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COVINGTON & BURLING LLP 333 Twin Dolphin Drive Suite 700 Redwood Shores, CA 94065-1418 Telephone: (650) 632-4700 Facsimile: (650) 632-4800 Stanley Young (Pro Hac Vice) syoung@cov.com Andrew C. Byrnes (Pro Hac Vice) abyrnes@cov.com Attorneys for Plaintiffs (Additional attorneys for Plaintiffs listed on next page) UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Manuel de Jesus Ortega Melendres, et al., Plaintiffs, vs. Joseph M. Arpaio, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) No. CV 07-2513-PHX-GMS PLAINTIFF’S MOTION IN LIMINE TO EXCLUDE EVIDENCE OF U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (ICE)’S ALLEGED APPROVAL OF MCSO ACTIVITIES PURSUANT TO 287(G) (The Honorable Judge G. Murray Snow)

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Additional Attorneys for Plaintiffs: Tammy Albarran (Pro Hac Vice) talbarran@cov.com Covington & Burling LLP 1 Front Street San Francisco, CA 94111-5356 Telephone: (415) 591-6000 Facsimile: (415) 591-6091 Lesli Gallagher (Pro Hac Vice) lgallagher@cov.com Covington & Burling LLP 9191 Towne Centre Drive, 6th Floor San Diego CA 92122 Telephone: (858) 678-1800 Facsimile: (858) 678-1600 Dan Pochoda dpochoda@acluaz.org James Lyall jlyall@acluaz.org ACLU Foundation of Arizona 3707 N. 7th St., Ste. 235 Phoenix, AZ 85014 Telephone: (602) 650-1854 Facsimile: (602) 650-1376 Cecillia Wang cwang@aclu.org ACLU Foundation Immigrants’ Rights Project 39 Drumm Street San Francisco, California 94111 Telephone: (415) 343-0775 Facsimile: (415) 395-0950 Nancy Ramirez nramirez@maldef.org Mexican American Legal Defense and Educational Fund 634 South Spring Street, 11th Floor Los Angeles, California 90014 Telephone: (213) 629-2512 Facsimile: (213) 629-0266 Anne Lai annie.lai@yale.edu 15 Lyon St. Fl. 2 New Haven, CT 06511 Telephone: (203) 432-3928 Facsimile: (203) 432-1426

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Plaintiffs, by and through their counsel, hereby move and respectfully request that this Court preclude Defendants from offering at trial any evidence, either through documents (including at least Ex. 1072-1105) or testimony, regarding U.S. Immigration and Customs Enforcement (“ICE”)’s alleged approval of MCSO’s activities pursuant to the Memorandum of Authority (MOA) between ICE and the MCSO granting the MCSO authority under Immigration and Nationality Act (INA) §287(g) as irrelevant and in violation of Federal Rules of Evidence 401 and 403. MEMORANDUM IN SUPPORT OF MOTION IN LIMINE I. BACKGROUND

The parties have stipulated that from 2007 to October 15, 2009, the MCSO had an agreement with ICE to cross-certify MCSO field personnel to enforce the federal immigration laws under the Immigration and Nationality Act § 287(g), 8 U.S.C. §1357(g). It is undisputed that during this time a number of MCSO officers had 287(g) authority. The scope of that authority is clearly defined by the statute and the MOA. There is also no dispute that during saturation patrols, MCSO officers regularly conduct stops for minor traffic violations, including minor equipment violations. Plaintiffs assert that one of the main tactics employed during MCSO saturation patrols to investigate potential immigration violations is the use of pretextual traffic stops. Indeed, the certified class is defined as “All Latino persons who…have been or will…stopped, detained, questioned or searched by MCSO agents while driving or sitting in a vehicle on a public roadway or parking area in Maricopa County, Arizona.” Defendants have designated several forms of evidence relating to ICE and the MCSO’s 287(g) program. This includes the designation of deposition testimony for Alonzo Rafael Pena and Jason Douglas Kidd, documents produced by ICE pursuant to a subpoena (including at least Ex. 1072-1105), and the inclusion of additional ICE witnesses on Defendants’ witness list. Plaintiffs object to this evidence as irrelevant and in violation of Federal Rules of Procedure 401 and 403 to the extent that the evidence

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relates to ICE’s alleged approval of MCSO activities under 287(g) because ICE was not concerned with and did not scrutinize the traffic stops conducted by the MCSO. II. ARGUMENT

