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Case 2:07-cv-02513-GMS Document 1629 Filed 02/26/16 Page 1 of 32

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Timothy J. Casey (#013492)
SCHMITT, SCHNECK, SMYTH & HERROD, P.C.
1221 East Osborn Road, Suite 105
Phoenix, AZ 85014-5540
Telephone: (602) 277-7000
Facsimile: (602) 277-8663
timcasey@azbarristers.com
Maria Brandon (#0004249)
Thomas P. Liddy (#019384)
MARICOPA COUNTY ATTORNEY’S OFFICE
Deputy County Attorneys
Litigation Practice Group
Civil Services Division
Maricopa County Attorney’s Office
222 N. Central, Suite 1100
Phoenix, Arizona 85004
602-506-8066
Co-counsel for Defendants Arpaio and MCSO

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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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Joseph M. Arpaio, et al.

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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 Sheriff’s
Office submit the following Supplemental Statement of Facts in Support of their Motion for
Summary Judgment and do so under seal:
1.

Mr. Alonzo Rafael Pena is an employee of the United States Department of

Homeland Security Immigration and Customs Enforcement (“ICE”). See September 30,

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2010 Deposition of Alonzo Rafael Pena at p. 9, lns. 16-22, attached as Exhibit 1.

SCHMITT, SCHNECK, SMYTH &
HERROD, P.C.

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 Court’s

2.

Mr. Pena served at the Special Agent in Charge (“SAC”) of ICE in Phoenix,

Case 2:07-cv-02513-GMS Document 1629 Filed 02/26/16 Page 2 of 32

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Arizona from October 2006 to the end of March 2008. See September 30, 2010 Deposition

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of Alonzo Rafael Pena at p. 12, ln. 15 to p. 13, ln. 6, attached as Exhibit 1.

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Mr. Pena testified that the 287(g) program allows local law enforcement

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officers certified by ICE to enforce federal immigration law. See September 30, 2010

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Deposition of Alonzo Rafael Pena at p. 15, lns. 8-23, attached as Exhibit 1.

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4.

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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Alonzo Rafael Pena at p. 60, lns. 7-10, attached as Exhibit 1.
6.

While Mr. Pena was ICE SAC in Phoenix, he never had to confront the

Maricopa County Sheriff’s 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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60, lns. 11-13, attached as Exhibit 1.

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7.

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 Sheriff’s

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Office may have been engaged in racial profiling. See September 30, 2010 Deposition of

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Alonzo Rafael Pena at p. 60, lns. 14-18, attached as Exhibit 1.

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8.

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.
9.

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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SCHMITT, SCHNECK, SMYTH &
HERROD, P.C.
Professional
Corporation

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Case 2:07-cv-02513-GMS Document 1629 Filed 02/26/16 Page 3 of 32

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MCSO, the United States Attorney’s Office responsible for immigration issues had no

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complaint about the MCSO’s 287(g) program or the MCSO’s compliance with the

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Memorandum of Agreement between ICE and the MCSO. See September 30, 2010

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Deposition of Alonzo Rafael Pena at p. 122, ln. 11 to p. 123, ln. 10, attached as Exhibit 1;

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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.
12.

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ICE terminated the MCSO’s 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.
13.

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 MCSO’s 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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Mr. Jason Douglas Kidd is an ICE employee and served in 2006-09 in

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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

implementation of it under the ICE-MCSO Memorandum of Agreement. See October 1,
2010 Deposition of Jason Douglas Kidd at p. 19, lns. 4-9, attached as Exhibit 3.
16.

The MCSO advised Mr. Kidd when it was planning on conducting a saturation

patrol that might encompass the MCSO’s 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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SCHMITT, SCHNECK, SMYTH &
HERROD, P.C.
Professional
Corporation

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Case 2:07-cv-02513-GMS Document 1629 Filed 02/26/16 Page 4 of 32

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patrols. Id. at p. 34, ln. 18 to p. 35, ln. 11. Mr. Kidd also received from the MCSO post-

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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)

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authority. See October 1, 2010 Deposition of Jason Douglas Kidd at p. 21, lns. 15 to p. 22,

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ln. 11, attached as Exhibit 3.

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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.
19.

Mr. Kidd is familiar with the MCSO’s 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.
20.

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.
22.

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.
23.

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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SCHMITT, SCHNECK, SMYTH &
HERROD, P.C.
Professional
Corporation

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Case 2:07-cv-02513-GMS Document 1629 Filed 02/26/16 Page 5 of 32

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Douglas Kidd at p. 42, 15-21, attached as Exhibit 3.
24.

Mr. Kidd has no knowledge that any MCSO 287(g) deputy ever used race as a

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basis for making a traffic stop or in using their 287(g) authority. See October 1, 2010

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Deposition of Jason Douglas Kidd at p. 43, lns. 6-18, attached as Exhibit 3.

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25.

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.
26.

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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SCHMITT, SCHNECK, SMYTH & HERROD,
P.C.

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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.
Professional
Corporation

CERTIFICATE OF SERVICE
I hereby certify that on April 29th, 2011, I electronically transmitted the attached
document to the Clerk’s 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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Case 2:07-cv-02513-GMS Document 1629 Filed 02/26/16 Page 6 of 32

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Daniel Pochoda, Esq.
Annie Lai, Esq.
ACLU FOUNDATION
OF ARIZONA
3707 N. 7th Street, Suite 235
Phoenix, Arizona 85014
Counsel for Plaintiffs

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Monica M. Ramirez, Esq.
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
39 Drumm Street
San Francisco, California 94111
Counsel for Plaintiffs
Nancy Ramirez, Esq.
MEXICAN AMERICAN LEGAL DEFENSE
AND EDUCATION FUND
634 S. Spring Street, 11th Floor
Los Angeles, California 90014
Counsel for Plaintiffs

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Maria Brandon, Esq.
Thomas Liddy, Esq.
MARICOPA COUNTY ATTORNEY’S OFFICE
Deputy County Attorneys
Litigation Practice Group
Civil Services Division
Maricopa County Attorney’s Office
222 N. Central, Suite 1100
Phoenix, Arizona 85004
Co-counsel for Defendants Arpaio and MCSO
s/Eileen Henry______
Eileen Henry, Paralegal
SCHMITT, SCHNECK, SMYTH & HERROD, P.C.

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SCHMITT, SCHNECK, SMYTH &
HERROD, P.C.
Professional
Corporation

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Case 2:07-cv-02513-GMS Document 1629 Filed 02/26/16 Page 7 of 32

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

Case 2:07-cv-02513-GMS Document 1629 Filed 02/26/16 Page 8 of 32

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Manuel de Jesus Ortega Melendres,
et al.,
Plaintiffs,

)
)
)
)
)

) No. CV 07-02513-PHX-GMS

VS.

Joseph M. Arpaio, et al.,
Defendants.

