Professional Documents
Culture Documents
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Manuel de Jesus Ortega Melendres, et al.,
No. CV 07-02513-PHX-GMS
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Plaintiffs,
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vs.
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DEFENDANTS SUPPLEMENTAL
STATEMENT OF FACTS RE:
TESTIMONY OF ICE WITNESSES IN
SUPPORT OF THEIR MOTION FOR
SUMMARY JUDGMENT
Defendants.
(Filed Under Seal)
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20, 2010 (Dkt# 329), Defendants Joseph M. Arpaio and the Maricopa County Sheriffs
Office submit the following Supplemental Statement of Facts in Support of their Motion for
Summary Judgment and do so under seal:
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Homeland Security Immigration and Customs Enforcement (ICE). See September 30,
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Corporation
Protective Order regarding the Depositions of Former and Current ICE Employees dated July
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Professional
Pursuant to Rule 56(b), Federal Rules of Civil Procedure, and pursuant to the Courts
2.
Mr. Pena served at the Special Agent in Charge (SAC) of ICE in Phoenix,
Arizona from October 2006 to the end of March 2008. See September 30, 2010 Deposition
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Mr. Pena testified that the 287(g) program allows local law enforcement
officers certified by ICE to enforce federal immigration law. See September 30, 2010
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Mr. Pena testified that ICE trained the MCSO deputies that became certified
under the 287(g) program. See September 30, 2010 Deposition of Alonzo Rafael Pena at p.
18, ln. 20 to p. 20, ln. 13, attached as Exhibit 1.
5.
While Mr. Pena was ICE SAC in Phoenix, he never had an occasion to report
an MCSO 287(g) certified deputy for racial profiling. See September 30, 2010 Deposition of
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While Mr. Pena was ICE SAC in Phoenix, he never had to confront the
Maricopa County Sheriffs Office with an allegation that any of its deputies may have been
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engaged in racial profiling. See September 30, 2010 Deposition of Alonzo Rafael Pena at p.
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While Mr. Pena was ICE SAC in Phoenix, he never reported to ICE
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headquarters in Washington, D.C. that any deputy from the Maricopa County Sheriffs
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Office may have been engaged in racial profiling. See September 30, 2010 Deposition of
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While Mr. Pena was ICE SAC in Phoenix, he did not have concern about, or
voice a complaint to anyone about, the fact that the MCSO was identifying suspected illegal
aliens during traffic stops. See September 30, 2010 Deposition of Alonzo Rafael Pena at p.
93, ln. 21 to p. 94, ln. 21, attached as Exhibit 1.
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While Mr. Pena was ICE SAC in Phoenix, he was aware that MCSO non-
287(g) certified officers that had made lawful traffic stops and had reasonable suspicion that
someone in the vehicle may be in the country unlawfully were calling for assistance of
MCSO 287(g) certified officers. See September 30, 2010 Deposition of Alonzo Rafael Pena
at p. 96, ln. 23 to p. 98, ln. 20, attached as Exhibit 1.
10.
During the 2008 ICE audit of the 287(g) field program between ICE and the
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Professional
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MCSO, the United States Attorneys Office responsible for immigration issues had no
complaint about the MCSOs 287(g) program or the MCSOs compliance with the
Memorandum of Agreement between ICE and the MCSO. See September 30, 2010
Deposition of Alonzo Rafael Pena at p. 122, ln. 11 to p. 123, ln. 10, attached as Exhibit 1;
see also Exhibit 11 to the Deposition of Alonzo Rafael Pena, attached as Exhibit 2.
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in ICE priorities directed by the new executive administration. See September 30, 2010
Deposition of Alonzo Rafael Pena at p. 153, ln. 5 to p. 155 ln. 4; see also p. 155 ln. 12 to p.
156, ln. 3, attached as Exhibit 1.
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ICE terminated the MCSOs 287(g) field authority in 2009 because of a change
Mr. Pena testified that the MCSO did not violate the Memorandum of
Agreement in any manner except on one occasion in regards to providing the public with
information and/or publicity. See September 30, 2010 Deposition of Alonzo Rafael Pena at
p. 156, ln. 25, to p. 157, ln. 10, attached as Exhibit 1.
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At no time did Mr. Pena ever write to Sheriff Arpaio or the MCSO any letter or
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email providing them with a warning or admonition about the MCSOs use of 287(g)
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authority. See September 30, 2010 Deposition of Alonzo Rafael Pena at p. 157, lns. 12-19,
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attached as Exhibit 1.
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Phoenix, Arizona either as an ICE Group Supervisor, or an ICE Assistant Special Agent in
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Charge, or as an ICE Acting Deputy Special Agent in Charge for the Phoenix ICE office.
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See October 1, 2010 Deposition of Jason Douglas Kidd at p. 11, lns. 10 to p. 12, ln. 2,
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attached as Exhibit 3.
