZIO:
13
11:32:09
11:32:24
THE WITNESS:
12
21
Thank you very much.
questions.
11
20
I think he may be -- I don't know what his
THE COURT:
9
10
As long as I've been with the
THE COURT:
All right.
Captain Bailey, you are still
under oath.
THE WITNESS:
Yes, sir.
11:34:12
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Bailey - DX Wang, 10/28/15 Evidentiary Hearing
STEVE BAILEY,
1
2
recalled as a witness herein, having been previously duly
sworn, was examined and testified further as follows:

DIRECT EXAMINATION CONTINUED
4
5
BY MS. WANG:
Q.
Good morning, Captain Bailey.
A.
Good morning.
Q.
Captain, I want to start this morning by going over some of
the Armendariz spin-off investigations that occurred under your
11:34:25
10
watch when you were commander of PSB.
11
A.
Yes.
12
Q.
Do you have in mind what I mean when I say "Armendariz
13
spin-off investigation"?
14
A.
I do.
15
Q.
That's a term that you used at PSB, correct?
16
A.
Yes.
17
Q.
All right.
18
on the stand, you testified that you could not recall whether
19
any deputies other than Charley Armendariz were principals in
20
the 14-221 case.
11:35:06
Do you recall that testimony?
A.
Yeah.
IEN
22
23
Q.
24
your recollection.
25
MS. WANG:
FR
11:34:45
Now, back on October 14th, when you were last
DS
21
11:34:37
All right.
I have something that might help to refresh
Could I ask that Ms. Zoratti hand the
11:35:17
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witness Exhibit 2943?
BY MS. WANG:
Q.
defense counsel produced -- actually, lodged under seal with
the Court -- and it purports to be a spreadsheet summarizing
status of Armendariz spin-off IA investigations --
A.
Yes.
Q.
-- I believe as of September 30th, 2015.
And I'll tell you, sir, that this is a document that
All right, sir?
I know that's about a month after you left PSB,
9
10
correct?
11
A.
Yes.
12
Q.
All right.
13
going to ask you is whether the cases listed are generally
14
familiar to you as Armendariz spin-off investigations, as
15
they're described in this document.
16
A.
Yeah, as I see the names, it does.
17
Q.
All right.
18
and let me know if you're generally familiar with those cases.
11:35:57
Take a look at that document.
And what I'm
Go ahead and go through it, page through it,
DS
THE WITNESS:
21
BY MS. WANG:
22
Q.
IEN
All right.
Okay.
11:37:10
Sir, does this look like a list of the
23
Armendariz spin-off investigations as you were familiar with
24
them at the time you left the command of PSB?
25
A.
FR
11:36:19
19
20
11:35:34
The format of this is not the way I've seen it before, but
11:37:20
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I'm familiar with the cases.
Q.
spreadsheet on Exhibit 2943, does it appear to be accurate to
you?
A.
Okay.
Yes.
And looking at the information contained in the
11:37:34
MS. WANG:
All right.
Your Honor, I'd move the
admission of Exhibit 2943 under seal as it was lodged by
defense counsel.
THE COURT:
9
10
Let me ask if this exhibit needs to remain
under seal.
11:37:48
MR. MASTERSON:
11
Judge, I don't know how this document
12
was put together, so I don't know the status of all these
13
investigations that are listed on here.
14
of them are ongoing, and that is why it was lodged under seal.
15
But I'm not -- I do not personally have knowledge of each of
16
these individual investigations that are listed.
17
lodge the document.
18
THE COURT:
20
21
MR. MASTERSON:
And I did not
You want to check with
Yeah.
Thank you, Judge.
MR. MASTERSON:
Judge, the only further information I
23
have for you is that some of these investigations are still
24
ongoing, some may be under appeal, but they are not all
25
concluded.
FR
11:38:19
IEN
22
11:38:05
Ms. Iafrate?
DS
19
I understand that.
I'm assuming that some
11:39:27
THE COURT:
And is there anything pertaining to any of
the investigations which would require us to keep it under
seal?
MR. MASTERSON:
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Well, again, what I don't know, and
I'm not sure Ms. Iafrate knows, either, is whether individuals
have even been interviewed at this point, or whether the IA is
new enough that the person might not even know they're under
investigation at this point.
THE COURT:
11
All right.
MR. MASTERSON:
10
And I cannot tell by looking at the
11:39:54
numbers here.
THE COURT:
12
All right.
Well, what I'm going to do is
13
I'm going to admit -- unless you have other objections, it's
14
already been filed with this Court -- I'm going to admit the
15
exhibit.
16
description of the status as of September 30th of the
17
Armendariz spin-off investigations.
And I'll admit it under seal, noting that it is a
11:40:07
I am going to ask you if you would, please, to check
18
with your client and provide me with any justification for any
20
of those matters to be redacted from anything available to the
21
public.
22
without a specific justification for doing so pursuant to Ninth
IEN
DS
19
11:40:26
But I don't want to keep from the public anything
23
Circuit law that we've already discussed in respect to other
24
matters, but I'll hold that for a day while you do that
25
research.
FR
11:39:37
11:40:46
MR. MASTERSON:
MS. WANG:
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Thank you, Judge.
3
4
BY MS. WANG:
Q.
on the first page of the spreadsheet to the 14-221 case.
So Captain Bailey, I'll draw your attention to the line 5
Sir, does that refresh your recollection that the only
7
8
principal in the 221 case was Charley Armendariz himself?
A.
Yes.
10
Q.
All right.
11
last on the stand whether there were any recurring issues that
12
seemed to arise in the course of the Armendariz spin-off
13
investigations.
Sir, I asked you back on the 14th when you were
11:41:17
Do you recall that?
14
15
A.
I do.
16
Q.
And I believe you testified that it did -- there were
17
several cases involving an allegation that there was a failure
18
to Mirandize suspects by MCSO personnel, is that correct?
19
A.
Yes.
20
Q.
And was it also true that there were a number of Armendariz
21
spin-off investigations involving an allegation of theft of
22
property by MCSO personnel during traffic stops?
IEN
DS
11:41:46
23
A.
I don't know that I would say "theft"; mishandled property.
24
Q.
Okay.
25
A.
I believe there was one.
FR
11:40:53
11:41:59
There were some allegations of theft, correct?

11:42:21
Q.
All right.
A.
The Perez allegation of theft by HSU.
Q.
All right.
THE COURT:
I'm sorry.
I'm sitting right here and I can barely
THE WITNESS:
THE COURT:
I don't want to be --
Would you please speak into the
microphone.
11:42:35
THE WITNESS:
11
THE COURT:
12
you're soft-spoken.
THE COURT:
15
Yes, sir.
Thank you.
And, you know, I sense that
Would you try to speak up?
THE WITNESS:
14
I will.
Thank you.
16
BY MS. WANG:
17
Q.
18
multiple IA cases involving the mishandling of property by MCSO
19
personnel, correct?
20
A.
Yes.
21
Q.
Some of those involved allegations that cash was
22
mishandled, correct?
All right, sir.
11:42:55
DS
IEN
11:42:41
And it's your position that there were
23
A.
Yes.
24
Q.
All right.
25
A.
I don't know how you characterize "high value"; I remember
FR
11:42:28
hear you.
13
You know what, Captain?
THE WITNESS:
10
And which one was that, in your view?
THE COURT:
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And other items of high value, correct?

11:43:04
3804
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some other items.
Q.
cases involving allegations that identification documents were
mishandled, correct?
A.
Yes.
Q.
And there were also cases involving allegations that items
of greater value than identification cards were mishandled,
correct?
A.
Yes.
10
Q.
All right.
11
investigations involving an allegation that there were traffic
12
stops without -- made without probable cause, correct?
13
A.
Yes.
14
Q.
And also a number of cases involving an allegation that
15
either the driver of a vehicle or Dispatch was not informed of
16
the reason for the stop, correct?
17
A.
18
happened, for sure.
19
Q.
20
refresh your recollection on that last question.
There were also a number of Armendariz spin-off
Okay.
11:43:47
Take a look at the spreadsheet if you need to
11:44:04
I'll draw your attention to IA 14-545, IA 14-562,
14-563, for example.
Does that refresh your recollection that
23
there were IA cases involving a stop in which either the driver
24
or MCSO Dispatch was not informed of the reason for the stop?
25
A.
FR
11:43:27
I don't remember that specifically, but it could have
IEN
22
Well, there were allegations -- there were
11:43:20
DS
21
All right.
545, yes, that's true.
11:44:49
3805
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Q.
Okay.
And the others that I called your attention to as
well?
A.
You were going a little fast.
Q.
Okay.
A.
Yes.
Q.
563?
A.
Yes.
Q.
All right.
your command of PSB that involved an allegation that there was
I was trying to find 545.
562?
11:45:08
And there were also a number of IA cases under
10
a search conducted without lawful justification, correct?
11
A.
Yes.
12
Q.
Some of those involved traffic stops, correct?
13
A.
Yes.
14
Q.
Now, there were a number of IA cases opened that involved
15
traffic stops by Charley Armendariz.
11:45:44
Do you recall that?
16
A.
Yes.
18
Q.
And is it true that there were also IA cases opened that
19
involved traffic stops that did not involve Charley Armendariz?
20
A.
Yes.
21
Q.
And is it true that there were many video recordings of
22
traffic stops that were reviewed by PSB, or other personnel
IEN
DS
17
23
assigned to PSB, while you were commander of PSB?
24
A.
Yes.
25
Q.
And is it true that the one MCSO employee who had the
FR
11:45:26
11:45:58
11:46:16
3806
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greatest number of traffic stops reviewed was Charley
Armendariz himself?
A.
I believe so, yes.
Q.
There were many more traffic stop recordings for Charley
Armendariz than for any other deputy or sergeant, correct?
A.
Yes.
Q.
Now, do you recall that out of all of the Armendariz
spin-off investigations, there were two MCSO employees who
received discipline that was more than minor discipline?
10
A.
I don't know off the top of my head what the breakdown was
11
of what discipline was given to who.
12
Q.
Okay.
13
A.
Can you possibly bring this up on this?
14
small I can hardly see this.
15
Q.
This font is so
11:47:14
MS. WANG:
Mr. Klein?
17
BY MS. WANG:
18
Q.
19
legible copy of the spreadsheet itself.
20
Exhibit 2942.
21
size for legibility.
DS
So actually, what Mr. Klein is showing here is a more
We've marked it as
Same spreadsheet with -- in color and larger
23
to review the whole thing, I guess, in response to my question,
24
but it appears to me that the -- there were three IA cases in
25
which an MCSO employee received major discipline: 542, 14-542,
FR
11:47:37
And let me call your attention to -- well, you'll need
IEN
22
11:46:56
Well, take a look at the spreadsheet, if you need.
Sure.
16
11:46:32
11:48:10
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in which Chief Trombi received a suspension; and 14-588 and
14-761, in which one employee, a sergeant, received a demotion.

Do you see that?
3
4
A.
I don't see that, but I'm aware of those.
Q.
Okay.
other Armendariz spin-off cases that occurred on your watch at
PSB, MCSO employees who received findings of sustained policy
violations received only written reprimands or coaching at
most?
And is it true, Captain Bailey, that in all of the
10
A.
Many of them received minor discipline, yes.
11
Q.
And did any of them, other than the two cases which we just
12
looked at, did any of them receive any discipline greater than
13
a written reprimand or coaching?
14
A.
Do you want me to go through this entire thing?
15
Q.
Sure.
16
A.
Can you -- yeah, there we go.
11:49:20
THE WITNESS:
18
MS. WANG:
19
I don't see it on that page.
Okay.
Why don't I -- if I could bother
Ms. Zoratti to hand the witness Exhibit 2942.
21
legible paper copy of the spreadsheet.
IEN
DS
20
THE CLERK:
That's the
11:49:50
(Handing).
23
THE WITNESS:
24
THE CLERK:
25
MS. WANG:
FR
11:49:02
17
22
11:48:43
Thanks.
You're welcome.
Thank you, Ms. Zoratti.
11:50:20
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THE WITNESS:
It appears the ones that you mentioned
were the only major discipline given out.
BY MS. WANG:
Q.
deputies or other personnel who received minor discipline, that
discipline consisted of nothing more severe than a written
reprimand or coaching, correct?
A.
That's correct.
10
Q.
All right.
11
monitor's report on the MCSO's Armendariz and related
12
investigations last time you were on the stand, and I want to
13
ask you a few more questions about that.
All right.
And my specific question was:
Of all of the
Now, I want to turn to -- we looked at the
Do you have Exhibit 125 in front of you?
14
copy of the monitor's report.
16
A.
Yes.
17
Q.
All right, sir.
18
on the stand about the location selected by Sergeant Tennyson
19
for his interviews of HSU personnel in the Cisco Perez
20
investigation.
DS
Now, we spoke briefly last time you were
A.
Q.
24
Sergeant Tennyson's selection of location for those interviews.
FR
11:52:03
Yes.
23
25
11:51:30
Do you recall that?
IEN
22
11:51:08
That was a
15
21
11:50:54
And the monitor had criticized in his report the issue of
Do you recall that?
11:52:15
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A.
I do.
Q.
And was the criticism that Sergeant Tennyson had moved
those interviews from the PSB interview rooms to the building
where HSU had its offices at the time?
Do you recall that?
A.
I believe he did some in the Enforcement Support building.
Q.
All right.
had an issue with that because the HSU offices still housed
associates of Cisco Perez and Alfredo Navarrette, correct?
And there was an issue because -- the monitor
MR. MASTERSON:
10
MS. WANG:
11
11:52:52
Actually, let me withdraw that, because I
12
think I misspoke.
13
BY MS. WANG:
14
Q.
15
that doing the interviews at the HSU building was problematic,
16
because there were still associates of Cisco Perez and Alfredo
17
Navarrette who worked in that building?
Is it true that PSB investigators actually were concerned
MR. MASTERSON:
18
THE COURT:
19
11:53:04
Sustained.
BY MS. WANG:
21
Q.
22
criminal investigation of Cisco Perez's allegations, correct?
DS
20
11:53:24
IEN
Sir, you supervised Sergeant Tennyson in his work on the
23
A.
I did.
24
Q.
And did you discuss the issue of those interviews that he
25
conducted with him?
FR
11:52:30
11:53:40
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A.
Yes.
Q.
All right.
those interviews with him?
A.
Yes.
Q.
And are you aware of whether any PSB personnel raised the
concern that I just mentioned: that holding the interviews in
the same building as known associates -- where known associates
of Cisco Perez and Alfredo Navarrette worked would be
problematic?
Yes.
Did you discuss the issue of the location for
10
A.
And he took into consideration family members, I
11
believe.
12
Q.
13
with the location of those interviews, and specifically that
14
they were not conducted at PSB's interview rooms, because the
15
chosen room did not have video recording capacity?
16
A.
At PSB?
17
Q.
No, I'm sorry.
18
interviews were conducted did not have video recording
19
capacity.
20
A.
That's correct.
21
Q.
And that was the issue the monitor raised, correct?
22
A.
Yes.
IEN
11:54:19
That the HSU office where some of the
23
Q.
24
with Sergeant Tennyson's prepared interview questions for those
25
interviews of HSU personnel?
FR
Okay.
11:54:02
And do you also recall that the monitor took issue
DS
Right.
11:53:45
11:54:36
Now, do you also recall that the monitor took issue
11:54:59
A.
No, I don't believe that was accurate.
Q.
Okay.
monitor's report.
Why don't you take a look at Exhibit 125, the
At pages 2829.
3811
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And let me ask you this first, sir.
Is it true that the Monitor Team had asked to see a copy of
Sergeant Tennyson's interview questions for those interviews in
advance of the interviews?
A.
Yes.
Q.
And is it true that the Monitor Team did not receive a copy
10
of the interview questions in advance of the beginning of the
11
interviews?
12
A.
I believe they got copies of those questions.
13
Q.
But it was after Sergeant Tennyson had already conducted
14
some interviews, correct?
15
A.
I believe a few interviews, yes.
16
Q.
All right.
17
prepared questions as being incomplete, correct?
18
A.
19
want to ask scripted questions in the interviews.
20
Q.
21
comprehensive list of questions, correct?
22
A.
11:56:13
11:56:25
And the monitor criticized Sergeant Tennyson's
I don't remember that.
I believe Sergeant Tennyson did not
DS
And the Monitor Team had suggested a list -- a more
11:56:44
IEN
They strenuously suggested that Sergeant Tennyson ask
23
additional questions.
24
Q.
25
that Sergeant Tennyson should have a prepared set of questions
FR
11:55:54
And they were of the view, the Monitor Team took the view
11:57:09
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to use as a baseline for his interviews, correct?

MR. MASTERSON:
MS. WANG:
THE COURT:
If you know, sir.
You may answer the question.
THE WITNESS:
MS. WANG:
Can you ask it again?
Sure.
BY MS. WANG:
Q.
comprehensive set of questions to use as a baseline in his
The Monitor Team wanted Sergeant Tennyson to have a
interviews, correct?
11
A.
Yes.
12
Q.
And they had many more questions that they suggested beyond
13
those that Sergeant Tennyson had provided, correct?
14
A.
Yes.
15
Q.
And Sergeant Tennyson did not want to use a set of prepared
16
questions, correct?
17
A.
That's correct.
18
Q.
And you stood up for Sergeant Tennyson's view, correct?
19
A.
I agreed that he shouldn't use scripted questions.
20
Q.
And you said the interviews were intended to be thematic,
21
is that correct?
22
A.
DS
10
11:57:37
11:57:47
11:58:04
IEN
I used that word, but I don't know how it was characterized
23
at the time.
24
Q.
25
questions that they were proposing or suggesting, correct?
FR
11:57:26
All right.
And the Monitor Team did provide a list of

11:58:18
3813
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A.
Yes.
Q.
And you told the Monitor Team that you would take that
under consideration, correct?
A.
Yes.
Q.
The Monitor Team did not dictate to Sergeant Tennyson the
questions he should ask, correct?
A.
I don't think that's accurate.
Q.
Now, when we broke at the end of the day on October 14th,
we were discussing IA case 14-544.
This was concerning a
10
traffic stop by Deputies Gandara and Armendariz, and Sergeant
11
Trowbridge was also on the scene and was a principal in the
12
case.
13
A.
Yes.
14
Q.
Okay.
That's Exhibit 2063.
Can you please take that out.
My first question is whether it's
16
correct that the three occupants of the vehicle involved in
17
that traffic stop were -- appeared to be members of the
18
plaintiff class.
19
MELC160123.
21
MS. WANG:
And if Mr. Klein -- this is in evidence.
MR. MASTERSON:
23
THE COURT:
24
Do I have the page in front of me you've asked, you've
FR
25
11:59:58
Mr. Klein has put that up on the screen for you.
IEN
22
11:59:36
And I'll call your attention to page
DS
20
11:59:00
Do you recall that?
All right, sir.
15
11:58:28
referred the --
Excuse me.
Give me one moment, please.
12:00:42
MS. WANG:
3814
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Yes, Your Honor.
The pending question is
whether the occupants of the vehicle involved in this case were
members of the plaintiff class.

THE COURT:
4
5
As to
whether or not they were members of the plaintiffs' class?

MR. MASTERSON:
THE COURT:
MS. WANG:
8
9
And the objection was foundation?
That's the objection.
I'm going to sustain the objection.
All right.
BY MS. WANG:
10
Q.
Sir, you reviewed this file, correct?
11
A.
Today or in the past?
12
Q.
In the past.
13
this file, correct?
14
A.
Yes.
15
Q.
In the course of your duties as the commander of PSB?
16
A.
Yes.
17
Q.
And you discussed the case with the investigator, Sergeant
18
Fax?
19
A.
Yes.
20
Q.
And you were familiar with the contents of this file,
21
correct?
22
A.
12:01:03
DS
When you were commander of PSB you reviewed
12:01:14
12:01:20
IEN
At that point, yes, I was.
23
Q.
24
this litigation is defined to include Latinos who are stopped
25
during traffic stops, correct?
FR
12:00:53
All right.
And you're aware that the plaintiff class in
12:01:35
3815
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A.
Yes.
Q.
All right.
in Exhibit 2063, does it appear to you that by their name --
judging by their names, the three occupants of the vehicle were
Latino or Hispanic?
And taking a look at the page in front of you
12:01:53
MR. MASTERSON:
THE WITNESS:
Yes.
MR. MASTERSON:
THE COURT:
-- foundation.
Overruled.
THE WITNESS:
10
Objection --
Certainly could be, yes.
11
BY MS. WANG:
12
Q.
13
correct?
14
A.
Yes.
15
Q.
All right.
16
came out of one of the reviews of a video recording of a
17
traffic stop, correct?
18
A.
Yes.
19
Q.
And Lieutenant Schoeninger was the MCSO lieutenant who had
20
done the secondary review of that video recording, correct?
21
A.
Yes.
22
Q.
And he had taken the view, based on his review of the
And this case did involve a traffic stop,
Now, just to recap, this was an IA case that
IEN
DS
All right.
23
video, that there was no probable cause or other lawful
24
justification for the traffic stop, correct?
FR
25
12:01:59
MR. MASTERSON:
12:02:03
12:02:21
12:02:37
THE COURT:
1
2
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If you know, you may answer the question;
if you don't know, you should indicate you don't know.

THE WITNESS:
Yes, sir.
I believe that was his
opinion.
BY MS. WANG:
Q.
Deputy Gandara had started to manipulate a suitcase from the
bed of the truck that was stopped?
All right.
12:02:48
And did the video recording also show that
MR. MASTERSON:
9
10
BY MS. WANG:
11
Q.
12:03:13
Take a look at Sergeant Fax's memo at page MELC160129.
And we can magnify that, top of that first paragraph.
12
Do you see where Sergeant Fax indicated that
13
14
Deputy Gandara started to manipulate a suitcase from the bed of
15
the truck?
16
A.
Yes.
17
Q.
All right.
18
Schoeninger -- withdrawn.
23
Withdrawn.
suitcase from the bed of the truck, constitute a search, in

your view?
24
MR. MASTERSON:
25
THE COURT:
FR
12:03:54
Would that action, Deputy Gandara's manipulation of a
IEN
22
let me ask you this.
DS
21
And do you recall that Lieutenant
In Sergeant Fax's report he does not indicate -- well,
19
20
12:03:38
Overruled.
12:04:08
THE WITNESS:
3817
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I think if he merely moved it, it
wouldn't be a search.
look into the contents, that would constitute a search.
BY MS. WANG:
Q.
would that constitute a search?
A.
Yes.
Q.
All right.
investigation of this IA case, tried to determine whether there
All right.
If he started to open the suitcase and
Well, if he went into the bed of the truck,
And do you know whether Sergeant Fax, in his
10
was a legal justification for that action?
11
A.
I believe he did.
12
Q.
Where is that indicated here?
13
A.
I don't know.
14
Q.
There's no indication that Sergeant Fax tried to make that
15
determination in this memorandum, is there?
16
A.
I haven't read this in a long time.
17
Q.
Okay.
18
Fax's memorandum.
19
middle there.
12:04:33
12:04:46
Turn to page MELC160131, which is still Sergeant
Let's blow up the second paragraph in the
Do you see where Sergeant Fax wrote:
DS
20
"It then
appeared that Sergeant Trowbridge began to question Armendariz
22
about the stop as to what the stop was, asking if it was a
IEN
21
23
FR
12:05:13
712I, and Armendariz stated it was."
24
25
12:04:20
A.
Yes.
Do you see that?

12:05:27
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Q.
determined through his investigation that more than one hour
into this traffic stop, Sergeant Trowbridge asked Armendariz
what the basis for the stop was?
A.
Yes.
Q.
And Lieutenant Schoeninger noted in his review that in
fact, the video recording contradicted Armendariz's given
reason for the traffic stop, correct?
A.
Yes.
10
Q.
And in fact, it appeared that Armendariz had not done
11
proper pacing to determine the speed of the vehicle, correct?
12
A.
Yes.
13
Q.
And that his other reason for the stop, that the license
14
plate was obstructed by the trailer ball hitch, was not true,
15
correct?
16
A.
Correct.
17
Q.
Now, I think we went over on the 14th that Sergeant Fax
18
noted that when he reviewed Armendariz's departmental report on
19
this traffic stop, there was an indication that the passengers
20
indicated they were not in the United States lawfully.
12:05:48
12:06:22
A.
12:06:44
Vaguely, yes.
23
Q.
24
subsequently determine in the investigation that, in fact, the
25
passengers had not spontaneously volunteered that information
FR
12:06:03
Do you recall that?
IEN
22
And does it appear to you that Sergeant Fax
DS
21
All right.
Okay.
And do you recall whether -- well, did Sergeant Fax
12:07:00
3819
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to Charley Armendariz?
A.
I don't recall that specifically.
Q.
Take a look at MELC160135 to 136.
page 135.
Starts at the bottom of
Do you see where Sergeant Trowbridge writes in his
5
6
memorandum:
report, it would appear that the subjects in the vehicle had
made some spontaneous statements about what was going on and
where they were going.
"I explained that if someone were to read the
I asked Sergeant Trowbridge if he spoke
10
Spanish and he stated no.
11
that a Spanish-speaking detective had reviewed the video and
12
found that the subject had not made spontaneous statements"?
13
A.
I see that.
14
Q.
All right.
THE COURT:
15
MS. WANG:
16
THE COURT:
17
18
the noon hour.
21
MS. WANG:
THE COURT:
IEN
22
THE COURT:
DS
20
23
I then informed Sergeant Trowbridge
Do you know, Ms. Wang, I --
12:08:02
Yeah.
-- wasn't paying attention and we're past
Oh, I apologize.
-- find a good place to stop.