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)

~~~~~~~~~~~~~~~~~)

VIDEOTAPED DEPOSITION OF ALONZO RAFAEL PENA
SUBJECT TO PROTECTIVE ORDER

Phoenix, Arizona
September 30, 2010
9:22 a.m.

REPORTED BY:

CATHY J. TAYLOR, RPR
Certified Reporter
Certificate No. 50111
PREPARED FOR:

MR. THOMAS P. LIDDY
(COPY)

- -

court reporters
3030 North Central Avenue

Suite 1102

J

Phoenix, Arizona 85012

T 602.264.2230
888.529.9990
F 602.264.2245
www.griffinreporters.com

Case 2:07-cv-02513-GMS Document 1629 Filed 02/26/16 Page 9 of 32
Melendres v.
Arpaio

SUBJECT TO PROTECTIVE ORDER

Alonzo Rafael Pena
September 30, 2010

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THE VIDEOGRAPHER: You may swear the witness.

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A. I was a university track coach in Monterrey,
Mexico.

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ALONZO RAFAEL PEJIJA,
4] called as a witness herein, having been first duly sworn, was
5] examined and testified as follows:

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Q. So how many years have you had working

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the Department of Homeland Security Immigration and Customs

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Enforcement.

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professionally in law enforcement in any capacity?
Close to 30. ·
Okay. Thank you for your service.
Thank you.
Would you tell me a little bit about your
educational background after high school.
A. I went to Pan American University in Edinburg,
Texas. I -- after college, I went into the Texas Department
of Public Safety, and I went to their law enforcement
academy. After-- and which -- during that service, quite a
few in-service and other trainings during that period I was a
state -- state trooper.
Then under Customs, I attended a basic agent
academy in Glynco, Georgia. It's the federal academy for all
1811 special agents within the Treasury. And then I went to
a -- an advanced Customs academy.
Then I -- when I -- well, from trooper, excuse
me, I went to the ATF basic agent academy, then to the
advanced ATF academy -- academy in Glynco, Georgia. Then I

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Q. Okay. And are you under any medication today or

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went to the advanced Customs academy when I became a Customs

anything that might affect your ability to remember details
or events?

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agent. And I -- during my career with Customs, I attended
National-Louis University. I attended a master's program,

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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.
Q.
A.
Q.

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A. No, sir.
Q. Okay. How long have you been -- well, let me do

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this first. If at any time I ask you a question that's not
clear to you, just let me know, and I'll rephrase it. There

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may be time to time where somebody has an objection that they

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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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Treasury Department as well under Bureau of Alcohol, Tobacco

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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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Min-U-Script®

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did 16 hours. I also attended the John F. Kennedy School of
Government at Harvard University. I attended a -- a
leadership -- government leadership course there as well.
Q. Okay. Now, you've stated that you're currently
employed in the Department of Homeland Security office in
Washington, D.C. And prior to working there, where were
you -- where was your duty station?
A. In Mexico City at the US Embassy.
Q. And when were you there?
A. I believe I was there from July the 9th, 2008, till
May of 2009. I believe that's the -- those are the -- the
period of time.
Q. And do you speak Spanish?
A. Yes.
Q. Prior to a posting in Mexico City with the
US Embassy, where were you posted?
A. Here in Arizona.
Q. And specifically where?
A. At -- at the Office of the Special Agent in Charge
for Immigration and Customs Enforcement in Phoenix.
Q. Now, is SAC, S-A-C, an acronym for the special
agent in charge?
A. Correct.
Q. And was that your title?
A. Yes.

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Case 2:07-cv-02513-GMS Document 1629 Filed 02/26/16 Page 10 of 32
Melendres v.
Arpaio

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SUBJECT TO PROTECTIVE ORDER

Alonzo Rafael Pena
September 30, 2010

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Q. So you were the SAC?
A Yes.
Q. And how long were you posted as the special agent

Richard Crocker. Underneath those deputies are assistant
special agent in charges. And I believe it was Pat Schmidt.
Terri Tollefson. And shortly after I arrived, there was a
third special -- assistant special agent in charge added to
the roster here in Phoenix, and that was Angel, Angel,
Rascon. And in Tucson, Deputy Crocker had, I believe, two
ASACs as well.
Q. At the time you were serving at the SAC, were you
familiar with the 287(g) program generally?
A Generally, yes.
Q. Would you in your own words tell us what 287(g)
stands for and what the 287(g) program is generally.
A The 287(g) program is a -- is referred to by a -the -- the statute of -- of federal law that was, I
believe -- I can't remember if it was '96 -- 1996, '98, when
it was -- was enacted. And it was under the Department of
Justice where -- during the old INS where It was a statute of
law that based on certain training and supervision, that ICE
could -- or at the time it was the Department of Justice
under Justice Immigration and Naturalization could
cross"designate the authorities of -- of -- of immigration
officers to state and local law enforcement agents, again,
based on a particular training and supervision.
Q. Okay. And did you have the opportunity to work
within the 287(g) program prior to the creation of the

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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

Min-U-Script®

Department of Homeland Security?
A No, sir.
Q. When was the first time that you became aware of
the 287(g) program?
A I believe it was -- I was -- the first time was I
was in Washington, D.C., on assignment from my position as
the agent -- special agent in charge in San Antonio. And
while in Washington, D.C., there was discussion about monies

that Congress had appropriated for ICE to -- to advan ce the
program for training and equipment and the necessary
obligations that would come with the 287(g) program.
And I remember discussions in headquarters
about how this money was going to be used,-where it was going

to be used, which -- which agency that's at. And I believe
that was the first time that I became aware of the 287(g)
program.
Q. Do you recall what year that was?
A It would have had to be somewhere before -- I was
in San Antonio from 2004 to 2006, so I would -- it was in -in that window of time.
Q. So you were not working for Customs then? You were
working for the Department of Homeland Security?
A I was working for the Department of Homeland
Security, yes.
Q. Okay. And the federal law that you were referring

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to, would that be the Immigration and Nationality Act?

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correct?
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A That's my understanding, yes.
5]
Q. Okay. How do local law enforcement agencies become 6]
involved with the 287(g) program?
7]
A Well, I -- I don't know if I can give a -- a -- you
8]
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.
13]
Q. So would it be fair to say that, in your
14]
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?
18]
A Ask that again, please. Just I'm not -19]
Q. Yeah. I apologize if I wasn't clear.
20]
In your experience, most of the local law
21]
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

Alonzo Rafael Pena
September 30, 2010
Page 19

Q. Yes. That's my question.
A Yeah. There is a -- a training course. It's
divided into two different areas. One is a task force model,
and one is a jail model. The officers, they have -- there's
a certain criteria, I think the amount of time that they've
been on duty. There's a back -- background provisions
that -- that are done.
And -- and so once the -- the personnel has
been identified and they've cleared the background, this
training, dependent on whether they're going to be a task
force officer on the street, an investigator patrolman, or
they're going to be in the jail model, they -- they receive
training that's provided by -- by ICE and -- and I don't
remember whether it's -- what -- the -- the task force model
is a little longer than the jail model. I don't know, but
one's 10 weeks and one's 12 weeks or there's a different -but it -- I do know that the task force model gets a little
additional training than -- than the jail model.
And then they during that -- during the course
of training, there's certain exams that have to be passed.
And -- and based on -- on -- and I don't know what the -the -- the -- the cutoff pass -- pass grade is. But those
that complete the training -- successfully complete the
training are then certified as -- as 287(g) officers.
Q. Who are the trainers? Who teaches the classes?

Page 18
1] out and approaches local law enforcement and requests they -2] A I think there's a little bit of both. What many
3] times happens is the special agent in charge or some
4] representative of the agency will go visit and talk about the
5] various programs that we have, and 287(g) may be mentioned as
6]
one of those programs that we have that people can
7]
participate in.
8]
The key thing, it's a voluntary program. It
9] has to be -- the request to -- to participate has to be made
10] by the -- by the local law enforcement agency. It's nothing
11] that we mandate. But I think some agencies are aware of it
12] and approach us. And, in other cases, again, we may go out
13] and talk about, you know, the -- the various other programs
14] that we have, and -- and they determine what might be a best
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
18]
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
22]
local law enforcement officers certified to work under the
23]
program?
)
24]
A
Once an agreement's been signed and entered into
'
25]
and -- and the program's been accepted?

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A It's -- it's -- some of them are taught by staff
from Glynco, Georgia, from our federal law enforcement
training center. Some are -- some -- it's a -- it's a
combination of -- of -- of officers -- maybe agents from the
existing offices and from the -- but it's -- it's coordinated
by the training center, and so they're the ones that -- that
