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UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Manuel de Jesus Ortega
Melendres, et al.,

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Plaintiffs,

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vs.

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Joseph M. Arpaio, et al.,

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Defendants.

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REPORTER'S TRANSCRIPT OF PROCEEDINGS

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BEFORE THE HONORABLE G. MURRAY SNOW

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(Evidentiary Hearing Day 4, pages 1019-1035)

OF

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SEALED PROCEEDINGS

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DS

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Court Reporter:

IEN

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Phoenix, Arizona
April 24, 2015
5:37 p.m.

TH

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CV 07-2513-PHX-GMS

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Case 2:07-cv-02513-GMS Document 1041 Filed 04/27/15 Page 1 of 17

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FR

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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

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A P P E A R A N C E S

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For the Plaintiffs:

Cecillia D. Wang, Esq.
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
Immigrants' Rights Project
39 Drumm Street
San Francisco, California 94111
(415) 343-0775

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Stanley Young, Esq.
Hyun S. Byun, Esq.
COVINGTON & BURLING, L.L.P.
333 Twin Dolphin Drive, Suite 700
Redwood Shores, California 94065
(650) 632-4700

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Daniel J. Pochoda, Esq.
Joshua D. Bendor, Esq.
AMERICAN CIVIL LIBERTIES
FOUNDATION OF ARIZONA
3707 N. 7th St., Suite 235
Phoenix, Arizona 85014
(602) 650-1854

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OF

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For the Defendants:

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Michele M. Iafrate, Esq.
IAFRATE & ASSOCIATES
649 N. 2nd Avenue
Phoenix, Arizona 85003
(602) 234-9775

For the Defendant Maricopa County:

IEN

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Andre I. Segura, Esq.
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
Immigrants' Rights Project
125 Broad Street, 17th Floor
New York, New York 10004
(212) 549-2676

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

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A P P E A R A N C E S

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For the Defendant Arpaio:

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

For Chief Deputy Sheridan: Lee D. Stein, Esq.
MITCHELL STEIN CAREY
One Renaissance Square
2 North Central Avenue
Suite 1900
Phoenix, Arizona 85004
(602) 358-0290

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For Executive Chief Sands:

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Greg S. Como, Esq.
LEWIS BRISBOIS BISGAARD
& SMITH, L.L.P.
Phoenix Plaza Tower II
2929 N. Central Avenue
Suite 1700
Phoenix, Arizona 85012-2761
(602) 385-1040

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For Deputy Chief MacIntyre: Gary L. Birnbaum, Esq.
DICKINSON WRIGHT, P.L.L.C.
Attorneys at Law
1850 N. Central Avenue, Suite 1400
Phoenix, Arizona 85004
(602) 285-5000

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For Lieutenant Sousa:

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OF

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ALSO PRESENT:

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David S. Eisenberg, Esq.
DAVID EISENBERG, P.L.C.
2702 N. 3rd Street
Suite 4003
Phoenix, Arizona 85004
(602) 237-5076
Chief
Chief
Chief
Karen
Ralph

Robert Warshaw
John Girvin
Raul Martinez
Clark, Esq.
Adams, Esq.

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P R O C E E D I N G S

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MS. CLARK:

Thank you, Your Honor.

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Judge Snow, as you're aware, Tim Casey is under this

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Court's order to assist in the transition of this case to

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Ms. Iafrate and to cooperate, essentially, in regard to the

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fact that he had been charged with the duty of making sure that

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his client, Sheriff Arpaio and judge -- excuse me, the MCSO,

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comply with this Court's order.

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And in that regard you'd asked

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him to assist Ms. Iafrate in a continuing way in this case, and

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that order is still in effect.

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copy of his client file in this case.

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aware of Sheriff Arpaio's testimony yesterday regarding the

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Grissom matter.

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officer of the court to be candid with this tribunal and to

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cooperate with the Court, while at the same time remaining in

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absolute and strict compliance with his ethical obligations to

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his former clients, Sheriff Joe Arpaio, as well as the MCSO.