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Mr. Kidd worked closely with MCSO personnel in the 287(g) program and the
The MCSO advised Mr. Kidd when it was planning on conducting a saturation
patrol that might encompass the MCSOs 287(g) authority. See October 1, 2010 Deposition
of Jason Douglas Kidd at p. 20, ln. 18 to p. 21, ln. 14, attached as Exhibit 3. Mr. Kidd also
received from the MCSO in advance the MCSO Operations Plans for certain saturation
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patrols. Id. at p. 34, ln. 18 to p. 35, ln. 11. Mr. Kidd also received from the MCSO post-
saturation patrol Shift Summaries. Id. at p. 36, ln. 7 to p. 37, ln. 11.
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Mr. Kidd was also involved in training MCSO deputies regarding 287(g)
authority. See October 1, 2010 Deposition of Jason Douglas Kidd at p. 21, lns. 15 to p. 22,
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Mr. Kidd testified that ICE provided MCSO 287(g) deputies with training
regarding racial profiling. See October 1, 2010 Deposition of Jason Douglas Kidd at p. 23,
ln. 1 to p. 24, ln. 17, attached as Exhibit 3.
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Mr. Kidd is familiar with the MCSOs use of saturation patrols. See October 1,
2010 Deposition of Jason Douglas Kidd at p. 25, lns. 6-12, attached as Exhibit 3. Mr. Kidd
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attended some MCSO saturation patrols and stationed himself at the MCSO command
center. Id. at p. 26, lns. 3-14. Mr. Kidd attended some of the saturation patrols as an ICE
observer. Id. at p. 27, lns. 13-15.
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Mr. Kidd never expressed to the MCSO any criticism of its use of saturation
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patrols. See October 1, 2010 Deposition of Jason Douglas Kidd at p. 31, lns. 2-8, attached as
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Exhibit 3.
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Mr. Kidd was knowledgeable or aware of the fact that the MCSO saturation
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patrols were using violations of the Arizona motor vehicle equipment and moving codes to
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make traffic stops of persons. See October 1, 2010 Deposition of Jason Douglas Kidd at p.
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33, lns. 4-8, attached as Exhibit 3. Mr. Kidd was further knowledgeable or aware of the fact
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that during MCSO conducted traffic stops MCSO deputies were encountering people in the
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United States unlawfully. Id. at p. 33, lns. 9-14. Mr. Kidd never expressed in writing, or
verbally, to the MCSO any concerns about the MCSO using traffic stops and during those
stops identifying people in the country unlawfully. Id. at p. 33, ln. 16 to p. 34, ln. 17.
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ICE was responsible for supervising MCSO 287(g) deputies when they
exercised their 287(g) authority. See October 1, 2010 Deposition of Jason Douglas Kidd at
p. 38, lns. 16-19, attached as Exhibit 3.
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Mr. Kidd never expressed any concern to the MCSO that MCSO 287(g)
certified officers were racially profiling Latinos. See October 1, 2010 Deposition of Jason
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Mr. Kidd has no knowledge that any MCSO 287(g) deputy ever used race as a
basis for making a traffic stop or in using their 287(g) authority. See October 1, 2010
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Under the 287(g) program, the MCSO had the highest rate of encountering and
removing persons that were in the United States unlawfully of any local law enforcement
agencies in a 287(g) program in the country. See October 1, 2010 Deposition of Jason
Douglas Kidd at p. 46, ln. 20 to p. 47, ln. 10, attached as Exhibit 3.
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Mr. Kidd testified that a foreign national working for compensation while
visiting the United States on a tourist visa is in violation of federal law and out-of-status. See
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October 1, 2010 Deposition of Jason Douglas Kidd at p. 121, ln. 1 to p. 125, ln. 9, attached
as Exhibit 3.
DATED this 29th day of April, 2011.
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s/Timothy J. Casey______
Timothy J. Casey
Schmitt, Schneck, Smyth & Herrod, P.C.
1221 E. Osborn Rd., Suite 105
Phoenix, Arizona 85014
Telephone: (602) 277-7000
Facsimile:(602) 277-8663
Co-counsel for Defendants Arpaio and the MCSO
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SCHMITT, SCHNECK, SMYTH &
HERROD, P.C.
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CERTIFICATE OF SERVICE
I hereby certify that on April 29th, 2011, I electronically transmitted the attached
document to the Clerks Office using the CM/ECF System for filing and transmittal of a
Notice of Electronic Filing to the following CM/ECF registrants:
The Honorable G. Murray Snow
United States District Court
401 West Washington Street,
Phoenix, Arizona 85003-2158
Stanley Young, Esq.
Stephen Chien, Esq.
Andrew Carl Byrnes, Esq.
COVINGTON & BURLING, LLP
333 Twin Dolphin Road
Redwood Shores, California 94065
Counsel for Plaintiffs
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SCHMITT, SCHNECK, SMYTH &
HERROD, P.C.