actually are, you know -- who -- who -- who get the
curriculum and ensure that who -- who the instructors are.
So I'm not sure how the -- you know, in
particular they go about picking the instructors, but -- but
. it's the responsibility of the training center to ensure that
the instructors are -- are -- are knowledgeable and -- and
have the right background to teach the courses.
Q. Does the training center operate under the
Department of Homeland Security?
A The training center's an independent training
center. It's a standalone where we have our employees there
that are assigned to the training center.
Q. When you say it's standalone, are you telling me
that it -- it does not operate under the Department of
Justice?
A I think -- I -- to be honest with you, I don't -it's a federal law -- law enforcement training center, and we
and various agencies are -- are -- are participants of it.
But it's overseen by -- I'm not sure if that's a Treasury or

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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?
A
My role was, again, as the person responsible for
the district activities, to have myself and my staff ensure

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THE WITNESS: Again, I -- I'll have to say
that that 287(g) agreement does not allow for racial
profiling. It does not accept ii. It does not allow it. It
does not...
BY MR. LIDDY:
Q. Okay. So in your role as supervising and ensuring
compliance of the MOA, what actions would you have taken had
there been racial profiling from a participating local law
enforcement officer?
MR. POCHODA: Objection. Form and foundation.
THE WITNESS: It would be a -- reported to
the -- first of all, it would be confronted with the
jurisdiction, unless there was some type of -- of-- of
effort to assist in an investigation by the Department of
Justice. We'd notify the Department of Justice, because
they're responsible for investigating civil rights
violations.
So it would -- it -- again, ii -- dependent on
the circumstance if it was -- if it was something that
we thought that-- that it was best not to notify the agency
right away so that the Department of Justice could
investigate. But I would think in -- in most cases, if we

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became aware, we would want to confront the -- the agency and

241
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bring it to their attention, to the management and the
supervision of that if it was a particular individual officer

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compliance with the -- with the -- with the agreement,
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that -- and to ensure that it was providing the -- the
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results that we would -- and monitor and supervision and -and -- and oversight of the agreement.
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Again, with me at the -- with me at the top
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and having subordinate staff under me -- underneath delegated
and to -- you know, on the -- more on the daily activities
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and -- and -- and then also reporting to Washington any
8]
issues and successes of the program.
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County Sheriff's Office participants be deemed by you as 11]
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noncompliance?
MR. POCHODA: Objection. Form and foundation. 13]
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THE WITNESS: Racial profiling is not allowed
15]
under the MOA.
16]
BY MR. LIDDY:
17]
Q. So if a 287(g) participant racially profiled, that
would be in violation of the MOA, as you understand it? 18]
MR. POCHODA: Objection. Form and foundation. 19]
THE WITNESS: Yes. II would be, because
20J
racial profiling is not allowed.
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Q. So would it be fair to describe racial profiling in
287(g) as noncompliance?
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September 30, 2010
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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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September 30, 2010

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express in writing any concern to the Maricopa County Sheriff
or the sheriffs office regarding the identification of
aliens during civil traffic stops?
MR. POCHODA: Objection. Form and foundation.
THE WITNESS: Let me just say that, you know,
most of my contact with the sheriff was verbally; I mean,
either on the phone, a meeting in person, you know, attending
meetings. It was not through written correspondence. And -and sometimes I'm -- I met with my staff and had discussions
regarding -- I would be briefed regarding the sheriffs
department's activities.
And so the question you're asking me now is,
did I in writing express concern? Was that -BY MR. LIDDY:
Q. Yes, that's correct.
A. I -- like I said, most of the -- most of my contact
if -- was -- was going to be, again, verbal contact with the
sheriff and -- and his staff -Q. Okay.
A. -- as well.
Q. Would it be fair to say that if while serving as
SAC Phoenix you had a concern that 287(g) certified Maricopa
County Sheriffs Office employees who are identifying aliens
during civil traffic stops and that in so doing put them out
of compliance with the MOA, that you would have reported it

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ICE become involved? How would ICE become involved?

A. Were -- did you say -- did you say in the jail?
Q. Yes.

A. In the jail, they -- that would-,- the 287(g)
officers that were trained and -- and -- and authorized to do
the -- the screening and -- at -- at intake would place
detainers on those individuals. And, again, I don't know the
particulars. That wasn't a part that I supervised.
But my understanding would be at the point
that a detainer is lodged and then the coordination in
lodging those detainers, that's when ICE would be. And it-and, basically, the detained --the detainer's the document
-- or that -- that says that there is -- that this person is
to be not released, but turned over to the custody of ICE.
Q. And at what point in time would those individuals
be processed for removal?
MS. STRANGE: Objection. Foundation.
THE WITNESS: Again, going back to -- I didn't
supervise that. There would be other factors dependent on
what their -- what their individual a -- a -- situation was,
were they -- were they -- were they in --you know, were
they -- there'd be many, many factors. Were they prior
criminals? Were there other charges that were going to be
filed? Was there already a court order?
There's just many, many factors that would

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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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my previous answer, based on what the circumstances were an.ct

71 the allegations were and what was in the best -- how would be
Bl the best to proceed, I would either -- either verbal -- you
91 know, spoken with the sheriff or his representatives or -- or
101 pursued other, through -- you know, again, depending on the
llJ circumstances, through the Department of Justice and -- and
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,
161 again, it just depended on what that noncompliance was and
17 J those circumstances.
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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.
221
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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determine when an actual removal would be instituted.
BY MR. LIDDY:
Q. Is it your understanding that they would be booked
for their Arizona crimes first and then later processed for
removal, if appropriate?
A. If -- if they committed a -- a state offense and
they were arrested by the -- by the Maricopa County -Maricopa jurisdictions, they were to be booked first on their
charges.
Q. Okay. Did you as SAC ever express in writing any
concern that the sheriffs office was booking aliens on
Arizona charges first prior to having them be processed for
removal, if appropriate?
MR. POCHODA: Objection. Form and foundation.
THE WITNESS: I -- repeat that one, please.
I'm sorry. It just...
BY MR. LIDDY:
Q. Did you ever express in writing to the Maricopa
County Sheriffs Office or to your superiors a concern that
booking detainees on state charges first prior to processing
them for possible removal is outside compliance of the MOA?
A. I never wrote anything of that nature, no.
Q. As SAC in Phoenix, were you aware that if a
non-287(g} sheriffs deputy officer came into contact with a
suspected illegal alien, that that non-287(g) trained officer

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September 30, 2010

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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

MS. STRANGE: There's not a question pending
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MS. STRANGE: -- Mr. Pef\a.
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BY MR. LIDDY:
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6J Q. While you were serving as SAC Phoenix, were you
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8J notified ICE when planning and executing activities where the
9J sheriffs office anticipated the possibility of using its
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MR. POCHODA: Objection. Form and foundation.
THE
WITNESS: That is the agreement that we
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l 7J coordinator.
BY MR. LIDDY:
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And, as you sit here today, do you recall that that
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21] A. In -- in the majority of the cases, yes. I'm -22J sorry.
MR. POCHODA: No, no. Go ahead.
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lJ violating any Arizona state laws but did suspect that the
2J person did not have legal status, he could then call a T -- a
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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THE WITNESS: What is critical is that -- that
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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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As SAC, do you recall ever expressing in writing
13J
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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
22J
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THE VIDEOGRAPHER: 1O minutes.
24J
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MR. LIDDY: Okay. Okay.

lJ Customs Enforcement Issue Paper 287(9) Inspection of Maricopa
2J County Sheriff, Phoenix, Arizona.
MR. POCHODA: Thank you.
3J
MS. STRANGE: Thank you.
4J
MR. LIDDY: I'd like to submit that as Exhibit
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THE COURT REPORTER: Yes.
7J
(Exhibit 8 marked for identification.)
8J