TH

17:38:06

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There is a letter in the file that he provided to

Ms. Iafrate from Tim Casey concerning Sheriff Arpaio.

me, a letter from Tim Casey to Sheriff Arpaio.

IEN

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Tim Casey and I are

Tim Casey is aware of his obligations as an

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17:37:49

Mr. Casey has provided Michele Iafrate with a complete

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17:37:31

Excuse

Chief MacIntyre

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was copied on that letter, as was counsel for MCSO in this

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matter, Mr. Liddy.

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17:38:25

Based on this Court's ruling regarding communications

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Mr. Casey had with Arpaio which were copied to Chief MacIntyre,

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we believe that privilege may be waived as it concerns this

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letter, not only because of that ruling you have made as to

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Chief MacIntyre, but also as well by the testimony of Sheriff

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Arpaio yesterday.

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17:39:11

Tim Casey takes the position that this document needs

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to be provided to the Court and/or to the monitor.

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two reasons why he believes this is so.

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ethical obligations under Ethical Rule 3.3 concerning candor to

There are

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One involves his

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the tribunal.

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interpreting Ethical Rule 3.3, and that opinion makes it very

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clear that the duty of confidentiality -- excuse me, the duty

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of candor to the tribunal survives termination of the

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representation.

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He's familiar with Ethics Opinion 05-05

The other reason he believes that this document must

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be provided is that he believes it falls within the documents

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this Court has ordered be provided to the monitor regarding the

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Grissom matter.

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Mr. Liddy.

I e-mailed it to them last night.

acknowledged receipt of it.

Ms. Iafrate

It also states it's

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our position that Ms. Iafrate, as well as Mr. Liddy, have the

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obligation under ethical 3 -- rule 3.3 to correct the testimony

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of Sheriff Arpaio yesterday.

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17:40:09

It raised the issue that Tim Casey

takes the position I have just described.

IEN

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Yesterday I wrote a letter to Ms. Iafrate and

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17:39:50

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17:39:30

We believe that that remedial

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measures required under 3.3 include providing a copy of the

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letter to the Court.

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What I'm suggesting at a minimum -- and by the way, I

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have asked in those -- excuse me, I need to backtrack because I

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sent a second letter today reiterating that point, and I was

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advised by Mr. Liddy that I should copy -- last night I was

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advised by Mr. Liddy that I should copy Mr. McDonald on that

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letter, which I did.

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I approached them today, asked them if they had read

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the letter and asked them if they would be taking -- "they"

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meaning Mr. Liddy and Ms. Iafrate and Mr. McDonald -- remedial

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measures as required by 3.3.

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that they will.

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be provided to the Court in a sealed envelope, and in keeping

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with some of the procedures I've heard in court in the past

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from Your Honor, that this manner -- that this envelope be

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provided to a magistrate assigned by the Court to review it and

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determine two issues.

17:41:32

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Number one, whether privilege has in fact been waived

in addition, number two, whether it falls indeed within the

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scope of materials required to be provided to the monitor

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pursuant to your orders yesterday.

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making, Your Honor.

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17:41:49

or applies concerning this letter at this point in time, and,

IEN

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TH

What I'm suggesting at a minimum is that this letter

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17:41:16

I have not as yet been assured

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17:40:59

That's the record I'm
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THE COURT:

Thank you.

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MR. LIDDY:

Your Honor, may I be heard?

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THE COURT:

You may.

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MR. LIDDY:

Your Honor, yesterday when I heard the

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par- -- a portion of the testimony of my client, Sheriff Arpaio

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under the Court's examination, I, too, felt that a portion of

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that needed to be corrected.

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When I left the courtroom this afternoon I conferred with my

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ethics counsel, who agreed with me that I, too, under 3.3, had

I conveyed that to co-counsel.

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an obligation to correct the record.

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I came here prepared to do that.

Ms. Iafrate, in her examination of Jerry Sheridan, cleaned up

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the portion of Sheriff Arpaio's testimony for which I was

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concerned.