Professional
Corporation
EXHIBIT 1 TO:
DEFENDANTS' SUPPLEMENTAL
STATEMENT OF FACTS RE:
TESTIMONY OF ICE WITNESSES
IN SUPPORT OF THEIR MOTION
FOR SUMMARY JUDGMENT
No. CV 07-02513-PHX-GMS
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) No. CV 07-02513-PHX-GMS
VS.
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~~~~~~~~~~~~~~~~~)
Phoenix, Arizona
September 30, 2010
9:22 a.m.
REPORTED BY:
- -
court reporters
3030 North Central Avenue
Suite 1102
T 602.264.2230
888.529.9990
F 602.264.2245
www.griffinreporters.com
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Enforcement.
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EXAMINATION
BY MR. LIDDY:
Q. Good morning.
A. Good morning.
Q. Thank you for making yourself available.
I'm Thomas Liddy, and I am an attorney for the
County in the Office of Special Litigation. And this is my
colleague, Maria Brandon, who works in our office with us.
And we represent Sheriff Arpaio, the defendant in this case.
Would you please give us for the record your
full name.
A. Alonzo Rafael Pena.
Q. Mr. Pena, where are you currently employed?
A. I'm currently employed in Washington, D.C., with
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A. No, sir.
Q. Okay. How long have you been -- well, let me do
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want to make for the record. Please let them make that
objection. Don't talk over them. And when you give your
answers, just give them as clearly as best of your
recollection so the court reporter can hear.
How long have you been working for the
Department of Homeland Security?
A. Since its creation in 2003.
Q. And prior to the creation of the Department of
Homeland Security, where were you employed?
A. I was employed by the Department of Treasury with
the US Customs Service. And prior to that, I was part of the
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and Firearms.
Q. And when did you first start your employment at the
ATF?
A. In 1984. I believe it was February of 1984.
Q. And any previous employment?
A. I was a Texas state trooper in 1982 to -- till I
left and went to ATF.
Q. Okay. And prior to that?
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in charge in Phoenix, Arizona?
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A I believe the dates were -- I arrived in October of
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2006 and departed in March -- end of March of 2008.
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Q. And was your departure due to a normal rotation as 7]
professionals in -- in your -- in your career path? Was
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there some event that Jed to your choosing to change duty
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stations?
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A They created for the first -- the Department of
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Homeland Security created the first attache for the
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department in Mexico City, and I was asked to apply for that 13J
position.
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Q. Okay. When you were serving as the SAC in Phoenix, 15]
what were your duties?
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A At -- I was the -- as a special agent in charge, I
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was in charge of the District of Arizona, which included lB]
offices in Phoenix, Tucson, Nogales, Douglas, Yuma, Sells. 19]
And we had approximately 400 employees, and I was the 20J
principal in charge of administering the immigration and 21J
customs investigative activities for the entire district and 22J
also the -- administering the administrative responsibilities 23]
as well.
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Q. And who served immediately above you in your chain 25J
of command?
A I think -- there was Bill Reid, who was my -- he
was the Deputy Director of the Office of Investigations,
and -- and Marcie Forman was the Director of Investigations.
So the special agent in charge reports to the director
through the deputy.
Q. And was the Deputy Director Mr. Reid posted in
Arizona or in Washington or elsewhere?
A In Washington, D.C.
Q. Okay. And how many employees of the department did
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you supervise during that period where you served as the SAC? 11]
A Well, as a SAC in Phoenix, I was in charge of -12J
ultimately in charge of the whole district office. So it
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would be whether they weren't in my direct chain of command, l4J
but I was responsible for approximately 400 employees. lSJ
Q. And would it be fair to say that those
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400 employees were organized in the Department of Homeland 17J
Security in which they had leaders to whom they answered that lSJ
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were between you?
A Yes, sir.
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Q. And who were the -- who were the responsible
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persons in leadership positions directly below you?
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A Well, I had two deputies: One here, deputy special 23J
agent in charges. One was Troy Henley. He was assigned here 24J
in Phoenix. The second deputy was assigned in Tucson, 25J
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correct?
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A That's my understanding, yes.
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Q. Okay. How do local law enforcement agencies become 6]
involved with the 287(g) program?
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A Well, I -- I don't know if I can give a -- a -- you
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know, a specific answer on how individual offices or -9]
worked. But, in general, I could say that those agencies 10]
that are -- are aware of it are made aware of it, and they 11]
solicit participation in most cases to participate in the 12]
program.
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Q. So would it be fair to say that, in your
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experience, most local law enforcement that get involved and 15]
operate under287(g), they.approach the Department of 16]
Homeland Security rather than the Department of Homeland 17]
Security approaching them?
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A Ask that again, please. Just I'm not -19]
Q. Yeah. I apologize if I wasn't clear.
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In your experience, most of the local law
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enforcement agencies that operate under 287(g), do they get 22]
involved by approaching the Department of Homeland Security 23]
and asking to get the training to be qualified, or is it your 24]
experience that the Department of Homeland Security reaches 25]
A Yes.