Sure.
12:08:07
This is fine.
All right.
We'll be back, then, about 20
after 1:00.
24
(Lunch recess taken.)
25
THE COURT:
FR
12:07:47
If you can --
MS. WANG:
19
12:07:32
Thank you.
Please be seated.
13:26:11
MS. WANG:
THE COURT:
MS. WANG:
3820
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May I proceed, Your Honor?

Ms. Wang, please.
Thank you.
BY MS. WANG:
Q.
Good afternoon, Captain Bailey.
A.
Good afternoon.
Q.
I think I need to go back and clarify one thing because we
might have used a double negative, or something like that.
13:26:21
Do you recall before lunch you testified about the
9
10
monitor's strong suggestion as to interview questions for the
11
investigation into the Cisco Perez allegations?
12
A.
Yes.
13
Q.
I just want to clarify, the monitor did not require any
14
particular questions to be used in those interviews, correct?
15
A.
I believe Sergeant Tennyson felt that way.
16
Q.
Okay.
17
correct?
18
A.
19
or not we asked those questions.
20
Q.
21
consideration whether you would use the monitor's suggested
22
questions, right?
13:26:50
But you did not understand that to be the case,
At some point, I didn't feel like I had a choice on whether
IEN
DS
All right.
Well, you said you would take into
23
A.
Yes.
24
Q.
All right.
25
A.
Not solely independently of myself.
FR
13:26:33
13:27:03
And you made that decision to use them?

They were very clear
13:27:15
3821
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that they wanted us to ask those questions.
Q.
PSB, correct, whether those questions would be asked or not?
A.
Sort of.
Q.
The monitor did not say, you're required to ask these
questions, correct?
A.
investigation and wasn't competently done if I didn't ask those
questions.
But that question was left up to you, as the commander of
No, I think they would have said it was an incomplete
Q.
That's what you thought, is that your testimony now?
11
A.
That was made clear to me.
12
Q.
They did not say that, did they?
13
A.
Not in those words.
14
Q.
They said, We strongly suggest that you use these questions
15
as a baseline, correct?
16
A.
Strenuously suggest.
17
Q.
That's what they said, correct?
18
A.
Yes.
19
Q.
And you said you would take that under advisement, correct?
20
A.
Yes.
21
Q.
All right.
22
discussion about IA case 14-544.
IEN
DS
10
13:27:41
13:27:51
13:28:01
Now, we broke for lunch in the middle of our

Do you recall that Sergeant
23
Fax asked many leading questions during that investigation?
24
A.
25
was what you were characterizing them as.
FR
13:27:30
I don't think I agreed that they were leading; I think that

13:28:28
3822
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Q.
Well, do you agree as a general matter that in all of the
Armendariz spin-off investigations, PSB investigators used
leading questions?
A.
In all?
Q.
Well, in the ones we've discussed; let's put it that way.
A.
I think my opinion of leading questions and yours might be
different.
Q.
How would you define a leading question?
A.
Providing them all the answers that you want to hear back,
10
and parroting it to them and expecting them to parrot the
11
answer back to you, and I don't think that's what Sergeant Fax
12
was doing.
13
Q.
14
investigations, PSB investigators used questions that suggested
15
the answer, correct?
16
A.
In some occasions.
17
Q.
All right.
18
questions are not a good interview technique, correct?
19
A.
In some situations I agree, they're not a good technique.
20
Q.
And do you agree that it's not a good technique typically
21
to ask leading questions in an interview?
22
A.
13:29:07
And you generally believe that leading
13:29:25
IEN
In some situations it's appropriate; in some it's not.
23
Q.
Okay.
24
A.
I think I'm going to stay with my original answer:
25
situations it's appropriate, and sometimes it's not.
FR
13:28:52
Do you think -- well, in the Armendariz spin-off
DS
Okay.
13:28:39
But typically it is not a good practice, correct?

In some
13:29:50
3823
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Q.
Well, do you think it's fair to say that if you're trying
to elicit unrehearsed information from an interviewee, a
leading question is not typically the best way to do that?
A.
Yes.
Q.
All right.
of instances in the Armendariz spin-off investigations in which
a lieutenant reviewed a video recording of a traffic stop and
found that there were policy violations, but after a PSB
investigation the outcome was not sustained?
Now, moving on from the 544 case, are you aware
10
A.
Yes, I believe there were those situations.
11
Q.
All right.
12
This is the IA file in 14-546.
13:30:35
Why don't you turn to Exhibit 2772, please.
All right.
13
Do you have that file in front of you,
14
sir?
15
A.
Yes.
16
Q.
Okay.
17
was an IA file that you reviewed as the commander of PSB.
18
A.
Yes.
19
Q.
All right.
20
give you a brief summary, and you can take a look at the
21
document and let me know if it's correct.
13:31:22
And my first question is going to be whether this
Let me
DS
And you're familiar with this case.
23
traffic stop without a legal justification, and Deputy
24
Hechavarria was the principal.
25
investigation was about whether Hechavarria had committed any
FR
13:31:45
This is a case in which Charley Armendariz made a
IEN
22
13:30:07
And essentially, the IA

13:32:03
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policy violations in being present for that traffic stop and
not raising any issues.
Is that an accurate summary?
3
4
A.
Give me just a minute to review this.
Q.
Of course.
A.
Please.
THE WITNESS:
8
9
10
13:32:23
I don't remember the details of this
specifically, so it might take me a few minutes to read through

this.
13:33:20
MS. WANG:
11
Sure.
Take your time.
12
THE WITNESS:
13
Okay.
14
BY MS. WANG:
15
Q.
Okay.
16
A.
I don't.
17
Q.
All right.
18
asked if you agreed with that.
19
withdraw the previous question.
13:34:40
I'm sorry.
I basically summarized the 14-546 case and

Let me do that again.
I'll
Is this a case in which Deputy Armendariz made a
DS
20
Do you recall my question, sir?
traffic stop without probable cause or reasonable suspicion and
22
the IA investigation was into whether Deputy Hechavarria, who
IEN
21
was present, committed a policy violation by not reporting the
24
baseless stop to a supervisor, is that correct?
25
A.
FR
23
Yes.
13:34:53
13:35:13
Q.
All right.
A.
Yes.
And you reviewed this file as a PSB commander?
MS. WANG:
Your Honor, I'd move the admission of
Exhibit 2772.
MR. MASTERSON:
THE COURT:
MS. WANG:
THE COURT:
Overruled.
10
BY MS. WANG:
11
Q.
12
guess the primary issue, was whether Deputy Hechavarria was
13
able to observe what Deputy Armendariz was doing during the
14
traffic stop, correct?
15
A.
Yes.
16
Q.
All right.
17
actually, the Bates number is obscured here.
18
of 22 in Sergeant Fax's report.
19
A.
Okay.
20
Q.
All right.
21
fourth line down on that page.
22
Hechavarria:
One of the issues in this case, I
13:35:46
DS
IEN
FR
13:35:33
All right, Captain.
I'm going to ask you to turn to page --
Turn to page 17
And do you see where -- let's start with the
13:36:11
Sergeant Fax asks Deputy
"In this stop here, you are the assisting deputy,
right?"
24
25
13:35:25
23
3825
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A.
Yes.
Do you see that?

13:36:28
3826
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Q.
And then Sergeant Fax proceeds to note for Deputy
Hechavarria that he had been standing back behind Deputy
Armendariz, correct?
A.
Yes.
Q.
And Sergeant Fax says that he assumes that is because of
the heavy flow of traffic.

Do you see that?
7
8
A.
Yes.
Q.
And then do you see that Sergeant Fax says:
"As the
secondary deputy, are you there to kinda monitor the
11
conversation and pay attention to what's goin' on to the
12
occupants in the vehicle"?
13
A.
Yes.
14
Q.
And then he goes on to say a few lines down:
15
his thing, talkin' to the driver, so you're not zoned in on
16
that ... so much as to pay attention to oncoming vehicles," do
17
you see that?
18
A.
Yes.
19
Q.
And then the interviewer says, "Contact and cover,"
20
correct?
21
A.
Yes.
22
Q.
And then turning to the next page, Sergeant Fax says:
IEN
DS
10
23
FR
13:36:53
Correct?
"He's doin'
13:37:10
13:37:25
"I
just wanna make sure that's what your understanding of it is."
24
25
13:36:42
A.
Yes.
Do you see that?

13:37:35
3827
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Q.
And then Deputy Hechavarria says, he agrees:
"Yeah.
That's exactly what happened, um, that's why, like you said,
you saw me lookin' around just making sure everything's good to
go while he's dealing with them.
rest of the car.
Not paying attention to the
That's why I'm there."
13:37:50
Do you see that?
6
7
A.
Yes.
Q.
Sir, do you agree with me that this transcript indicates
that Sergeant Fax asked leading questions of Deputy
10
Hechavarria, right?
11
A.
12
video and he asking me -- asking Deputy Hechavarria if he
13
agrees with what he's seeing on the video.
14
Q.
15
asking leading questions about what was going through Deputy
16
Hechavarria's mind during the traffic stop.
13:38:02
A little bit, but I think it's because they're viewing a
Well, he does more than that, right?
Sergeant Fax is
Do you agree with that?
17
A.
Yes.
19
Q.
And the way that Sergeant Fax asked these questions
20
suggested a way that Deputy Hechavarria could avoid liability
21
for a policy violation, correct?
22
A.
DS
18
13:38:26
IEN
I don't take it that way.
23
Q.
You don't see it that way?
24
A.
I don't.
25
Q.
All right.
FR
13:38:16
Did you talk to Sergeant Fax about the way that
13:38:39
3828
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he conducted this interview of Deputy Hechavarria?
A.
No, I did not.
Q.
You did not see any problems with it.
A.
I didn't.
Q.
Okay.
Sir, let's move on to Exhibit 2104.
And again I'll ask you to take a look at that and let
6
7
me know first whether this is an IA file that you reviewed as
PSB commander.
A.
Yes, my signature is on it.
10
Q.
All right.
11
and I'll ask you first:
12
Sergeant Bocchino, correct?
13
A.
Yes.
14
Q.
All right.
15
recording of a traffic stop had come to light during 2014 and
16
PSB conducted an investigation, correct?
17
A.
Yes.
18
Q.
Now, Lieutenant Rosenberger had been the one to do the
19
secondary review as a lieutenant, correct?
20
A.
Yes.
21
Q.
And Lieutenant Rosenberger identified two issues with the
22
video recording, correct?
It's the 14-547 case.
And let me direct your attention to MELC160768,
And again this was a case in which a video
DS
IEN
13:39:39
This was an investigation conducted by
23
A.
Yes.
24
Q.
He first wrote in his review memorandum that Charley
25
Armendariz had no probable cause or reasonable suspicion to
FR
13:38:47
13:39:59
13:40:16
13:40:42
3829
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initiate the traffic stop, is that right?
A.
That's what it says, yes.
Q.
All right.
on the videotape being very vague with a female driver as to
why he stopped her.
13:41:02
Do you see that?
Take a look at the --
Mr. Klein, if we could enlarge the entire second
8
9
And he actually notes that Armendariz is seen
paragraph.
Thank you.
10
A.
Yes.
11
Q.
And do you also see the last sentence of that paragraph
12
indicates that on the video recording there, Deputy Armendariz
13
and at least one of the other two MCSO personnel discuss how
14
the van had all the indicators they had talked about and that
15
they had sold the stop to the driver.
13:41:21
Do you see that?
16
A.
Yes.
18
Q.
And do you understand that phrase, "they sold the stop to
19
the driver," as being a statement by Deputy Armendariz that he
20
had successfully convinced the driver that this was a
21
legitimate traffic stop?
DS
17
MR. MASTERSON:
IEN
22
23
THE COURT:
24
THE WITNESS:
FR
25
13:41:39
way.
13:41:52
Overruled.
I believe it could be perceived that
13:42:03
3830
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BY MS. WANG:
Q.
involve charged policy violations having to do with whether the
stop was justified, correct?
A.
I'd have to look at the allegations again.
Q.
Sure.
A.
On Deputy Joya, it's CP-2 code of conduct and CP-3
workplace professionalism.
Q.
Now, as it turns out, Captain, the IA 14-547 case did not
Go ahead.
All right.
It's at the very beginning of the file.
And, sir, is it true that in the IA 14-547
case, Deputy Joya, Sergeant Palmer, Deputy Chris Lopez, and
11
Deputy Silva were all charged as principals, correct?
12
A.
Yes.
13
Q.
And that is because all of them had been present during
14
this traffic stop, correct?
15
A.
Yes.
16
Q.
And the actual fact underlying the charges in the 14-547
17
case did not have to do with whether the stop was justified,
18
correct?
19
A.
It doesn't appear so.
20
Q.
And in fact, with apologies to this Court and everyone
21
present for this language, the subject matter of this IA case
22
was that one of the MCSO deputies, at the end of the traffic
IEN
DS
10
23
stop, was heard on the recording saying, "Six fucking
24
Guatemalans, you know, are going to pop out of the vehicle," or
25
words to that effect, correct?
FR
13:42:16
13:42:59
13:43:14
13:43:28
13:43:50
3831
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A.
I remember verbiage like that, yes.
Q.
All right.
case, correct?
A.
Yes.
Q.
So Lieutenant Rosenberger's concern that the original stop
had not been justified did not end up being the subject of any
charged violations in the case, correct?
A.
No.
Q.
Now, Sergeant Bocchino included some CAD data associated
And that was the subject matter of this IA
10
with this traffic stop, correct?
11
A.
12
did.
13
Q.
I'll refer you to page 10 of Sergeant Bocchino's report.
14
A.
Yes.
15
Q.
And on that page and the following, were the following MCSO
16
personnel involved in this traffic stop?
17
A.
I can hardly read this.
18
Q.
From page 10.
19
of the page there's a call sign.
20
Joya, David."
I'd have to take a look through here, but I'll assume he
A.
David Joya, correct?
Let's highlight in the -- about the middle

I believe it says "S1759
13:45:03
Yes.
23
Q.
24
correct?
25
A.
FR
13:44:36
Do you see that?
IEN
22
13:44:20
DS
21
13:43:56
All right.
Yes.
So Deputy Joya was present on the traffic stop,
13:45:10
3832
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Q.
And then turning two pages on, there's an indication that
Sergeant Palmer was present, correct?
A.
Yes.
Q.
And Deputy Rangel, correct?
A.
Yes.
Q.
Deputy Lopez, Deputy Silva, Deputy Gandara, and then on the
next page Deputy Hechavarria, is that correct?
A.
Yes.
Q.
All right.
13:45:21
But not all of them were charged as principals
in this case, correct?
11
A.
Not all of them.
12
Q.
Now, during the course of the investigation in this case
13
Sergeant Bocchino interviewed the principals, correct?
14
A.
Yes.
15
Q.
And he asked each of the principals if they were offended
16
by the statement "Six fucking Guatemalans are gonna pop out of
17
the vehicle," is that correct?
18
A.
Yes.
19
Q.
And do you believe that question is relevant in the IA
20
investigation?
21
A.
I could -- I understand why he asked it.
22
Q.
If no -- if none of the MCSO personnel present is offended
IEN
DS
10
by that comment, do you believe that that has any bearing on
24
whether anyone's committed a policy violation?
25
A.
FR
23
It could have some bearing, although not a great deal.
13:45:43
13:45:59
13:46:17
13:46:37
3833
OF
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Q.
And that's under MCSO policy?
A.
Meaning -- I don't understand your question.
Q.
Under MCSO policy, could it be relevant whether any of the
personnel present are -- agree that they were offended by the
statement?
A.
Could be.
Q.
All right.
A.
A lot of times what you're judging is that conduct, if it
would have been in front of the public, would it have been
13:46:58
And why is that the case?
10
offensive?
So he's trying to get a baseline of whether the
11
other deputies thought that conduct was offensive as well.
12
Q.
13
a policy violation?
14
A.
Yes.
15
Q.
All right.
16
determined to have made the statement, correct?
17
A.
I believe so, yes.
18
Q.
And he received a finding of sustained in the case, is that
19
correct?
20
A.
21
the page.
22
Q.
If none of the deputies was offended, could there still be
And in fact Chris Lopez was the deputy who was
DS
I would have to look through here.
IEN
Sure.
You could direct me to
13:47:21
13:47:30
Take a look at 160792.
23
A.
Yes.
24
Q.
All right.
25
the case, correct?
FR
13:47:08
And he received coaching as his discipline in

13:48:00
3834
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A.
I don't make those determinations, so alls I can go by is
what Chief Lopez wrote in that margin.
Q.
And he wrote "coaching," correct?
A.
Yes.
Q.
All right.
received findings of not sustained, correct?
A.
I believe so.
Q.
Including Sergeant Palmer, is that right?
A.
Yes.
10
Q.
And Sergeant Palmer admitted that he was present when
11
Deputy Lopez made that statement.
12
A.
Yes.
13
Q.
Now, did you review the video recording of this traffic
14
stop as you reviewed the file?
15
A.
16
had seen the video at an earlier time.
17
Q.
18
involved in producing IA files to the plaintiffs in this
19
litigation?
20
A.
Say that again?
21
Q.
Were PSB personnel involved in producing PSB files to the
22
plaintiffs in this litigation?
And the other principals in this case all
I don't think I did it at the same time as I read this.
IEN
DS
All right.
13:48:20
13:48:39
Were PSB investigators, or PSB personnel,
I'm sorry.
23
A.
I believe so, yes.
24
Q.
Okay.
25
that we received, plaintiffs received in this case.
FR
13:48:13
13:48:57
I would like to play the copy of the video recording

This is
13:49:15
3835
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marked as Exhibit 2860, Your Honor, if I may?

THE COURT:
MS. WANG:
You may.
And let's start from the beginning, and I'm
going to just play it.
just want to play it from the beginning enough to identify that
this is the stop in question.
(Video clip played.)

MS. WANG:
8
9
There's a lot of dead time on this.
If we could skip to the 3 minute and 33
13:50:21
11
BY MS. WANG:
12
Q.
13
do you recognize that as Charley Armendariz?
14
A.
Yes.
15
Q.
Okay.
16
and Ms. Ontiveros?
17
A.
I couldn't understand, I'm sorry.
18
Q.
You couldn't make it out?
Okay, Captain Bailey.
And did you hear him refer to the driver as Samantha
DS
13:50:42

MS. WANG:
Let's pause it there.
23
BY MS. WANG:
24
Q.
Did you hear Samantha, Ms. Ontiveros?
25
A.
Yes.
FR
13:50:26
Okay.
bit and back up to 3:30 again?
IEN
22
Did you hear that -- first of all,
Why don't we -- can we turn the volume down a little
19
21
13:49:31
second mark.
10
20
13:50:57
3836
OF
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Q.
All right.
And that is the name of the driver that was the
subject of this traffic stop, correct?
A.
I'm assuming so, yes.
Q.
Okay.
the case.
probably show.
license check and has the name Ontiveros, comma, Samantha.
Well, take a look at the file and make sure that's
Take a look at the CAD data.
I think that will
First page of the CAD data indicates the
Do you see that?
8
9
A.
What page is it, please.
10
Q.
Check MELC160808.
11
A.
Yes.
12
Q.
All right.
13
A.
I believe so, yes.
14
Q.
All right.
15
indicate in this recording that she said, "We're women
16
traveling alone"?
17
A.
I didn't hear that.
18
Q.
Okay.
Do you see that, sir?
And Ms. Ontiveros is Hispanic, correct?
And you heard her indicate -- did you hear her
We'll move on.
13:52:00
It's not that important.
continue to play this recording in a way that the time elapsed
21
bar is visible.
DS
20
13:52:17
IEN
23
BY MS. WANG:
24
Q.
25
elapsed bar is still moving?
FR
13:51:32
Now, what I'd like to do now is if Mr. Klein can
19
22
13:51:05
Now, sir, do you see that the video has paused but the time
13:52:54
A.
Yes.
Q.
Okay.
seconds.
about 440 -- whoops.
And I'd like to keep watching this for a few
And I'll ask Mr. Klein to get ready to pause it at
Well, let's keep going.
3837
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At 4:45 or so.
Here we go.
Let's pause it now.
So, sir, do you see on the left-hand side there there
7
8
are some icons?
A.
Yes.
10
Q.
This appears to be someone's computer desktop, right?
11
A.
I believe so, yes.
12
Q.
Okay.
13
says "IAPro"?
14
A.
Yes.
15
Q.
Is that familiar to you as a shortcut to open up the IAPro
16
application that PSB uses?
17
A.
Yes.
18
Q.
All right.
19
MCSO made this recording?
20
A.
I think they made a copy of it and it was placed in IAPro.
21
Q.
Okay.
22
appeared to be paused but the time elapsed was still running?
13:53:36
Do you see there's an icon, a shortcut icon that

Second from the top?
13:53:51
Does that suggest to you that someone in PSB at
DS
IEN
23
13:54:05
And so do you also -- can you explain why the video
Is that because the person who was making this copy
24
had paused the playback, do you know.
25
A.
FR
13:53:23
I can't give you a technical answer; I can give you my
13:54:29
3838
OF
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opinion.
Q.
Sure, based on your experience using this software.
A.
I have never used this, but --
Q.
Okay.
A.
-- there was a lot of the disks that we had trouble with in
terms of copying them from the original to the case files.
can only assume that was an issue that we had here.
Q.
end.
Okay.
And Mr. Klein, if you can continue playing till the
10
11
BY MS. WANG:
12
Q.
13
video recording ends, and this was the copy that was produced
14
to plaintiffs.
You did not hear the actual statement "Six fucking
Guatemalans gonna pop out of the vehicle" on this recording,
17
did you?
18
A.
No.
19
Q.
All right.
20
Exhibit 2068.
DS
16
Exhibit 2860?
So, sir, take a look at Exhibit 2068.
That was the video.
MR. MASTERSON:
24
THE COURT:
FR
13:55:43
Oh, Your Honor, may I move the admission of
23
25
13:55:26
Let's take that down, please, and move on to
MS. WANG:
IEN
22
13:54:51
So I'll tell you, Captain Bailey, that this is where the
15
21
13:54:37
Objection, foundation, relevance.
I have forgotten whether there was
foundation laid at this point, Ms. Wang.
13:56:47
3839
OF
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Do you want to re-lay it if you have any?
MS. WANG:
Sure.
BY MS. WANG:
Q.
recall reviewing the video of the traffic stop when you
reviewed the file, is that correct?
A.
that I reviewed the file.
Q.
Oh, so you did review that video.
10
A.
I think somebody brought it to my attention and I -- they
11
would often do that.
So Captain Bailey, I think you testified that you did not
I reviewed the video at an earlier date, not at the time
MS. WANG:
12
Okay.
13
admission of the video.
14
MR. MASTERSON:
THE COURT:
15
MS. WANG:
17
I'm sorry.
18
DS
MS. WANG:
Exhibit 2104.
IEN
22
Your Honor, I would move the
Overruled.

Just a moment.
Your Honor, I also move the admission of
13:57:31
That was the IA file 14-547.
THE COURT:
I've noted that I've admitted that.
23
MS. WANG:
24
THE COURT:
Do you want to check me on that, Kathleen?
25
THE CLERK:
I'm sorry, which exhibit number?
FR
13:57:18
19
21
13:57:07
16
20
13:56:54
Oh.
13:57:45
THE COURT:
MS. WANG:
2
3
Judge, I don't show that that's in
evidence.
13:58:05
THE COURT:
evidence.
2104?
THE COURT:
9
report.
13:58:25
That's right, Your Honor.
THE COURT:
13
To the -- is this the 228-page --
This is the IA 14-547 investigative
MR. MASTERSON:
12
It's not in
At least by my notes that's what it is.

MS. WANG:
11
We're both wrong.
Any objection?
MR. MASTERSON:
10
I may be wrong.
I thought that you did, too, Your Honor,
THE CLERK:
6
7
2104.
but just to make sure.
4
5
3840
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Objection, hearsay, relevance, 403.
Again, I'm sorry, but I don't remember
14
whether or not you've laid the foundation that would let me
15
know whether or not the hearsay objection applies.

MS. WANG:
16
17
It is an IA file.
20
21
I gathered that, but I don't remember, did
you get -- I don't remember what you -MS. WANG:
Captain Bailey reviewed the file as PSB
THE COURT:
Is that correct, Captain Bailey?
23
THE WITNESS:
24
THE COURT:
FR
25
13:59:06
commander and was familiar with it.
IEN
22
As with the other IA files --
DS
19
Your Honor, we believe it's non-hearsay.
THE COURT:
18
13:58:51
exhibit is admitted.
Yes, Your Honor.
Then the objection is overruled.

The
13:59:17
MS. WANG:
2
3
BY MS. WANG:
Q.
All right.
So let's move on to Exhibit 2068.
So, sir, this is IA 14-564.
My first question to you
is whether you reviewed this IA file as PSB commander.
A.
I did.
Q.
And you're familiar with it?
A.
I would have to read a little bit.
with the case, but the details I may not be able to recall
11
right away.
12
Q.
13
reviewed it, correct?
14
A.
All right.
Yes.
MR. MASTERSON:
THE COURT:
18
BY MS. WANG:
21
Q.
DS
20
14:00:00
Overruled.
All right.
14:00:10
Here's my question on this one, sir.
IEN
Do you see on the first page --
23
MS. WANG:
24
THE COURT:
FR
19
25
All right.
admission of Exhibit 2068.
17
22
13:59:52
You were familiar with it at the time you
MS. WANG:
15
13:59:36
I mean, I'm familiar
10
16
3841
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BY MS. WANG:
And, Your Honor, may I publish this?