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Court's question of whether or not there was an investigation

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of your wife and whether or not Tim Casey hired an investigator

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to investigate your wife, which I understand the sheriff left

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that impression -- did with me -- it's my opinion that it's not

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accurate, and that was made clear in the testimony of

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Chief Sheridan today under examination by Ms. Iafrate.

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I now believe that the record, specifically the

THE COURT:

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How does Mr. Sheridan's testimony clarify

MR. LIDDY:

Your Honor, I think that's a fair

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question.

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best way and proper way to correct the testimony would be to

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17:43:41

what chief -- what Sheriff Arpaio testified to?

IEN

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17:42:46

Under my opinion,

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17:42:23

And I would agree, if it's your implication that the
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have Sheriff Arpaio take the stand again and give him the

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opportunity to correct the testimony.

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sher- -- excuse me, if that's what the Court means, I would

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agree with the Court.

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THE COURT:

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MS. IAFRATE:

Ms. Iafrate.

If that's what the

17:44:18

Your Honor, it was an answer by Sheriff

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Arpaio that I believed I could correct with Chief Deputy

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Sheridan explaining -THE COURT:

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I don't believe that.

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MS. IAFRATE:

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yesterday.

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THE COURT:

That was my intention.

No, no.

It was discussed

I believe that's your intention.

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I do believe that's your intention.

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Deputy Sheridan's testimony can clarify testimony from Sheriff

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Arpaio.

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you and Mr. Liddy and/or Ms. Clark, representing Mr. Casey, are

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going to have to clarify it.

TH

I'm not sure that Chief

I think he's going to have to clarify that himself, or

OF

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MS. IAFRATE:

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Arpaio and Chief Deputy Sheridan after I finished my

DS

explored the discrepancies between the testimony of Sheriff

discrepancies.

Each individual testified as to what they

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believed to be true.

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and more on point regarding the individual examinations.

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17:45:13

examination of Chief Deputy Sheridan and you saw that there was

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17:44:55

Well, Your Honor, I think that you

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17:44:37

THE COURT:

Chief Deputy Sheridan was more articulate

Ms. Clark, do you have copies of the

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letter in question?

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MS. CLARK:

Yes, Your Honor, I do.

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THE COURT:

Okay.

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I'm going to ask you to retain

those, and --

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MS. CLARK:

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Judge, I provided them via e-mail to

Ms. Iafrate and Mr. Liddy last night.

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MS. IAFRATE:

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copy of it until this morning.

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I'm sorry.

I did not receive a

I inadvertently forgot to

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MS. CLARK:

That's incorrect.

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attach it to the e-mail forwarding them my letter, which I then

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corrected this morning before court.

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counsel.

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Mr. Casey has provided to Ms. Iafrate before she became

THE COURT:

All right.

Well, I will tell you what my

inclination is, and we can deal with this -- well, here's my --

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I guess we don't have time for inclinations.

17:46:10

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If Sheriff Arpaio made a misstatement, then Sheriff

Arpaio is going to have to correct it or his attorneys will

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have to correct it.

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And I guess that what we will have to do

magistrate judge drawn in this matter, and he can inform me, if

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he believes that the correction is sufficient, that the letter

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need not be disclosed.

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17:46:28

is provide the letter to Magistrate Judge Boyle, who is the

IEN

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17:45:59

In addition, that letter is part of the client file

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17:45:48

Does that meet with your ethi- -- with your view of

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your ethical responsibilities, Ms. Clark?

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MS. CLARK:

It's Mr. Casey's ethical obligations --

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THE COURT:

Yes, I'm sorry.

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MS. CLARK:

-- and I believe that that does.

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THE COURT:

Any last words from you, Mr. Liddy, on

MR. LIDDY:

Yes, Your Honor.

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this?

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letters that are probative.
THE COURT:

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MR. LIDDY:

Oh.

I believe there are two

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One from Mr. Casey to the investigator,

which would shed light on the facts of Mr. Casey's retention of

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the investigator; and the second, the letter that has been

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referred to by Ms. Clark that is an attorney-client letter, if

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I've got the right one, from Mr. Casey to Mr. Sheridan --

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excuse me, to Sheriff Arpaio, which lays out the results of the

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interview and Mr. Casey's thought processes about it and why he

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proceeded the way he did.