Q. So 287(g) would be a provision of that act, is that
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1] out and approaches local law enforcement and requests they -2] A I think there's a little bit of both. What many
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5] various programs that we have, and 287(g) may be mentioned as
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one of those programs that we have that people can
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participate in.
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The key thing, it's a voluntary program. It
9] has to be -- the request to -- to participate has to be made
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12] and approach us. And, in other cases, again, we may go out
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15] fit for -- for their department. And we also -- we also have
16] to make sure that it's a fit tor us as well.
17] Q. Do you -- do you recall how the Maricopa County
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Sheriffs Office first got engaged with 287(g)?
19] A No.
20] Q. Once local law enforcement seeks to become -- to
21] have some of its officers qualified under 287(g), how are the
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local law enforcement officers certified to work under the
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program?
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Once an agreement's been signed and entered into
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and -- and the program's been accepted?
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BY MR. LIDDY:
2J Q. Okay. And, to your knowledge, when was that
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agreement reached?
A I believe the signature date for Julie Myers was
February 24th of 2007.
Q. 2007?
A Yes, sir.
Q. Okay. And, to your knowledge, when did that
agreement become operational?
A At the completion -- to my -- to my understanding,
it was at the completion of -- of the training, but -- but
the training could begin at the execution of the document.
Q. Okay. And you previously testified that the
training could last from 10 to 12 weeks depending on the
training, is that correct?
A I don't remember exactly the -- the length of the
training. I believe it's in the document, it specifies. But
just off the top of my head, I do not remember what the ...
Q. Is it your understanding that the Maricopa County
Sheriff's Office participation in 287(g) began in 2007?
A Yes.
Q. Specifically with regard to 287(g) and the Maricopa
County Sheriff's Office, what was your role?
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My role was, again, as the person responsible for
the district activities, to have myself and my staff ensure
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or -- or whatever the factors were.
So it -- it's -- it -- it would be -- I mean,
I can't say exactly how it would be -- dependent on the
circumstances, but it would -- again, it would be reported,
and it would be investigated.
BY MR. LIDDY:
Q. While you were serving as the SAC here in Phoenix,
did you ever report an MCSO 287(g) officer for racial
profiling?
A No, I did not.
Q. Did you ever confront the Maricopa County Sheriff's
Office for one of its officers racial profiling?
A No, I did not.
Q. And did you ever notify ICE headquarters that there
was racial profiling on the part of a 287(g) certified
officer at the Maricopa County Sheriff's Office?
A I never notified Washington that there was
incidents of racial profiling in Maricopa County.
Q .. Is it your understanding that participating MCSO
personnel would be exercising their immigration related
authorities during the course of criminal investigations
involving aliens encountered within Maricopa Cou~ty?
MR. POCHODA: Objection. Form.
THE WITNESS: I don't think I. followed the
first part of the question of -- was it -- could you
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in writing?
MR. POCHODA: Objection. Form and foundation.
THE WITNESS: If there was violations of the
MOA, if there was an abuse of the -- of -- and a
noncompliance, I would have probably -- again, going back to
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Bl the best to proceed, I would either -- either verbal -- you
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101 pursued other, through -- you know, again, depending on the
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121 reported it to headquarters. And, if necessary, I would have
131 put it in writing if I felt that that was the best course
141 to --you know, to -- to -- to express to the sheriff -151 sheriffs department that they were in noncompliance. But,
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But just to hopefully be clear, it would have
191 not been tolerated. I -- and it -- there would have been
201 action taken. But exactly what that action, that would,
211 again, be dependent on the circumstance.
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BY MR. LIDDY:
231 Q. When an individual was booked on an Arizona state
241 charge and it was later determined by jail enforcement
25 J officers that they were aliens without legal status, how did
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had not violated any state laws -- oh, excuse me -- that that
person, that detainee, had not violated any state laws, that
the non-trained officer would have to request a trained
deputy to respond to the scene?
MR. POCHODA: Objection. Form and foundation.
THE WITNESS: Here -- here in the state of
Arizona, there is -- and particularly in the Phoenix area,
any law enforcement officer, whether he's 287(g) trained or
not, that if he made a legal traffic stop -- and if that's
the question -- and -- and the -- in the course of his duty
the person is detained and is not exceeding the amount of,
you know, time that he could have that person detained, if he
has -- and your -- and your question, if I followed it right,
has some type of reasonable suspicion that the person may be,
can he call a -- a trained 287(g) officer to further the
inquiry?
BY MR. LIDDY:
Q. Yes.
A That -Q. That is the question.
A. I would say that is correct.
Q. Okay. So if a -- I just want to be clear on the
record.
If a non-287(g) certified deputy had a traffic
stop and then determined that the person stopped was not
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3] 287(g) certified officer to the scene?
MR. POCHODA: Objection.
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THE WITNESS: What is -SJ
MR. POCHODA: Objection. Form and foundation.
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9J own state charges. And it has to be reasonable, the amount
lOJ of time reasonable in -- in -- in requesting assistance to
llJ come make a determination regarding the status.
