1 IN THE UNITED STATES DISTRICT COURT

 2 DISTRICT OF ARIZONA

 3 United States of America MJ-17-339-TUC-BPV

 4 vs. 

 5 Natalie Renee Hoffman, January 17, 2019

Oona Meagan Holcomb, 9:37 a.m. 

 6 Madeline Abbe Huse, and Tucson, Arizona

Zaachila Isabel Orozco-McCormick,

 7

Defendants.

 8 _____________________________________ 

 9

 10

 11 REPORTER'S OFFICIAL TRANSCRIPT OF PROCEEDINGS

 12 BENCH TRIAL DAY THREE

 13 BEFORE THE HONORABLE BERNARDO P. VELASCO 

UNITED STATES MAGISTRATE JUDGE

 14

 15

 16

 17

 18

 19

 20

 21

 22 Court Reporter: Erica R. McQuillen, RDR, CRR

 Official Court Reporter

 23 405 W. Congress Street

 Tucson, Arizona 85701

 24 (520)205-4267

 25 Proceedings Reported by Stenographic Court Reporter 

Transcript Prepared by Computer-Aided Transcription

1

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 1 of 198
 1 A P P E A R A N C E S

 2 For the Government:

 3 Anna Roberta Wright

Nathaniel Jacob Walters

 4 United States Attorney's Office

405 West Congress

 5 Tucson, Arizona 85701

 6

 7 For the Defendants:

 8 Anne Michelle Chapman

Mitchell Stein Carey Chapman, PC

 9 One Renaissance Square

Two North Central Avenue

 10 Suite 1450

Phoenix, Arizona 85004

 11

 12 Christopher Baird Dupont

Trautman Dupont, PLC

 13 P.O. Box 431

Phoenix, Arizona 85001

 14

 15 Louis S. Fidel

Piccarreta & Davis, PC

 16 145 South Sixth Avenue

Tucson, Arizona 85701

 17

 18

 19

 20

 21

 22

 23

 24

 25

2

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 2 of 198
 1 EXAMINATION INDEX

 2 ZAACHILA OROZCO-McCORMICK

DIRECT BY MR. FIDEL . . . . . . . . . . . . . . . . . 10

 3 CROSS BY MS. WRIGHT . . . . . . . . . . . . . . . . . 24

REDIRECT BY MR. FIDEL . . . . . . . . . . . . . . . . 44

 4

 5 NATALIE HOFFMAN

DIRECT BY MR. FIDEL . . . . . . . . . . . . . . . . . 51

 6 CROSS BY MR. WALTERS . . . . . . . . . . . . . . . . 65

REDIRECT BY MR. FIDEL . . . . . . . . . . . . . . . . 82

 7

 8 MADELINE HUSE

DIRECT BY MS. CHAPMAN . . . . . . . . . . . . . . . . 83

 9 CROSS BY MS. WRIGHT . . . . . . . . . . . . . . . . . 97

REDIRECT BY MS. CHAPMAN . . . . . . . . . . . . . . .114

 10

 11 JULIETTE FERNANDEZ

DIRECT BY MS. WRIGHT . . . . . . . . . . . . . . . .123

 12 CROSS BY MR. DUPONT . . . . . . . . . . . . . . . . .151

REDIRECT BY MS. WRIGHT . . . . . . . . . . . . . . . 154

 13

 14

 15

 16

 17

 18

 19

 20

 21

 22

 23

 24

 25

3

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 3 of 198
 1 P R O C E E D I N G S

 2 THE CLERK: Calling Case 17-MJ-339, United States of 

 3 America vs. Natalie Renee Hoffman, Oona Meagan Holcomb, 

 4 Madeline Abbe Huse, and Zaachila Isabel Orozco-McCormick, all 

 5 on for trial. 

 6 Counsel, please state your appearances.

 7 MS. WRIGHT: Good morning, Your Honor. Anna Wright 

 8 and Nathaniel Walters on behalf of the United States. With us 

 9 at counsel table is Officer West, our case agent. 

 10 Thank you.

 11 THE COURT: Thank you.

 12 MR. FIDEL: Good morning, Your Honor. Louis Fidel, 

 13 Anne Chapman, and Chris Dupont representing the defendants, 

 14 Natalie Hoffman, who's here, Madeline Huse is here, Zaachila 

 15 Orozco-McCormick is here, and Oona Holcomb is just on her way 

 16 in.

