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Case 2:16-cr-01012-SRB Document 107 Filed 03/28/17 Page 1 of 5

1 RAYMOND N. HULSER
Chief
2 Public Integrity Section, Criminal Division
U.S. Department of Justice
3
JOHN D. KELLER
4 Illinois State Bar No. 6293104
VICTOR R. SALGADO
5 DC Bar No. 975013
SIMON J. CATALDO
6 Massachusetts Bar No. 690879
Trial Attorneys
7 Public Integrity Section, Criminal Division
U.S. Department of Justice
8 1400 New York Ave, NW, 12th floor
Washington, D.C. 20005
9 Tel: (202) 514-1412
John.Keller2@usdoj.gov
10 Victor.Salgado@usdoj.gov
Simon.Cataldo@usdoj.gov
11
12 IN THE UNITED STATES DISTRICT COURT
13 FOR THE DISTRICT OF ARIZONA
14 United States of America,
2:16-CR-01012-SRB
15 Plaintiff,
16 vs. RESPONSE IN OPPOSITION TO
DEFENDANT’S MOTION FOR
17 CONTINUANCE OR TO EXCLUDE
Joseph M. Arpaio, DOCUMENTS
18
Defendant.
19
20 On March 1, 2017, nearly two months before trial, the government provided the
21 defendant with a witness list, exhibit list, and additional copies of the records reflected in
22 the exhibit list, itemized by exhibit number, in order to assist him in the preparation of his
23 defense. Despite this, defendant now asks for a continuance based on the fact that the
24 government provided him with two additional exhibits on March 15 and March 22—
25 specifically, MCSO incident reports totaling seventeen pages—and also properly provided
26 him with supplemental discovery of items that recently came into the government’s
27 possession. This additional discovery primarily consists of: (1) MCSO records that the
28 defendant and his attorneys have had access to for years, and which the government does
Case 2:16-cr-01012-SRB Document 107 Filed 03/28/17 Page 2 of 5

1 not intend to offer at trial; and (2) newly obtained recordings of depositions and interviews,
2 the transcripts of which were previously produced to the defendant. This additional
3 discovery provides no basis for a continuance. The defendant’s motion should be denied.
4 The defendant references “over 210 GB of video files” as a basis for a continuance.
5 Mot. to Continue at 1, ECF No. 103. But these video files consist of one full media
6 interview, the relevant excerpt of which was previously produced to the defendant on
7 December 30, 2016, and recordings of depositions and investigative interviews of
8 numerous witnesses, the transcripts of all but two of which were also provided on
9 December 30, 2016.1 The remaining two transcripts were provided on February 24, 2017.
10 The government only intends to offer clips of the recordings of the defendant himself at
11 trial as party admissions, and all of the relevant transcripts were previously provided in
12 discovery and were then reproduced as itemized exhibits on March 1, 2017. Moreover,
13 Mr. McDonald himself was present for the majority of the depositions, interviews, and
14 testimony of the defendant for which recordings and transcripts have been provided.
15 With regard to the documents referenced in the defendant’s motion, the vast
16 majority are MCSO incident reports and related documents underlying three statistical
17 summaries created by the defendant’s office in 2013 or 2014, admitted at the 2015
18 evidentiary hearings in Melendres, provided to the defendant in discovery in this case on
19 December 30, 2016, and reproduced as exhibits on March 1, 2017. The government
20 recently obtained the underlying documents from MCSO and produced them because the
21 defendant refused to stipulate to the accuracy of the three summaries. Also included in the
22 production are press releases issued by the defendant’s office during his tenure as sheriff,
23 many of which were also previously provided in discovery on December 30, 2016. The
24 relevant releases were then reproduced as exhibits on March 1, 2017, along with all of the
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27 The government anticipates receiving and producing additional recordings of
depositions, the transcripts of which were provided to the defendant on December 30, 2016,
28 and certified copies of media interviews that were also previously produced in discovery.
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Case 2:16-cr-01012-SRB Document 107 Filed 03/28/17 Page 3 of 5

1 other exhibits. The full set of all press releases was recently obtained directly from MCSO
2 and was produced in discovery on March 20, 2017, because the defendant refused to
3 stipulate to the authenticity of the previously produced versions. These discovery
4 productions, provided more than a month before trial, do not warrant a continuance,
5 particularly where the substance of the productions was previously provided to the
6 defendant and where the government intends to offer very little of the evidence at trial.
7 The defendant’s three counsel of record2 have more than sufficient time to prepare for the
8 April 25, 2017, trial date.
9 For all of the reasons stated above, the Motion for Continuance or to Exclude
10 Documents should be denied without “expedited oral argument” as requested by the
11 defendant.
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16 The defendant previously submitted a supplement to another motion to continue
on the basis that three additional lawyers who wish to join the defense team all have
17 conflicts with the scheduled trial date. All three of the proposed new counsel represented
Maricopa County in the underlying Melendres litigation, and two of them represented the
18 defendant in this criminal case until January 9, 2017. See Gov. Ex. A (identifying the
proposed new counsel as “Masterson, Popolizio, and Ackerman.”) As a result, they are all
19 intimately familiar with the facts and witnesses involved in this case, and according to Mr.
McDonald’s pleading, they have been available to assist (and may have been assisting) Mr.
20 McDonald since February 9, 2017. Moreover, they have known of the conflicting April
24, 2017, trial date in Erickson v. City of Phoenix, No. 2:14-cv-01942 (D. Ariz. 2014),
21 since December 23, 2016. See Erickson, Order Setting Trial, ECF No. 146.

22 Nonetheless, Mr. McDonald waited until March 23, 2017, to raise the possibility of
these lawyers re-entering this case and to flag the potential conflict with the Erickson trial
23 date. While Mr. McDonald represented that counsel do not believe that the Erickson trial
date can be moved, no motion for a continuance of trial has been filed in that case. See
24 Erickson, No. 2:14-cv-01942. These delays and lack of effort to adjust counsels’ schedules
further militate against granting a continuance. See United States v. Lloyd, 125 F.3d 1263,
25 1268–69 (9th Cir. 1997).

26 Finally, due to their prior representation of the County in Melendres, the
appearances of the proposed new lawyers would likely necessitate a conflicts hearing
27 pursuant to Federal Rule of Criminal Procedure 44(c)(2). See, e.g., United States v. Agosto,
675 F.2d 965, 970 (8th Cir. 1982) (“Rule 44(c) establishes a suitable framework for the
28 district court to assess possible conflicts in situations beyond simple joint representation.”).
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Case 2:16-cr-01012-SRB Document 107 Filed 03/28/17 Page 4 of 5

Respectfully Submitted,
1
2 RAYMOND N. HULSER
Chief, Public Integrity Section
3
By: /s/ John D. Keller
4
John D. Keller
5 Victor R. Salgado
Simon J. Cataldo
6 Trial Attorneys
United States Department of Justice
7
Public Integrity Section
8 1400 New York Ave. NW
Washington, DC 20005
9 (202) 514-1412
John.Keller2@usdoj.gov
10
Victor.Salgado@usdoj.gov
11 Simon.Cataldo@usdoj.gov

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Case 2:16-cr-01012-SRB Document 107 Filed 03/28/17 Page 5 of 5

CERTIFICATE OF SERVICE
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2 I HEREBY CERTIFY that on today’s date, I electronically filed the foregoing via the
CM/ECF system which will automatically provide notice to counsel of record for the defendant.
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/s/ John D. Keller
5 John D. Keller
Trial Attorney
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