BY MR. LIDDY:
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Q.
As SAC, do you recall ever expressing in writing
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lSJ that were not 287(g) certified were detaining individuals
16J that were determined not to have violated the Arizona state
17J law and were calling 287(g) certified officers to the scene
18J to determine whether there's legal status?
19J A. I never put anything in writing that addressed
20J that, as you stated it there.
21J Q. Thank you.
MR. LIDDY: How much more time do we have on
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THE VIDEOGRAPHER: 1O minutes.
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Investigations. I just want to make that clarification.
2]
So it appears from this document, since he was
3] in this position, that this -- this team may have been a -- a
4] Management Inspection Team from his -- from his division.
5] Q. And right below that under the next bullet point,
6] and it's in all caps USAO. Could you tell us what that
7] stands for.
8] A United States Attorney's Office.
9] Q. So it says, "USAO - chief who handles immigration
10] violations - had no complaints about the program."
11]
Immediately following that, it says, "FBI
12] SAC."
13]
And would you tell us what that stands for.
14] A Federal Bureau of Investigations Special Agent in
15] Charge.
16] Q. Would that be the highest ranking special agent in
17] the Phoenix field office?
18] A That would be correct.
19] Q. Would that be the rough equivalent of your position
20] here for the FBI as opposed to ICE?
21] A Yes, it would.
22] Q. So he would be your FBI counterpart?
23] A Yes, he would.
24] Q. Do you know who the U.S. Attorney's Office chief
25] was at the time of this document, September 2008?
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this page, the fifth bullet point there. Right above that,
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it reads, "The team conducted the following external
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interviews."
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Do you see that?
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A Yes, I do.
Q. As your reading of this, do you know what team they 11]
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are referring to, the authors of this document?
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MS. STRANGE: Objection. Foundation.
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THE WITNESS: I -- I need to stand corrected
on something I said.
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BY MR. LIDDY:
Q; Okay.
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A Bill Reid at this -- apparently now that I look at
the document, he had different positions. And this one he's 19]
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signing as when he was the director of the Office of
Professional Responsibility. He also served as the deputy 21]
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director of the Office of Investigation.
23]
So when I initially answered this question and
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I -- I referred to Mr. Reid's title, I thought he -- at that
time he was the director of -- of -- the deputy director of 25]
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with the new priorities set forth by ICE.
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4J Q. So when you say renew, you don't mean that the
5] exact same MOA would be renewed, but that a new MOA that had
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the old MOA?
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MS. STRANGE: Objection to form.
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THE WITNESS: I was not the decision maker.
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messenger?
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21J Q. Do you know the specific reasons and the factual
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BY MR. POCHODA:
2] Q. And then following page 31, there are the exhibits,.
Understanding -- excuse me -- Memorandum of Agreement other
3] the attachments to this complaint, Attachments A, B, C and D.
than what you previously referred to involving press
4] If you could turn to those. Exhibit A is entitled Memorandum
availabilities and press conferences?
5] of Agreement.
MR. POCHODA: Objection .. Form and foundation.
Would this be the MOA that was -- that you
6]
THE WITNESS: To my knowledge -- oh, excuse
7] were talking about earlier that was signed by Maricopa County
me.
8] ICE and the sheriff and it was in force while you were the
To my knowledge, no, I was not aware of any
SAC in Arizona?
9]
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other, other than the one I mentioned as you described.
A. Yes, it was. That's what it -- yes, it appears to
11] be that, that document.
BY MR. LIDDY:
Q. At any time while you were SAC Phoenix, did you
12] Q. And then. continuing on to what's page 14 -- no, no,
13]. no. I'm sorry. That's this. Page 18, Exhibit B. And then
ever write any letter of warning or admonition to the
Maricopa County Sheriff or the Maricopa County Sheriff's 14] turning to page 19, that's a fact sheet.
Office regarding its use of 287(g) authority?
15]
Do you see that?
16] A. Yes, I do.
A. And, again, as I stated previously, most of my
core- -- discussion and correspondence with the sheriff's 17] Q. And that's a fact sheet that's prepared and -- and
office were -- department were verbal, and I did not draft a 18] used by !CE to instruct folks how to go about enforcing the
document as you stated.
19] MOA, is that correct?
Q. Did you ever draft a document or an e-mail to
20]
MS. STRANGE: Objection to form. Foundation.
Maricopa Sheriff -- Maricopa County Sheriff's Office
21]
THE WITNESS: I am not familiar with this
officials documenting that the Maricopa County Sheriff's 22] document.
Office had violated any portions of the Memorandum of -- 23] .
BY MR. POCHODA:
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Page 160
EXAMINATION
BY MR. POCHODA:
Q. I'm Dan Pochoda, the.counsel for the plaintiffs in
this underlying action.
MR. POCHODA: And let me start by giving this
major piece to the reporter for number which we'll just
continue.
(Exhibit 15 marked for identification.)