BY MR. LIDDY:
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lOJ Q. Give you a chance to look at that.
Mr. Pef\a, have you ever seen this document
llJ
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MR. POCHODA: Can I see that again just one
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What were the numbers?
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MR. LIDDY: It's 778a through d.
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MR. POCHODA: We don't seem to have it. Was
l 7J
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MR. LIDDY: Yes. Let me -- I'll -19J
MR. POCHODA: If there is, I'd appreciate it.
20J
21J Thank you. Just for today.
MR. LIDDY: You know, I have this copy.
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officers agencies. And -- and at that time, I believe the
287(g) program was a component of the Office of State and
Local Coordination.
BY MR. LIDDY:
Q. So would he have familiarity with MCSO's operations
under 287(g) MOA?
A I don't know. I -- I don't know as far as what,
you know -- what familiarity he would have had.
Q. Did he work under your command?
A No, not -- no.
Q. Who was his immediate superior in his chain of
command?
A I believe it would have been John Torres.
Q. Would Mr. Pendergraph have been stationed here in
Phoenix?
A No. He was in Washington, D.C.
Q. And what about Katrina Kane? What was her billet?
A She's the field office director for ICE here in
Phoenix. She's responsible for the detention and removal
operations of ICE.
Q. Did she work under your chain of command?
A No.
The question is, did she at this time of this
document?
Q. No. I mean while you were --

l]
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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The SAC.

Q. -- the SAC Phoenix, did she ever work under your

2]
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A No.
5]
Q. I'll direct your attention down near the bottom of
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this page, the fifth bullet point there. Right above that,
7]
it reads, "The team conducted the following external
8]
interviews."
9]
Do you see that?
10]
A Yes, I do.
Q. As your reading of this, do you know what team they 11]
12]
are referring to, the authors of this document?
13]
MS. STRANGE: Objection. Foundation.
14]
THE WITNESS: I -- I need to stand corrected
on something I said.
15]
16]
.
BY MR. LIDDY:
Q; Okay.
17]
18]
A Bill Reid at this -- apparently now that I look at
the document, he had different positions. And this one he's 19]
20]
signing as when he was the director of the Office of
Professional Responsibility. He also served as the deputy 21]
22]
director of the Office of Investigation.
23]
So when I initially answered this question and
24]
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]

Min-U-Script®

At that time, I don't know if it was -- when I say
chief, I don't know if there -- I think there's like several
chiefs. There's a chief of the criminal division; chiefs of
other divisions. So I'm not sure.
Q. Okay. And who was your counterpart at the FBI, the
special agent in charge of the Phoenix field office?
A I don't remember his name right now. He's since
retired, and I -- John. I can't -- I don't remember John's
last name.
Q. Okay. We can find it. Thank you.
(Exhibit 12 marked for identification.)
BY MR. LIDDY:
Q. I've handed you a document that's been marked as
Exhibit Number 12. I want to give you a moment to take a
look at it.
Have you seen this document before?
A No-, sir.
MS. STRANGE: I'm going to -- excuse me for a
minute. I'm going to object to this exhibit to the extent
it's not the entire document.
MR. LIDDY: Okay.
MS. STRANGE: H's page 1 of 4 pages.
BY MR. LIDDY:
Q. Would you describe this document for me, please.
A This appears to be the title page or the opening

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Melendres v.
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SUBJECT TO PROTECTIVE ORDER
Page 153

1 J A. I mean -- excuse me -- Phoenix.
21 Q. And in the fall of 2009, that was after you'd
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completed your tour of SAC Phoenix?

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4J A. Yes.
5J Q. Okay. Do you recall the purpose of the meeting?
6J A. It was to inform MCSO that there was a decision had

been made in Washington to terminate their task force model
of the 287(g) program. And that basically that it would not
be renewed, I should say, which would result in a
termination.
Q. Do you recall that there had been a change in
priorities for the 287(g) program within the Department of
Homeland Security?
MR. POCHODA: Objection. Form and foundation.
THE WITNESS: Yes.
BY MR. LIDDY:
Q. And did that change in priorities produce a new
proposed Memorandum of Understanding?
MR. POCHODA: Objection. Form and foundation.
THE WITNESS: When the new administration took
office, there was a -- a change in focus and priority of
the -- of ICE and -- and -- and in that change, they -- all
287(g) agreements were reviewed. I think it was a 90-day
period that they were all going to be reviewed to see which
ones would be renewed and which ones would not be renewed to

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the attendees at this meeting, which included Arpaio,
Hendershott and potentially Sheridan, Sands and Clarice
McCormick?
A. Yes.
Q. Were you a decision maker -A. Can -Q. Go ahead.
A. Can we -Q. Sure.
A. -- clarify that question?
Q. Yes ..
A. I came when I had that meeting to -- to discuss
with them that a review had taken place with -- for the
particular--for MCSO and that the decision in Washington
had been made to only renew the jail model of the agreement.
Q. So it is your recollection that when the new
administration's priorities were reflected in the new MOA, it
included terms and conditions for the operation of a jail
model only and not a task force model?
MS. STRANGE: Objection -MR. POCHODA: Objection.
MS. STRANGE: -- to form.
MR. POCHODA: Form and foundation.
THE WITNESS: When I came to that meeting, I
came to deliver a message to the sheriff from Washington from

Page 154

Page 156

be -- and to ensure that they were going to be consistent

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with the new priorities set forth by ICE.
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BY MR. LIDDY:
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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be drafted and presented to Maricopa County Sheriff's Office
to determine whether or not they would agree to the new
MOA-MS. STRANGE: Objection to form.
BY MR. LIDDY:
Q. -- or not?
A. Well, my testimony is that -- that under the new
administration, all MOAs were --were --were--were --were
going to be rewritten to conform to the new priorities of the
current administration and -- and particularly of ICE's.
Q. And when you refer to all MOAs, you're referring to
MOAs throughout the country, not just in Maricopa County -A. Correct.
Q. --Arizona?
A. Correct. That's what I'm referring to.
Q. And that those new MOAs would contain terms that
would reflect the new administration's priorities?
A. Correct.
Q. And did you personally deliver this information to

Min-U-Script®

Alonzo Rafael Pena
September 30, 2010

SJ
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ICE that -- that a -- a decision had been made to only renew
the jail model of the 287(g) agreement that we had, that ICE
had with Maricopa County.
BY MR. LIDDY:
Q. Do you recall whether a new MOA was drafted that
reflected that?
A. Yes. I believe I brought a copy of it and asked
the sheriff -- that I would leave it with him and that it
would require to be signed here locally by -- as it was in
the -- the previous one by the -- I think the board of
supervisors. I think the sheriff as well.
Q. Okay. Were you a decision maker in 2009 when the

13]

decision was made to terminate the MCSO field authority under

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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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BY MR. LIDDY:
lSJ Q. Would it be accurate to describe your role as a
19J
messenger?
20J A. Yes.
21J Q. Do you know the specific reasons and the factual

22]

bases for the decision by the Department of Homeland Security

23J to discontinue the task force model MOA in Maricopa County?
24J A. No, I do not.
25J Q. At any time while you served as the special agent

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Melendres v.
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SUBJECT TO PROTECTIVE ORDER
Page 157

:

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in charge in Phoenix, had the Maricopa County Sheriff's.
Office violated any portion of the Memorandum of

l]
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]
10]
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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Alonzo Rafael Pena
September 30, 2010
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24] Q. It's -. 25] A. I -- I have not read this document.

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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.

MR. LIDDY: I have no further questions.
MR. POCHODA: Thank you.

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Case 2:07-cv-02513-GMS Document 1629 Filed 02/26/16 Page 18 of 32

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

Case 2:07-cv-02513-GMS Document 1629 Filed 02/26/16 Page 19 of 32
Page I of l

__ __________
--·

Cuff, Meagan A (CTR)
From:
Sent:
To:

Friday, September 19, 2008 4:46
; PM

--f~----

Cc:
Subject:
Summary of the Maricopa County 2879 Inspection
All,

The Maricopa County 287iii!ns
eetion closeout occurred a short whlle ago. Attending were for OPR, SAC
- · acting AFOD
, and Maricopa County Chief Deputy Brian Sands. ~ot prese,nl
'i'he'flrSt'Subject of discussion was to ay's Arizona Republic editorial critical of the Sheriff, which seemed to Influence Chief
Sands to counsel the Sheriff not to do publicity for this inspection.
As expected, only minor deficiencies were discovered during the Inspection. The learn tlescrlbed the MCSO program as
follows.
·
• 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.

The team conducted the following external Interviews
• USAO - chief who handles Immigration violations- had·no complaints about the program
• FBI SAC· reported that !here were very few complaints of the Sheriff's office; the SAC compUmenled both ICE and
theMCSO.
• Maricopa County Attorney (DA) - had no complaints about the program
The 287g inspection team wlll produce a fuller report on their return to the offlcs .


Director
OHS/ICE Office of Profossional Responsibility

ICE 582
9/14/2009

Case 2:07-cv-02513-GMS Document 1629 Filed 02/26/16 Page 20 of 32

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

Case 2:07-cv-02513-GMS Document 1629 Filed 02/26/16 Page 21 of 32

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Manuel de Jesus Ortega Melendres,
et al.,
Plaintiffs,

)
)
)
)
)

vs.

) No. CV 07-02513-PHX-GMS

Joseph M. Arpaio, et al.,
Defendants.

)
)
)
)