F.R.E. 401 defines relevant evidence as evidence that has a tendency to make a fact that is of consequence in determining the action more or less probable than it would be without the evidence. Further, F.R.E. 403 allows the court to exclude evidence, even if relevant, if its probative value is substantially outweighed by, among other things, unfair prejudice, confusing the issues, or wasting time. As explained throughout the depositions of Mssrs. Kidd and Pena, ICE took the position that it was concerned only with the MCSO’s use of 287(g) authority. See, e.g., Ex. A to Gallagher Dec. at 173:11-20. Mssrs. Kidd and Pena testified that they did not view the MCSO as having initiated stops for traffic violations based on their 287(g) authority, but on MCSO’s state police powers instead. Ex. A to Gallagher Dec. at 176:7-15; Ex. B to Gallagher Dec. at 51:18-22. For this reason, Mr. Kidd believed that it was not ICE’s job to assess the motivation of the MCSO officer(s) on any particular traffic stop. Id. at 151:25-153:11. ICE did not investigate whether there was

justification for those traffic stops, Ex. A to Gallagher Dec. at 97:24-98:9; 184:4-11, nor did ICE supervise MCSO personnel when making those traffic stops to ensure that the stops were justified or to monitor whether racial profiling was going on. Ex. B to Gallagher Dec. at 53:8-11. Although Mr. Kidd sometimes reviewed operations plans for saturation patrols, his focus in that regard was on making sure that the MCSO officers were following proper protocol after traffic stops had been made. Ex. B to Gallagher Dec. at 138:8139:11. ICE was not concerned with the basis for traffic stops conducted by the MCSO for minor traffic violations. Further, there is no evidence that the ICE witnesses have any independent knowledge with regard to the specific traffic stops that will be presented during Plaintiffs case in chief, and, when questioned about at least certain of

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those stops at deposition, the witnesses consistently clarified that they did not have such knowledge. See, e.g., Ex. B to Gallagher Dec. at 121:19-122:1. As stated by Mr. Kidd himself, there was therefore no basis for ICE to be able to conclude one way or the other whether there was racial profiling in the state traffic violations during saturation patrols conducted by the MCSO. Ex. B to Gallagher Dec. at 153:13-18. Therefore, evidence purporting to show that ICE allegedly approved of the MCSO’s activities under the 287(g) program, or that ICE never made any adverse findings with respect to the MCSO’s 287(g) program, is of no consequence to the issues to be resolved at trial — i.e., whether or not the MCSO has a policy, practice or pattern of racial profiling attenuate with respect to traffic stops in violation of the Fourth and/or Fourteenth Amendment rights of Plaintiffs. Because ICE admittedly had no way of knowing whether racial profiling was occurring, or whether MCSO deputies were justified in making or extending any particular traffic stop, it would be just as prejudicial, confusing and a waste of time to allow evidence indicating that ICE approved of, or did not disapprove of, the MCSO’s activities. The deposition designations submitted by Defendants with respect to Mssrs. Pena and Kidd should also be precluded in their entirely. The offered designations do not address any fact that is of consequence in this investigation. The parties do not dispute that MCSO had 287(g) authority and the scope of that authority is clearly laid out in the statute. The remaining designated testimony is directed at ICE’s alleged approval of MCSO practices and, for the reasons stated herein, is irrelevant and prejudicial. III. CONCLUSION

For the reasons set forth, Plaintiffs thus respectfully request that this Court preclude Defendants from offering at trial any evidence, either through documents or testimony, regarding ICE’s alleged approval of MCSO’s activities pursuant to the Memorandum of Authority (MOA) between ICE and the MCSO granting the MCSO authority under Immigration and Nationality Act (INA) §287(g).

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RESPECTFULLY SUBMITTED this 2nd day of March, 2012.

By /s/ Lesli Gallagher Stanley Young (Pro Hac Vice) Andrew C. Byrnes (Pro Hac Vice) COVINGTON & BURLING LLP 333 Twin Dolphin Drive Suite 700 Redwood Shores, CA 94065-1418 Tammy Albarran (Pro Hac Vice) talbarran@cov.vom Covington & Burling LLP 1 Front Street San Francisco, CA 94111-5356 Lesli Gallagher (Pro Hac Vice) lgallagher@cov.com Covington & Burling LLP 9191 Towne Centre Drive, 6th Floor San Diego CA 92122 Dan Pochoda dpochoda@acluaz.org James Lyall jlyall@acluaz.org ACLU Foundation of Arizona 3707 N. 7th St., Ste. 235 Phoenix, AZ 85014 Cecillia Wang cwang@aclu.org ACLU Foundation Immigrants’ Rights Project 39 Drumm Street San Francisco, California 94111 Nancy Ramirez nramirez@maldef.org Mexican American Legal Defense and Educational Fund 634 South Spring Street, 11th Floor Los Angeles, California 90014 Anne Lai annie.lai@yale.edu 15 Lyon St. Fl. 2 New Haven, CT 06511 Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that on the 2nd day of March, 2010, I electronically transmitted the attached document to the Clerk’s office using the CM/ECF System for filing and caused the attached document to be e-mailed to: Thomas P. Liddy tliddy@mail.maricopa.gov Maria R. Brandon brandonm@mail.maricopa.gov Timothy J. Casey timcasey@azbarristers.com Attorneys for Defendant Sheriff Joseph Arpaio and the Maricopa County Sherriff’s Office s/Rohna R. Houston Paralegal

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