BY MR. POCHODA:
Q. Mr. Pena, I've given you what's been marked as an
exhibit, Exhibit 15. That includes for the first 31 pages
the first amended complaint in this case of Ortega
Melendres vs. Arpaio.
Do you see that?
MS. BRANDON: Do you have a Bates stamp on it?
MR. POCHODA: There is no Bates stamp. It's a
pleading.
THE WITNESS: Yes, I do, sir.
MR. POCH ODA: It was provided to -- the hard
copies to your office.
MR. LIDDY: We're looking for them.
(Next page, please.)
ll Q. Okay.
2] A. I mean, I'm not -3] Q. It's dated September 24th, 2007?
4] A. Yes. Yes, sir.
SJ Q. It's -- it's not a document that you're familiar
6] with?
7] A. I am familiar in the sense of it was shown to me
8] for the preparation for this -- for this deposition. But
9]
prior to that, I did not recall having -- do not have
10] familiarity with it.
11] Q. So that when you were at SAC in Phoenix, you did
.12] not, in fact, follow then this particular document in terms
13] of.guidance about how to go about supervising the MOA here in
. 14] Arizona?
15]. A. What I'm saying, I do not recall reading this
.16] document. No, sir .
17] Q. Did -- did ICE provide you with any other format
181 for a fact sheet or guidance about how to go about enforcing
19] and supervising the. MOA in 2007?
20]
MS. STRANGE: Objection to form.
21]
THE WITNESS: Could -- could you repeat that
22] question?
23] .
BY MR. POCHODA:
24] Q. That's okay. I withdraw the question.
25] A. Okay.
Min-U-Script
EXHIBIT 2 TO:
DEFENDANTS' SUPPLEMENTAL
STATEMENT OF FACTS RE:
TESTIMONY OF ICE WITNESSES
IN SUPPORT OF THEIR MOTION
FOR SUMMARY JUDGMENT
NO. CV 07-02513-PHX-GMS
__ __________
--
--f~----
Cc:
Subject:
Summary of the Maricopa County 2879 Inspection
All,
MCSO has conducted approximately 150,000 Interviews of arrestee and processed about 14,000 for removal. Almost
all of the processing occurs ln the jail after arrest for a state or local violation.
The 2879 trained street deputies are assigned to Community Action Teams (CAT). The CAT ls ldentlfied in the MOA.
The focus Is on crime in geographic areas and the deputies use all of their law enforcement aUlhorjty during the
operations. MCSO develops operations plans for the CAT team activity, and shares the plans with the SAC office.
Arrests are for vlolatlons of state or local laws. All arrestees are brought to the jail and those.subject to removal are
processed for rarnoval.
The number of trained deputies agreed upon rn the MOA is 160 although there are currently 189 trained. to
accommodate rotations. A process needs to be developed to de-authorize 287g trained officers.
Of note was that morale was generally low among the 40 deputies (recent hires) assigned to the )all who process for
removal (morale among all of the jail depUlies is low understandably, as they would prefer to be on the street).
These 40 feel that processing Is an added burden to the already burdensome jail assignment. MCSO would Uke a
steady flow of newly trained deputies to allow for rotation out of the Jail.
Director
OHS/ICE Office of Profossional Responsibility
ICE 582
9/14/2009
EXHIBIT 3 TO:
DEFENDANTS' SUPPLEMENTAL
STATEMENT OF FACTS RE:
TESTIMONY OF ICE WITNESSES
IN SUPPORT OF THEIR MOTION
FORSUMMARYJUDGMENT
NO. CV 07-02513-PHX-GMS
)
)
)
)
)
vs.
) No. CV 07-02513-PHX-GMS
)
)
)
)
~~~~~~~~~~~~~~~~~~~)
Phoenix, Arizona
October 1, 2010
10:35 a.m.
REPORTED BY:
court reporters
www.griffinreporters.com
Melendres v.
Arpaio
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JASON DOUGLAS KIDD,
called as a witness herein, having been first duly sworn, was 10]
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examined and testified as follows:
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EXAMINATION
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BY MR. LIDDY:
Q. Good morning, Mr. Kidd. I'm Thomas Liddy, and I 15]
represent Defendant Sherril Joe Arpaio. Thank you for 16]
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enjoying us this morning.
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Would you please state your full name for the
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record.
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Jason
Douglas
Kidd.
A.
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Q. Okay. And where do you reside?
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A. In lttigen, Switzerland.
Q. Okay. And are you currently taking any medication 23]
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that might impair your memory?
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A. No.
County, Sheriff Joe Arpaio.
MS. BRANDON: Maria Brandon on behalf of
Maricopa County Public -- Sheriff Arpaio.
MS. STRANGE: Elizabeth Strange on behalf of
ICE.
THE VIDEOGRAPHER: You may swear the witness,
please.
Q.
A.
Q.
A.
Q.
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Melendres v.
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authority. Or notified.
BY MR. LIDDY:
Q. All right. And, generally speaking, how much
advance notice would you receive from them prior to them
going operational?