~~~~~~~~~~~~~~~~~~~)

VIDEOTAPED DEPOSITION OF JASON DOUGLAS KIDD
SUBJECT TO PROTECTIVE ORDER

Phoenix, Arizona
October 1, 2010
10:35 a.m.

REPORTED BY:

CATHY J. TAYLOR, RPR
Certified Reporter
Certificate No. 50111
PREPARED FOR:

MR. THOMAS P. LIDDY
(COPY)
,T

J

court reporters

3030 North Central Avenue
Suite 1102
Phoenix, Arizona 85012
T 602-264,2230
888-529,9990
F 602-264-2245

www.griffinreporters.com

Melendres v.
Arpaio

Case 2:07-cv-02513-GMS Document 1629 Filed 02/26/16 Page 22 of 32
SUBJECT TO PROTECTIVE ORDER
Page 9

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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:
12]
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EXAMINATION
14]
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?
22]
A. In lttigen, Switzerland.
Q. Okay. And are you currently taking any medication 23]
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that might impair your memory?
25]
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. Mr. Kidd, where are you currently employed?
A. I'm the assistant attache in Bern, Switzerland, for
Immigration and Customs Enforcement.
And are you stationed at the United States Embassy?
I am.
And how long have you worked there?
Since August of 2010.
And where did you work immediately preceding that
posting?
A. I was the deputy special agent in charge in
Phoenix, Arizona -- acting deputy special agent in charge in
Phoenix, Arizona, for ICE.
Q. Is that position sometimes referred to in all caps
as the DSACPhoenix?
A. Yes.
Q. And when did you start working as the DSAC Phoenix?
A. In September 2009.
Q. Okay. And prior to serving as the deputy special
agent in charge in Phoenix, where were you employed?
A. In Phoenix, Arizona, as the assistant special agent
in charge from 2008.
Q. Also at ICE?
A. Yes.
Q. Prior to that?
A. In Phoenix, Arizona, as a group supervisor for ICE.

Q.
A.
Q.
A.
Q.

Page 12

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Q. Okay. If at any time I ask a question that is
unclear to you, please ask me to rephrase it and clarify it.
Also, there -- these proceedings are subject
to a protective order, and there are also limitations on the
areas of inquiry for this deposition, which I think you're
aware of.
A. Yes.
Q. If at any time you feel that I'm asking you -- that
a response to a question that I've posed to you calls for
protected information, please let me know, and I will narrow
the scope of the question -A. Okay.
Q. -- accordingly.
This protective order we have had marked as
Exhibit Number 32, and it is protective order regarding the
depositions of former and current ICE employees. I want to
put that on the record.
A. Uh-huh.
Q. In addition to that, there is a -- a Touhy letter,
which spells out in detail the rationale for and the
specifics of the limitations on the scope of this deposition.
And it's a letter addressed to you from Susan Mathias dated
September 24th, 2010, from the US Immigration and Customs
Enforcement. And that's been marked as Exhibit Number 33.
A. Okay.

Min-U-Script®

Jason Douglas Kidd
October 1, 2010
Page 11

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Q.
A.
Q.
A.
Q.

And when did that begin?
. July 2006.
How long have you been working with ICE?
Since its beginning in February 2003 or March 2003.
And would you tell us your assignments from
February 2003 up until July 2006.
A. In February 2003, I was a special agent in Houston,
Texas. And I transferred in 2- -- well, I transferred to
Atlanta, Georgia, in July 2003. And then in July 2006, as a
group supervisor in Atlanta, Georgia. In July 2006, I
transferred to Phoenix as a group supervisor -- excuse me -supervisor.
Q. Thank you.
Prior to your employment with ICE, where were
you employed?
A. The Immigration and Naturalization Service.
Q. That was prior to the creation of the Department of
Homeland Security?
A. That's correct.
Q. And under which department did you work?
A. Department of Justice.
Q. Justice.
And how long were you employed there?
A. Since October 2000 -- or October 1992.
Q. And where were your postins -- postings?

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Arpaio

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SUBJECT TO PROTECTIVE ORDER
Page 17

Page 19

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Yavapai County Sheriffs Office. Arizona Department of
Public Safety. Phoenix Police Department. Mesa Police
Department. Florence Police Department.
I can't think if I'm missing any off the top
of my head.
Q. Did all of these law enforcement agencies have
personnel that were 287(g) certified?
A. Either certified or in the training when -- before
I left, yes.
Q. What is the 287(g) program?
A. The 287(g) program was designed and -- and
started -- I should say was used to -- as a force multiplier
to be able to give state and local law enforcement the
ability to enforce immigration laws.
Q. So is it your understanding that the 287(g) program
only acted as a force multiplier for ICE's activities with
regard to immigration law?
A. The 287(g) program was for the immigration law.
Q. Right. So the 287(g) certified officers would not
use their 287(g) authority in the other areas of
responsibility which you mentioned, such as child

22]

pornography, gang members, crimes prosecution, asset removal

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and -- is that correct?
MR. POCHODA: Objection. Foundation.
THE WITNESS: No, it's not correct. We did

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prosecution goes forward, though, it's one or the other.
BY MR. LIDDY:
Q. Okay. Thank you.
Did you personally work directly with Maricopa
County Sheriff's Office employees that were certified under
the 287(g) program?
A. We didn't work in the same building or anything of
that nature. I worked closely with them on the program and
the implementation of it.
Q. Okay. What did you do as the DSAC while you were
coordinating efforts with the Maricopa County Sheriffs
Office 287(g) certified officers?
MR. POCHODA: Objection. Form.
THE WITNESS: Can you rephrase? I mean,
that's -- the DSAC jobs are very broad -BY MR. LIDDY:
Q. Okay.
A. -- in responsibility.
Q. Right. Well, I want to narrow the scope of the
question to the DSAC responsibilities only with respect to
your activities with Maricopa County Sheriff's Office 287(g)
certified officers.
A. Okay.
Q. What activities did you undertake in that regard?
MR. POCHODA: Objection. Form.

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have other -- some of our 287(9) trained officers were also
cross-certified with Title 19 and enforced customs and other
violations that ICE prosecuted.
BY MR. LIDDY:
Q. Yes. But when they were cross-certified, they were
using their other certification -A. Correct.
Q. -- as being a force multiplier for ICE and not
their 287(g) certification, is that correct?
MR. POCHODA: Objection. Foundation.
THE WITNESS: It's -- they kind of run
together if you're working a gang case or things like that.
BY MR. LIDDY:
Q. So is it your testimony that it is not always clear
which authority a local law enforcement personnel would be
operating under, be it Title 19 or 287(g), when they are
acting as a force multiplier for ICE?
MR. POCHODA: Objection. Form. Foundation.
THE WITNESS: I wouldn't say it's not clear.
I would say that they run together sometimes.
BY MR. LIDDY:
Q. Okay. So would it be your testimony that it is
clear that they run together?
MR. POCHODA: Objection. Form and foundation.
THE WITNESS: It's clear. By the time the

Min-U-Script®

Jason Douglas Kidd
October 1, 2010

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THE WITNESS: The activities would be
consulting with the Maricopa County, their command staff, and
looking into any type of situation that may arise that would
cause question and reporting back to ICE headquarters and to
others on the activities.
BY MR. LIDDY:
Q. Whom did you meet with in the command staff of the
Maricopa County Sheriffs Office when you were undertaking
these responsibilities?
A. I met with Sheriff Arpaio on many occasions.
Chief Brian Sands. Chief Jerry Sheridan. Occasionally Ray
Chu ray from Maricopa, but not necessarily with the 287
program. Lieutenant Joe Sousa. Lieutenant Irene Irby.
Q. Did you ever accompany Maricopa County Sheriffs
Office law enforcement personnel that were 287(g) certified
to the field when they were utilizing their 287(g) authority?
A. No.
Q. While you were coordinating with the Maricopa
County Sheriffs Office, were you provided advance notice of
their 287(g) certified officers being deployed to the field
to use their 287(g) authority?
MR. POCHODA: Objection. Form. Foundation.
THE WITNESS: I wasn't told they were going to
use their authority. I was told that there were operations
that were going to take place that may encompass that

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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.