You may.
14:00:18
3842
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Q.
On the first page of Exhibit 2068 there is an indication in
the middle of the page where it says "Synopsis of Case:
1-13-14 I was directed by Captain S.M. Bailey #1148 to submit
an amended cover sheet with the findings of not sustained."
On
Do you see that?
5
6
A.
Yes.
Q.
All right.
appears to me that the initial findings against the principal
David LaFond were sustained on two charges and exonerated on
Turning to the next page, do you see that it
10
the third charge, is that correct?
11
A.
Yes.
12
Q.
All right.
13
findings were changed to not sustained, do you see that?
14
A.
Yes.
15
Q.
All right.
16
amended cover sheet changing those findings to not sustained?
17
A.
18
particular finding one way and then found his actual findings
19
were inappropriate, and I told him to read it again and make
20
the appropriate finding.
21
Q.
22
submit a cover sheet with findings of not sustained.
14:00:57
And then again on the first page, all of those
Sir, did you direct someone to submit an
14:01:05
DS
I directed Lieutenant Toporek, who I believe wrote for a
IEN
All right.
14:01:28
Well, he wrote here that you directed him to
23
A.
24
made a mistake or somebody else wrote that, because I never
25
gave him a directive to change anything.
FR
14:00:37
He later told me and provided a memo saying that he either
14:01:45
3843
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Q.
Okay.
Well, you did give him a directive, you're saying
now, to review his -- re-review his findings, is that right?
A.
Yes.
Q.
But your position is that you did not -- you did not direct
him to submit an amended cover sheet with the findings of not
sustained as is indicated here?
A.
direct him to find one way or the other.
Q.
I directed him to submit another cover sheet, but I did not
All right.
Now, Exhibit 2068 is the IA file on 14-564 as
10
it was produced to plaintiffs.
11
subsequent event documented anywhere in the IA file?
12
A.
Which event?
13
Q.
When you told him -- when you had the conversation with him
14
subsequently, and as you testified now, directed him to --
15
actually, did not direct him to make those amended findings?
16
A.
17
to Sergeant Fax.
18
Q.
19
the plaintiffs?
20
A.
I don't know.
21
Q.
All right.
22
guess.
My question to you is:
Is that
14:02:16
I'm sorry.
14:02:37
His memo that he finally wrote that cleared that up I gave
Is it in Exhibit 2068, which is what was produced to
IEN
DS
Okay.
I asked him to put it in the case file.
Well, it is what it is.
14:02:54
We will find out, I
Do you see it anywhere in there?
23
A.
In the area where it would normally be I don't see it.
24
Q.
I'm sorry?
25
A.
In the area where it would formally be I don't see it, but
FR
14:02:00
14:03:33
I can go through this entire thing if you'd like.
Q.
Okay.
A.
Towards the end.
Q.
Okay.
in evidence.
A.
Okay.
Q.
All right, sir.
Well, where would it normally be?
2112.
There's some other memos.
All right.
I'm sorry.
You don't need to do that; the exhibit's
14:03:47
Oh, sorry.
3844
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Let's move on to Exhibit 2112.
Actually, let's move on to Exhibit 20- --
Exhibit 2112 is the IA file for case --
10
well, actually, let me ask you, this is an IA file that was
11
produced to plaintiffs, and at various places in the file there
12
are references to case number 14-221, 14-581, and 14-582.

And I guess my first question to you is:
13
Which case
14
file is this?
15
A.
16
review that was forwarded to the division for further action.
17
Q.
And that was concerning a traffic stop, correct?
18
A.
Yes.
19
Q.
And do you also see what I see, which is that there are
20
references to the 14-221 case in this file?
21
A.
Yes, there's a memo here that references 221.
22
Q.
And I think you testified previously that 14-221 is
IEN
DS
Initially, it starts out what appears to be a lieutenant
something you refer to as the overall Armendariz investigation,
24
correct?
25
A.
FR
23
Yes.
14:04:44
14:05:14
14:05:48
14:06:02
3845
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Q.
And it started out as the death investigation on
A.
Yes.
Q.
All right.
the case number for this particular investigation?
A.
It appears to be captured under 221.
Q.
And there are also references to 14-581 and 14-582,
correct?
A.
I don't see that.
10
Q.
Okay.
11
handwritten notation of both of those case numbers.
Sir, can you explain why this IA -- what was
I don't doubt you; I don't see it.
Take a look at the first page.
Do you see that?
12
14:06:13
There's a
14:06:32
The very -- the cover sheet.
13
A.
Oh, yes.
14
Q.
You see that?
15
A.
Yes.
16
Q.
Is this one of those cases in which there were multiple IA
17
numbers pulled for a single stop?
18
A.
It certainly could have been, yes.
19
Q.
All right.
20
on to Exhibit 2784, which is already in evidence.
All right.
Let's move
Mr. Leonicio Abreu's complaint of racial profiling, which
23
you've already testified to.
24
A.
I don't see it up here.
25
Q.
It's a voluminous one, so you may check one of the thicker
FR
14:07:02
This was the IA file on the case involving
IEN
22
14:06:46
DS
21
I do.
14:07:45
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exhibits.
THE CLERK:
MS. WANG:
THE CLERK:
Here it is.
Thank you, Ms. Zoratti.

(Handing).
THE WITNESS:
Thank you.
BY MS. WANG:
Q.
having the paper file will be helpful.
14:08:24
And I'm going to ask you some questions where I think
Here's my question.
It appears to me, based on review of this file, that
9
10
Sergeant Bocchino interviewed the complainant, the driver,
11
Mr. Abreu, and interviewed the MCSO personnel who were involved
12
in the traffic stop.
Does that appear to be correct to you?
13
A.
Yes.
15
Q.
And this stop was conducted by Deputy Kikes along with
16
Posse members, correct?
17
A.
Yes.
18
Q.
And Captain Bailey, I do not see any indication in the file
19
that Sergeant Bocchino attempted to contact the passengers in
20
Mr. Abreu's Dial-a-Ride car during that stop.
A.
14:09:32
I would have to read the -- the file --
23
Q.
24
tried to contact and interview the passengers in the car, would
25
there be a notation in the file?
FR
14:09:11
Do you agree with that?
IEN
22
DS
14
21
14:08:33
Okay.
Well, let me ask you this:
If Sergeant Bocchino had
14:09:49
3847
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A.
There should be.
Q.
Okay.
Mr. Abreu's complaint, that essentially what happened was the
driver of the car who made the complaint, Mr. Abreu, had one
version of events and Deputy Kikes and the Posse members who
made the stop had a different version of events.
Sir, it appeared to me that in the 14-785 case,
And my question to you is:
When an IA case involves
basically a deputy's word against the complainant's word, is
there a policy covering what to do in those situations.

MR. MASTERSON:
10
11
MS. WANG:
THE COURT:
the question.
I don't think my questions are testimony,
I think I'm -- I'm only going to consider
You may answer it.
THE WITNESS:
16
17
14:10:53
You asked me about whether or not it
should be notated in the case.
I said yes.
What was your next question?
18
I'm sorry.
19
BY MS. WANG:
20
Q.
21
it boils down to the complainant's words versus the deputy's
22
word, is there MCSO policy covering what the outcome should be
IEN
DS
The question is if you have an IA case in which essentially
23
in those situations?
24
A.
Not that I know of.
25
Q.
Is there any guidance given to IA investigators about what
FR
14:10:30
but -- well, they won't be evidence.
14
15
I don't object to the
question; I object to the prefatory testimony from counsel.
12
13
Objection.
14:10:09
14:11:04
14:11:18
3848
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to do when they are confronted with that situation?
A.
lead possible, to try and come to the best outcome he could.
Q.
Exhibit 2062.
In this situation, I would have told him to follow every
All right.
You can put that one aside, and take a look at
This is, I believe, in evidence already.
It's also on your screen, Captain Bailey, if you'd
6
7
like to look there.
A.
Sure.
Q.
All right, sir.
10
Exhibit 2062 in evidence is a response to
a grievance filed by Deputy Hechavarria.
12
A.
I see it's on the screen here, yes.
13
Q.
Okay.
14
A.
I'm trying to find it.
15
Q.
I'll wait for you.
16
A.
Here it is.
17
Q.
Do you have it now, sir?
18
A.
Yes, I do.
19
Q.
Okay.
20
by Deputy Hechavarria in the 15-22 case.
Feel free to grab the paper copy, if you like.
DS
So Exhibit 2062 is a response to a grievance filed
A.
14:13:26
Yes.
23
Q.
24
the original findings as modified.
25
Do you see that?
FR
14:12:44
Do you see that?
IEN
22
14:12:31
Do you see that?
11
21
14:11:44
And if you turn to the next page of the exhibit you'll see
14:13:53
A.
I do.
Q.
All right.
correct?
A.
If it's the one I think it is, yes.
Q.
Yeah, we talked about it during your deposition.
A.
I think so.
Q.
All right.
over.
had improperly handled some evidence.
Now, you're familiar with this particular case,
14:14:04
Now, Chief Deputy Sheridan -- let me start
This case involved an allegation that Deputy Hechavarria
Do you recall that?
10
14:14:20
11
A.
Yes.
12
Q.
And originally he had a finding of sustained, correct?
13
A.
Yes.
14
Q.
And Chief Deputy Sheridan, through the course of the
15
grievance process, reversed that to not sustained, correct?
16
A.
It appears so, yes.
17
Q.
And you were familiar with the reason that Chief Deputy
18
Sheridan did that, correct?
19
A.
20
grievance.
21
Q.
All right.
22
A.
With what?
14:14:35
IEN
DS
I think it was based on what Deputy Hechavarria said in his
14:14:51
And you were familiar with that, correct?
23
Q.
Particular case?
24
A.
I was familiar with what?
25
Q.
The reason that Chief Deputy Sheridan reversed the
FR
3849
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I'm sorry.
14:15:01
3850
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sustained finding to a not sustained finding?
A.
Hechavarria wrote, but I remember the case.
Q.
reversed the sustained finding to not sustained on the ground
that Deputy Hechavarria was not the only deputy involved in the
policy violation?
Off the top of my head, I don't remember what Deputy
Okay.
And isn't it the case that Chief Deputy Sheridan
MR. MASTERSON:
MS. WANG:
THE COURT:
10
MS. WANG:
12
If you know, you can answer the question.

Could you ask it again?
I'm sorry.
14
BY MS. WANG:
15
Q.
16
finding from sustained to not sustained --
17
A.
Yes.
18
Q.
-- on the ground that Deputy Hechavarria had not been the
19
only deputy involved in the policy violation?
20
A.
I don't know what reason he used specifically.
21
Q.
Okay.
22
correct?
IEN
DS
Isn't it true that Chief Deputy Sheridan reversed the
14:15:38
14:15:50
You testified in deposition on September 8th, 2015,
23
A.
Yes.
24
Q.
I think you have the transcript up there.
25
it, and I'm going to call your attention to page 135.
FR
14:15:34
Sure.
THE WITNESS:
13
If you know, sir.
THE WITNESS:
11
14:15:19
Take a look at
14:16:05
Actually, I beg your pardon.
I'm sorry.
3851
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Page 137.
I beg your pardon.
Let's start on page
135.
I think it took some time during the deposition to get on
the same page.
A.
Okay.
Q.
So starting at page 135, line 8, I asked you:
14:17:08
"Question:
Were you familiar with any other instances
where the chief deputy rescinded discipline after it was
decided upon?
"Answer:
10
11
I think
"Question:
And was that rescinding -- do you recall
what the original discipline was?

"Answer:
14
Sustained on the handling of evidence.
15
apparently after he filed his grievance and was heard, the
16
chief decided that he wasn't solely responsible.

"Question:
17
"Answer:
18
20
And
Wasn't solely responsible?
Yeah.
I believe there was others that were
Okay.
Now turn to 137, which is where I think we
cleared up what we were talking about.
22
about this exhibit, and I said, at line 3 of page 137:
IEN
21
"And it looks like Chief Deputy Sheridan signed this.
24
"Do you see that?
25
"Answer:
Yes.
14:17:50
And here I'm asking you
23
FR
14:17:36
sustained as well."
DS
19
14:17:22
he changed on -- one on Carlos Rangel, if I remember correctly.
12
13
I didn't even know about this one.
14:18:10
"Question:
And this was an IA case, 15-22, where the
chief deputy rescinded a written reprimand against Deputy
Hechavarria and changed a not-sustained finding; is that
correct?
"Answer:
5
6
I think he changing it from sustained to not
"Question:
I beg your pardon."
And then you go on to say:
the one I was referring to.
"I think this is actually
Maybe not Carlos, but this."
And then you go on to clarify that your earlier
10
testimony on page 135 was actually about the Hechavarria
12
grievance, correct?
13
A.
Yes.
14
Q.
All right.
15
combination of page 135 and 137, that Chief Deputy Sheridan
16
changed the sustained finding to not sustained on Deputy
17
Hechavarria because he found that he wasn't solely responsible,
18
is that correct?
19
A.
That's what I said, yes.
20
Q.
All right.
21
A.
From what I can recall, yes.
22
Q.
All right.
IEN
DS
11
14:18:36
Now, so you testified, if you look at the
And you stand by that testimony?
14:18:48
14:19:08
Now, as a matter of MCSO policy,
23
Captain Bailey, is it appropriate to reverse a finding of
24
sustained on a policy violation on the ground that a deputy was
25
not solely responsible?
FR
14:18:22
sustained.
3852
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14:19:26
3853
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A.
It could be.
Q.
All right.
You can put the exhibit aside.
Now, Captain, while you were the commander of PSB,
3
4
there were many IA cases opened that concerned the mishandling
of identification documents, correct?
A.
Yes.
Q.
And that problem actually came to light while you were
still in command of HSU, correct?
A.
I believe so.
10
Q.
And indeed you yourself have been a principal in an IA
11
investigation involving the mishandling of ID cards, correct?
12
A.
Yes.
13
Q.
And that case concerned events that happened while you were
14
still the commander of SID, correct?
15
A.
Yes.
16
Q.
And, in fact, you received a sustained finding of a policy
17
violation in that IA case, correct?
18
A.
Yes.
19
Q.
There were other cases involving the mishandling of ID
20
cards involving people under your command at SID, correct?
21
A.
22
myself, Lieutenant Seagraves, and Sergeant Glenn Powe.
DS
IEN
23
Q.
24
front of you.
25
A.
FR
14:20:10
14:20:27
Not that I can recall.
Okay.
14:19:54
14:20:42
I can recall one where it was
Take a look at Exhibit 1000, if you have that in
Is it one of the more voluminous ones?
14:21:08
Q.
No, it's not.
It's not a voluminous one.
And let's actually turn to the second page, which is a
2
3
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memorandum from Detective Frei to you dated May 23rd, 2014.

THE WITNESS:
Okay.
14:22:13
BY MS. WANG:
Q.
is a memorandum from Detective Frei of the Special
Investigations Unit -- sorry, Special Investigations Division
Okay.
So you'll see that the second page of Exhibit 1000
to you, dated May 23rd, 2014, correct?
11
A.
Correct.
12
Q.
And at that time, you were still the commander of SID,
13
correct?
14
A.
Yes.
15
Q.
And Detective Frei attached an incident report that he had
16
written, is that correct?
17
exhibit --
18
A.
Yes.
19
Q.
-- but that was part of the memo, correct?
20
A.
I believe so.
21
somebody telling me about this.
22
actually read this.
IEN
DS
10
14:22:36
It actually precedes the memo in the
My signature's not on this.
I remember
14:22:49
I don't know if I ever
23
Q.
24
ever saw this at the time, around May 23rd, 2014?
25
A.
FR
Okay.
14:22:25
Well, take a look at it now.
You're not sure you
I think it was brought to my attention later, and usually I
14:23:03
3855
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will initial it somewhere if I've read it, and my signature's
not on here, so I think I learned about it at a later date.
Q.
Okay.
A.
I don't recall.
Q.
So your testimony is that you found out about
Detective Frei's memorandum when you were the commander of PSB?
A.
sure when the date it was.
Q.
When did you find out about it?
I believe so.
All right.
It was after I left SI and went to PSB.
I can't be -- I can't be a hundred percent
But at some point in the past you have seen
10
this document, is that correct?
11
A.
Yes.
12
Q.
And was that in connection with a PSB investigation into
13
the subject matter of Detective Frei's memorandum?
14
A.
15
came up.
MR. MASTERSON:
MR. WALKER:
DS
THE COURT:
No objection.
No objection.
BY MS. WANG:
23
Q.
24
Frei, in this May 23rd, 2014 memorandum, indicated that there
25
were a number of identifications that had been in his
FR
14:24:04
IEN
22
All right.
admission of Court's Exhibit 1000.
19
21
14:23:55
MS. WANG:
18
20
14:23:43
I believe that's what it finally resulted in; that's how it
16
17
14:23:26
Now, Captain Bailey, did you become aware that Detective
14:24:18
3856
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possession?
A.
Yes.
Q.
And copies of those are actually attached to this exhibit,
correct?
A.
Yes.
Q.
All right.
A.
There is.
Q.
And he indicated that the ID cards had been used for
training purposes only, is that correct?
14:24:27
There are quite a few of them, correct?
10
A.
Yes.
11
Q.
And are you aware that there were numerous other IA cases
12
in 2014 -- and 2015, for that matter -- that involved
13
mishandled ID cards at MCSO?
14
A.
There were several.
15
Q.
And in several of those cases the personnel involved
16
claimed that they had used the identification documents for
17
training purposes, correct?
18
A.
Yes.
19
Q.
And many of those cases involved, again, perhaps dozens of
20
ID cards, correct?
21
A.
Yes.
22
Q.
Did you or anyone else at PSB ever determine why it was
14:24:39
IEN
DS
14:25:13
necessary to have so many ID cards for training purposes?
24
A.
25
we understood his intention, but not the volume of IDs.
FR
23
I don't think we ever determined why the volume.
14:24:55
I think
14:25:32
3857
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Q.
PSB there continued to be ID cards that would come to light,
correct?
A.
Yes.
Q.
That had been mishandled, correct?
A.
Yes.
Q.
In 2015 there were several sets of IDs that came to light,
correct?
A.
Yes.
10
Q.
Including some IDs that a Deputy Dickner in the Aviation
11
Division came forward with, correct?
12
A.
Yes.
13
Q.
And there was another set of IDs that had been shredded
14
that a Deputy Leroy in District 1 Patrol had turned in,
15
correct?
16
A.
Correct.
17
Q.
And IA cases were initiated on those, correct?
18
A.
Yes.
19
Q.
All right.
20
attention that a Sergeant Knapp had come forward with a very
21
large number of ID cards?
22
A.
14:25:50
14:26:01
14:26:18
Now, on July 7th, 2015, did it come to your
14:26:29
IEN
Yes.
23
Q.
24
correct?
25
A.
FR
And up to the time that you left the command of
DS
All right.
And it turned out that this was a set of 1,459 ID cards,
Yes.
14:26:44
3858
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Q.
And when you first heard about these Knapp IDs on July 7th
of 2015, Sergeant Darryl Bone and Lieutenant Kratzer came to
your office to inform you, correct?
A.
Yes.
Q.
And you learned that Sergeant Knapp had tried to turn those
1459 IDs into the Property and Evidence department for
destruction, correct?
A.
called there.
I was initially told that, and I was told later that he
10
Q.
11
John Shamley of the Property Unit had refused to take those IDs
12
from Sergeant Knapp, correct?
13
A.
Yes.
14
Q.
And that was because there was a Briefing Board,
15
number 15-04, covering the disposition of identification cards,
16
correct?
17
A.
What number did you give it?
18
Q.
15-04.
19
A.
20- --
20
Q.
2065.
21
A.
Yeah, I was just verifying the number; it didn't sound
22
right, for some reason.
All right.
And did you -- and you were initially told that
It's up on the screen now, if you like.
DS
IEN
14:27:15
14:27:32
If you want to take a look, it is Exhibit 2065.
23
Q.
All right.
24
A.
Sorry.
25
Q.
-- whether John Shamley refused to accept the IDs from
FR
14:26:58
14:27:45
So my pending question was --
14:28:11
3859
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Sergeant Knapp because John Shamley believed that
Briefing Board 1504 covered the disposition of IDs in that
situation?
A.
refused it was because of this.
me John refused it.
Q.
deposition at page 175, starting at line 25.
Do you have it there, sir?
I don't know if it was explained to me that the reason John
All right.
I remember them just telling
Take a look at your September 8th, 2015
10
A.
Yes.
11
Q.
Okay.
12
Property and Evidence refused to take those IDs?
14:29:13
"Question:
"Answer:
13
Do you understand why John Shamley in
I believe it's because he felt that Knapp
14
should have followed the 15-04 Briefing Board that was sent out
15
in April."
14:29:27
Was that your testimony?
16
A.
Yes.
18
Q.
Do you stand by that?
19
A.
Yes.
20
Q.
All right.
21
Melendres litigation, correct?
22
A.
DS
17
Now, Briefing Board 15-04 arose because of this
14:29:35
IEN
Yes.
23
Q.
24
starting in May of 2014, correct?
25
A.
FR
14:28:26
And it's because of all the IDs that were coming to light
That was the -- that Briefing Board was the result of those
14:29:46
3860
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numerous items, yes.
Q.
should have turned in the 1459 IDs earlier pursuant to
Briefing Board 15-04, correct?
A.
Yes.
Q.
As soon as that Briefing Board came out he should have
turned them in, correct?
A.
Yes.
Q.
Now, after you found out about the Knapp IDs from Sergeant
And you yourself, Captain Bailey, agree that Sergeant Knapp
14:30:07
Bone and Lieutenant Kratzer, you took some steps to follow up
11
immediately, correct?
12
A.
I did.
13
Q.
You immediately called Sergeant Knapp's commander,
14
Lieutenant Campbell, correct?
15
A.
Yes.
16
Q.
And you wanted to find out whether he was aware that Knapp
17
had these IDs, correct?
18
A.
Yes.
19
Q.
And, in fact, Lieutenant Campbell had been aware, correct?
20
A.
Yes.
21
Q.
All right.
22
a memorandum, correct?
IEN
DS
10
14:30:31
14:30:40
And he said that the IDs had been documented in
23
A.
Yes.
24
Q.
And you then took steps to make sure the IDs were secured
25
in PSB's offices, correct?
FR
14:30:20
14:30:50
3861
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A.
I did.
Q.
And you pulled an IA number in the IAPro system to initiate
the investigation into the Knapp IDs, correct?
A.
I did.
Q.
And that was the same day you found out about them, on July
7, 2015, correct?
A.
Yes.
Q.
And you also informed Chief Deputy Sheridan about the Knapp
IDs that same day, correct?
10
A.
I believe it was that day, yes.
11
Q.
And, in fact, you spoke to him more than once on July 7th,
12
2015, about the IDs, correct?
13
A.
I believe I did.
14
Q.
And you were aware that Chief Deputy Sheridan was concerned
15
about these Knapp IDs, correct?
16
A.
Yeah, he was concerned.
17
Q.
And you were concerned, too, correct?
18
A.
Perplexed.
19
Q.
It was a very large number of IDs, right?
20
A.
Yeah.
21
Q.
And you knew that there were many IA cases already pending
22
concerning the mishandling of IDs, correct?
DS
IEN
14:31:13
14:31:29
14:31:41
23
A.
Say that again?
24
Q.
You knew that there were many IA cases already pending
25
about IDs, correct?
FR
14:31:00
I'm sorry.
14:31:56
3862
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A.
Yes.
Q.
And you told Chief Deputy Sheridan that you had already
initiated an IA case looking into the Knapp IDs, correct?
A.
I believe I did.
Q.
Now, the next day, July 8th, 2015, you had further
follow-up, correct?
A.
Yes.
Q.
You spoke again to Chief Deputy Sheridan, correct?
A.
I probably did, yes.
10
Q.
And you proposed the day after the discovery of the Knapp
11
IDs that PSB interview Sergeant Knapp, correct?
12
A.
13
8th conversation, but I do remember telling him that I thought
14
we should do that.
15
Q.
All right.
16
A.
He did.
17
Q.
Said, Go ahead and interview Sergeant Knapp, correct?
18
A.
Yes.
19
Q.
All right.
20
within a day or two of the discovery of the IDs by PSB on
21
September -- sorry, July 7th, 2015, PSB had a meeting where the
22
IDs were actually inspected, correct?
14:32:22
I don't remember if that was the 7th conversation or the
And he agreed with you, correct?
DS
IEN
14:32:37
Now, within a day or two of that -- well,
23
A.
That week, yes.
24
Q.
And the IDs are voluminous, correct?
25
A.
There's a lot of IDs, yes.
FR
14:32:06
14:32:47
14:33:05
3863
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Q.
They fill up a large clear plastic bag, is that correct?
A.
Yes.
Q.
And those were put out on the conference room table in
PSB's conference room, correct?
A.
Yes.
Q.
And when those IDs were inspected you were present,
correct?
A.
I was.
Q.
Sergeant Bone, Lieutenant Kratzer, PSB's admin assistant
14:33:16
10
Loren Sanchez were all present, correct?
11
A.
Yes.
12
Q.
And Chief Deputy Sheridan showed up briefly during that
13
meeting, correct?
14
A.
15
meeting the following week.
16
Q.
17
were actually inspected, correct?
18
A.
Yes.
19
Q.
All right.
20
based on your inspection, that there were valid identification
21
cards among those 1459 IDs, correct?
22
A.
I don't know if he showed up in that one or a subsequent
14:33:42
But he was present for some meeting where the IDs
Now, when you looked at the IDs, you believed,
DS
Okay.
14:33:55
IEN
There appeared to be a sampling of both valid and
23
fraudulent, or fake, IDs, yes.
24
Q.
25
other ID cards must have originally been taken during a traffic
FR
14:33:28
And you believed that those drivers' licenses or those