MR. POCHODA: Objection. Form and foundation.
THE WITNESS: The time varied. Some
operations I knew two weeks in advance. Some operations I
didn't find out till the day before.
BY MR. LIDDY:
Q. And were there some instances when you did not find
out until the operations were ongoing or after they had
occurred?
A Not thatl recall.
Q. Were you involved in any way in the training of
Maricopa County Sheriffs Office personnel who became 287(g)
certified?
A Yes.
Q. Would you describe your involvement.
A In 2007, I began coordinating the classes, bringing
in instructors, instructing and putting together background
packets and getting the background interviews and
coordinating those with Maricopa County and with ICE
headquarters.
Q. Did you provide any of the training yourself?
11 Q.
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Melendres v.
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A
Q. Do you recall what the question was?
A No.
Q. Al the time, was
an employee of
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ICE?
A Yes.
Q. Was the question posed to him by a 287(g) certified
Maricopa County Sheriffs Office officer?
MR. POCHODA: Objection.
MS. STRANGE: Objection. Foundation.
MR. POCH ODA: Formation -- foundation.
THE WITNESS: Yes.
BY MR. LIDDY:
Q. Do you recall who asked the question?
A No.
Q. While you were visiting the command post in
Guadalupe, did you observe any activity by MCSO 287(g)
certified personnel that was outside conformance with the
MOA?
MR. POCHODA: Objection. Form and foundation.
MS. STRANGE: Foundation.
THE WITNESS: No.
BY MR. LIDDY:
Q. When you were visiting the command post during the
saturation patrol in Phoenix, do you recall observing any
activity by Maricopa County Sheriffs Office certified
personnel that was outside the conformity with the MOA?
MR. POCHODA: Objection. Form and foundation.
THE WITNESS: No.
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BY MR. LIDDY:
Are you aware whether Maricopa County Sheriffs
Office 287(g) personnel -- let me withdraw that question.
Start again.
In your experience as the DSAC in Phoenix,
were you ever aware of the Maricopa County Sheriffs Office
employing the tactic of zero tolerance?
MR. POCHODA: Objection. Foundation.
THE WITNESS: I don't remember receiving
anything that used those words.
BY MR. LIDDY:
Q. While you were serving as the DSAC in Phoenix, were
you aware that Maricopa County sheriffs officers could
encounter a subject that could be charged with Arizona laws
and not federal immigration laws?
MR. POCHODA: Objection. Foundation.
THE WITNESS: Yes.
BY MR. LIDDY:
Q. Would that include traffic violations?
A Yes.
Q. Would that include during saturation patrols?
MS. STRANGE: Objection to form.
THE WITNESS: Can we go back and restate? The
question was -(Next page, please.)
Q.
Melendres v.
Arpaio
11
BY MR. LIDDY:
21 Q. Sure. Sure.
31 A. -- too -4J Q. When you were serving as DSAC in Phoenix, were you
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BY MR. LIDDY:
And how do you know that?
A. I reviewed the operations plans, and they were
talking about prosecuting state crime.
Q. So the answer is, yes, you did review the
operations plans?
A. Operations plans, yes.
Q. Okay. Why did you review the operations plans?
MR. POCHODA: Objection. Form.
THE WITNESS: They were sent to me in advance
as a notification.
BY MR. LIDDY:
Q. Why were they sent to you if they did not involve
potential use of 287(g) authority?
MR. POCHODA: Objection. Foundation.
THE WITNESS: They were sent to me because
they were operations that the Human Smuggling Unit was doing,
and they could involve the use of 287(g). So they would send
them to me.
BY MR. LIDDY:
Q. What is the Human Smuggling Unit?
A. It's a group within Maricopa County Sheriff's
Office of deputies and detention officers that work human
smuggling within the County of Arizona.
Q. Did you ever meet with any of the members of the
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them about how these saturation patrols went and whether or
not they were citing people that they encountered with
traffic violations and things of that nature.
SJ Q. Do you remember to whom you spoke on that topic?
6J A. I'm pretty sure I spoke to Joe Sousa.
71 Q. Do you recall ever expressing your concerns that
81 MCSO was identifying aliens without legal status present in
91
the United States during civil traffic stops to your
101
superiors in ICE?
111 A. We had internal discussions about how the
121 operations were going. I wouldn't say they were concerns.
131 It was just discussions of whether that was within the scope
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of the MOA.
1s1 Q. The question was in writing.
161 A. Oh, in writing? I'm sorry. I didn't hear that.
171
I don't recall, no.
101 Q. While you were serving as the DSAC in Phoenix, did
191 you ever review operations plans of the MCSO 287(g) certified
201
personnel?
211
MS. STRANGE: Objection to form.
221
MR. POCHODA: Objection. Form.
231
THE WITNESS: The operations plans were
241
dealing with state crime, not 287(g).
2s1
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A Yes.
Q. Were any of them Hispanic?
A. Yes.
Q. Were more than one of them Hispanic?
A. Yes.
Q. Did you ever review shift summaries of the Maricopa
County Sheriff's Office?