 17 THE COURT: She's out in the hallway talking to 

 18 somebody. 

 19 You may be seated. 

 20 You may proceed.

 21 MS. CHAPMAN: Good morning, Your Honor. We had a 

 22 couple of preliminary issues we wanted to raise with the Court 

 23 and bring to the Court's attention. 

 24 First, with respect to the selective 

 25 enforcement/selective prosecution, we wanted to raise with 

4

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 4 of 198
 1 Your Honor that we have been asking the Government since March 

 2 5th of 2018, by way of letter, and then followed by a motion 

 3 to compel, followed by a motion to dismiss and a motion to 

 4 reraise the motion to compel, for evidence related to the 

 5 policies and procedures with respect to the enforcement of 

 6 these claims, or excuse me, these offenses, and the Government 

 7 has refused to provide this information. 

 8 And yesterday, during Ms. Wright's questioning of 

 9 Professor Bartels, she raised those policies and procedures in 

 10 his --

 11 THE COURT: Professor who? 

 12 MS. CHAPMAN: Bartels.

 13 THE COURT: Okay. 

 14 MS. CHAPMAN: She raised the issue of his lack of 

 15 knowledge of those policies and procedures, which he doesn't 

 16 have knowledge of because the Government refused to provide 

 17 them. 

 18 At least as of the date that Your Honor denied their 

 19 motion in limine with respect to selective enforcement, the 

 20 Government was aware that that information was material to the 

 21 defense, and they have not provided it to us, Your Honor. 

 22 We've been asking for it, again, for almost a year, 

 23 since March 5th. I have a series of communications from my 

 24 office to Ms. Wright asking for the information and explaining 

 25 its relevance.

5

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 5 of 198
 1 THE COURT: Thank you.

 2 MS. CHAPMAN: Your Honor, the other issue we'd like 

 3 to address is we have submitted declarations in support of a 

 4 prior motion related to the Religious Freedom Restoration Act. 

 5 They are marked as Exhibits 118, 119, and 120. 

 6 And Your Honor, we would ask that the Court would 

 7 make a finding now that, based on those declarations, we have 

 8 made a showing that the defendants have met their initial 

 9 burden of showing that there has been a substantial 

 10 infringement on their sincere exercise of religious beliefs 

 11 based on those declarations. 

 12 If Your Honor does that, that may affect the 

 13 defendants' decisions to testify, as been raised in prior 

 14 motions.

 15 THE COURT: Okay.

 16 MS. CHAPMAN: Thank you, Your Honor.

 17 THE COURT: Thank you.

 18 MS. WRIGHT: Your Honor, taking them in the order 

 19 Ms. Chapman raised them, first, as to selective prosecution, 

 20 this moment is the first time the defense has raised the 

 21 defense of selective prosecution. They have always framed 

 22 their requests as request for discovery, dismissal, et 

 23 cetera, related to selective enforcement. 

 24 And as I think is clear from the briefing and case 

 25 law, the bar for proving, at least even to get discovery 

6

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 6 of 198
 1 related to selective enforcement, is higher than that -- I'm 

 2 sorry -- for selective prosecution is higher than that for 

 3 selective enforcement. 

 4 Based on what the defendants provided to the Court, 

 5 the Court has already found that they haven't even made prior 

 6 to trial a prima facie claim that would entitle them to 

 7 disclosure for selective enforcement. So the request is 

 8 untimely as to selective prosecution. Prior to trial they did 

 9 not meet their burden to get disclosure for selective 

 10 enforcement. 

 11 And I would also note for the Court that yesterday 

 12 was the first time the Government saw the defendants' summary 

 13 exhibit when it was presented to Mr. Bartels. It was not 

 14 disclosed on January 2. My understanding was that the plan 

 15 was to disclose it on the morning of the first day of trial, 

 16 but that did not happen. 

 17 And in addition, only after I asked did I find out 

 18 that some information that supported that exhibit had not been 

 19 disclosed to the Government, and it was not the plan to 

 20 disclose it until I asked for it.