14:34:12
3864
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stop or otherwise impounded, correct?
A.
legitimate enforcement action, or something like that.
Q.
Including during traffic stops, correct?
A.
I would expect.
Q.
All right.
did PSB actually interview Sergeant Knapp?
A.
I don't remember the date, but I believe it was that week.
Q.
All right.
I believe they were brought into the agency by some
Now, within a day or two, on July 10th or 11th,
And you reported on the outcome of the
10
interview of Sergeant Knapp to Chief Deputy Sheridan, correct?
11
A.
I did.
12
Q.
And you and Sheridan discussed where the IDs had come from,
13
likely?
14
A.
15
his memo.
16
Q.
17
IDs, correct?
18
A.
19
would have --
20
Q.
Um-hum.
21
A.
-- I'm sure.
22
Q.
So Sergeant Knapp had explained that over a course of some
14:34:45
We discussed what Sergeant Knapp had said and what was in
14:34:59
And you discussed when Sergeant Knapp had collected the
IEN
DS
I don't remember exactly what our conversation was, but we
23
years, he had been pulling ID cards out of the destruction bin
24
in the Property and Evidence room, correct?
25
A.
FR
14:34:27
I believe he said he started in 2006, I think.
14:35:09
14:35:20
3865
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Q.
And continued on for some years, correct?
A.
Yes.
Q.
And you and Chief Deputy Sheridan discussed that, correct?
A.
Yes.
Q.
And you also discussed with Chief Deputy Sheridan whether
any court orders might be at issue with the Knapp IDs, correct?
A.
based on that reason.
Q.
I think the chief said he wanted to consult with others,
And you and he both understood that there might be court
10
orders that would apply to the situation, correct?
11
A.
Yes.
12
Q.
Okay.
13
investigation into the Knapp IDs for now, correct?
14
A.
He did.
15
Q.
And you understood that Chief Deputy Sheridan planned to
16
convey the information from Sergeant Knapp to counsel, correct?
17
A.
Yes.
18
Q.
And that specifically was that Sergeant Knapp had been
19
pulling those IDs out of the destruction bin at Property and
20
Evidence over a period of years, correct?
21
A.
Yes.
22
Q.
After you got the instruction from Chief Deputy Sheridan to
DS
IEN
14:35:52
And Chief Deputy Sheridan told you to stop the
23
stop the IA case for now, you did not do anything further on
24
that case until the case was reinitiated sometime in August of
25
2015, correct?
FR
14:35:33
14:36:11
14:36:35
14:36:50
3866
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A.
That sounds right.
Q.
And sir, you do not recall any other IA case in which
Chief Deputy Sheridan instructed you to stop the investigation,
correct?
A.
Not that I recall.
Q.
This was the only one, right?
A.
That I can remember at this moment, yes.
Q.
Okay.
IDs, you generally were aware that there were court orders
Now, at the time that you were informed of the Knapp
requiring the disclosure of identification documents to the
11
plaintiff class, correct?
12
A.
I was aware of the orders, yes.
13
Q.
And you were also aware, at the time that you found out
14
about the Knapp IDs, that the court-appointed monitor would
15
want to know about these 1459 IDs, correct?
16
A.
I would have expected they would, yes.
17
Q.
And before PSB's discovery of these Knapp IDs on July 7th,
18
the monitor had previously expressed an interest in IDs that
19
came to light, correct?
20
A.
Yes.
21
Q.
On July 17th of 2015, PSB held a meeting, correct?
22
A.
Yes.
IEN
DS
10
23
Q.
24
with the Monitor Team on July 20th, 2015, correct?
25
A.
FR
14:37:02
14:37:20
14:37:40
14:37:53
And that was a meeting to prepare for an upcoming meeting
Yes.
14:38:12
3867
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Q.
And this was something that you and other PSB personnel
typically did in advance of monitor site visits, correct?
A.
Yes.
Q.
You referred to these sometimes as a rehearsal meeting?
A.
I did in one of my -- my interview with the monitor I
stated it was a rehearsal meeting, yes.
Q.
present, correct?
A.
Yes.
10
Q.
And also present were Lieutenant Seagraves,
11
Lieutenant Kratzer, Sergeant Bone, Chief Deputy Sheridan,
12
Michele Iafrate, Sergeant Sparman, Loren Sanchez, and perhaps
13
Sergeant Bocchino, is that correct?
14
A.
That sounds right.
15
Q.
And during that meeting the Court's orders pertaining to
16
disclosure of ID cards were discussed, correct?
17
A.
Not during the general meeting.
18
Q.
Not during the general meeting?
19
A.
It was afterwards, I believe.
20
Q.
Okay.
21
afterwards.
22
larger group meeting dispersed, did you, Chief Deputy Sheridan,
And at this July 17th rehearsal meeting you were
Now, you mentioned that there was a meeting
IEN
DS
Okay.
14:38:38
14:38:57
14:39:09
So just to clarify for the record, after the
23
and Michele Iafrate have a separate meeting?
24
A.
Yes.
25
Q.
Immediately after the group rehearsal meeting, correct?
FR
14:38:24
14:39:27
3868
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A.
In the same conference room.
Q.
All right.
A.
Yes.
Q.
And during that meeting you told Ms. Iafrate that an IA
number had been pulled on the Knapp ID case, correct?
A.
Yes.
Q.
And she told you that she was going to look into the
Court's orders as they applied to the Knapp IDs, correct?
A.
And immediately afterwards, correct?
Something to that effect, or she was going to do some
10
research.
11
Q.
12
court-appointed monitor until she got back to you, correct?
13
A.
That's correct.
14
Q.
Sir, did you ask Ms. Iafrate what you should do if the
15
monitor asked you point-blank a question that would require
16
disclosure of the IDs?
17
A.
I don't remember asking that her -- to her specifically.
18
Q.
All right.
19
a meeting with the court-appointed monitor team, correct?
20
A.
Yes.
21
Q.
And at that meeting were the following people present:
22
Lieutenant Kratzer, Lieutenant Seagraves, Loren Sanchez,
14:39:57
And she also told you not to disclose the IDs to the
DS
IEN
14:40:13
Now, on July 20th, 2015, you did, in fact, have
23
Monitor Sherry Kiyler, Chief Monitor Chief Robert Warshaw,
24
Al Peters of the Monitor Team, Michele Iafrate, and perhaps
25
Raul Martinez of the Monitor Team?
FR
14:39:40
14:40:32
14:40:54
3869
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A.
I don't remember off the top of my head who was exactly
there, but that sounds accurate.
Q.
present?
A.
I would have expected them to be, yes.
Q.
Okay.
present?
A.
others.
Okay.
And were a couple of your PSB sergeants also
And do you recall that there were some PSB sergeants
I think Sergeant Bone was there; there could have been
Q.
Okay.
But you do recall specifically that Michele Iafrate
11
was present, correct?
12
A.
Yes.
13
Q.
And those members, Sherry Kiyler, Robert Warshaw, and
14
Al Peters of the Monitor Team, correct?
15
A.
Yes.
16
Q.
Now, Chief Kiyler of the Monitor Team asked you about the
17
Dickner and the Leroy IDs during that July 20th meeting,
18
correct?
19
A.
Yes.
20
Q.
And according to you, Kiyler then asked you whether there
21
were any other pending cases regarding IDs, correct?
22
A.
DS
10
14:41:19
14:41:40
14:41:48
IEN
Yes.
23
Q.
And you answered no, is that right?
24
A.
That's correct.
25
Q.
Now, at that point you had already pulled an IA number on
FR
14:41:03
14:42:01
3870
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the Knapp IDs, correct?
A.
Yes.
Q.
That investigation had started, correct?
A.
Yes.
Q.
Sergeant Knapp was interviewed as part of that
investigation, correct?
A.
Yes.
Q.
Yet you answered that there were no pending cases regarding
IDs, correct?
A.
That's correct.
11
Q.
And, sir, you contend that Michele Iafrate instructed you
12
to answer no to Chief Kiyler's question, is that right?
13
A.
That's correct.
14
Q.
How did she do that?
15
A.
She looked at me and said no.
16
Q.
And then you said no?
17
A.
Yes.
18
Q.
And that happened in front of everyone present at the
19
meeting?
20
A.
Yes.
21
Q.
And you had never received any legal advice from
22
Ms. Iafrate concerning the application of court orders to the
IEN
DS
10
Knapp IDs before the July 20th meeting, correct?
24
A.
I had not.
25
Q.
And after the July 20th meeting, you did not talk to
FR
23
14:42:10
14:42:22
14:42:41
14:42:52
14:43:09
3871
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Ms. Iafrate about that subject, correct?
A.
I don't believe I did.
Q.
And is it your testimony, sir, that prior to July 20th,
2015, you never spoke to Michele Iafrate about potential
questions you might get from the Monitor Team about the Knapp
IDs?
MR. MASTERSON:
Objection.
Is the question before?
Objection, attorney-client privilege.
THE COURT:
10
Overruled.
THE WITNESS:
11
Can you ask it again?
14:44:05
I'm sorry.
12
BY MS. WANG:
13
Q.
14
meeting with the Monitor Team, did you ever speak to Michele
15
Iafrate about potential questions that you might get from the
16
Monitor Team about the Knapp IDs?
17
A.
No.
18
Q.
Now, sometime on July 20th, 2015, you told Michele Iafrate
19
that Chief Deputy Sheridan had told you to suspend or to stop
20
the IA investigation on the Knapp IDs, is that right?
21
A.
22
discussed it on the 17th, I can't recall which.
The question was:
Before the July 20th, 2015
DS
Sure.
14:44:22
14:44:40
IEN
I don't know if it was the 20th or we may have briefly
23
Q.
Okay.
24
A.
Yes.
25
Q.
And, sir, I'll ask you:
FR
14:43:30
So she was aware of that fact, correct?
Do you now, sitting here today,
14:44:50
3872
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stand by the answer that you gave to Chief Kiyler of the
Monitor Team?
A.
same.
Q.
Court's order of February 12th, 2015, concerning discovery.
Based on the advice of counsel I would have answered the
Now, sir, why don't turn to Exhibit 2003.
This is the
And on the first page do you see that -- the next --
7
8
"It is hereby ordered as follows," and the Court ordered the
defendants to produce certain documents.

Do you see that, sir?
10
11
A.
I don't see that verbiage.
12
Q.
Well, do you see, "It is hereby ordered as follows:
13
Defendants are ordered to produce the following documents and
14
any associated privilege logs by February 27, 2015"?
15
A.
Yes.
16
Q.
Okay.
17
of documents described is copies of identification documents
18
seized by MCSO personnel from apparent members of plaintiff
19
class?
20
A.
Yes.
21
Q.
And, sir, you were generally aware, as of July 20th, 2015,
22
that the Court had ordered identification documents seized from
IEN
DS
Now, turn to the next page, and the first category
members of the plaintiff class to the plaintiffs' counsel in
24
this case, correct?
25
A.
Yes.
14:45:42
14:46:07
23
FR
14:45:05
14:46:21
14:46:37
Q.
3873
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And also turn, sir, to Exhibit 2067.
This is another court order dated November 20th, 2014.
And let's turn to page 20 of this order.
So in the paragraph numbered number 1, the Court
4
5
ordered:
"When the monitor conducts inquiries at the Court's
behest or pursuant to his independent authority in the order:
1.
MCSO shall also provide any necessary facilities or resources
to facilitate such investigations."
MCSO's cooperation with such investigations is required.
Do you see that?
10
14:47:31
11
A.
I do.
12
Q.
And you understand that the Court's order had to do with
13
the monitor's authority in the issues concerning the Internal
14
Affairs functions of MCSO, correct?
15
A.
Yes, I do.
16
Q.
All right.
17
A.
I understand what I'm looking at, yes.
18
Q.
Okay.
19
personnel were obligated to cooperate with the Court-appointed
20
monitor, correct?
21
A.
Yes.
22
Q.
All right.
24
FR
25
14:47:43
And you understood this order, right?
And you understood that as of July 20th, 2015, MCSO
DS
IEN
23
14:47:12
14:47:59
Now turn to the next page, page 21 of the
November 20th, 2014 order, paragraph 6.
It reads:
"To the extent that the MCSO claims that it is
privileged or otherwise protected from providing information to
14:48:13
3874
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the monitor in an independent investigation or otherwise, and
the monitor contests the existence of the privilege or the
protection, the matter shall be decided by the Court."

Do you see that?
4
5
A.
I do.
Q.
So you understood, sir, as of July 20th, 2015, that MCSO
had an obligation, if it did not want to provide information to
the monitor, to take that up with the Court, correct?

MR. MASTERSON:
THE COURT:
10
11
14:48:30
She only asked what he understood, so I'm
going to overrule the objection.

THE WITNESS:
12
I don't know if I specifically remember
13
reading this, but now that I read it, it makes sense and I
14
understand it.
15
BY MS. WANG:
16
Q.
17
could not unilaterally withhold information from the Monitor
18
Team, correct?
19
A.
I would expect that we wouldn't, yes.
20
Q.
And you understood that at the time, correct?
21
A.
Yes.
22
Q.
And independent of any court orders that specifically
IEN
14:48:52
And as of July 20th, 2015, you were aware that MCSO
DS
Okay.
23
address the issue, you understood as of July 20th, 2015, that
24
as an MCSO captain, you owed a duty of candor to the
25
court-appointed monitor, correct?
FR
14:48:41
14:49:03
14:49:23
3875
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A.
Yes.
Q.
Sir, later in the week of July 20th, 2015, did you learn
that someone else in PSB had disclosed the Knapp IDs to the
Monitor Team?
A.
think I had known it at the time.
Q.
whether Lieutenant Swingle of PSB had disclosed the Knapp IDs
to the Monitor Team?
I think you told me that during the deposition, but I don't
And so you did not know during the week of July 20th
10
A.
I think I learned that during my deposition with you.
11
Q.
During the week of July 20th, 2015, did you go to Chief
12
Deputy Sheridan to express a concern that you might be in
13
trouble for dis -- for failing to disclose the Knapp IDs to
14
Chief Kiyler during the July 20th meeting?
15
A.
16
about what direction we were going to take and what we should
17
do, and he was waiting for a response from Ms. Iafrate.
18
Q.
19
20th, 2015, to Chief Deputy Sheridan that you might be in
20
trouble for answering Chief Kiyler the way that you had?
21
A.
I don't remember saying that.
22
Q.
You were not worried after the July 20th meeting that it
I don't -- I don't think I said that.
We had a discussion
14:50:15
14:50:31
IEN
DS
You did not express any concern during the week of July
23
appeared that you had lied to Chief Kiyler?
24
A.
No.
25
Q.
Sir, let's turn to the issue of the Seattle investigation.
FR
14:49:54
14:50:48
14:51:03
3876
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You're familiar with that, correct?
1
2
A.
Yes.
Q.
And you're aware that it began in late 2013, correct?
A.
Yes.
Q.
You found out about it from Brian Mackiewicz?
A.
I believe so.
Q.
And at that time that you found out about the Seattle
investigation for the first time, you were technically in Brian
Mackiewicz's chain of command, correct?
10
A.
I think he was temporarily assigned to SI.
11
full-time member of Special Investigations.
12
Q.
Had he previously been assigned to the Threats Unit?
13
A.
Yes.
14
Q.
And in that capacity he worked directly for the sheriff, is
15
that right?
16
A.
17
matters, over the chief deputy.
18
Q.
19
assigned to SID in the late 2013 time frame because he had worn
20
out his welcome in headquarters?
21
A.
Yes.
22
Q.
Now, for purposes of the Seattle investigation -- well, let
14:51:41
14:52:04
I think primarily he answered to the sheriff on those
IEN
DS
And was it true or are you aware that he was temporarily
23
me back up.
24
working on the Seattle investigation, correct?
25
A.
FR
He wasn't a
14:51:23
Yes.
14:52:25
You understood that Detective Mackiewicz was
14:52:42
3877
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Q.
And for purposes of that investigation, you understood he
was directly supervised by Sheriff Arpaio and Chief Deputy
Sheridan, correct?
A.
Yes.
Q.
That bypassed his chain of command at the time, correct?
A.
Yes.
Q.
It's unusual for a detective to be supervised directly by
Sheriff Arpaio, correct?
A.
Yes.
10
Q.
You, sir, had meetings at which the Seattle investigation
11
was discussed, correct?
12
A.
Yes.
13
Q.
With Sergeant Anglin, Detective Mackiewicz, and
14
Chief Deputy Sheridan, is that right?
15
A.
16
at various points those people could have been there, yes.
17
Q.
18
Seattle investigation with those individuals, some combination
19
of those individuals?
20
A.
Yes.
21
Q.
And you spoke occasionally with Brian Mackiewicz about the
22
I don't know if we were all together at the same time, but
IEN
23
A.
Yes.
24
Q.
You consider Brian Mackiewicz a friend?
25
A.
We're professional acquaintances, yes.
FR
14:53:03
14:53:17
So you had more than one meeting concerning the
DS
All right.
14:52:51
14:53:29
14:53:40
3878
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Q.
Okay.
You did not want to hear about the Seattle
investigation, is that right?
A.
time, no, I wasn't really interested in listening to it.
Q.
correct?
A.
No.
Q.
At some point, Chief Deputy Sheridan asked you who might be
able to go to Seattle for purposes of this investigation with
Initially, I was willing to listen, but after a period of
You were not comfortable with the Seattle investigation,
10
Brian Mackiewicz, correct?
11
A.
Yes, he did.
12
Q.
And the reason Chief Deputy Sheridan wanted a second person
13
there with deputy -- excuse me, Detective Mackiewicz, was that
14
someone needed to keep Mackiewicz focused, is that right?

MR. MASTERSON:
15
THE COURT:
16
19
Q.
And you suggested Sergeant Anglin for that job, correct?
20
A.
I did.
21
Q.
And did Chief Deputy Sheridan also tell you that he needed
22
someone else on the trip in order to keep Brian Mackiewicz
DS
BY MS. WANG:
IEN
14:54:25
Something along those lines, yes.
18
23
under control?
24
A.
25
lines of keeping him focused or keeping him on track.
FR
14:54:10
Overruled.
THE WITNESS:
17
14:53:57
14:54:39
I don't remember his exact verbiage, but it was along those

14:54:55
3879
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Q.
Okay.
And did Chief Deputy Sheridan specifically say that
Mackiewicz needed supervision because his overtime was out of
control on that Seattle investigation?
A.
chief where he said that; it was later during that
investigation.
Q.
that Brian Mackiewicz needed supervision because his overtime
was out of control on the Seattle investigation, correct?
It wasn't during that conversation that I had with the
Okay.
But Chief Deputy Sheridan did tell you at some point
10
A.
The combination of those things, yes.
11
Q.
All right.
12
investigation, Brian Mackiewicz gave you some documents that
13
led you to believe that the confidential informant, Dennis
14
Montgomery, was not credible, correct?
15
A.
I believe it was a one- or one-and-a-half-page document.
16
Q.
Okay.
17
investigation?
18
A.
I believe so, yeah; sounds right.
19
Q.
You told Brian Mackiewicz your view immediately, correct?
20
A.
I did.
21
Q.
And Mackiewicz continued the Seattle investigation after
22
that, correct?
14:55:46
And that was four to six weeks into the
DS
IEN
14:55:27
Now, within four to six weeks into the
23
A.
Yes.
24
Q.
You also told Chief Deputy Sheridan that you believed
25
Dennis Montgomery was not credible, correct?
FR
14:55:12
14:55:58
14:56:09
3880
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A.
I did.
Q.
And he expressed agreement with you for the most part, is
that right?
A.
He agreed with my assessment.
Q.
And the Seattle investigation continued after that,
correct?
A.
Yes.
Q.
And you are aware that your assessment of Dennis
Montgomery's lack of credibility was also communicated to
10
Sheriff Arpaio himself, correct?
11
A.
Aside from me?
12
Q.
Well, do you know whether your view was conveyed to Sheriff
13
Arpaio, by you or anyone else?
14
A.
It could have been.
15
Q.
Okay.
16
expressed to the sheriff directly that you felt that Dennis
17
Montgomery was not credible, correct?
18
A.
19
was clear that I didn't think Dennis Montgomery was credible.
20
Q.
This was during an in-person meeting, correct?
21
A.
Yes.
22
Q.
And various people were present to discuss the Seattle
14:56:36
I can only testify to what I said.
And there did come a time when you actually
14:56:51
IEN
DS
I don't know if you'd define it "directly," but I think it
23
24
A.
Yes.
25
Q.
And just prior to the meeting you were face to face with
FR
14:56:20
14:57:07
14:57:16
3881
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Sheriff Arpaio, right?
A.
Are you referring to the January 2nd meeting?
Q.
Yes.
A.
I don't remember -- I don't remember being in a -- in
a face-to-face meeting with the sheriff prior to that meeting;
I remember walking into the conference room and sitting down.
Q.
you turn to Exhibit 2072, actually.
already.
10
Okay.
document.
Well, did the sheriff show you -- well, why don't

This is in evidence
And let's turn to the -- right.
This is the
You have it on the screen there.
14:57:58
Did you see a document that -- either this document or
11
12
something that looked like this during the meeting you're
13
referring to?
14
A.
15
remember seeing a time line.
16
Q.
17
document in this exhibit that looks like a -- no, the next
18
document that has the -- there we go.
I think you showed me this during my deposition.
Okay.
I don't
14:58:14
How about let's turn, Mr. Klein, to the next
Were you shown a document that looked something like
19
this?
21
A.
22
this, but I don't believe it was this.
DS
20
14:58:45
IEN
Again, like I said in my deposition, it was similar to
23
Q.
24
graph like this?
25
A.
FR
14:57:32
Okay.
But it was a document that had -- was kind of a
Various geometric shapes with text in them.
14:58:56
3882
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Q.
And during the meeting did Sheriff Arpaio -- did Sheriff
Arpaio show you the document?
A.
Yes.
Q.
And what did you do in response?
A.
I looked at it and looked -- analyzed it for 30, 40
seconds, and I slid it back to him saying I didn't think this
was anything.
Q.
And did the sheriff respond to you?
A.
Yes.
10
Q.
What did he say?
11
A.
"You don't know."
12
Q.
Did you respond to that?
13
A.
No.
14
Q.
Didn't you say:
15
A.
I may have said "I do know."
16
response.
17
Q.
18
was no evidence to validate what was in this graphical
19
document, correct?
20
A.
Yes.
21
Q.
And you are aware that after you had that exchange with the
22
sheriff, the Seattle investigation continued, correct?
14:59:23
"I do know"?
I think maybe that was my
14:59:30
IEN
DS
And you told the sheriff that because you believed there
23
A.
That's my understanding.
24
Q.
Now, during -- sir, when you say that -- you drew a
25
conclusion within a month of the Seattle investigation starting
FR
14:59:09
14:59:48
15:00:07
3883
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that Dennis Montgomery was not credible, correct?
A.
A month or shortly thereafter.
Q.
Was that based on your review of documents that Dennis
Montgomery had provided to MCSO?
A.
Yes.
Q.
You believed they were not credible, correct?
A.
That's correct.
Q.
And did not purport to be what he claimed they were?
A.
He may have been -- it may have been what he claimed they
15:00:22
10
were.
I didn't think they were credible.
11
Q.
12
to clarify, the exchange you just described with Sheriff Arpaio
13
occurred during a meeting on January 2nd of 2014, correct?
14
A.
Yes.
15
Q.
All right.
16
sheriff's attorneys also expressing the view that Dennis
17
Montgomery was not credible, correct?
18
A.
I think that was the general feeling.
19
Q.
And during that meeting, one of the sheriff's attorneys
20
asked your opinion about whether Dennis Montgomery's
21
information seemed credible, and you said you couldn't see how
22
that could be the case, correct?
Now, during the January 2nd meeting, and just
During that same meeting you observed the
IEN
DS
All right.
23
A.
Yes.
24
Q.
And you and all four attorneys present at the January 2nd,
25
2014 meeting were all in agreement that Dennis Montgomery was
FR
15:00:33
15:00:48
15:01:08
15:01:22
3884
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not credible, correct?
A.
I got.
Q.
present, did anyone express a view that Dennis Montgomery was
credible?
A.
No.
Q.
But during the meeting Sheriff Arpaio said that Dennis
Montgomery's information should be looked into further,
I can't speak for everybody.
All right.
That was the general feeling
And did anyone -- among the attorneys who were
10
correct?
11
A.
12
that, yes.
13
Q.
14
correct?
15
A.
That's the way I took it.
16
Q.
And the sheriff pressed on with the Seattle investigation,
17
despite hearing from you and others that Dennis Montgomery was
18
not credible, correct?
19
A.
It appears so.
20
Q.
Now, you, at a certain point in time, had to sign approvals
21
for some of the expenses associated with the Seattle
22
15:01:53
I don't know if he said exactly that, but something like
IEN
DS
He wanted follow-up on the Dennis Montgomery information,
23
A.
Yes.
24
Q.
Did you scrutinize the documentation to make sure the
25
expenses were justified?
FR
15:01:38
15:02:01
15:02:15
15:02:39
3885
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A.
I reviewed them, yes.
Q.
Well, did you review them for the purpose of ensuring that
the expenses were justified?
A.
That would have been part of my role, yes.
Q.
Okay.
correct?
A.
those approvals for expenditures.
Q.
And you were required to sign those approvals,
As the commander of SI, that's part of your role is to sign
And you were aware that state RICO funds were used to pay
10
for the Seattle investigation, correct?
11
A.
Yes.
12
Q.
And that was the normal source of funding, or a normal
13
source of funding, for confidential informants at MCSO,
14
correct?
15
A.
16
utilize to pay informants.
17
Q.
18
generally for that purpose, correct?
19
A.
Yes.
20
Q.
Were you aware, sir, that at a certain point HIDTA funds
21
were used for the Seattle investigation?
22
A.
We converted RICO funds into an account that we could
15:03:11
15:03:22
DS
And you were familiar with the use of state RICO funds
15:03:35
IEN
I don't know if I knew that at the time or not.
23
Q.
24
funds, correct?
25
A.
FR
15:02:48
That would not be an appropriate use of federal HIDTA
No.
15:03:50
3886
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Q.
You did not believe it was appropriate to use state RICO
funds for the Seattle investigation, correct?
A.
RICO funds"; I just said I don't think any funds are
appropriate to pay Mr. Montgomery.
Q.
not a credible informant, correct?
A.
That's correct.
Q.
Take a look at Exhibit 2775, please.
10
A.
2075?
11
Q.
No, sorry, 2775.
I don't think I characterized it as "I don't believe state
And that was because you felt that Dennis Montgomery was
15:04:26
Sir, do you see that this is a memorandum from Brian
12
13
Mackiewicz to Clint Doyle dated October 25th, 2013?
14
A.
Yes.
15
Q.
All right.
16
document?
17
A.
Yes.
18
Q.
Next to the notation "approved," correct?
19
A.
Yes.
20
Q.
And this was a travel expense associated with the Seattle
21
22
A.
24
FR
25
DS
And does your signature appear on this
15:04:57
15:05:05
Yes.
IEN
23
15:04:07
MS. WANG:
All right.
Your Honor, I'd move to admit
Exhibit 2775.
MR. MASTERSON:
Objection, relevance, cumulative.
15:05:14
THE COURT:
1
2
3887
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Objection's overruled.
Exhibit 2775 is
admitted.
3
4
BY MS. WANG:
Q.
screen for you.
And now turn to Exhibit 2776.
Let's just put that on the
And, sir, let's enlarge that since it's faint.
Do you see that this is a memorandum from Travis
7
8
Anglin to you?
16th, 2014.
The date is cut off, but I believe it's January
Do you see that?
10
15:05:49
11
A.
I do.
12
Q.
And this was another request for travel approval for the
13
14
A.
It appears so, yes.
15
Q.
Did you receive this document, sir?
16
A.
I don't believe I did.
17
Q.
Does it appear to you to be a true and correct copy of a
18
memorandum from Travis Anglin to you on MCSO memorandum format?