A. Yes.
MR. POCHODA: Objection. Foundation.
BY MR. LIDDY:
Q. What is a shift summary?
A. The shift summary was a document prepared and
transferred -- or transmitted to ICE regarding like a
post-action report of an operation and entailed several
details of that operation.
Q. What were some of the types of details that would
be included in a shift summary?
A. A shift summary would include a number of arrests,
number of aliens that were arrested of those -- of the total '
number arrested, how many of those were illegal aliens. It
would include how many -- where -- what country they were
from, the male or female, juvenile or adult, custody status,
how they were processed, the way they were encountered and
also the other -- usually how many warrants were cleared
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based on the shift.
2] Q. Did the shift reports only include information on
3]
individuals that were arrested?
4J A. No.
5J Q. What other information did the shift summaries
6] include other than about individuals that were arrested?
7] A. Sometimes if there was a -- an incident or
8] something strange that would happen, they would put a note in
9] there so that we would be aware of things that would happen
10] within the media and things like that. How many protesters
11]
might be out or -- or anything of that nature.
Q.
Was there any information in the shift summaries
12]
13J that you reviewed regarding the ethnicity of individuals
14J encountered by Maricopa County Sheriff's personnel during one
15]
of these operations?
MS. STRANGE: Objection to form.
16]
THE WITNESS: No.
17]
BY MR. LIDDY:
18]
19] Q. Were there -- was there any information in the
20J shift summaries regarding individuals that were encountered
but were not arrested present in the shift summaries?
21J
22J A. Not that I really recall other than what I
mentioned before of incidents.
23]
24] Q. Was it part of your responsibility as the DSAC in
25J Phoenix to handle inquiries from the field via the telephone?
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BY MR. LIDDY:
Q. What about the term -- terms Latino and Latina?
What do they mean?
MR. POCHODA: Objection. Form and foundation.
THE WITNESS: I don't -- I don't know. I've
heard them.
BY MR. LIDDY:
Q. But, in your experience, those terms are not used
in official documents by federal law enforcement?
A No.
Q. Can you describe for me any other activities you
undertook in your -- in carrying out your duties as
supervising MCSO 287(g) -- 287(g) personnel.
MR. POCHODA: Objection. Form.
MS. STRANGE: Objection to form.
THE WITNESS: Coordinating training.
Recurring training. Signing documents. Answering questions.
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A.
Yes.
Q. Are you familiar with the ICE website?
A. Yes.
Q. Was the ICE website part of the Memorandum of
Agreement?
A. No.
MR. LIDDY: Can you -- where are we on
exhibits? 35?
THE COURT REPORTER: 34.
MR. UDDY: 34. May I ask you to mark that as
Exhibit 34.
(Exhibit 34 marked for identification.)
MR. LIDDY: Here. Hand it to me.
BY MR. LIDDY:
Q. I've asked the court reporter to mark as Exhibit
Number 34 -MR. POCHODA: What is it?
MR. LIDDY: -- a document that appears to be a
record of an e-mail. It is identified by Bates number
ICE 484. And it appears to be an e-mail from Jon Gurule,
G-U-R-U-L-E, to three individuals, the first of which is
Katrina Kane, K-A-N-E, and it is dated March 11th, 2008.
Have you found a copy of that?
MR. POCHODA: Yes.
MR. LIDDY: Okay. Hand that to the witness.
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BY MR. LIDDY:
A. Uh-huh.
Q. Have you ever seen this document before?
A. Yes.
Q. And when did you see it before?
A. I was during the time forwarded a copy of these
statistics from Josh Rosenbaum.
Q. Is that while you were serving as the DSAC?
A. I was probably an ASAC at the time since it's in
March of 2008.
Q. Who is Katrina Kane?
A. Katrina Kane is the field office director for the
Office of Enforcement Removal Operations, Phoenix, Arizona.
Q. And, as you understand them, what were her
responsibilities serving in that capacity?
A. She's responsible for all of the detention and
removal operations within the state and to include custody of
aliens and things of that nature.
Q. What's the significance of the statistics presented
in this e-mail?
MR. POCHODA: Objection. Formation -foundation.
THE WITNESS: The statistics were sent to us,
2SJ and basically saying how many people Maricopa County has
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Melendres v.
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l] A. Yes.
2] Q. Do you know both of them?
3] A. Yes.
4] Q. And who are they, and where do they work?
5] A. Roger Applegate, I'm not sure where he's working
15J
16]
now, but he was working with OPR at the time, I believe, the
Office of Professional Responsibility in ICE headquarters in
D.C.
David Alejandro was working in the 287(g)
program in ICE headquarters and handling mostly the detention
issues at that point.
Q. In your own words, what does this e-mail refer to?
MR. POCHODA: Objection. Form. The e-mail
speaks for itself.
THE WITNESS: As I stated before, there were
several -- when the classes began, the background interviews
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