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Do you disagree with that, Ms. Clark?

MS. CLARK:

I'm not exactly sure which the second

letter is that he's mentioning.
THE COURT:

All right.

You give the first letter.

IEN

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THE COURT:

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17:47:16

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Well, here's what we'll do.

You give the second letter.

And we

can let -- I will give instructions to Magistrate Judge Boyle

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how I view it before -- well, before you give the second

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letter, why don't you identify it to Ms. Clark and to all other

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17:48:08

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parties, just what it is.

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MS. WANG:

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Your Honor, may plaintiffs be heard on

this?

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THE COURT:

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MS. WANG:

You may.

Your Honor, it's clear from Ms. Clark's

17:48:18

presentation that the letter that she's referring to and the

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letter -- the second letter that Mr. Liddy is referring to

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would tend to impeach Sheriff Arpaio's testimony, and we would

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therefore ask to have a copy of both letters.

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MR. McDONALD:

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one moment?

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THE COURT:

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MR. McDONALD:

Judge, can I be heard on this just for

Yes.

What happened, Your Honor yesterday

handed the sheriff a document that we hadn't prepared for, he

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hadn't looked at.

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you investigate a member of my family?

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And you asked -- directed the question:

Did

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Mr. -- it's how you try to define it.

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covered it today.

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only reason they were interviewing the lady is because of the

And Chief Sheridan

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They went and interviewed the lady, but the

And so the alarm or the flags that everybody's sending

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you up the pole is, Oho, Mr. -- the sheriff misstated because

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he's talking about investigating your wife when they're really

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interviewing the lady that made it.

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17:49:16

accusations she'd made about your wife.

IEN

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17:48:51

There was engagement letters that addressed -- that

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17:48:38

But the reason that they

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interviewed the lady that did the Facebook was because it

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applied to your wife.

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So I think this whole thing is an absolute mountain

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over a minute molehill.

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out there looking.

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fact it is that simple that he -- when you were asking very

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pointedly, "Has my family ever been investigated?" they're

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questioning this lady that made the information to their

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office, and it was about your wife.

He wasn't doing the investigation, but in

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It's his perception of it when they're

So that is his understanding of it, but to now have

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these hearings and waiving attorney-client privilege, I think

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that what he said and what Chief Sheridan clarified --

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at the letter.

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MR. McDONALD:

I honestly haven't seen the letters

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yet.

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back and I've been involved in the proceeding, I haven't

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studied the letters.
THE COURT:

deal.

Well, we're not going to -- here's the

We're not going to resume testimony on this till June.

chance to think about it, to review it if you have a right to

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review it.

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Mr. McDonald, although you can consult with him on that, and

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you can show it to him since -- if you choose to.

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17:50:43

So we probably need to take this up when everybody's had a

IEN

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But since I was late getting

DS

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They were handed to me.

17:50:30

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17:50:11

Well, I take it you don't want me looking

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THE COURT:

17:49:53

And that would be you, Ms. Iafrate, not

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MR. McDONALD:

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I've just been handed copies, I

think --

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THE COURT:

Okay.

So you've already got it.

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And then I'll decide how to proceed.

But likely, what

I'm going to do is I will consult with Magistrate Judge Boyle.

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He will determine whether, A, anything needs to be done to

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correct the record; B, if it does need to be done, what needs

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to be done; C, if plaintiffs are entitled to copies, and it

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seems to me like those are the relevant questions.

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MS. CLARK:

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I believe also a relevant question is

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whether if there is no privilege, or even if there is

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privilege, it comes within the documents that you have ordered

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to be provided to the monitor.

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Ms. Iafrate has a right to review those documents for

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privilege.

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I had asked Ms. Iafrate to either agree to

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disclose the letter or to produce a privilege log for the

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Court.

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Well, do you want to review it and see if

MS. IAFRATE:

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THE COURT:

Of course, Your Honor.

All right.

And if it's not privileged, it

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seems to me then this is -- this truly is a tempest in a

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teapot.