MR. MASTERSON:
19
21
to that.
15:06:15
Overruled.
It does look like one of our memos.
23
would have been created for this.
24
BY MS. WANG:
25
Q.
FR
15:05:59
I think he has the foundation to testify
THE WITNESS:
IEN
22
THE COURT:
DS
20
15:05:24
It
Do you have any reason to believe that this is not an MCSO
15:06:25
3888
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memo that Sergeant Anglin created in the course of the Seattle
investigation on official MCSO business?
A.
I don't have any reason not to believe it.

MS. WANG:
4
5
Exhibit 2776.
15:06:39
MR. MASTERSON:
THE COURT:
Relevance and 403 are overruled.
a second on foundation.
Okay.
Give me
I'm going to admit it pursuant to 901(b)(4).
MS. WANG:
10
Objection, foundation, relevance, 403.
15:07:06
11
12
BY MS. WANG:
13
Q.
14
first paragraph that Sergeant Anglin wrote:
15
asking for my procurement card to be opened while I'm
16
traveling, to pay for any costs that may arise, such as parking
17
fees."
Now, Captain Bailey, do you see in the last sentence on the

"If necessary, I'm
Do you see that?
18
A.
Yes.
20
Q.
Now, procurement cards are essentially business credit
21
cards that MCSO personnel are issued, correct?
22
A.
DS
19
15:07:23
IEN
Yes.
23
Q.
24
PCards, are to be used only for fuel, correct?
25
A.
FR
15:07:14
And under MCSO policy, ordinarily procurement cards, or
Yes.
15:07:37
3889
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Q.
But in certain instances, approval can be given to open the
PCard so it can be used for other expenses, correct?
A.
Yes.
Q.
And that was what Sergeant Anglin was requesting here,
correct?
A.
It appears so, yes.
Q.
All right.
Seattle investigation similarly requested that their PCards be
opened?
15:07:51
And do you know whether others involved in the
10
A.
I don't.
11
Q.
You don't know?
15:08:00
All right.
Now, the expenses for -- the travel expenses for the
12
13
Seattle investigation, in your experience, typically come out
14
of MCSO's travel budget, is that right?
15
A.
Yes.
16
Q.
And do you know whether, in connection with the Seattle
17
investigation, those travel expenses that you approved in
18
connection with the case did come out of that travel budget?
19
A.
I would have expected they would have come out of travel.
20
Q.
You did not think that those were an appropriate use of
21
MCSO travel funds, correct?
22
A.
DS
15:08:19
IEN
I can't comment on the travel funds; I was chiefly
23
concerned with the informant payment.
24
Q.
25
again, at page 343, starting at line 10.
FR
15:08:32
Okay.
Well, turn to your September 8th, 2015 deposition

15:08:51
3890
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I asked you during your deposition:
"In addition to approving the payments to Dennis
2
3
Montgomery, the CI payments to him, for some period of time,
you also signed off on travel expenses of MCSO personnel
connected with the Seattle investigation; correct?

"Answer:
I probably did.
"Question:
Did those funds come from the same sources
as the payments to the CI?
"Answer:
I don't know.
"Question:
10
So when you're signing a funding approval
11
or an expense approval, you don't know what the source of the
12
funds is?
"Answer:
13
of the travel and training budget.
15
specifically right now which one was identified at the time.

"Question:
I just can't tell you
appropriate use of MCSO funds to pay for travel expenses
18
connected with the Seattle investigation?

"Answer:
No."
Was that your testimony on September 8th?
DS
20
A.
Yes.
22
Q.
Do you stand by that?
IEN
21
23
A.
Yes.
24
Q.
Now, at a certain point you told Chief Deputy Sheridan that
25
you could not in good conscience continue to sign any approvals
FR
15:09:48
And did you think that it was an
17
19
15:09:37
Typically travel and training will come out
14
16
15:09:27
15:10:02
15:10:12
3891
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for expenses related to the Seattle investigation, correct?
A.
Yes.
Q.
And he told you to go ahead and forward those approval
forms downtown, correct?
A.
Yes.
Q.
That meant to you to headquarters, correct?
A.
Yes.
Q.
And as far as you know, someone at headquarters continued
to approve those expenses, correct?
15:10:26
10
A.
It appears so, yes.
11
Q.
Now, shifting gears, you are aware that Brian Mackiewicz is
12
currently under investigation by MCSO's PSB, correct?
13
A.
When I left he was, yes.
14
Q.
All right.
I'm going to ask you to turn to Exhibit 2781.
Do you have it in front of you, sir?
15
16
A.
I do.
17
Q.
All right.
18
Lieutenant Seagraves to you dated May 11, 2015, correct?
19
A.
Yes.
20
Q.
And is it true that in this e-mail, Lieutenant Seagraves
21
was expressing a concern that Brian Mackiewicz was requesting
22
copies of his travel documentation?
DS
IEN
15:11:48
Exhibit 2781 is an e-mail from
23
A.
Yes.
24
Q.
And she did not think that it was a good idea to make those
25
available to him, correct?
FR
15:10:43
15:11:58
15:12:19
A.
Yes.
Q.
Do you know whether he got them?
A.
I don't believe he did, but I don't remember the exact
outcome.
Q.
Okay.
Why don't you turn now to Exhibit 2780, please.
Sparman and Lieutenant Seagraves, and you are copied on the
first e-mail in the chain.
A.
Well, yes, there it is, sorry.
10
Q.
Okay.
11
is one that Lieutenant Seagraves sent on July 29th, 2015,
12
indicating that she was looking into old IA cases in which
13
Brian Mackiewicz was a principal?
14
MR. MASTERSON:
Do you see that?
And do you see that the earliest e-mail in the chain
MS. WANG:
15
THE COURT:
with this.
Your Honor, would you like to hear argument
Well, I do want to know where we're going
Okay.
It's very brief, Your Honor, and
do -- essentially, Your Honor, I think that this document shows
21
that there were missing Internal Affairs files, which I think
22
goes to the adequacy of Internal Affairs procedures generally.
IEN
DS
20
23
FR
25
15:13:31
It seems to me to be perhaps not relevant.
MS. WANG:
19
24
15:13:05
on the relevance?
17
18
15:12:29
Exhibit 2780 is an e-mail exchange between Sergeant
16
3892
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THE COURT:
15:13:43
I'll allow it for that limited purpose
only.
MS. WANG:
15:13:59
3893
OF
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BY MS. WANG:
Q.
looking at old IA cases involving Brian Mackiewicz?
A.
Yes.
Q.
And it appears that she found an IA case file for Brian
Mackiewicz, but it was an empty folder?
A.
That's what it says here.
Q.
Do you know whether -- IA files, as a general matter,
should contain the files they are labeled with, correct?
Do you agree, Captain, that Lieutenant Seagraves was
10
A.
Yes.
11
Q.
Do you have any explanation for why that file was missing?
12
A.
I don't.
13
Q.
And now turn to Exhibit 2799.
14
questioning will be brief as well.
15:14:33
And again, on this one my
Do you see that Exhibit 2799 is a memorandum from
15
16
Lieutenant Seagraves to you dated March 26, 2015, and it
17
concerns an IA case in which Brian Mackiewicz was the
18
principal?
19
A.
Yes.
20
Q.
Okay.
21
to be a duplicate copy but is more legible.
DS
Let's actually turn to the next page, which appears
23
right-hand corner that appears to me to say:
24
Captain Bailey and Chief Deputy Sheridan, approve to move
25
forward"?
FR
15:14:57
15:15:29
Do you see that there's some handwriting on the top
IEN
22
15:14:09
"3-30-15.
Per
15:15:47
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A.
Yes.
Q.
Was that a notation that you and Chief Deputy Sheridan were
approving that an IA case move forward?
A.
Yes.
Q.
Is it typical for Chief Deputy Sheridan to have the power
to approve whether an IA case goes forward or not?
A.
Yes.
Q.
All right.
MS. WANG:
9
10
Your Honor, I'd move Exhibit 2799 into
evidence.
15:16:11
MR. MASTERSON:
11
THE COURT:
12
I'm going to admit it for the limited
13
purpose of demonstrating that Chief Deputy Sheridan has
14
approval to move forward on IA investigations.
15
16
BY MS. WANG:
17
Q.
18
also could not approve that an IA case move forward, is that
19
right?
20
A.
That's correct.
21
Q.
Okay.
DS
MS. WANG:
23
THE COURT:
24
MS. WANG:
25
THE COURT:
FR
15:16:29
And, sir, that implies to me that Chief Deputy Sheridan
IEN
22
15:15:58
15:16:40
Judge, it's 3:15.

Oh.
Thank you.
Would you like to take a break?

Yes.
15:16:56
MS. WANG:
Okay.
THE COURT:
2
minutes.
3895
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Time for afternoon break.
Take 15
Thank you.
(Recess taken.)
THE COURT:
Please be seated.
15:35:53
Go ahead, Ms. Wang.
MS. WANG:
7
8
BY MS. WANG:
Q.
May I proceed?
Captain Bailey, I'd like you to take a look at Exhibit 36,
10
which is in evidence.
This is a May 17th, 2014 e-mail from
11
Chief Trombi to a lot of people regarding the collection of
12
video and audio recordings of traffic stops.
13
up the recipients.
Why don't we blow
Do you see that?
14
15
A.
Yes.
16
Q.
Okay.
17
correct?
18
A.
Yes.
19
Q.
At that time you were the commander of the Special
20
Investigations Division, correct?
21
A.
Yes.
22
Q.
And at that time the Human Smuggling Unit was under your
15:36:33
And you received this e-mail on May 17, 2014,
IEN
DS
You're on the third line of the recipient list?
23
command, correct?
24
A.
Yes.
25
Q.
Take a look at Exhibit 2050 now -- well, actually, before
FR
15:36:11
15:36:47
15:36:59
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we do that, you do not recall any specific instructions that
you gave to your subordinates in SID in response to Chief
Trombi's May 17, 2014 e-mail, correct?
A.
I do not.
Q.
You don't recall any specific instructions?
A.
I don't.
Q.
You don't recall following up on that e-mail?
A.
I don't at this time.
Q.
Okay.
10
Turn to Exhibit 2050 now.
And let me actually get
the paper copy; I think that will be easier.
12
to you as commander of Special Investigations from various
13
personnel.
14
A.
Give me just a second.
I don't see it up here.
15
Q.
Okay.
Captain Bailey?
21
IEN
22
MS. WANG:
DS
20
Ms. Zoratti, could we get Exhibit 2050 for
Thank you.
THE CLERK:
19
THE CLERK:
MS. WANG:
Two zero five zero?
Correct.
15:39:12
I don't have it over there.

Oh, he must it, then.
23
THE CLERK:
24
THE WITNESS:
25
I have it now.
FR
15:38:48
I apologize.
MS. WANG:
17
18
15:37:52
2050 is a set of memoranda from May of 2014 addressed
11
16
15:37:26
Here it is.
Sorry.
Thank you.
15:39:35
3897
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BY MS. WANG:
Q.
appears to be a set of memoranda from SID personnel to you as
the commander of SID in May of 2014 responsive to Chief
Trombi's May 17, 2014 e-mail?
A.
That's what it appears to be, yes.
Q.
All right.
ultimately responsible for SID personnel's responses to that
e-mail, correct?
All right, sir.
Can you let me know whether Exhibit 2050
15:39:53
And so as the commander of SID, you were
10
A.
Yes.
11
Q.
And when you subsequently became the commander of the PSB,
12
you were aware that many of these video recordings could become
13
the subject of IA investigations, correct?
14
A.
Yes.
15
Q.
And in fact, some of them were, correct?
16
A.
Yep.
17
Q.
Now, turn to Exhibit 2051, please.

MS. WANG:
18
20
21
MR. WALKER:
THE COURT:
23
No objection.
15:40:38
No objection.
24
BY MS. WANG:
25
Q.
FR
MR. MASTERSON:
IEN
22
15:40:25
Exhibit 2050.
DS
19
15:40:11
This is a one-page document.
It is on the screen if you'd
15:40:58
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rather take a look at it there.
Let's enlarge the first half.
So, sir, do you see that Exhibit 2051 was a memorandum
2
3
from Lieutenant Seagraves to Chief Lopez dated May 21st, 2014,
concerning the response to Chief Trombi's May 17, 2014 e-mail?
A.
Yes.
Q.
All right.
commander, correct?
A.
Yes.
Q.
All right.
15:41:23
And at that time, Chief Lopez was your
And first let me ask you:
Were you aware of --
10
well, if we go down to the bottom, it appears that you were
11
copied on this memo.
Do you see that?
12
13
A.
Yes.
14
Q.
All right.
15
A.
I recall a series of memos like this during that time.
MR. MASTERSON:
THE COURT:
19
I'm going to overrule the objection.
15:42:06
MS. WANG:
Okay.
23
BY MS. WANG:
24
Q.
25
paragraph in the middle of the page that reads:
FR
The
IEN
22
Your Honor, I'd move the admission
exhibit is admitted.
DS
21
Okay.
15:41:45
of Exhibit 2051.
18
20
And do you recall this memorandum?
MS. WANG:
16
17
15:41:36
So Captain Bailey, I'm going to focus your attention on the

"In reference
15:42:15
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to the above request from Maricopa County Sheriff's Office,
Court Compliance Implementation Division, the Special
Investigations Division does not have any written document or
directive relating specifically to item H."

Do you see that?
5
6
A.
Yes, I do.
Q.
And item H is described right above that, and it refers to
policies relating to the use of recording devices and retention
of data.
Do you see that?
10
A.
Yes.
12
Q.
Sir, are you aware that in fact, HSU did have written
13
policy concerning the use of recording devices?
14
A.
I'm not.
15
Q.
You're currently not aware of that?
16
A.
Now I am.
17
Q.
Okay.
18
A.
Back then I wasn't, I'm sorry.
19
Q.
All right.
20
commander of PSB?
21
A.
Yes.
22
Q.
All right.
IEN
DS
11
15:42:44
15:42:55
Now I am.
Did you become aware of that while you were
15:43:03
So at the time that Lieutenant Seagraves wrote
23
this memorandum on May 21st, 2014, her statement that SID did
24
not have any written document or directive relating
25
specifically to item H was not completely correct, right?
FR
15:42:30
15:43:16
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A.
What I think she's referring to is SID in general, and in
this time, in May, she was writing on behalf of me so I'm not
even sure I was there, if you looked in the upper right-hand
corner, if I was there during that time or not, but I think she
was generally focused on SID in general does not have in our
ops manual the item listed under H.
Q.
correct?
A.
Yes.
10
Q.
And HSU did have a written policy on the use of recording
11
devices, correct?
12
A.
Yeah, I learned that when I was in PSB.
13
Q.
And Lieutenant Seagraves did not mention that in her
14
memorandum, correct?
15
A.
It does not appear she did.
16
Q.
Were you aware at the time you were commander of SID that
17
there were a lot of problems locating video recordings of
18
traffic stops on the part of HSU personnel?
19
A.
Yes.
20
Q.
And that was because there had been a lot of turnover,
21
correct?
22
A.
But HSU at that time was a subdivision of SID,
DS
All right.
15:43:54
15:44:06
15:44:33
IEN
Yes.
23
Q.
24
turned over over time, correct?
25
A.
FR
15:43:42
And the sergeants and lieutenant in charge of HSU had
I'm sorry?
15:44:47
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Q.
There had been turnover in the lieutenant and sergeants
positions in HSU over time, correct?
A.
Yes.
Q.
Now, even before you became the captain in command of SID,
you had had communications with HSU personnel about their
investigations, correct?
A.
Prior to me being the commander?
Q.
Right.
communications with HSU personnel about their operations?
When you were a lieutenant in SID, did you have
10
A.
Probably, yes.
11
Q.
All right.
12
earlier e-mail in the chain on Exhibit 212 -- I should say this
13
is not in evidence -- is an e-mail dated March 31, 2011, from
14
Joe Sousa to Jesse Spurgin.
15
A.
I do.
16
Q.
And you were one of the people copied on this e-mail,
17
correct?
18
A.
Yes.
19
Q.
And the attachment consists of various statistics relating
20
to Human Smuggling Division's operations.
And the
Do you see that?
15:46:19
A.
15:46:32
Yeah, I can see what's up here.
23
Q.
24
lieutenant in SID?
25
A.
FR
15:45:33
Do you see that?
IEN
22
It wouldn't be out of the norm that I did.
DS
21
15:45:16
All right.
Yes.
And as of March 31st, 2011, were you a
15:46:51
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Q.
Now, sir, you moved from directly from command of SID to
command of PSB, correct?
A.
Yes.
Q.
That was in the first week of June of 2014?
A.
Yes.
Q.
There was no gap between those two assignments, right?
A.
A weekend.
Q.
All right.
investigations were already getting underway, correct?
15:47:16
And at that time, the Armendariz spin-off
10
A.
No.
11
Q.
They had not started yet?
12
A.
We were chiefly concentrating on Armendariz.
13
point, we hadn't gotten to the point where the spin-offs were
14
starting to manifest themselves.
15
Q.
16
PSB -- excuse me -- the search warrant had already been
17
executed at Deputy Armendariz's home, correct?
18
A.
Yes.
19
Q.
And the evidence that we've discussed previously in your
20
testimony was already discovered by MCSO, correct?
21
A.
Yes.
22
Q.
And by that point, Cisco Perez had already made his
15:47:36
But as of the time of your transfer to command
IEN
DS
All right.
At that
allegations about pocketing by members of HSU, correct?
24
A.
That was a couple weeks after I arrived in June of 2014.
25
Q.
Okay.
FR
23
Fair enough.
15:47:48
15:48:02
15:48:18
3903
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Now, at the time that you were transferred to command
1
2
of PSB, you were aware that there were going to be IA
investigations relating to Charley Armendariz, correct?
A.
Yes.
Q.
And in fact, you were aware that there would likely be many
IA cases that were going to arise from the Armendariz search
warrant, correct?
A.
Not at the time, I didn't.
Q.
Well, wasn't it true that Chief Deputy Sheridan assigned
10
you to command of PSB because he knew that there would be a lot
11
of IA cases and he knew that you could move quickly?

MR. MASTERSON:
12
THE COURT:
13
Sustained.
BY MS. WANG:
15
Q.
16
Sheridan assigned you to command PSB?
17
A.
From what he told me, yes.
18
Q.
And you previously have testified, on the 13th or the 14th,
19
that it was because he knew there would be a high volume of
20
work and that you could move quickly, correct?
21
A.
Along those lines, yes.
22
Q.
All right.
DS
Sir, were you aware of the reasons that Chief Deputy
IEN
15:48:50
14
15:49:02
15:49:21
And many of those cases would relate to
23
24
A.
25
that case itself.
FR
15:48:33
I think what he was chiefly referring to was Armendariz,

15:49:31
3904
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Q.
All right.
A.
I don't think anybody could anticipate what was going to
come out of them.
Q.
Okay.
A.
Right.
Q.
All right.
As of the first week of June?
15:49:38
Is Exhibit 2053 an e-mail that you sent to members of
7
8
the Monitor Team on June 9, 2014?
A.
Yes.
10
Q.
And you were introducing yourself as the new commander of
11
Internal Affairs, correct?
12
A.
Yes.
13
Q.
And turning to the second page of the e-mail, in the last
14
paragraph you wrote:
15
be conducted with all the past and present HSU members, we are
16
completing a schedule that would allow us to have the
17
approximate 50 members interviewed by July 14, 2014 at the
18
close of business."
"In regard to the interviews that need to
15:50:34
Do you see that?
19
20
A.
Yes.
21
Q.
So as of June 9, 2014, you were aware that PSB would be
22
interviewing all past and present members of HSU, correct?
IEN
DS
15:50:46
23
A.
Yes, as it related to Charley Armendariz.
24
Q.
All right.
25
the chain of command of HSU, correct?
FR
15:50:09
And you were also aware that you had been in

15:51:08
3905
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A.
Yes.
Q.
Did you consider whether you might have relevant
information in that investigation?
A.
No.
Q.
You did not raise any potential conflict of interest with
Chief Deputy Sheridan at the time that you were assigned?
A.
No, I did not.
Q.
To command PSB, I'm sorry.
A.
No, I did not.
10
Q.
You knew that HSU deputies were going to be interviewed,
11
correct?
12
A.
Yes.
13
Q.
You knew that HSU sergeants would be interviewed, correct?
14
A.
Yes.
15
Q.
You knew that HSU lieutenants would be interviewed,
16
correct?
17
A.
Yes.
18
Q.
Did you assume that no one higher than the lieutenant level
19
in the HSU chain of command would be interviewed in connection
20
with those IA cases?
21
A.
22
wouldn't have been a captain to interview, but through the
DS
15:51:35
15:51:52
15:52:05
IEN
That I recall, they didn't have a captain, so there
23
lieutenants, I expected those interviews to be conducted.
24
Q.
25
referring to time periods before HSU was reorganized into SID,
FR
15:51:20
All right.
And is it your testimony that -- you're

15:52:19
3906
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is that right?
A.
Yes.
Q.
And so is it your testimony that as of June 9th, 2014, you
did not think there would be any IA investigations concerning
HSU at any time period while you were in the chain of command?
A.
That's correct.
Q.
That turned out to be wrong, correct?
A.
I can't recall off the top of my head, but I don't remember
any misconduct after I took them over.

Q.
Well, what I'm asking is while you were a commander of PSB,
11
you oversaw many IA cases concerning HSU personnel, correct?
12
A.
Yes.
13
Q.
Some of those cases involved conduct that occurred while
14
you were in the chain of command over HSU, correct?
15
A.
With the exception of the Frei IDs, I can't remember any.
16
Q.
Well, there was the 542 case, correct, and the 543 case?
17
A.
Which were?
18
Q.
Those were the ones conducting by Mr. Vogel?
19
A.
Yes.
20
Q.
All right.
21
testimony we've looked at a number of IA cases that concerned
22
conduct by HSU members at various points in time, correct?
IEN
DS
10
And I believe in the past few days of your
A.
Yes.
24
Q.
Is it your position that none of those cases involved any
25
conduct by an HSU member while you were in their chain of
FR
23
15:52:35
15:52:50
15:53:05
15:53:22
15:53:39
3907
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command?
A.
so I don't know what's exactly in them.
Q.
of PSB to flag cases in which there was conduct by an HSU
member at issue during a time period when you were in their
chain of command?
A.
Not that I can remember.
Q.
Do you recall that while you were the commander of PSB, the
I don't believe it was.
All right.
I didn't investigate those cases
Did you take any steps while you were commander
10
Monitor Team requested a comprehensive list of all members of
11
HSU?
12
A.
Yes.
13
Q.
Covering the history of HSU as a unit, correct?
14
A.
Yes.
15
Q.
All right.
15:54:16
15:54:26
Sir, Exhibit 2757 is a memorandum from Sergeant Fax to
16
you on June 21st, 2014.
Do you see that?
18
A.
Yes.
19
Q.
And the subject line is "Documenting all personnel in HSU
20
by year and identifying the chain of command," correct?
21
A.
Yes.
22
Q.
And in this memorandum Sergeant Fax was attempting to
IEN
DS
17
23
document all members and chain of command of HSU up to the
24
chief level over the course of its -- excuse me -- since its
25
inception, correct?
FR
15:53:54
15:54:58
15:55:17
3908
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A.
Yes.
Q.
Sir, just to reiterate some of your early testimony back on
October 13, you were in the chain of command of HSU from
September 2013 to June 2014, correct?
A.
when I wasn't at the office.
Q.
were at the FBI Academy, right?
A.
Yes.
10
Q.
You were still technically in the chain of command for HSU,
11
correct?
12
A.
13
whatsoever.
14
Q.
15
their chain of command, correct?
16
A.
Yes.
17
Q.
You left Lieutenant Seagraves and one other lieutenant
18
basically in charge in your stead while you were away at the
19
Academy?
20
A.
Yes.
21
Q.
All right.
22
the organizational chart was concerned, correct?
Yes, with the exception of a three-month period of time
Okay.
Well, during that three-month period of time you
15:55:49
Technically, yes, but I had no contact with the division
IEN
DS
But as a matter of the organizational chart, you were in
15:55:58
15:56:09
But you were in the chain of command as far as
23
A.
Yes.
24
Q.
All right.
25
appears to me that you are nowhere listed in Sergeant Fax's
FR
15:55:35
Take a look again now at Exhibit 2757.
It
15:56:23
memorandum as being in the chain of command of HSU.