17 J

Did you ever discuss the issue of racial profiling
with your students when you were part of the certification
process?
A I don't recall ever bringing that subject up to the
students in the classroom setting.
Q. Do you know if other faculty members in this 287
certification process raised the issue of racial profiling?
MR. POCHODA: Objection. Form and foundation.
THE WITNESS: Yes. There's a course of
instruction on the use of race and some other related topics
that are part of the curriculum, and I was there for several
of those courses.
BY MR. LIDDY:
Q. Would you describe for us the information that was
provided the students regarding racial profiling.
MR. POCHODA: Objection. Foundation.
THE WITNESS: The curriculum includes the

18]

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came out in 2003.

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guidelines?

A Yes. And there's a course of instruction where
they talk about -- they go over that. It's at least an hour.
It could be two hours.

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local district. Since the instructors are from the academy,
they don't know how things actually work in each district.
So they have the local people instruct in that block.
Q. Okay. So the faculty for this training came from
outside Arizona?
A Most of the time.
Q. And so they were not familiar with some of the
local activities in Customs?
A Correct.
Q. And so you filled that gap as part of the training
for the 287 certified officers?
A Yes.
Q. Can you give us some specific examples of some of
the information which you would provide to your students in
that regard.
A One of the specific examples I would talk about
would be our alien smuggling activities within Arizona, what
ICE does, a general overview of ICE and their
responsibilities and how our alien smuggling program works
within and compliments the 287(g) program.

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Is there anything else that you recall about racial
profiling in the certification process other than the DOJ
guidelines?
A Some of the statutory authority and issues of
probable cause, reasonable suspicion and other policy -- ICE
policy is discussed around that time frame.
Q. What is racial profiling?
A It's the use of race to -- as a determining factor
for a law enforcement activity.
Q. And what do you mean by determining factor?
A To single out or decide to use their race as a
means of deciding which person you encounter or talk to.
Q. Does racial profiling entail using race as the sole
factor in making determinations about law enforcement
decisions?
A No. It's -- it talks about using it ever as a
factor is what the guidelines talk about.
(Ms. Nancy Ramirez joins proceedings.)
BY MR. LIDDY:
Q. Is racial profiling illegal?
MR. POCHODA: Objection. Foundation.
THE WITNESS: I don't know that there's a law.
I know that there are lawsuits about it. I would have to
look at it to see if there's anything.
(Next page, please.)

11 Q.

2] Q. And what aspects of the training did you provide?
3J A There's a course or a block of instruction where
4] they want to know -- where they have the local people talk
5] about how 287(g) and the Jaws are implemented within the

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enforcement, do you understand that the use of racial
profiling by law enforcement personnel is improper?
A. Yes.
Q. Are you familiar with the term saturation patrol?
A. Yes.
Q. What is a saturation patrol?
A. The way I'm most familiar with it is the way
Maricopa County was -- or is using saturation patrol to bring
in extra officers to an area to look for violations of state
law and encounter those people.
Q. Are you aware of saturation patrols used as a
tactic by law enforcement agencies outside of Maricopa
County?
MR. POCHODA: Objection. Form and foundation.
THE WITNESS: Yes. I've heard of other and
talked to other law enforcement that-- and they may call it
something different, but they -- they talk about going after
crime using this type of method.
BY MR. LIDDY:
Q. Is that outside of Arizona?
A. Yes.
Q. And in other areas in Arizona but outside of
Maricopa County?

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THE WITNESS: There were. I talked to several
ofthem.
BY MR. LIDDY:
Q. Do you recall the names of those that you talked
to?
A. Not -- not really. I mean, there were several
detention and task force officers there.
Q. Would it be accurate to describe your actions at
the command center as supervisory?
MR. POCHODA: Objection. Form.
THE WITNESS: No.
BY MR. LIDDY:
Q. Would it be accurate to describe your activities at
the command center as observer?
A. Yes.
Q. Do you recall the location of the command centers
during the saturation patrols in which you were present for a
time at the command center?
MR. POCHODA: Objection. Form.
THE WITNESS: I wouldn't be able to give you
the cross streets for that. I mean ...
BY MR. LIDDY:
Q. Okay. How about just the site of the saturation
patrol if not the specific site of the command post?
MS. STRANGE: Objection to form.

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ll A. I don't recall any outside of -- inside Arizona but
21
outside Maricopa County.
31 Q. Did you ever attend any saturation patrols in
4 J Maricopa County?
51 A. I went to the command center on occasion during
61
some of the saturation patrols.
71 Q. And what is the command center for a saturation
01
patrol?
9J A. The command center's where the large vehicles and
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tables and things of that nature are set up to be able to
111
process and talk to all the people encountered during the
12 J saturation patrol. It may include a processing vehicle, a
131 van or a wagon to be able to take people that are arrested.
141
Media area. Things of that nature.
15] Q. Was there communications equipment at the command
161
center?
171 A. Yes.
18 J Q. Do you recall whether that communications equipment
19] was used to communicate from the command center to 287(g)
20]
certified personnel in the field during the saturation
21]
patrol?
22] A. I wouldn't know.
23] Q. Would you know if there were any 287(g) certified
24]
personnel at the command center while you were there?
MR. POCHODA: Objection. Form and foundation.
25]

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October 1, 2010

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THE WITNESS: The command post is generally
near the saturation patrol. The saturation patrol has an
area defined on its operation plan, and it's usually near or
in the area of the patrol, saturation patrol.
BY MR. LIDDY:
Q. Okay. With regard to this question, I'm only
interested in the area of the saturation patrol in which you
were present at the command post.
MS. STRANGE: Objection to form.
THE WITNESS: On at least one of the
saturation patrols, it was in Guadalupe, and I went out to
that. And it was in -- the command center was in Guadalupe.
BY MR.LIDDY:
Q. Did you visit the command center for a saturation
patrol in Mesa?
A. I don't recall.
Q. Did you visit the command center during a
saturation patrol in Phoenix?
A. At least one of them, I did.
Q. Did you visit the command center at a saturation
patrol in Fountain Hills?
A. No.
Q. Approximately how many times did you visit the
command center during a saturation patrol?
MR. POCHODA: Objection. Form.

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THE WITNESS: I can only recall two.
BY MR. LIDDY:
Q. Can you recall -- can you recall when those two
were?
A No, not without some research.
Q. Why did you attend those saturation patrols? Or
let me rephrase that.
Why did you visit the command post during
those saturation patrols?
A We were informed that they were -- through Maricopa
County would likely encounter subjects and be using the
287(g) authority, and we went out to observe and be able to
have people on scene if there were questions once the
authority was used.
Q. Do you recall whether there any -- do you recall
whether any questions arose during the saturation patrols
that you visited in either Guadalupe or Phoenix?
A I recall in Guadalupe there was at least one
question, and it was fielded by someone else that I had come
out.
Q. Do you recall who that person was?

A
Q. Do you recall what the question was?

A No.
Q. Al the time, was

an employee of

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BY MR. LIDDY:

Q. Did you ever express in writing to the Maricopa
County sheriff or any Maricopa County Sheriffs Office
command personnel any criticism of its use of crime
suppression patrols?
MR. POCHODA: Objection. Form.
MS. STRANGE: Objection. Form.
THE WITNESS: Not that I recall.
BY MR. LIDDY;
Q. Are you familiar with the term zero tolerance?
A Yes.
Q. What is zero tolerance?
A In the law enforcement setting, zero tolerance is
used to describe encountering, talking to and citing or
prosecuting anything within the purview or sight of the law
enforcement officer in that particular area at that
particular lime.
Q. Is it your understanding that zero and tolerance -excuse me. Is it your understanding that zero tolerance,
when employed in that regard, involves all statutes or just
specific criminal statutes?
MR. POCHODA: Objection. Form and foundation.
THE WITNESS: It's my understanding that it
involves all style -- all statutes that they're eligible to
prosecute or enforce.