 21 We only got a full copy of the exhibits today, so in 

 22 terms of what they have presented at trial yesterday, there 

 23 were disclosure issues there, and frankly, based on the cross 

 24 of Dr. Bartels, it's clear that he did not have a sufficient 

 25 basis to make that exhibit, that that exhibit was inaccurate 

7

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 7 of 198
 1 in large respects, and regarding my questions about the 

 2 policies of the United States Attorney's Office, the questions 

 3 only showed that Mr. Bartels was unaware if there were 

 4 policies at all and that he didn't have a basis to make the 

 5 chart in the first place. 

 6 It did not show that there were actually policies, 

 7 that there is anything else to look into, just that 

 8 Mr. Bartels was unaware of anything related to policies, 

 9 whether or not they existed. So I would ask the Court to deny 

 10 the defendants' relief on that issue.

 11 As to the RFRA, frankly, the declarations are 

 12 insufficient of themselves. The Court has already made the 

 13 finding on that. Looking at them now, there is nothing there 

 14 that can support the request that -- the relief that 

 15 Ms. Chapman asked for. 

 16 The Government is entitled to cross-examine the 

 17 defendants if they're going to assert this defense, and that 

 18 is necessary for the Court to judge their credibility as to 

 19 their statements. The Court -- it's a very difficult task 

 20 doing that from a cold record, a hard piece of paper with four 

 21 or five paragraphs. 

 22 The Government is under no obligation to stipulate 

 23 to this, and there are three defendants who need to testify 

 24 about their particular beliefs and how that affected what they 

 25 did on the particular day. 

8

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 8 of 198
 1 I would note for the Court that the declarations do 

 2 not address the events of that particular day or how their 

 3 beliefs cover what they did on that day, and that is their 

 4 burden. So if the defendants are not intending to testify, we 

 5 would ask the Court to find that they have not established 

 6 their prima facie burden on RFRA. 

 7 And Your Honor, just -- I mentioned it in my 

 8 argument, but I did want to highlight for the Court that we 

 9 are asking the Court to not admit Exhibit 240, which was the 

 10 summary exhibit, based on the lack of foundation for it and 

 11 its inaccuracy. 

 12 Thank you.

 13 MS. CHAPMAN: Your Honor, if I may just respond? 

 14 THE COURT: Sure.

 15 MS. CHAPMAN: Thank you. 

 16 The original motion to compel that was filed was 

 17 specific that it was with respect to selective prosecution. 

 18 It was broadened to include selective enforcement later, but 

 19 at least as of the time of that motion, and frankly, given the 

 20 letters that I can provide to the Court here from March, the 

 21 Government was aware that we were seeking information related 

 22 to selective prosecution with respect to their policies and 

 23 procedures.

 24 With respect to the information that that chart was 

 25 based on, it was based on FOIA information, Freedom of 

9

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 9 of 198
DIRECT EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 Information Act requests that we received from Fish and 

 2 Wildlife. Fish and Wildlife automatically provided our FOIA 

 3 request and responses to the U.S. Attorney's Office, and 

 4 Ms. Wright acknowledged that yesterday, so there was no 

 5 disclosure that that chart was based on of which she was 

 6 unaware.

 7 Furthermore, Your Honor, the absence of a prima 

 8 facie case is not the requirement in the U.S. Attorney's 

 9 manual or Rule 16 with respect to the Government's disclosure 

 10 obligations. That's not the point. The point is it was 

 11 material to the defense, the Government knew it, and they 

 12 failed to provide the evidence.

 13 THE COURT: Exhibit 240 is admitted. Exhibit 240 

 14 also is -- supports the Court's decision to deny the motion 

 15 for discovery. 

 16 With respect to the admission of Exhibits 118 and 

 17 119, that's denied, and the witnesses -- or the information 

 18 contained in the affidavits or statements, in order to be 

 19 introduced, they'd have to testify, so they're denied. 

 20 Who's your next witness? 

 21 MR. FIDEL: Zaachila Orozco-McCormick.

 22 ZAACHILA OROZCO-McCORMICK, WITNESS, SWORN 

 23 DIRECT EXAMINATION

 24 BY MR. FIDEL:

 25 Q. Do you need some water? 

10

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 10 of 198
DIRECT EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 A. Yes, please.