Is that correct?
2
3
A.
No.
Q.
Is it correct that you're not anywhere listed?
A.
Yes, I'm not listed in here that I can see.
Q.
Okay.
some time period covered by this memorandum, right?
A.
Yes.
Q.
All right.
Now, let's take a look at -Oh.
MR. MASTERSON:
MR. WALKER:
13
THE COURT:
14
No objection.
No objection.
15
MS. WANG:
16
BY MS. WANG:
18
Q.
19
to be a list of HSU call signs, that is, call signs for
20
personnel within HSU as of November 22nd, 2013.
Sir, Exhibit 2820 appears
DS
Now let's turn to Exhibit 2820.
15:57:47
Can you please take a look at that and let me know if
IEN
that appears to be the case to you.
23
A.
That appears to be what it is, yes.
24
Q.
All right.
25
the chain of command for -- on this document, correct?
FR
15:57:27
Thank you.
17
22
15:57:17
Exhibit 2757.
12
21
15:56:59
But you were in fact in the chain of command during
MS. WANG:
10
11
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And you are clearly listed here at the top of

15:58:12
A.
Yes.
MS. WANG:
2
3
All right.
Your Honor, I move the
admission of Exhibit 2820.

MR. MASTERSON:
MR. WALKER:
THE COURT:
No objection.
No objection.
15:58:23
7
8
BY MS. WANG:
Q.
And sir, are you aware that while you were commander of
PSB, the court-appointed monitor team repeatedly asked PSB
11
personnel for a comprehensive list of all HSU personnel?
12
A.
Yes.
13
Q.
And that they were given four different lists, is that
14
correct?
15
A.
Yes.
16
Q.
And that PSB personnel never were able to say with
17
certainty what the comprehensive list of HSU personnel was?
18
A.
It was difficult at the time.
19
Q.
And you were not able to give the Monitor Team a
20
comprehensive list, is that right?
21
A.
22
provided was fairly detailed and accurate.
DS
10
15:58:33
15:58:47
15:58:59
IEN
I believe the last -- the last list that Sergeant Fax
23
Q.
24
Exhibit 2757, or is there some other list?
25
A.
FR
3910
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And when you say "the last list," are you referring to
I'm not sure which time frame it was.
15:59:16
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Q.
Okay.
But at the end of the day, is it fair to say that it
was very difficult to pin down exactly who had been assigned to
HSU over time?
A.
Yes.
Q.
Sir, while you were the commander of the Special
Investigations Division, you had some responsibilities for
responding to monitor requests, correct?
A.
I believe so, yes.
Q.
And the Court Compliance and Implementation Division
10
conveyed some of those requests to you as commander of SID,
11
correct?
12
A.
Yes.
13
Q.
And did you ever resist any of those requests that you
14
received from the monitor via CCID?
15
A.
Not that I recall.
16
Q.
Okay.
17
A.
20- --
18
Q.
930, 2930.
19
entire first page.
16:00:05
Why don't we, actually, Mr. Klein, enlarge the

Thank you.
All right, sir.
Take a look at that, and this is an
21
e-mail chain between Ben Armer and you.
22
A.
16:00:29
IEN
I can see it.
23
Q.
Okay.
24
A.
I vaguely remember this e-mail.
25
Q.
Okay.
FR
15:59:48
DS
20
15:59:29
Have you read the e-mails on that first page?
Now, was it true that Ben Armer -- this is an e-mail
16:00:57
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chain dated April 22nd and 23rd of 2014, correct?
A.
April 23 of '14, yes.
Q.
Right.
22nd, 2014, correct?
A.
Yes.
Q.
All right.
correct?
A.
Yes.
Q.
And is it fair to say that he had alerted
And the earlier e-mail appears to be dated April
16:01:16
Now, Ben Armer, as of that time, was with CCID,
10
Lieutenant Seagraves of PSB of an issue concerning a provision
11
of this Court's supplemental injunction?
12
A.
Yes.
13
Q.
And you are aware that the Court's supplemental injunction
14
required certain procedures to go into effect when MCSO
15
conducted a significant operation.
16:01:43
You were aware of that, correct?
16
17
A.
Yes.
18
Q.
And the order defined "significant operation" as one
19
involving 10 or more MCSO personnel, correct?
20
A.
21
generally, yes.
22
Q.
DS
I think there was a further definition of it, but
IEN
Right.
16:01:54
That was one of the triggers, correct, for those
23
special procedures?
24
A.
Yes.
25
Q.
And CCID, through this e-mail, was bringing to -- you know,
FR
16:01:27
16:02:02
3913
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I think I misspoke earlier and referred to Lieutenant Seagraves
as being affiliated with PSB.
correct?
A.
Yes.
Q.
All right.
SID that the monitors had raised a concern about a way in which
MCSO might circumvent the provisions of the Court's
supplemental injunction concerning significant operations,
correct?
At this time she was with SID,
Now, in this e-mail, Ben Armer was notifying
10
A.
Yes.
11
Q.
And Sergeant Armer was saying that the monitor was
12
concerned that MCSO might use, let's say, nine deputies, or
13
personnel, to conduct an operation specifically to circumvent
14
the special procedures relating to significant operations.
16:02:35
Was that your understanding, based on this e-mail.
15
A.
I think that's what he was trying to convey there.
17
Q.
And Sergeant Armer was requesting that SID personnel meet
18
with him in order to discuss this concern raised by the Monitor
19
Team, correct?
20
A.
I don't know if he asked to meet with us or --
21
Q.
Take a look at the last paragraph here where Sergeant Armer
22
says:
IEN
DS
16
16:02:58
16:03:12
"I am just trying to pass information along to keep any
23
of us from getting in hot water.
24
briefing, maybe Chris Dowell and I can meet with SID leadership
25
to talk about the monitor's concerns to make sure we stay out
FR
16:02:16
If nothing else, after the
16:03:32
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of any gray areas."
Do you see that?
A.
Yes.
Q.
All right.
you need to talk over this potential issue, correct?
A.
Sure.
Q.
All right.
A.
I did.
Q.
And that's the e-mail at the top of Exhibit 2930, correct?
A.
Yes.
10
Q.
Okay.
And you understood that he was suggesting that
16:03:44
You responded to Sergeant Armer, correct?
Let's enlarge that, please, Mr. Klein.
You essentially refused to have that meeting with
11
12
CCID, correct?
13
A.
Yes.
14
Q.
You said the order was clear and you were not going to jump
15
through hoops in order to address any concerns about
16
circumvention of the Court's order?
17
A.
I'm sorry.
18
Q.
You stated that you did not want to jump through hoops in
19
order to address a concern about circumvention of the Court's
20
order, correct?
21
A.
That's what I wrote, yes.
22
Q.
All right.
16:04:22
DS
IEN
16:04:05
Say that again?
23
MS. WANG:
24
THE COURT:
25
FR
16:03:50
I have nothing further, Your Honor.

Cross-examination.
16:04:42
MS. WANG:
1
2
Your Honor, may I remove the admission of
Exhibit 2930?
THE COURT:
Any objection?
MR. MASTERSON:
MR. WALKER:
THE COURT:
No objection.
No objection.
CROSS-EXAMINATION
BY MR. MASTERSON:
10
Q.
Good afternoon, Captain Bailey.
11
A.
Good afternoon.
12
Q.
Let's start off with 2930.
13
at.
14
A.
Yes.
MR. MASTERSON:
15
16
That's the one you just looked
Can we get control for over here?
16:05:47
18
BY MR. MASTERSON:
19
Q.
20
you sent back to Sergeant Armer.
21
Lieutenant Armer now, isn't it?
22
A.
DS
All right.
Let's look at the first paragraph in the e-mail

I guess that's
16:06:05
IEN
Yes.
23
Q.
24
think you told us you didn't want to jump through hoops.
FR
16:05:28
Thank you.
17
25
16:04:50
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Bailey - CX Masterson, 10/28/15 Evidentiary Hearing
Ms. Wang just asked you about jumping through hoops, and I
Could you tell us what you meant by your e-mail back
16:06:24
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to Ben Armer?
A.
make sure we weren't out of compliance in the division, and
when I say there's -- to make it appear we're compliant, I
didn't want to do anything that made it look -- just look like
we're complying.
weren't doing any significant operations, or try and do
operations with less people just to get outside of the order.
Q.
What I meant was we'd already put some things in place to
That we were going to comply.
That we
What's the first sentence in your e-mail back to
10
Lieutenant Armer?
11
A.
12
we will do that."
13
Q.
Were you complying with the order at that time?
14
A.
Yes, sir, I was.
15
Q.
Were you going to try to conduct operations with nine guys
16
in order to get around Judge Snow's order?
17
A.
No.
18
Q.
I'm just a little concerned, and -- about that you don't
19
want to jump through hoops.
20
extra care to comply with the court order?
21
exactly --
23
MS. WANG:
24
FR
25
Q.
16:07:00
"I am absolutely about complying with this order and
DS
Says:
IEN
22
16:06:43
16:07:10
I mean, don't you want to take
I don't understand
16:07:29
Objection.
-- what you mean by that.

MS. WANG:
BY MR. MASTERSON:
Objection, leading.
16:07:37
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Q.
What do you mean by you don't want to jump through hoops?
A.
What I meant, and I didn't explain it well there, is when
operations are underway and there's personnel already engaged
in an operation, it's very hard to modify them on the fly, and
that's based on officer safety.
allowing any operations that would have been in violation of
Judge Snow's order.
Q.
Were you going to comply with Judge Snow's order?
A.
Absolutely.
10
Q.
Were you going to do anything to take advantage of a gray
11
area, or cut a corner to try to get around Judge Snow's order?

MS. WANG:
12
THE COURT:
13
So from the onset, I wasn't
I'm going to sustain that.
BY MR. MASTERSON:
15
Q.
16
perceived gray areas in Judge Snow's order, to try to get out
17
of complying with the order?
18
MS. WANG:
Were you going to try to take advantage of any gray areas,
THE COURT:
16:08:25
Objection, leading.
Sustained.
BY MR. MASTERSON:
21
Q.
22
get around Judge Snow's order?
DS
20
16:08:42
IEN
Did you conduct any operations with fewer than 10 guys to
23
A.
Not to get around Judge Snow's order, no.
24
Q.
Were you going to do any other operations to try to get
25
around Judge Snow's order?
FR
16:08:04
Objection, leading.
14
19
16:07:51
16:08:58
3918
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A.
No.
Q.
Okay.
Sergeant Knapp and the 1459 IDs.
A.
Yes, sir.
Q.
How did that situation first come to your attention?
A.
On July 7th, I arrived at my office in the morning, and
Sergeant Bone and Lieutenant Kratzer walked in, and I think
they said something to the effect of:
believe this.
I'm going to jump to an entirely new topic:
16:09:30
You're not going to
10
Q.
Okay.
What goes through your head at that point?
11
A.
I think I said:
I'll believe anything at this point.
12
Q.
Understandable.
What were you told?
13
A.
That Sergeant Knapp had just brought what at the time was
14
described as a thousand IDs in a large bag.
15
reported to me that he showed up at Property and Evidence to
16
turn them in and wanted them to go back into destruction where
17
he had taken them out, and I was later told that he made a
18
phone call to John Shamley telling him he wanted to bring the
19
IDs back into the Property and Evidence division, and Shamley
20
said he wouldn't -- he refused, he wouldn't take the IDs.
21
Q.
22
said something about he -- Sergeant Knapp took them out of
Initially, it was
DS
IEN
Okay.
16:09:44
Let me ask you about one thing you just said.
16:10:23
You
23
Property where they were scheduled for destruction, is that --
24
did you say "scheduled"?
25
A.
FR
16:10:06
I didn't hear what you --
Yeah, that -- my understanding was he was taking them of a
16:10:41
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a destruction pile, and those get into that pile because
they've lived their evidentiary life.
those IDs over a period of time for his intention to teach a
fraudulent document class that he never got the opportunity to
teach.
Q.
out of the destruction bin or pile or whatever was because I
think Ms. Wang asked you the question:
trying to put them back to be destroyed?
And he was collecting
16:10:57
The reason I was going to ask you about whether they came
Was Sergeant Knapp
10
A.
I don't think he was trying to put them back in order to
11
conceal them or hide them.
12
that that directive had gone out and he was trying to bring
13
them back into Property and Evidence appropriately as
14
destruction item as he took them out.
15
Q.
16
understanding of where they came from to begin with?
17
A.
Yes.
18
Q.
Where's that?
19
A.
In his interview, and I believe in the memo, those items
20
were already designated as items to be destroyed by Property
21
and Evidence.
22
around 2006 could he take items such as these out to teach a
24
FR
25
He probably came to the conclusion
DS
And I think you just told us -- well, do you have an
IEN
23
16:11:13
16:11:29
16:11:43
He had requested earlier by Captain Whelan
fraudulent document class, and Captain Whelan approved that.

Over the course of time, he collected these IDs from
the destruction pile.
16:12:03
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Q.
Now, you mentioned just a couple minutes ago I think a
little bit about how the destruction works in Property.
like you to tell us a little bit more how that process works.
A.
Evidence, they're being held until the case is adjudicated, or
it's dismissed, or whatever the disposition of the case is.
Once those items reach that evidentiary lifespan, so to speak,
they're designated to be destroyed, or held further, or given
back to a victim; there's various categories which you can
Okay.
I'd
When items of evidence come into Property and
10
dispose of this property.
Those items were declared by
11
Property and Evidence to be set for destruction.
12
Q.
13
whole event came to pass?
14
A.
No, sir, I did not.
15
Q.
Did you ask someone to do that?
16
A.
Yeah, I believe Sergeant Bone and Lieutenant Kratzer
17
interviewed him.
18
Q.
Okay.
19
A.
The week of -- that week, same week of July 7th, I believe.
20
Q.
Now, do you recall whether it was the first day you became
21
aware of the IDs, or was it a day or two later, do you know?
22
A.
16:12:38
Did you personally talk to Sergeant Knapp about how this
16:12:55
DS
And when did you do that?
16:13:07
IEN
I believe it was a day to three days later.
23
Q.
24
information and get back to you?
25
A.
FR
16:12:19
Okay.
How long did it take them to find out some of this
Within a few days we had a good idea of what had happened.
16:13:26
3921
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Q.
And I think you talked to Ms. Wang a little bit about there
was a meeting or two with Chief Sheridan about this?
A.
Yes.
Q.
All right.
Chief Sheridan about this.
A.
told the chief that -- what I just explained to you.
Sergeant Knapp had gone to Property and Evidence, or at least
called there, wanting to turn in what we initially believed to
Tell me when you first went in to talk with
16:13:40
The day I discovered that the IDs existed, I went in and

That
10
be a thousand IDs.
And he had a similar reaction then that I
11
did, you know, surprised to hear that.
12
least get an interview done from Sergeant Knapp to get a clear
13
idea outside the memo he authored about where these came from
14
and why he had these for so long.
15
Q.
16
Lieutenant Kratzer to look into that, or --
17
A.
18
for an interview.
19
10th, but I can't be sure at this point.
20
Q.
Now, had you seen any of the IDs at this point?
21
A.
No, the morning of the 7th I ordered that they be picked up
22
and brought to PSB and locked in the storage room.
And I suggested we at
And was that when you asked Sergeant Bone and
16:14:15
Later that day I told them let's -- we need to get Knapp in
IEN
DS
And I want to say it was done the 9th or
23
Q.
Why'd you do that?
24
A.
Because I assumed that we were going to do a further
25
investigation, and I wanted them preserved as evidence, so to
FR
16:13:54
16:14:32
16:14:47
3922
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speak, if an administrative investigation was to be conducted.
Q.
Why did you assume there was going to be an investigation?
A.
'Cause I couldn't explain why somebody had 1500 IDs since
2006 in light of the 1504 Briefing Board that gave direction on
how to dispose of or return IDs back into the organization.
Q.
Who's in charge of Property, did you say?
A.
I don't know who was then; I believe John Shamley is now.
Q.
What -- well, do you know the person's rank at the time
this was going on, this ID situation with Sergeant Knapp was
10
going on?
11
A.
At Property and Evidence?
12
Q.
Yes, sir.
13
A.
I believe John Shamley's a civilian.
14
Q.
Okay.
15
Mr. Shamley to take the IDs back and destroy them?
16:15:29
If you'd wanted to, could you have ordered
MS. WANG:
16
THE COURT:
17
16:15:41
Objection, leading.
Sustained.
18
BY MR. MASTERSON:
19
Q.
20
his capacity as whatever he's called in charge of Property?
21
A.
I guess theoretically I could have.
22
Q.
Could Chief Sheridan give him orders?
IEN
DS
Would you have the authority to give Mr. Shamley orders in
23
A.
Yes.
24
Q.
Did either of you give him orders to destroy the IDs?
25
A.
No.
FR
16:15:07
16:15:53
16:16:08
Q.
3923
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Why not?
MS. WANG:
THE COURT:
Objection, leading.
I'll allow it.
BY MR. MASTERSON:
Q.
Why?
A.
We never had the intention of destroying those IDs.
pulled an IA number and we conducted an interview, retrieved
the memo that he originally wrote to Captain Campbell, and had
every intent of furthering the investigation when the time was
16:16:12
We
10
appropriate.
11
Q.
12
outline.
13
further detail?
14
A.
15
class, and that he wanted to collect IDs from the
16
destruction -- from items that were designated for destruction.
17
And I don't remember all the details.
18
memo, maybe half of a page, two paragraphs.
19
Q.
20
gathered?
21
A.
I believe the primary time was from 2006 to 2009.
22
Q.
Did you have any information -- or even today, right from
Now, what did that memo say?
24
FR
25
I think you gave us a brief
Is that all you can remember, or do you remember any
He said that he had intended to teach a fraudulent document
16:16:41
It wasn't a very long
DS
Did you learn any information about when the IDs had been
IEN
23
16:16:31
16:16:59
that day -- well, let me back up.

From the first day you became aware of these
thousand-plus IDs until sitting there right now, do you have
16:17:23
3924
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any idea how those IDs came into the possession of Property
where Sergeant Knapp got them?
A.
I have no idea.
Q.
Do you have any knowledge -- well, tell me, if you know,
how such IDs could get into Property.
various ways.
A.
I assume there may be
Could you tell me some.
Sure.
MS. WANG:
THE COURT:
Do you want to lay some foundation?
MR. MASTERSON:
10
Sure.
BY MR. MASTERSON:
12
Q.
How long have you been with MCSO?
13
A.
I'm in my 19th year.
14
Q.
Where did you start at MCSO?
15
A.
I started in District 1 Patrol.
16
Q.
So did you go to an academy?
17
A.
Yes, sir.
18
Q.
Did you graduate from the academy?
19
A.
I did.
20
Q.
And you went to District 1 Patrol?
21
A.
Yes.
22
Q.
What were your duties as a patrol officer?
IEN
DS
11
23
A.
24
service, including domestic violence, traffic stops, traffic
25
accidents; a whole myriad of crimes or civil situations that a
FR
16:17:44
16:17:55
16:18:07
16:18:16
As a patrol deputy, you respond to various calls for
16:18:27
3925
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deputy would respond to.
Q.
How many years were you a deputy?
A.
About a year and a half.
Q.
And then what was your assignment?
A.
Went to the General Investigations Division as a homicide
investigator.
Q.
How long did you do that?
A.
Two years.
Q.
Okay.
Let's talk.
Patrol deputy.
So have we covered about, what,
10
three-and-a-half years of your career with MCSO?
11
A.
Yes, sir.
12
Q.
Did you ever come into possession of IDs during that
13
three-and-a-half year period?
14
A.
Many times.
15
Q.
How would that happen, or how could that happen?
16
A.
Traffic stop; minor in alcohol possession; family fight;
17
aggravated assault.
18
somebody's ID for the purposes of identifying the people
19
involved.
20
Q.
What about keeping the ID?
21
A.
I would only keep the IDs if they were evidence in a
22
particular case and I would put them in Property and Evidence.
16:18:53
16:19:02
I mean, it's very common to take
16:19:19
DS
IEN
23
Q.
Okay.
24
A.
Fraudulent.
25
abandoned -- in a vehicle you do an inventory search.
FR
16:18:42
Tell me how an ID could be evidence in a case.

Sometimes you'll find IDs where people have
There
16:19:39
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will be IDs sitting in there that you can't determine one way
or the other how they got there.
In terms of where -- in issues where there's a
3
4
question of identification, who the person or people actually
are, you would take them in that situation as well.
Q.
possession of a suspended license?
A.
Many times.
Q.
How does that work?
10
What about suspended licenses?
Did you ever come into
What happens -- let me back up and ask
you maybe another foundational question.
16:20:08
You stop somebody and -- on a traffic stop and they
11
12
have a suspended license.
13
A.
14
you'd confiscate the ID; or you could actually take them into
15
custody for the suspended license.
16
Q.
Okay.
17
A.
It's going to go into Property and Evidence.
18
Q.
All right.
19
the suspended license you'd take and -- would take into
20
Property and Evidence, and you mentioned other situations where
21
the ID might be evidence and it would be seized, correct?
22
A.
What do you do?
At that point, you could either write them a citation but
16:20:22
What's going to happen to the ID?
DS
Now, you've told -- you've told me about that,
16:20:34
IEN
Yes.
23
Q.
Would that be placed in Property and Evidence?
24
A.
Yes.
25
Q.
During your experience with MCSO -- why don't you just give
FR
16:19:57
16:20:49
3927
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me as many examples as you can think of -- and maybe you've
covered them already, I don't know -- of how an ID could get to
Property and Evidence?

MS. WANG:
THE COURT:
I'm going to allow the question.
THE WITNESS:
I'll give you one example that comes
from the Knapp investigation.
of those IDs, we found the identification of a gentleman named
David Anthony, who was convicted of murder in Maricopa County.
When we looked through some
10
Lieutenant Seagraves was the case agent so she recognized the
11
ID.
12
destruction pile?
One of the questions we had is:
16:21:20
How did it get to the
And after looking into it a little bit, we were in
13
14
homicide.
15
of the case to show identity.
16
County Attorney's Office, was in Property and Evidence.
17
Mr. Anthony subsequently died years later.
18
the destruction pile because it was no longer evidence, and
19
there was no reason to keep it within the agency at that time.
20
Q.
21
vehicle and you may come across an ID?
22
A.
We took the identification of David Anthony as part
It was admitted to the Maricopa
16:21:33
The ID made it to
DS
You mentioned a situation where you're inventorying a
16:21:52
IEN
Yes.
23
Q.
How can that happen?
24
A.
In various patrol areas, people ride together, travel
25
together.
FR
16:21:05
Situations where they're going to and from narcotics
16:22:05
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houses.
As soon as they get stopped by the police, everybody
dumps their ID on the ground or tries to get rid of it so we
can't figure out who they are.
abandoned in vehicles, or if the subjects flee from the vehicle
as you're trying to pull it over, what you're left with is an
ID and nobody there.
Q.
drop houses?
A.
What about drop houses?
Sometimes you'll find those
Do you have any experience with
I never was operationally in -- in HSU I had one experience
10
as the HIDTA commander where we were conducting an operation on
11
a meth lab and a neighbor came to me and wanted me to look at
12
the house across the street.
13
the -- would have been the southwest corner, looked in the
14
window, and there was about 75 people in a bedroom.
Looked through the
window, and didn't know quite what to do at the time, but
17
Lieutenant Sousa responded with the Human Smuggling Unit and
18
they dispositioned the case the way they knew how.
19
Q.
Did you find any IDs in the house?
20
A.
I believe they pulled stuff out of that house for several
21
hours.
22
Q.
DS
16
IEN
Okay.
16:22:37
Myself and another deputy went to
I'd never experienced that before.
15
16:22:58
16:23:13
With respect to the 1459 IDs that Sergeant Knapp
23
brought back, do you know -- well, is there evidence, to your
24
knowledge, of any of them, even one, being unlawfully seized by
25
MCSO?
FR
16:22:21
16:23:42
3929
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A.
I don't know of any.
Q.
Is there any evidence that any of the IDs, even one, was
seized by MCSO?
A.
Other than their presence in Property and Evidence.
Q.
Well --
A.
Maybe I misunderstood the question.
Q.
No, I don't -- I don't think you did, but if a deputy found
an ID in a car like you mentioned, would it go to Property and
Evidence?
16:23:56
10
A.
It should, yes.
11
Q.
Was it "seized" by the deputy or "found" by the deputy?
12
A.
It would have been put in as found property.
13
Q.
What about in an abandoned drop house if IDs were found,
14
would they be seized from anybody or would they be found
15
property?
16
A.
They would be declared found property.
17
Q.
And would they go to Property and Evidence?
18
A.
Yes.
19
Q.
So with respect to the 1459, can you say that even one of
20
them that you know -- and I'm not saying likelihood, maybe
21
90 percent, 50 percent -- but you know even one was seized by
22
anybody at MCSO?
16:24:12
IEN
DS
16:24:28
MS. WANG:
24
MR. KILLEBREW:
25
THE COURT:
FR
23
16:24:39
Join.
Sustained.
16:24:55
3930
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BY MR. MASTERSON:
Q.
where they were removed by Sergeant Knapp?
A.
No.
Q.
All right.
pulled an IA, and you have a memo from Sergeant Knapp, correct?
A.
Yes.
Q.
And I believe you also found a memo from Sergeant Knapp's
supervisor authorizing him to take the IDs to begin with, is
Do you know how any one of those IDs came to be in Property
So you've now found out about the IDs, you
16:25:11
10
that correct?
11
A.
12
approved it on the bottom for Sergeant Knapp to continue to
13
pull or start to pull those IDs out of Property.
14
Q.
15
then.
16
requesting the ID to begin with.
17
A.
Yes, sir.
18
Q.
So you had a memo from Sergeant Knapp requesting the IDs,
19
correct?
20
A.
Yes.
21
Q.
A memo from his supervisor saying, Okay, you can take the
22
IDs.
16:25:25
It was an approval on Sergeant Knapp's original memo.
Oh, okay.
He
So there's another memo I think I overlooked,
There's another memo you had from Sergeant Knapp
IEN
DS
16:25:51
23
A.
24
authors a memo, and on the bottom of it Captain Whelan approved
25
him to do what was requested, which was to take properties out
FR
Not a memo.
16:25:43
It was the same memo.
So Sergeant Knapp
16:26:02
of Property and Evidence.
Q.
is that correct?
A.
I believe in 2006.
Q.
Okay.
investigation where Sergeant Knapp's telling you:
happened.
A.
why he had -- was in possession of those IDs.
Okay.
And then that all took place sometime before 2014,
And then we have another memo as a part of your
16:26:11
Here's what
Yeah, he explains to his then-Captain Campbell, justifying
10
Q.
Okay.
11
A.
No, not that I remember.
12
Q.
All right.
13
you do now?
14
A.
15
the chief deputy advised of what we were doing during that
16
week.
17
Q.
18
well, you pulled an IA number, right?
19
A.
Yes.
20
Q.
And started this investigation?
21
A.
Yes, sir.
22
Q.
And then did you -- I think you told Ms. Wang that the
And then was there anything from Captain Campbell?
All right.
Now -- now what happens?
16:26:27
What do
Pull the IA number, we had Knapp interviewed, and I kept
16:26:47
IEN
DS
I think you told Ms. Wang that at some point you were --
23
investigation was stopped, correct?
24
A.
Yes.
25
Q.
Why was that?
FR
3931
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16:27:02
16:27:10
3932
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A.
I believe the chief deputy -- well, I know now the chief
deputy wanted to confer with Ms. Iafrate.
Q.
Okay.
A.
I believe it did, yes.
Q.
You talked about a couple of meetings, and I want to talk
about -- I want you to talk about meetings you attended, okay?
A.
Yes, sir.
Q.
How many meetings did you attend with Ms. Iafrate present?
Do you know whether that occurred?
Well, let me limit it even further: that were about
9
10
this 1459 ID situation.
11
A.
About --
12
Q.
I'll ask it again.