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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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October 1, 2010

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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.

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aware that subjects encountered during saturation patrols
could be charged with violations of Arizona law, including
traffic violations?
A. Yes.
Q. While you were serving as DSAC, were you aware that
Maricopa County Sheriff Office crime suppression patrols also
encountered individuals that were charged with not having
legal status as aliens present in the United States?
MR. POCHODA: Objection. Form and foundation.
THE WITNESS: Yes.
BY MR. LIDDY:
Q. Did you ever express in writing any concerns to
Maricopa County Sheriff or sheriff's office personnel that
you had regarding MCSO personnel identifying aliens without
legal status present in the United States during civil
traffic stops?
MS. STRANGE: Objection to form.
THE WITNESS: I don't recall having -- putting
anything in writing about that.
BY MR. LIDDY:
Q. How about verbally?

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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

2J Q.

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lJ A. We may have talked about -- or I recall talking to
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
14J
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
(Next page, please.)
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Maricopa County Sheriff's Office Human Smuggling Unit?

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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1]
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?

1] signatory authority to sign those charging documents and
2] accept those aliens into ICE custody from Maricopa County.
3J Q. Describe for me the charging documents you referred
4J to. Are those charging documents for individuals taken into
5] custody by 287(g) certified personnel and then charged with
6]
violations of federal law?
7J A. Yes.
BJ Q. And would you describe for me, to the best of your
9J recollection, some of the federal charges in those sheets.
10J A. The charging documents could include an 1-213, a
11]
notice of -- notice to appear, which are documents stating
12] how the encounter took place and the biographical data of the
13J alien and also the warrant of arrest for immigration
14J violations. Those documents were prepared by Maricopa County
15] Sheriffs officers.
16] Q. Were the sheriffs officers that prepared those
17] documents 287(g) certified?
18] A. Yes.
19] Q. Would the biographical data in the charging sheets
20J include country of origin?
21J A. Yes.
22] Q. Ethnicity?
23] A. No.
24] Q. Sex?
25] A. Well, actually, it -- I'm trying to think what

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A.

Not as the DSAC, no.

1]

Q. Was it ever part of your responsibility to handle
inquiries from the field via the telephone -- telephone?
A. Yes, when I was a group supervisor.
Q. Tell me about that responsibility.
A. When Maricopa County would exercise their 287(g)
authority following an -- an encounter and the clearance of
all state law or state violations, they would then talk to
the person about their alienage. And occasionally they would
have questions as to whether they could detain, transport,
whether the -- and other technical questions regarding
determining -- determining alienage, and they would call me.
Q. And would you answer the questions yourself?
A. Either myself or one of the people that worked for
me would, yes.
Q. Did ICE supervise the Maricopa County Sheriffs
Office when it was exercising its 287(g) authority?
MR. POCHODA: Objection. Form and foundation.
THE WITNESS: Yes.
BY MR. LIDDY:
Q. Describe for me, if you will, how that supervision
was carried out.
A. It depended on what operation and where they might
be. In general, it would take place telephonically at first,
and then later on review of the documents produced and

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the -- the term. There is a place where it says white/black.
That's about -- I mean ...
Q. Is it your recollection that it includes only
white/black, or might there also be other potential options,
such as Latino or Hispanic or Asian?
A. I believe Asian is one. The FBI does not accept
Hispanic or Latino. It's either white, black, Asian and I
think other. But Hispanics are not put into either of
those -- any of those. They're just put into white.
Q. So is it your understanding that it's the practice
of federal law enforcement that when they take into custody
and charge an individual who is Hispanic or Latino, that they
are categorized as white?
A. Correct.
Q. What is Hispanic?
A. It's a term used to describe people of some -- that
are -- have some Hispanic origins from countries to include
Mexico, many are South America, Spain and other countries.
Q. So is it a term used to describe someone whose
country of origin's native language is Spanish?
MR. POCHODA: Objection. Form and foundation.
THE WITNESS: I don't think so. I don't know
if Portugese and things like that might be included. I don't
really know for sure. It's kind of a loose term.
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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.

Setting up equipment. Getting computer equipment put into
the processing locations and reviewing those locations.
Basically implementing the program.
BY MR. LIDDY:
Q. Okay. Would you describe for me some of the
recurring training of 287(g) personnel for Maricopa County
Sheriffs Office that was conducted while you were working
for ICE in Phoenix.

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while exercising their 287(g) authority?
MR. POCHODA: Objection. Form and foundation.
THE WITNESS: Can you break the question down
a little?
BY MR. LIDDY:
Q. Sure. Were you ever aware of MCSO 287(g) certified
personnel using race to determine whether or not to make a
traffic stop?
MR. POCHODA: Objection. Form -MS. STRANGE: Objection. Foundation.
MR. POCHODA: -- and foundation.
MS. STRANGE: Objection to form.
THE WITNESS: No.
BY MR. LIDDY:
Q. Were you ever aware of MCSO 287(g) personnel using
race when using their 287(g) authority?
MR. POCHODA: Asked and answered.
THE WITNESS: No.
BY MR. LIDDY:
Q. Are you aware of any allegations of racial
profiling made against any Maricopa County Sheriffs Office
personnel?
A Yes. I was notified about this lawsuit.
Q. Were you ever aware of -- well, let me withdraw
that.

Page 42

MR. POCHODA: Objection. Form and foundation.
11
THE WITNESS: The -- excuse me. The training
21
included online courses.
31
BY MR. LIDDY:
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51 Q. This is the recurring training?
6] A Yes.
71 Q. Okay.
81 A Online courses that were required in order to keep
the certification and compete -- to keep access to ICE
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computers. It also included a post-academy class or
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secondary academy class, where they would travel to
Charleston to receive additional training and refresher
training, is what it was called. And we coordinated that
training also.
Q. Did you ever express in writing to the Maricopa
County Sheriff or Maricopa County Sheriffs Office personnel
any of your professional concerns about the use of racial
profiling by a Maricopa County Sheriffs Office 287(g)
certified personnel?
MS. STRANGE: Objection to form.
THE WITNESS: Not that I recall.
BY MR. LIDDY:
Q. Were you ever made aware of any information or
allegations regarding Maricopa County Sheriffs Office
personnel using race as a basis for making traffic stops

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October 1, 2010

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As you understand it, what were the
allegations of racial profiling that you heard about?
MR. POCHODA: Objection. Form.
THE WITNESS: I was sent a copy of the lawsuit
and the -- in this case and read through it.
BY MR. LIDDY:
Q. So is it your testimony that prior to receiving
information about this lawsuit, you did not know of any
allegations against Maricopa County Sheriffs Office
personnel regarding racial profiling?
MR. POCHODA: Objection. Form.
THE WITNESS: I was not notified of any
allegations. I read them in the paper like everyone else.
BY MR. LIDDY:
Q. And the allegations you read in the paper, are
those that are the basis of this lawsuit?
A I don't know.
Q. Were you ever asked by your supervisors to
investigate allegations of racial profiling by Maricopa
County Sheriffs Office law enforcement personnel that were
287(g) certified?
A No.
Q. Were you familiar with the Memorandum of Agreement
between ICE and the Maricopa County Sheriffs Office
regarding the 287(g) program?

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Melendres v.
Arpaio

Case 2:07-cv-02513-GMS Document 1629 Filed 02/26/16 Page 30 of 32
SUBJECT TO PROTECTIVE ORDER

Jason Douglas Kidd
October I, 2010

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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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encountered and removed since the program began, and they
were provided to us on a recurring basis.
BY MR. LIDDY:
Q. And when you say the program, are you referring to
the 287(g) program?
A. Yes.
Q. In your opinion, are those numbers high?
MR. POCHODA: Objection. Foundation.
THE WITNESS: I can say they were -- they were
the highest numbers in the country.
MR. LIDDY: I'll ask you to mark that as 35.
Can I have that one back.
(Exhibit 35 marked for identification.)
BY MR. LIDDY:
Q. I've asked the court reporter to mark as Exhibit
Number 35 a document Bates numbered ICE 497, which on its
face appears to be an e-mail from Jon Gurule, G-U-R-U-L-E, to
Katrina Kane, K-A-N-E, dated February 28th, 2008.
MR. POCHODA: 497, I believe.
MR. LIDDY: ICE 497.
MR. POCHODA: Could you pass it, please.
Yeah, that's it. Thank you.
MS. LOPEZ: Thanks.
MR. LIDDY: Thank you.
THE WITNESS: Thanks.