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17:52:10

you think it's privileged?

IEN

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THE COURT:

DS

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17:51:58

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MS. CLARK:

17:51:45

Well, I think I made clear, though, that

TH

THE COURT:

17:51:19

You can provide the letter and on we'll go, determine

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whether or not there needs to be any corrective statement and

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the monitor will have the access to the document.

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If you determine that this is privileged, then we can

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take up this matter.

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let's tee it up so that we can address it on May 8th.

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All right?

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MS. CLARK:

And if you have any questions on it,

Judge, just so I'm clear, I've heard

discussion about a deposition of Mr. Casey, and I'm assuming

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that that would be put off until after May 8th so there would
be a ruling?

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THE COURT:

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MS. CLARK:

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THE COURT:

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Okay.

May 8th is the earliest date I'm going to

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giving depositions.

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MS. CLARK:

Thank you for that.

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THE COURT:

Okay.

MR. LIDDY:

Your Honor, I just want to make perfectly

17:53:00

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rule on whether or not Mr. Casey and/or Mr. Liddy will be

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clear for the record that it is my perception that the sheriff

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made a mistake when he answered the question in a way that I

DS

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FR

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17:53:08

believe is not accurate, and that I in no way am implying to
this Court that the sheriff intentionally answered that

IEN

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17:52:51

Oh, yes.

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17:52:37

question in a way that I deem to be inaccurate.
THE COURT:

I understand that, and I'm not going to --

you know, I don't have any intention of making a bigger matter

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out of this than it is.

I also don't have any intention of

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making a smaller matter out of it than it is.

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MS. CLARK:

Judge, if I may be heard on that.

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THE COURT:

Yes.

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MS. CLARK:

Mr. Liddy informed me -- in the presence

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of Mr. Casey, who heard it, too -- that it was his opinion that

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the testimony was false, although he believed that it was not

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intentionally false.

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it's also what he told me -- he, Mr. Liddy -- at the start of

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That's what he told me yesterday, and

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court today.

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similar statement to Mr. McDonald.

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that.

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I've been informed that he also made a very

THE COURT:

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All right.

But we're not really here

TH

dealing with the credibility of Mr. Liddy.
No.

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THE COURT:

And so --

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MS. CLARK:

But it does guide the remedial measures

MR. LIDDY:

Your Honor, the credibility of Mr. Liddy

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duties.

is important on the record, and I came before this Court

DS

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it needed to be corrected.

It was not accurate.

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THE COURT:

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Anything else that we need to raise?

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MS. IAFRATE:

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moments ago to say that when I heard the testimony, I believed

IEN

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17:54:03

OF

MS. CLARK:

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17:53:51

Mr. McDonald informed me of

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17:53:37

Okay.

Aren't you glad it's the weekend.

No, Your Honor.

17:54:33

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MS. WANG:

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MR. WALKER:

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MR. McDONALD:

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No, Your Honor.

Thank you.

No, Your Honor.

Judge, one last question.

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move that hearing on the 8th up earlier?

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10:30 hearing.

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your schedule would accommodate.

I notice that I had a

If we could go at 9:00 instead of 10:00, if

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THE COURT:

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8th as opposed to 10 o'clock?
MS. WANG:

Yeah, that's fine, Your Honor.

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THE COURT:

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(Proceedings recessed at 5:55 p.m.)

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OF

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DS

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9 o'clock.

TH

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FR

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17:54:46

Does anybody object to 9 o'clock on the

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Could we

17:55:03

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1
2

C E R T I F I C A T E

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I, GARY MOLL, do hereby certify that I am duly

appointed and qualified to act as Official Court Reporter for

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the United States District Court for the District of Arizona.

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I FURTHER CERTIFY that the foregoing pages constitute
a full, true, and accurate transcript of all of that portion of

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the proceedings contained herein, had in the above-entitled

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cause on the date specified therein, and that said transcript

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was prepared under my direction and control.

TH

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2015.

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IEN

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DS

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OF

DATED at Phoenix, Arizona, this 27th day of April,

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FR

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s/Gary Moll