THE COURT:
13
14
16:27:37
Yeah, I'm not sure I understood the
question.
MR. MASTERSON:
15
Yeah, I don't think I did, either.
16
BY MR. MASTERSON:
17
Q.
18
with Ms. Iafrate that concerned the 1459 IDs?
19
A.
20
20th.
21
Q.
22
happened there?
What I want to know is:
16:27:47
How many meetings did you attend
DS
July 17th, and then the subsequent monitor meeting on July
IEN
Okay.
July 17th.
16:28:05
Let's start with that one.
What
23
A.
24
to us by the monitors of we expected them to talk about.
25
the time, we had been on a -- I'm going to use the word "stay,"
FR
16:27:20
The meeting was designed for us to go over the agenda given

At
16:28:19
3933
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I don't know what the legal terminology is, but for seven weeks
there was very little activity with the Court.
first time we were going to meet with the monitors at that
point, and I wanted to make sure everybody understood their
responsibilities, and that we had everything that the monitors
requested so we could clearly give them what they wanted.
Q.
Did you know about the 1459 IDs during this meeting?
A.
Yes, I did.
Q.
Had there been other IDs that had come to your attention
This is the
10
and the monitor's attention prior to this meeting?
11
A.
Yes.
12
Q.
Had you discussed those other IDs with the monitors?
13
A.
Yes, on several occasions, numerous occasions.
14
Q.
So you knew they were concerned with IDs, is that correct?
15
A.
Yes, sir.
16
Q.
All right.
17
you knew about the 1459 IDs, correct?
18
A.
Yes.
19
Q.
Did you discuss that with Ms. Iafrate?
20
A.
Yes.
21
Q.
Was Chief Sheridan there?
22
A.
Yes, sir.
And during the meeting on the 17th, July 17,
16:29:16
DS
IEN
16:28:50
16:29:05
23
Q.
Did both of you discuss the 1459 IDs with Ms. Iafrate?
24
A.
Yes, we were all present.
25
Q.
What did you decide to do?
FR
16:28:33
What did you all decide to do?
16:29:25
3934
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A.
There was no decision made that day at all.
me and Chief Deputy Sheridan she would let us know on her
recommended direction on how we proceed with these.
Q.
some research, do you remember?
A.
whether they pertain to Judge Snow's current orders that we
were under.
Q.
Okay.
Yeah.
Okay.
Michele told
I think you said -- did she say she wanted to do
16:29:44
What I remember is maybe the question coming up of
Was there a discussion as to whether those IDs I
10
guess were relevant, or would pertain to Judge Snow's current
11
order?
12
A.
13
could give us the best advice possible.
14
Q.
Okay.
15
A.
That was on Friday.
16
to the office expecting to speak with the monitors first thing
17
in the morning, and it was moved back towards the afternoon so
18
we didn't have that meeting until later in the afternoon, I
19
want to say 1 o'clock.
20
Q.
21
monitors?
22
A.
I believe that's what Michele was going to research so she
What happened after that?
DS
All right.
The weekend occurred.
Monday we got
And did you attend the meeting with the
16:30:16
16:30:30
IEN
Yes, sir.
23
Q.
All right.
24
A.
Started out as any other monitor meeting, going through
25
agenda items of what they were asking for.
FR
16:30:04
Tell me what happened there.
And then it turned
16:30:40
3935
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to the questions of previous ID cases.
about the case of Deputy Dickner, Deputy Leroy, maybe another
one, and then the question was asked of me by Chief Kiyler:
Was there any other pending investigations regarding IDs?
I replied no.
Q.
were talking to Ms. Wang, you discussed stopping the
investigation -- what you said was you stopped the
investigation for now.
Okay.
They started asking
And
16:31:05
And let me stop you right there.
Because when you
10
A.
Yes, sir.
11
Q.
12
A.
Yes, sir.
13
Q.
Can you tell me -- tell me about that.
14
there?
15
A.
16
the 20th meeting, obviously, and I was just conferring with
17
Chief Deputy Sheridan and told him we had gotten to the point
18
where we pulled the IA number.
19
with Sergeant Knapp was conducted.
20
Ms. Iafrate was out of town, and the chief deputy didn't want
21
to bother her on vacation so he told me to stop the
22
investigation until he heard more from me or from -- more from
What happened
That was prior to even the 17th meeting, it was prior to
It was in IAPro.
him or Ms. Iafrate.
24
Q.
25
with the monitors, and --
Okay.
16:31:30
Interview
During that week
DS
IEN
23
FR
16:31:25
16:31:48
Now, let's go back -- let's go back to the meeting

16:32:07
3936
OF
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A.
Yes, sir.
Q.
-- what was the question you were asked by Chief Kiyler?
A.
Is there any other pending investigations regarding
identifications or IDs?
Q.
And your answer was?
A.
"No."
Q.
Were there pending investigations concerning IDs, other --
other IDs at that point?
A.
16:32:17
There were other pending investigations outside of the
10
Knapp discussion, but we had already discussed those.
11
Q.
12
issue, and I think you were talking about this meeting with the
13
monitors:
14
did Ms. Iafrate give you advice in how to answer the question?
15
A.
Yes.
16
Q.
I guess my question -- and I interpreted from Ms. Wang's
17
question maybe a bit of confusion as to:
18
front of everybody in a room?
19
A.
20
was sitting to my right, my immediate right, typing some things
21
on her computer.
22
glanced at her, and she just looked at me and said no.
Okay.
When you were asked the question by Chief Kiyler,
16:32:59
DS
IEN
Q.
24
advice?
25
A.
FR
Now, you were talking with Ms. Wang about this
This happened in
How did she give you the advice?
I was sitting at the end of a conference table.
23
Okay.
16:32:31
Michele
16:33:21
And I was asked the question, and I just
So Ms. Iafrate gave you advice and you followed the
Yes, sir.
16:33:40
MS. WANG:
THE COURT:
3937
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Objection, leading.
Sustained.
BY MR. MASTERSON:
Q.
phases.
Are there any other current pending investigations concerning
IDs?
A.
investigations regarding IDs?
When you were asked the -- well, let's do this in two
First off, did you just tell me that the question was:
Was that the question, or something like that?

Something like that.
It was:
Are there any other pending
10
Q.
And your answer was no.
11
A.
Yes.
12
Q.
Was that a true answer?
13
A.
Yes.
14
Q.
Why?
15
A.
When the chief deputy tells me to stop an investigation and
16
don't go any further, it's not a pending investigation until he
17
tells me to proceed.
18
Q.
19
did you look to Ms. Iafrate for advice?
20
A.
Yes.
21
Q.
Did she give you advice?
22
A.
Yes, she did.
16:34:14
16:34:20
IEN
DS
In addition to that, when the question was asked of you,
23
Q.
Did you follow the advice?
24
A.
Yes, sir, I did.
25
Q.
We talked a little bit about this when I first started
FR
16:33:58
16:34:34
16:34:54
3938
OF
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asking you questions about these IDs.
hide these IDs from the monitors?
A.
Absolutely not.
Q.
Were you ever going to destroy the IDs?

MS. WANG:
Objection, leading.
MR. KILLEBREW:
THE COURT:
Were you ever going to
16:35:09
Join.
Sustained.
BY MR. MASTERSON:
Q.
What were you going to do with the IDs?
10
A.
They were locked in a PSB evidence locker behind a closed,
11
locked door.
12
the keys, and I expected that we would investigate these when I
13
was told to proceed with the investigation as we had a number
14
of other times.
15
Q.
And then what?
16
A.
I'm sorry?
17
Q.
And then what?
18
A.
At some point, the monitors would be advised of their
19
existence.
20
Q.
21
employment history and background at MCSO, and I think we went
22
up through -- gosh, what was it now?
Myself and the case agent were the only ones with
IEN
DS
All right.
16:35:31
We talked a little tiny bit about your
16:35:55
A year and a half in
23
patrol and two years in homicide, is that correct?
24
A.
Yes, sir.
25
Q.
All right.
FR
16:35:15
Tell me about your experience in homicide.
How
16:36:14
3939
OF
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was it that you got there and -- well, how did you get there?
I mean, did they just say, Hey, now you're a homicide
detective?
A.
with when I was at other law enforcement assignments outside of
MCSO, to come and work homicide cases at
General Investigations.
Q.
homicide detective?
How's that work?
I was requested by then-Captain Tim Dorn, who I'd worked
Do you undergo additional training before you become a
Give me a little bit of history on how it
10
works when you go to homicide.
11
A.
12
courses that they wanted you to attend to understand the
13
complexities of homicide investigations, which I did.
14
a lot of on-the-job training of going and experiencing the
15
various investigations that we were responsible for.
16
Q.
17
bit ago -- but if you remember, what kind of training did you
18
actually have to go through?
19
A.
20
Vern Geberth; I attended an introductory class here in the
21
Valley, I think it was a week, maybe two weeks long, into
22
homicide investigations with a local group here; and then my
16:36:47
Initially, or at least back then, there were certain
And then
16:37:05
What kind of training, if you remember -- I know it was a
IEN
DS
I went to an advanced homicide class in Las Vegas taught by
23
experience as I gathered it as a member of
24
General Investigations.
25
Q.
FR
16:36:30
Now, when you first become a deputy after you get out of
16:37:20
16:37:40
3940
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the academy, do you go through the FTO program?
A.
Yes, sir.
Q.
And that's a field training officer?
A.
Yes.
Q.
Is there anything similar when you go to homicide?
get another experienced officer and you work with her or him as
you move -- you learn on the job, I think you said.
it work?
A.
Did you
How does
You do, but -- similar to Special Investigations, you have
a field training, although it's somewhat informal.
11
with a more seasoned senior detective and follow their
12
direction and learn from them on what the right thing is to do
13
at the right time.
14
Q.
So did you investigate homicides?
15
A.
Yes, sir.
16
Q.
Do you have any idea how many?
17
A.
No.
18
Q.
I mean, are we -- I really have no idea how many homicides
19
there are around here in a typical year, but I mean, are we
20
talking dozens?
21
A.
During my two assignments at homicide, dozens, at least.
22
Q.
Okay.
IEN
DS
10
You stay
16:38:09
16:38:22
Hundreds?
16:38:36
Give me a little bit of an idea.
23
do you do?
24
You go to a homicide to investigate.
25
you get there?
FR
16:37:50
What are -- what
What are your duties and your responsibilities?

What is it you do when
16:38:54
3941
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A.
Generally responding either from a patrol car or a
citizen's call that something's -- it doesn't sound right or
they've observed something.
scene, you establish the scene the best you can, and you start
evidence collection; you start interviewing neighbors, possible
witnesses; try and determine the cause of death.
When you initially get to the
After the scene is completed, the case agent goes to
7
8
the medical examiner's office and stays with the body until an
autopsy's done to determine the cause of death.
Once that's
completed, you would start on interviews, may be a few, it
11
might be a few dozen, and you start working the investigation
12
that way to determine who is responsible for that person's
13
death.
14
Q.
Do you gather evidence?
15
A.
Yes, sir.
16
Q.
Do you prepare evidence logs?
17
A.
Yes.
18
Q.
Do you then take things to Property and Evidence and log
19
them in?
20
A.
Continuously.
21
Q.
Were you ever the case agent on a homicide investigation?
22
A.
Yes, sir, I was.
IEN
DS
10
23
Q.
24
investigation?
25
A.
FR
16:39:07
16:39:26
16:39:40
16:39:52
Are you then the person primarily responsible for the
Yeah, you're responsible for the direction the
16:40:01
3942
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investigation goes, writing the investigation and getting it to
the County Attorney's Office for charging, and then staffing it
with that particular prosecutor.
Q.
you have a higher rank, or did you have a higher rank and you
direct others what to do, or as case agent are you entitled to
do that?
A.
you would like done next.
Now, do you direct other deputies or -- I don't know.
Do
How does that work?
As a case agent you work closely with the sergeant on what

We have some discretion in order --
10
in terms of directing your peers of what you'd like done next,
11
but the primary job of that is the sergeant of your homicide
12
unit.
13
Q.
14
continuing education as you -- or during the period of time you
15
were a homicide detective?
16
A.
17
training.
18
experiencing a very high volume of homicides in Maricopa
19
County, so we were -- for both my assignments in homicide we
20
were very busy, but we continued with formal training classes,
21
yes.
22
Q.
Okay.
16:40:48
Yes, we're required to do continued training, mandatory
DS
Based on our workload back then, we were
16:41:06
IEN
And what years were this we're talking about now?
A.
My first time, '90- -- '99, 2000, maybe into 2001.
24
Q.
Okay.
FR
16:40:36
Now, did you take any further -- was there
23
25
16:40:18
THE COURT:
There was '99 to 2001?
16:41:25
3943
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THE WITNESS:
THE COURT:
Yes, sir.
Thank you.
BY MR. MASTERSON:
Q.
What was your assignment after homicide?
A.
I went to the FBI fugitive/violent crimes task force.
Q.
Tell me what that is.
A.
It's a multi-agency task force that the FBI put together to
locate, identify, and apprehend violent fugitives in Maricopa
County, and people fleeing Maricopa County or coming into
10
Maricopa County.
11
Q.
How long were you with that task force?
12
A.
Approximately three and a half years.
13
can't remember.
14
Q.
15
You're going to go do this?
16
A.
17
me if I would be interested in going over there, and I said
18
yes.
19
there was several people he identified to go.
20
Q.
I take it you wanted to go there?
21
A.
Yeah.
22
it's a job that I subsequently ended up enjoying a great deal.
16:41:51
Three years.
Is there a selection process, or did somebody just say:

How did that work?
16:42:02
Then-Chief Cooper called me at my homicide unit and asked
IEN
DS
I don't know what his selection process was other than
16:42:16
It seemed like a very interesting experience, and
23
Q.
Why?
24
A.
It was very -- it was challenging in terms of trying to
25
find people who are -- have either gone on warrant status and
FR
16:41:32
How so?
16:42:31
3944
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found guilty of violent crimes, homicide, rape, robbery.
It
was just a challenging assignment trying to find those people
and get them back into custody.
Q.
particular job?
A.
our vehicles to do the job.
additional training there.
Q.
Did you have to undergo additional training to do that
Yes.
16:42:51
The FBI paid for our training and our equipment and
Yes, we went through some
What kind of training -- how long was that training, and
10
what did it consist of?
11
A.
12
to use intelligence sources, how to use certain databases to
13
find certain things out, lots of officer survival, firearms,
14
tactics, classes like that.
15
Q.
16
people that are on the run?
17
A.
Yes.
18
Q.
Now, I really have no idea how that would work.
19
mostly stuff you do in an office on a computer to try to search
20
for information to try to locate people, or are you actually
21
out on the street running around looking for these guys or
22
interviewing people or looking for relatives?
16:43:04
I don't remember the length of it, but a lot of it was how
Did I get it right that you're looking for fugitives,
IEN
DS
Is that what the task force was?
Is this
I don't know.
just want you to tell me how this works.
24
A.
25
case files about like this from the supervisor at the FBI with
FR
23
Sure.
16:43:19
16:43:40
Usually, on Monday morning you would have a stack of

16:43:57
3945
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the various leads that have been developed maybe in others
jurisdictions, other agencies here.
I would do -- on Mondays, I would do computer workups
3
4
on the cases that I was currently carrying to see if there's
any better information.
Had they been brought into the Maricopa County Jail over the
weekend?
into finding those people.
Were they stopped by a another agency?
Anything I could find to get me a -- a starting point
The rest of the week was out assisting other
9
10
detectives or agents on their cases, and them assisting me once
11
we got good leads on the potential whereabouts of a fugitive.
12
Q.
Did you have to interview people at times?
13
A.
On occasion, yes.
14
Q.
Now --
MS. WANG:
15
16
Objection, Your Honor.
I'm still waiting
THE COURT:
experience of Captain Bailey?
19
this?
DS
MR. MASTERSON:
Is that where we're going with
Yeah, we got an awful lot of questions
about investigations that he was supervising, and I think it
22
would be helpful for you to know what his investigation
IEN
21
24
FR
25
16:44:39
Are you trying to establish training and
18
23
16:44:27
to hear the relevance of this line of questioning.
17
20
16:44:12
16:44:50
experience is.
THE COURT:
BY MR. MASTERSON:
I'll allow it.

16:45:05
3946
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Q.
I think you said you interviewed people from time to time?
A.
Yes.
Q.
I guess I'm curious.
citizen who maybe was not involved in any crimes, and then you
might have an investigative lead that could possibly be
involved in crimes.
both occur?
A.
I guess you could interview a private
Did that both -- did those same things
Yeah.
MS. WANG:
THE COURT:
10
Objection, leading; compound.

Sustained.
11
BY MR. MASTERSON:
12
Q.
13
conduct while you were on the FBI task force hunting fugitives.
14
A.
15
employers, friends.
16
that law enforcement is onto them, pursuits would occur,
17
shootings, other crimes would occur, and then you'd have to
18
start over again and get the primary investigation started
19
until the appropriate investigators arrived.
20
Q.
21
you were interviewing either suspects or investigative leads or
22
private citizens?
16:45:32
Tell me about some of the interviews that you used to
I would interview family members, neighbors, past
On some occasions, once they figure out
IEN
DS
Did you develop interview techniques that you utilized when
23
A.
Yes.
24
Q.
Did you work with others in interviewing suspects or
25
investigative leads?
FR
16:45:23
16:45:46
16:46:05
16:46:23
3947
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A.
All the time.
Q.
Did you all have the same interview technique?
A.
No.
Q.
Why not?
A.
People develop their own interview technique based on what
they're comfortable with and how they think the person will
respond.
encourages you to sort of develop your own interview style that
you were comfortable with as long as you were getting to
You know, I went to an interview school where it
10
obtaining truthful statements and obtaining good information
11
regarding what that person may or may not have known.
12
Q.
13
interviewing someone?
14
A.
On occasion.
THE COURT:
MR. MASTERSON:
THE COURT:
19
Sure.
I want to give you plenty of leeway to
DS
establish the investigative experience.

MR. MASTERSON:
THE COURT:
IEN
22
16:47:29
Um-hum.
But in terms of trying to establish this
23
witness as an expert about when it's appropriate to use leading
24
questions, I'm not going to pay any more attention to what he
25
says than I have to what anybody else says, because we don't
FR
16:47:00
(Bench conference on the record.)
18
21
Do you know, Mr. Masterson, can I see you
at sidebar for a minute?
17
20
16:46:50
Did you ever use leading questions when you were
15
16
16:46:30
16:47:41
3948
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have expert testimony yet in this case, and I'm not taking any
expert testimony about how to conduct an investigation.
So in the interest of shortening it up a little bit so
3
4
that we're only dealing with investigative experience, I would
suggest that I'm not too interested in this.

MR. MASTERSON:
THE COURT:
You're right.
I got it.
All right.
MR. MASTERSON:
Okay.
16:47:56
Thanks.
(Bench conference concluded.)
9
10
BY MR. MASTERSON:
11
Q.
12
different detectives and investigators?
13
A.
Yes.
14
Q.
Do all of you have the same investigative techniques?
15
A.
Some techniques may be similar; some may be quite
16
different.
17
Q.
18
with the FBI task force?
19
A.
Yeah, approaching three years, something close to that.
20
Q.
Were you still a deputy at this point?
21
A.
I was a detective.
22
Q.
Okay.
In the course of your career, have you worked with many
IEN
16:48:43
How long did you say -- I'm sorry, three years
DS
All right.
16:49:02
Is that a -- that's not a difference in rank,
23
though.
24
A.
It's a title.
25
Q.
Are you cooler because you're a detective or no?
FR
16:48:27
Is that just an assignment?
16:49:11
A.
Deputy or detective, it didn't really matter to me.
Q.
Get more money?
A.
No.
Q.
Oh, okay.
All right.
3949
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What happened after the FBI deal?
A.
crimes, and then subsequently went back to homicide.
Q.
General Investigations and then a sub-bureau of jail crimes, or
10
is it General Investigations, jail crimes, and that's the whole
11
ball of wax?
12
A.
13
homicide unit, jail crimes, sex crimes, auto theft.
14
missing one, but that -- that was -- General Investigations is
15
now called the major crimes unit, Major Crimes Division.
16
Q.
17
time?
18
A.
For about seven months, then I went back to homicide.
19
Q.
Okay.
20
General Investigations, and then the subset of jail crimes,
21
what does that entail?
22
A.
I went back to the General Investigations Division in jail
Okay.
What's general investigation -- well, is there a
16:49:38
General Investigations was the division that housed the
I might be
16:49:56
And you were specifically dealing with jail crimes at the
DS
Just briefly, tell me what jail -- with the
16:50:12
IEN
There's a very high volume of cases of crimes that happen
23
within our jail system, from aggravated assault to sexual
24
assault, homicide, narcotics cases; it's a very high-volume
25
position.
FR
16:49:20
16:50:30
3950
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Q.
A lot of work?
A.
Great deal of work.
Q.
Do you interview folks?
A.
Yes.
Q.
Interview inmates?
A.
Quite often.
Q.
Interview detention officers?
A.
All the time.
Q.
Interview detention supervisors?
10
A.
Yes.
11
Q.
What about other folks, medical staff, civilian employees,
12
does that happen, too?
13
A.
All the time.
14
Q.
Any idea how many of those sorts of interviews you
15
conducted while you were in General Investigations Division,
16
jail crimes?
17
A.
I have no idea.
18
Q.
I mean, again, are we talking dozens?
19
have any idea at all?
20
A.
21
interviews I ever did, thousand.
22
Q.
16:50:36
16:50:43
Hundreds?
DS
IEN
16:51:09
Now, then back to homicide, did you tell me?
23
A.
Yes.
24
Q.
And how long were you there?
25
A.
I think I stayed there for another two years.
FR
Do you
During my time at General Investigations, all the
Okay.
16:50:55
The second go-round.

16:51:22
3951
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Q.
Still a deputy?
A.
Yes.
Q.
Okay.
change on your second visit with homicide as -- as opposed to
the first time you were there?
A.
same.
Q.
Okay.
A.
I believe so, something close --
10
Q.
Then where do we go?
11
A.
I was assigned to the threats management unit at
12
headquarters on the 19th floor, Wells Fargo.
13
Q.
I'm sorry, I heard something management.
14
A.
Threat management unit on the 19th floor of our
15
headquarters back then in the Wells Fargo building.
16
Q.
Okay.
17
A.
That involved cases, threats against county employees,
18
Sheriff Arpaio, any of our staff, members of the County
19
Attorney's Office; it ran a wide list of cases.
20
Q.
Are there quite a few threats against county employees?
21
A.
Yes.
22
Q.
First off, what was the year you -- you started at this
And has your assignment -- or did your assignment
My sergeant was different but the job was primarily the
Two years, you said?
16:51:47
What --
DS
IEN
16:51:59
And what's threat management?
23
assignment?
24
A.
'03, '04ish.
25
Q.
Okay.
FR
16:51:35
16:52:15
Approximately.
'03, I don't remember.
Can you give me -- and maybe you can't -- a general
16:52:34
3952
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idea of how many threat cases you would investigate, say, the
first year you got there?
A.
Forty or fifty.
Q.
Okay.
read about some of the threats against the sheriff, and I think
he actually testified about a bomb threat or two, but what
other sorts of threats did you investigate while you were in
that particular division?