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BY MR. LIDDY:

Q. I'm going to give you a moment to look 'at that.

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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BY MR. LIDDY:

Q. Give you a moment to look at that document.
A.

Uh-huh. Yes.

Q. Have you ever seen this document before?
A. This, I assume I have. I -- I would get these
stamped things. But we get them every -- we would get them
mostly every month, so ...
Q. So this is similar to Exhibit Number 34?
A. Yes.
Q. So it also presents -- is this an update of
statistics?
MR. POCHODA: Objection. Form and foundation.
THE WITNESS: Well, it's -BY MR. LIDDY:
Q. Of the 287(g) program?
A. Yes.
Q. Would you say that this -- that these statistics
are also high?
MR. POCHODA: Objection. Formation.
Are there any statistics on that?
THE WITNESS: Yes, they're high.
MR. POCHODA: Oh, the bottom. Okay.
BY MR. LIDDY:
Q. Would you say they represented the highest in the
country at that time?

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Melendres v.
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Case 2:07-cv-02513-GMS Document 1629 Filed 02/26/16 Page 31 of 32
SUBJECT TO PROTECTIVE ORDER
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THE WITNESS: Okay.
BY MR. LIDDY:
Q. Have you seen this document before?
A Yes.
Q. And when did you see it?
A December 12th, it looks like, 2007, I think.
Q. Who's the author of that document?
A
.
Q. And the recipients?
A Myself.
Q. Do you see under the reference to a lawsuit?
A Yes.
Q. What lawsuit was that?
A I believe it's the Melendres lawsuit, the one we're
discussing.
Q. And what is the subject matter of the e-mail?
A It's talking about the incident of when
Mr. Melendres was arrested.
Q. Were you present when Mr. Melendres was arrested?
A No.
Q. Did you ever interview any ICE employees who were
present at the time he was arrested?
A No.
Q. Did you ever interview any 287(g) authorized MCSO
employees that were present?

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federal immigration law and whether a particular subject
would be detained or not, what does the role of that
individual's employment play in the decision as to whether or
not to detain that individual or release that individual?
MR. POCHODA: Objection to form and
foundation.
THE WITNESS: There are several different ways
that you can fall out of status. When you enter into the
United States. you're given a status that -- to be able to be
here as a visitor or whatever classification you receive at
the time. You can fall out of status by doing several
things; committing a crime, staying too long, working or
doing something that your visa does not allow you to do.
And so working on a visit -- well, when you're
admitted as a visitor can cause you to fall out of status,
and; therefore, you would -- out of status may be detained.
BY MR. LIDDY:
Q. So just so it's clear to me, if a foreign national
obtained a visa to enter into the United States as a tourist
for a fixed amount of time and remained in the United States
after the end of that fixed time, would that individual fall
out of status?
A Yes.
Q. If an individual obtained a visa to come into the
United States as a tourist for a fixed amount of time and
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Not that I recall.
Do you recall when you first learned about the
arrest of Mr. Melendres?
A It was pretty close to the time of the incident,
but I don't remember exactly when.
Q. Do you remember who brought the information to you?
A No.
Q. Do you remember what you learned about the arrest
of Mr. Melendres at that time?
A I learned that he was released, I remember, and
that there was some -- some questions about it.
Q. Do you recall what the questions were?
A It had to do with his -- whether or not he was
working in the United States and whether he was -- whether he
should have been released or not.
Q. How would the information about whether a
particular detainee was working in the United States or not
affect the decision as to whether or not that individual
should be released or detained in Maricopa County jail?
MR. POCHODA: Objection. Form and foundation.
THE WITNESS: The release or detention wasn't
based on Maricopa County or state crimes. This was a -- more

of a 287(g) federal immigration violation.
. BY MR. LIDDY:
25] Q. Okay. So with respect to the enforcement of

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October 1, 2010

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sought and gained employment, would that individual fall out
of status?
A Yes.
Q. If an individual obtained a visa to come to the
United States to study and that individual left school, would
that individual fall out of status?
A It's possible. There are some exceptions in the
school -- in the student visas.
Q. As best you can recall here today, what was the
significance of whether or not Mr. Melendres was working at
the time of his arrest?
MR. POCHODA: Objection. Foundation and form.
THE WITNESS: Can you rephrase that question?
I'm ...
BY MR. LIDDY:
Q. Sure. You indicated earlier that that e-mail
referenced an issue as to whether or not Mr. Melendres was
working.
A Yes.
Q. I'm asking you if you recall today what you knew
then about the significance of whether or not Mr. Melendres
was working -MR. POCHODA: Objection. Foundation.
BY MR. LIDDY:
Q. -- at the time of his arrest?

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Melendres v.
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SUBJECT TO PROTECTIVE ORDER
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MR. POCHODA: Form.
THE WITNESS: Okay. The -- Mr. -- from what I
recall, Mr. Melendres was admitted for a period of time as a
visitor. And once he accepts or takes employment, he would
then be out of status and subject to removal proceedings.
So when he claims he -- well, when it said
that he claimed he was working, then that would have put him
into that status of -- or that category of being subject to
removal proceedings.
BY MR. LIDDY:
Q Okay. And you personally did not at the time have
any information as to whether or not Mr. Melendres was
working or was not working, is that correct?
A. That's correct.
Q. And you personally did not witness Mr. Melendres
making any statement with regard to whether he was was not
working at the time, is that correct?
A. That's correct.
Q. When you refer to an individual being admitted as a
visitor, are you referring to a tourist visa?
A. In general, yes. But a border crossing card could
also be -- you could be admitted as a tourist.
MR. LIDDY: I have another document here.
MR. POCH ODA: Can I look at that exhibit,
please. I just want to see it. You don't have an extra

I

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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

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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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third. fourth, fifth class, we started having a few issues
where people were not eligible for the classes or they had
something in their background that would put them not a
suitable candidate. So we -- the OP -- Office -- OPR wanted
all the background interviews -- investigations done prior to
anyone starting with class.
BY MR. LIDDY:
Q. I see. So would it be accurate to say that there

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copy, do you? Okay.
MR. LIDDY: I have another document here that
is Bates stamped ICE BS 11035. It is just one page. I'm
going to ask that it be marked as an exhibit to this
deposition.
(Exhibit 51 marked for identification.)
MS. STRANGE: Jason, what's the number on it?
THE WITNESS: 11035.
MS. STRANGE: Thank you.
THE WITNESS: Uh-huh.
BY MR. LIDDY:
Q. Have you seen this document before?
A. I don't recall seeing it prior to the preparation
for this.
Q. Okay. And, if you would for me, who is the author
of this document?
A. Roland Jones.
Q. And who is the addressee?
A. Roger Applegate and David Alejandro.
Q. Would it be accurate to describe that as a paper
record of an e-mail?
A. Yes.
Q. And what is the date of that e-mail?
A. August 2nd, 2007.
Q. Do you know either of addressees?

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was a point in time where individuals were tentatively
accepted to the 287(g) training program?
MR. POCHODA: Objection. Form and foundation.
THE WITNESS: They were in -- in -- started -had started training prior to their investigations being
done, yes.
BY MR. LIDDY:
Q. And the understanding was, as far as you
understood, that if their backgrounds did not come up as
acceptable, that they would be removed from the training?
MR. POCHODA: Objection. Form.
BY MR. LIDDY:
Q. Is that correct?
A. That was the practice.
Q. Do you see the reference in that e-mail to three
students of questionable background?
A. Yes.
Q. Do you recall that specific incident with those
three students?
A. I recall the -- vaguely the -- the -- that there
were three. I believe one or two of them did get cleared to
· go back into class.
Q. Do you recall what the issues were?
A. One of them was we wanted to verify the
naturalization of one of the employees. and so we made her

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