MS. WANG:
MS. WANG:
11
THE COURT:
12
16:53:04

Sustained.
mean, I think this is going a little too far.

MR. MASTERSON:
15
then.
THE COURT:
17
Let's move on to the next assignment,
That would be great.
MR. MASTERSON:
18
Thank you.
20
BY MR. MASTERSON:
21
Q.
Where'd you go next?
22
A.
Special Investigations.
16:53:18
IEN
DS
interesting.
Okay.
16:53:14
Maybe we can get something more
19
23
Q.
24
about Special Investigations, but I'm not sure you've ever
25
really explained what exactly it is.
FR
16:52:51
I don't mind you developing his experience, but, I
13
16
I mean, we've all
Objection.
MR. KILLEBREW:
10
14
What kind of threats are these?
And why don't you just -- you've talked quite a bit
Why don't you go ahead
16:53:32
3953
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and do that for us.
A.
primarily in charge of narcotics, drug investigations.
the HIDTA task force, which is responsible for a number of
different disciplines in narcotic investigations.
group that investigates narcotics going through the mail
stream; we have a criminal apprehension surveillance team
that's responsible for long-term surveillance and apprehension
of, again, violent fugitives, or assisting patrol districts as
As opposed to major crimes, Special Investigations is
Houses
We have a
10
they get into issues that they need additional manpower
11
resources.
12
Q.
And how long were you on this assignment?
13
A.
When I went to Special Investigations I had been promoted
14
to sergeant.
15
years.
16
force commander at Special Investigations.
17
Q.
18
you were promoted to sergeant and then also lieutenant?
19
A.
Yes.
20
Q.
And how many years had you been with MCSO when you got the
21
sergeant promotion?
22
A.
16:54:07
I was a sergeant for two and a half years, three
Then I promoted to lieutenant and became the HIDTA task
16:54:31
So while you were with Special Investigations
DS
All right.
16:54:45
IEN
Nine.
23
Q.
And then how many --
24
A.
Eight, maybe; I don't remember.
25
Q.
How many between sergeant and lieutenant?
FR
16:53:48
16:54:58
3954
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A.
Two or three.
Q.
And I think what you just told me was both of those
occurred at SID.
A.
Yes.
Q.
Tell me what your duties were as -- well, a sergeant's a
supervisor, correct?
A.
Correct.
Q.
All right.
with SID?
What are your duties as a supervising sergeant
10
A.
11
squad, and I was responsible for the day-to-day activities of
12
the detectives, giving direction on the cases, responding to
13
certain call-outs, administrative duties, things of that
14
nature.
15
Q.
And then you were promoted to lieutenant, correct?
16
A.
Yes.
17
Q.
All right.
18
duties as a lieutenant as opposed to a sergeant?
19
A.
20
unit, and similar in terms of supervision of sergeants now, the
21
direction of the cases, what the day-to-day responsibilities
22
are, making sure administrative tasks are done.
At the time, I was in charge of our parcel interdiction
Now, what changes?
16:55:37
What are your supervisory
DS
16:55:47
As a lieutenant I was responsible for more
24
administrative things like as the HIDTA commander, grant
25
funding, grant allocation; sitting down with other agencies who
FR
16:55:18
As a lieutenant you're overseeing more than one squad or
IEN
23
16:55:06
16:56:06
3955
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wanted to participate in the task force and developing those
relationships.
Q.
Was there more than one lieutenant at SID at this point?
A.
Yes.
Q.
How many?
A.
I want to say three or four.
Q.
Did you all have different duties and responsibilities?
A.
Yeah, we all had different squads; they had different
responsibilities and duties.
16:56:18
Q.
The squads had different responsibilities and duties?
11
A.
Yes.
12
Q.
And you told us about what your duties were.
13
squad, what were they responsible for?
14
A.
As a sergeant or a lieutenant?
15
Q.
Lieutenant.
16
A.
I had the parcel interdiction squad, and I had what became
17
the criminal apprehension and surveillance team, which was
18
largely responsible for apprehending violent fugitives or
19
violent offenders and doing long-term surveillance.
20
the HIDTA task force for five, six years.
21
Q.
22
HIDTA task force is, but can you just -- first off, what's
DS
10
IEN
Okay.
What was your
16:56:41
Then I had
16:56:58
And you gave us a little bit of an example what the
23
HIDTA?
24
A.
High Intensity Drug Trafficking Area.
25
Q.
Okay.
FR
16:56:31
And what did the task force do?
16:57:16
3956
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A.
The task force is federally funded, and it had a myriad of
responsibilities: one, drug interdiction in the southern
deserts of Maricopa County; wiretap investigations; meth lab
eradication.
it's specifically for narcotics interdiction and
investigations.
Q.
All right.
A.
Seven years.
Q.
Okay.
10
A.
I was promoted to captain in September of '13.
11
Q.
Okay.
12
A.
Yeah, I remained at Special Investigations.
13
Q.
Okay.
14
captain at SID?
15
A.
16
squads that were captured under the Special Investigations
17
Division, supervising lieutenants.
18
Q.
Was HSU in SID at that point?
19
A.
Yes.
20
Q.
Were you then the captain over HSU?
21
A.
Yes.
22
Q.
How long were you captain over HSU?
And what was your next assignment?
24
Virginia.
25
Q.
16:57:56
And were you still at SID?
How do your duties and responsibilities change as a
DS
IEN
A.
16:57:43
How long were you a lieutenant at SID?
At that point I had overall responsibility for all the
23
FR
It kind of ran a wide spectrum of narcotics, but
Eight, nine months.
16:58:11
16:58:24
With the exception of when I was in
Was that the FBI academy?
16:58:48
3957
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A.
Yes, sir.
Q.
How did it come to be that you went to the FBI Academy?
A.
I got picked out of a hat.
Q.
Really?
A.
Yes, sir.
Q.
Who picked you?
A.
I don't know.
threw our names in a hat and my name came out.
Q.
Tell me what the FBI Academy is.
10
A.
It's an executive law enforcement academy that's sort of
11
like college.
12
training every day.
13
You wrote papers, which were graded by the staff.
14
college.
15
Q.
How long is the class?
16
A.
Ten, 12 weeks.
17
half months.
18
Q.
Then you graduate?
19
A.
Yes, sir.
20
Q.
And then you came back here and you're still a captain in
21
SID.
22
A.
16:59:02
There was four other candidates, and they
You have class every day.
You have physical
You would have breakout classes at night.
DS
Three months I think I was there, two and a
16:59:40
IEN
Yes.
Q.
What was your next assignment after that?
24
A.
Professional Standards Bureau.
FR
Much like
16:59:32
23
25
16:59:12
MR. MASTERSON:
Okay.
That's where I'm trying to get
16:59:52
you, because that, I think, is a good place to stop, Judge.

THE COURT:
2
3
THE WITNESS:
THE COURT:
You may step down for the day,
Thank you.
17:00:05
Just in terms of timing, will we have Captain Bailey
all day tomorrow?
MR. MASTERSON:
THE COURT:
9
10
Fine.
Captain Bailey.
3958
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Not with me.
Okay.
Then do you have other witnesses
that you're going to call, Ms. Wang, and will they be ready?
MS. WANG:
11
Well, Your Honor, it depends on whether
12
defendants have an answer on the question we've been asking for
13
some time: whether they'll stipulate to the admission of the
14
HSU master logs and the CEU spreadsheet that was produced
15
yesterday.
16
2854, 2855, are the HSU master logs we've been asking about for
17
some time now, and the new exhibit number for the CEU
18
spreadsheet that was just produced yesterday is 2944.
We have exhibit numbers on those.
Exhibits 2853,
17:00:36
We also, Your Honor, if defendants will not stipulate
19
to the admission of those exhibits, we will have to call
21
Lieutenant Jakowinicz, and we'd like to do that tomorrow
22
afternoon, if possible, as soon as Captain Bailey is finishing.
IEN
DS
20
23
We also may need to call Scott Jefferys of the MCSO IT
24
department if defendants will not stipulate to the admission of
25
Exhibits 2851 and 2852, which are the two sets of raw CAD data
FR
17:00:17
17:01:00
17:01:19
that we've discussed for some time now.

THE COURT:
2
3
MS. WANG:
We have been trying to correspond about it
for some weeks now.
17:01:40
MR. MASTERSON:
THE COURT:
7
8
Have you given those exhibits to
Mr. Masterson prior to just telling them to me?
4
5
3959
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I haven't seen them.
All right.
Will you look, please, before
you go home tonight, and see if you can stipulate and -MR. MASTERSON:
I will.
I want to give you warning
10
now, and I don't know, because I haven't seen them, but raw CAD
11
data?
12
supposed to do with it.
13
ones, I really don't know, and you're supposed to sort out
14
what's relevant and what's not, or I'm supposed to determine
15
what's relevant and what's not?
I don't even know what that is, what the Court's
I mean, if we're talking zeros and
17:02:02
I mean, I'll look at it, but I'm just warning you if
16
17
it's volumes of raw data pertaining to every MDT entry or radio
18
dispatch log in MCSO for some period of time, I'm going to have
19
a problem with that, but I'll look.
21
MS. WANG:
Okay.
17:02:18
Your Honor, to be clear, we have been
e-mailing defendants about these exhibits for weeks.
IEN
22
THE COURT:
DS
20
They were
23
produced to us by the defendants, and I just want to make that
24
clear on the record.
25
now.
FR
17:01:48
This is not a new issue we're raising

17:02:32
THE COURT:
3960
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You did make that clear, Ms. Wang.
I just
wanted -- I just didn't know if you'd given him the exhibit
number so he could look at it, and you're telling me you have.

MS. WANG:
THE COURT:
We have, Your Honor.

Okay.
So would you please look, and then
if they're going to need to call those two folks, would you
please facilitate their presence here tomorrow afternoon?

MR. MASTERSON:
THE COURT:
11
Absolutely.
Thank you.
Anything else that we need to raise before the end of
10
the day?
MS. WANG:
12
Your Honor, just a scheduling matter.
14
Mr. Masterson provided this morning at sidebar about
15
Chief Deputy Sheridan's availability -THE COURT:
16
MS. WANG:
17
THE COURT:
That was actually yesterday morning.
I think it was the new information this
Oh.
-- that he -- from Mr. Popolizio, I'm
THE COURT:
23
MS. WANG:
Okay, yeah.
-- that he may not be available early next
24
week.
25
Lieutenant Skinner on on Monday.
FR
17:03:16
sorry --
IEN
22
MS. WANG:
DS
21
17:03:09
morning --
19
20
17:02:55
As things stand now, and given this information that
13
18
17:02:43
As things stand now, it appears that defendants may put

Their estimate, I believe,
17:03:27
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was three hours, and we don't anticipate taking more than that;
perhaps actually far less than that.
And after that, if Chief Deputy Sheridan is not
3
4
available, we'll have a gap of some days.
briefly with defendants the idea of delaying Lieutenant Skinner
and taking the remaining witnesses, which would be defendants'
case in chief, Skinner and Sheridan, and our remaining witness,
Mr. Zullo, all together rather than having us, those of us who
are out of town, fly in just for Monday.

THE COURT:
10
We did just broach
Well, I'm amenable to that, but it isn't
11
clear to me, based on what Mr. Masterson and Mr. Popolizio
12
said, that Chief Deputy Sheridan will be able to testify at
13
all.
14
flexibility on that point, because we had discussed -- if he
15
was not able to testify, we had discussed them designating
16
another witness who could testify on the same subject matter.
MR. MASTERSON:
I don't, Judge, because we're hopeful.
And I haven't talked to Chief Sheridan, it's been about 36
20
hours since I talked to him, so I don't have an update.
DS
19
17:04:47
When I talked to him, he was optimistic that he would
IEN
be able to get here in the not-too-distant future.
But I
23
also -- I think it was optimistic.
24
having him here, and certainly if we don't see him being here
25
next week, then we're going to have to figure out a way around
FR
17:04:28
Do we have any clarity on that at all?
18
22
17:04:08
And so I think we have to have a little bit of
17
21
17:03:48
But the -- we anticipate
17:05:09
this.
THE COURT:
3962
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Yeah.
I think what you're telling me,
Ms. Wang, is that after you either get the stipulation to
introduce the exhibits, or call Lieutenant Jakowinicz and
whoever else it was from MCSO IT, is that going to be the end
of your case, with the exception of Mr. Zullo?

MS. WANG:
THE COURT:
8
9
10
That is right, Your Honor.

All right.
So we're looking at -- your
proposal is we take Friday off, and then we schedule Mr. Zullo,

Chief Deputy Sheridan -MS. WANG:
11
THE COURT:
12
13
17:05:42
Lieutenant Skinner.
-- Lieutenant Skinner all in one block
next week?
MS. WANG:
14
Depending on the availability of those
15
witnesses, Your Honor, I'm proposing that we consolidate the
16
remaining three witnesses, both in our case and in defendants'
17
case, to potentially avoid the need to, for those of us coming
18
from out of town, to come just for lieutenant -- sorry,
19
Captain Skinner on Monday.
21
I'm sorry about that, Captain Skinner.
MR. YOUNG:
17:06:14
Yes, Your Honor, a logistical issue, which
23
is Mr. Zullo.
24
briefing may not be concluded until Monday.
25
then need time to decide that motion, and if documents are
FR
17:05:55
Did you have something you wished to say?
IEN
22
THE COURT:
DS
20
17:05:21
There are some documents as to which the

The Court will
17:06:28
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produced, there will need to be time for the production and for
the review.
THE COURT:
3
4
Well, I don't think there will be much
time for production, because Mr. Popolizio has the documents.

MR. YOUNG:
Yes, that's true.
Hopefully, that will be
pretty immediate.
suppose we're going to receive a log today that will tell us
that.
review the production and then do the deposition before we
10
But we would need a little bit of time, at least, to
could actually have Mr. Zullo appear here.
11
12
13
But I don't know what the volume is.
17:06:56
THE COURT:
So what dates are you suggesting?
MR. YOUNG:
Well, that depends on what happens next
week, in a way, as to Mr. Zullo.

THE COURT:
14
All right.
Well, I will tell you, and I
am not prefiguring -- I'm not prefiguring how I may rule, I'm
16
going to allow Mr. Zullo to provide me any authority he wishes
17
to, but I have done a little research, and I don't think that
18
he's going to be able to prevail on any Fifth Amendment
19
argument as it pertains to documents, and I don't think he's
20
going to be -- because the case law seems clear.
17:07:28
I always wait and see what the parties have to say.
But the
23
Fifth Amendment doesn't apply, really, to documentary
24
materials.
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one way or another.
FR
17:07:08
And again, I -- that's just based on my own research;
IEN
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17:06:40
So I don't think it's going to take me long to rule

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To the extent he's going to make a Fourth Amendment
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argument, again, I'll wait and see what that is.
files a motion for protective order and you get me the response
in Monday, I'll have a ruling for you on Monday or on Tuesday,
one way other the other.
need to be provided, I assume you can provide them rapidly.

MR. POPOLIZIO:
I believe so, Your Honor.
And on this subject of Mr. Zullo, I just want to
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17:07:59
And then Mr. Popolizio, if I rule that the documents
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But if he
inform the Court we have created the log, and -THE COURT:
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How many documents are there?
MR. POPOLIZIO:
12
17:08:12
I don't know offhand, Your Honor.
But
13
I am also apprised that Mr. Zullo will be filing something with
14
this Court.
15
whether it's been filed with this Court.
I had something delivered to me, but I don't know
I'm hesitant to provide anything.
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17:08:35
You know, I don't
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want to be as if I'm filing anything for him, so I just know
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that he's filing something within which he is once again saying
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that he's not consenting to either my providing a log or any
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documents.
THE COURT:
Okay.
And is the document, as far as you
23
or not holding yourself out as representing him -- that the
24
document, as far as you understand, a document that will be
25
filed with this Court if it has not already been in that
FR
17:09:02
can understand -- and I understand you are not representing him
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I want to just leave it at that, Your Honor.
17:09:19
format?
MR. POPOLIZIO:
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All I've been -- I have been informed
that it is in a format of a motion, and that I believe that it
will be filed, but I don't know whether it's been filed or
whether he's going to file it.

THE COURT:
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17:09:35
Do you know whether he has obtained an
attorney?
MR. POPOLIZIO:
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I do know --
I believe he has consulted with
someone, and it appears that an individual is considering,
10
according to what Mr. Zullo's statement is, considering coming
11
in to represent him.
I do not know for sure.
12
I do not want to mislead the
13
Court or state anything that will come back as Mr. Zullo, you
14
know, disagreeing with what my statements are to the Court.
15
I'm just telling the Court what I know at this moment.

THE COURT:
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that.
Thank you.
MR. POPOLIZIO:
18
THE COURT:
19
Thank you.
Well, it would be nice.
I've already set
21
kind of messing us up, but I do want to give him a fair
22
opportunity to be heard if he wishes to be.
IEN
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the schedule, and I gave Mr. Zullo enough time that it's now
17:10:14
So it does seem to me, though, that Ms. Wang's
24
suggestion makes some sense for all concerned.
25
combine, if we can, those three witnesses that remain so that
FR
17:10:03
I won't hold you to any of
20
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17:09:49
That we
17:10:30
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we can take them one after the other.
more days, that gives the advantage of making it, I assume,
more likely that Chief Deputy Sheridan will be able to appear.

MR. MASTERSON:
And if it takes a few
And, Judge, I will tell you that I had
a very brief discussion with Mr. Young about this, I forget if
it was after lunch or at the afternoon break, but I'm
completely in agreement that if we can get this together and so
they don't have to fly back and forth for a day and then go
away for a couple days and come back, if we can find enough
10
days where they can come here, get it done at one -- one
11
sitting, I'll call it, and Mr. Zullo can get his deposition
12
handled and the documents produced and all that, that's fine
13
with us, too.
THE COURT:
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15
MR. POPOLIZIO:
MR. WALKER:
18
THE COURT:
19
No objection.
No, Your Honor.
All right.
Well, why don't we just go
towards that end?
21
or another.
22
your family back home; Ms. Morin, Mr. Segura, everybody from
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FR
25
17:11:18
Does anybody else have any problem with that?
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17:11:07
I think it makes a lot of sense, and I
appreciate the courtesy among counsel.
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17:10:48
It sounds like we may end tomorrow one way
17:11:29
And then Ms. Wang, Mr. Young, you can actually see
the Department of Justice.

But while I agree that it makes sense to combine them
and to give a little extra time if it's necessary, because as
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you say, Mr. Young, you're entitled to look at the documents to
take the deposition.
without redeposing somebody else in lieu of Chief Deputy
Sheridan, we all want to do that, too.
And I suppose that if we can do it
That being said, I don't want to push this matter out
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6
for a whole lot longer.
resolution here.
to be reasonable, but not too reasonable, so let's just see how
it plays out.
We need to -- we need to come to
So that's my inclination.
My inclination is
I will assume, then, that we're -- if you don't think
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11
you're going to have a whole day of cross-examination -- and I
12
don't know, Mr. Walker, do you think you're going to have
13
questions for Mr. Bailey?

MR. WALKER:
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MR. MURDY:
No, Your Honor.
THE COURT:
All right.
17:12:35
And so it will be some
redirect, probably, but it doesn't sound like we're going to be
18
going all day.
And then I assume if we're dealing -- if we don't have
19
a stipulation, these are going to be sort of
21
custodian-of-record type depositions and I'll rule one way or
22
another, but they're not going to be very long -- or testimony,
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DS
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24
FR
25
17:12:23
I doubt it, Your Honor.
17
23
17:12:08
17:12:44
not depositions, I don't assume that's going to take very long.

MR. MASTERSON:
do this, Judge.
And I really don't want to make them
I will look at them.
I just didn't have
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numbers to look at.
But I didn't look at them.
or tomorrow morning and let you know.

THE COURT:
Maybe she did send them, I don't know.
I'll go look at them either tonight
All right.
So the point of all that is it
sounds like we won't be here on Friday, and I won't
reconvene -- well, I won't deem it necessary to reconvene
unless and until I hear from Mr. Zullo.
something with the Court, I'll presume you're going to file
something on Monday, and then I'm going to rule, as soon as I
10
12
But if he files
get your response, one way or another.

MR. YOUNG:
11
Yes, Your Honor.
17:13:26
Then we'll take the
deposition as quickly as we can, and then we'll be ready.

THE COURT:
13
All right.
Well, my suggestion would be
14
once I -- once I rule on Mr. Zullo's motion, if we get it, get
15
in touch with other counsel, determine if we can set up a time
16
when you can come take the deposition.
18
Captain Skinner and then we could have Mr. Zullo and be done
19
all in one -- all in one string for you, and for all the rest
20
of us, too.
21
we'll be off Friday, in any case.
22
Anything else?
IEN
DS
And if that works, we'll do it, but it looks like
17:13:58
Mr. Woods, were you just standing up
or did you want to say something?
24
MR. WOODS:
25
Been sitting for a long time.
FR
17:13:40
Then we can have Chief Deputy Sheridan and we can have
17
23
17:13:10
Just standing up, Your Honor, thank you.

17:14:11
THE COURT:
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We'll see you tomorrow.

MR. YOUNG:
MS. WANG:
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15
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FR
25
(Proceedings recessed at 5:14 p.m.)
21
Well, maybe I'll just say some more things
so you have to sit some more.
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C E R T I F I C A T E
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3
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6
I, GARY MOLL, do hereby certify that I am duly
7
8
appointed and qualified to act as Official Court Reporter for
the United States District Court for the District of Arizona.
I FURTHER CERTIFY that the foregoing pages constitute
10
11
a full, true, and accurate transcript of all of that portion of
12
the proceedings contained herein, had in the above-entitled
13
cause on the date specified therein, and that said transcript
14
was prepared under my direction and control.
15
16
DATED at Phoenix, Arizona, this 29th day of October,
17
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2015.
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IEN
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DS
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24
FR
25
s/Gary Moll

Melendres v. Arpaio #1498 Oct 28 2015 TRANSCRIPT - DAY 16 Evidentiary Hearing

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Melendres v. Arpaio #1498 Oct 28 2015 TRANSCRIPT - DAY 16 Evidentiary Hearing

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OF

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Manuel de Jesus Ortega Melendres,

Joseph M. Arpaio, et al.,

(Evidentiary Hearing Day 16, Pages 3698-3970)

BEFORE THE HONORABLE G. MURRAY SNOW

REPORTER'S TRANSCRIPT OF PROCEEDINGS

Proceedings taken by stenographic court reporter

For the Plaintiffs:

American Civil Liberties Union of Arizona

For the Defendant Maricopa County:

For the Defendant Joseph M. Arpaio and Maricopa County

Jones, Skelton & Hochuli, PLC

Melendres v. Arpaio, 10/28/15 Evidentiary Hearing

For the Movants Christine Stutz and Thomas P. Liddy:

For the Intervenor United States of America:

U.S. Department of Justice - Civil Rights Division

For Brian Mackiewicz:

For Executive Chief Brian Sands:

Melendres v. Arpaio, 10/28/15 Evidentiary Hearing

Direct Examination Continued by Ms. Morin

Memorandum from Detective Frei to Steve Bailey

MCSO Memorandum from Deputy Cosme to Captain

MCSO Memorandum from Lt. Seagraves (on behalf

Document created to keep track of various

Direct Examination Continued by Ms. Wang

Melendres v. Arpaio, 10/28/15 Evidentiary Hearing

Findings of MCSO IA 2014-0547 (MELC160761-985)

E-mail from Brian Mackiewicz to Larry Klayman

Memorandum to Steve Bailey from Stephen Fax

MCSO Professional Standards Bureau IA

Memorandum to Clint Doyle from Brian Mackiewicz 3887

Revised Call Signs dated 11/22/2013

Video Arpaio Thomas Hearing

E-mail from Brian Mackiewicz to Mike Re:

E-mail from Brian Mackiewicz to Jenise Moreno

MCSO Memo from Travis Anglin to Brian

E-mail from Brian Mackiewicz to Michael Zullo

Memorandum to S. Bailey from K. Seagraves Re:

Memorandum to Steven Bailey from Travis Anglin

Melendres v. Arpaio, 10/28/15 Evidentiary Hearing

MCSO Memo from Travis Anglin to Brian

MCSO Memo from Travis Anglin to Brian

MCSO Memo from Travis Anglin to Brian

MCSO Memo from Travis Anglin to Brian

MCSO Memo from Travis Anglin to Brian

MCSO Memo from Travis Anglin to Brian

MCSO Memo from Travis Anglin to Brian

MCSO Memo from Travis Anglin to Brian

Excerpt of PX 2082 - Document 1: "Joe Arpaio

Excerpt of PX 2082 - Document 2: "Arpaio

Excerpt of PX 2082 - Document 3:

MCSO Memo from Travis Anglin to Brian

Melendres v. Arpaio, 10/28/15 Evidentiary Hearing

Excerpt of PX 2082 - Document 4: "Names of

Excerpt of PX 2082 - Document 5: "Check List

Excerpt of PX 2082 - Document 6: "List 2"

Excerpt of PX 2082 - Document 7: "DOJ / Arpaio

MCSO Internal Affairs Division IA #13-0000,

E-mail from Steve Bailey to Benjamin Armer re

E-mail from Mike Zullo to Brian Mackiewicz re

E-mail from Brian Mackiewicz to Larry Klayman

E-mail from Brian Mackiewicz to Larry Klayman