 2 Q. Could you introduce yourself to the Court, please. 

 3 A. My name is Zaachila Orozco-McCormick.

 4 Q. And how old are you, Zaachila?

 5 A. I'm 21.

 6 Q. Do you live in Tucson?

 7 A. I do not.

 8 Q. Where do you live?

 9 A. I live in Seattle, Washington.

 10 Q. And how long have you lived there?

 11 A. My entire life.

 12 Q. All right. Who do you live there with?

 13 A. I lived with my parents. Very recently moved out. Live 

 14 pretty close to them, though.

 15 Q. All right. You still live nearby?

 16 A. Very, yeah. I see them very often.

 17 Q. And what do you do up in Seattle?

 18 A. I'm a barista.

 19 Q. How long have you done that?

 20 A. Since I had, like, my first job pretty much.

 21 Q. And how far did you go in school?

 22 A. Minimal. Like, one class in college, which I want to go 

 23 back to.

 24 Q. You want to go back, did you say?

 25 A. Yes.

11

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 11 of 198
DIRECT EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 Q. What -- what do you want to study?

 2 A. I would like to have my own business.

 3 Q. All right. And did you grow up with -- in the house with 

 4 your parents?

 5 A. Yes, I did.

 6 Q. What -- how would you describe your spiritual beliefs?

 7 A. My family is very close-knit. I was taught from a very 

 8 young age -- I would say they were very giving, and even though 

 9 -- it was taught to me from a very young age that giving was a 

 10 very prominent part of our family dynamic, and I participated 

 11 in such. I found myself giving a lot of love and support and 

 12 doing physical, like, acts on it towards anybody pretty much 

 13 that needed it or wanted it.

 14 Q. Why? Is there, like, a traditional religious foundation 

 15 of those beliefs?

 16 A. I know my dad was raised Catholic, but for me, it was 

 17 necessary to love everyone, and it was taught to me as such, I 

 18 guess.

 19 Q. All right. And is that something that was taught to you 

 20 by whom?

 21 A. My parents.

 22 Q. All right. And is that belief of what is necessary, is 

 23 that something that drew you to work with No More Deaths?

 24 A. Most definitely. I was aware of the border crisis from a 

 25 long time ago. Like I said, since I was little.

12

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 12 of 198
DIRECT EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 Q. How did you learn about that?

 2 A. I grew up watching documentaries of people crossing the 

 3 border.

 4 Q. Who showed you those things?

 5 A. My parents.

 6 Q. And was there -- and what in particular -- well, how did 

 7 you learn about No More Deaths?

 8 A. Online. I believe I was -- I'd already graduated high 

 9 school. I just -- I wanted to find a way to apply what I felt 

 10 were, like, my skills and my -- my skills, pretty much, to a 

 11 cause that I found was very just and very necessary.

 12 Q. So let me ask you a couple of things. First, what skills 

 13 are you talking about?

 14 A. I am a native Spanish speaker. I felt that, with the 

 15 information that I've been exposed to from a very young age 

 16 about the border crisis and about migrants dying on the border, 

 17 that I had, like, a little bit more previous knowledge and 

 18 wanted to learn more about how I could provide my skill set and 

 19 my effort in, like, directly, like, in direct action to that.

 20 Q. You mentioned that you're a native Spanish speaker.

 21 A. I am.

 22 Q. Where is your family from?

 23 A. My dad is from Mexico. 

 24 Q. Got it. Did you visit Mexico as a kid?

 25 A. Very often. Every year.

13

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 13 of 198
DIRECT EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 Q. And you mentioned that the cause, No More Deaths' 

 2 cause, was one that you saw as just. What particular about 

 3 that spoke to you?

 4 A. I found that it provided direct aid to something that was 

 5 very obviously happening on the border, which was migrants 

 6 dying, and knowing that it is the desert, and knowing that it 

 7 is like it was that day, 110 degrees, very often in the summer, 

 8 I guess it was kind of like an obvious connection in my head to 

 9 be providing water and food and sustenance to people who needed 

 10 it.

 11 Q. When you were growing up, did your family talk about the 

 12 sanctity of life?

 13 A. Yes, not just the sanctity of life, but the sanctity of 

 14 death, because it's all connected. I think that it's pretty 

 15 common knowledge that, in a lot of, like, Mexican households, 

 16 people celebrate Day of the Dead, and that was definitely 

 17 something that my family -- I grew up participating, 

 18 celebrating a person's life after death, and death is a very 

 19 big part of life and honoring the dead and giving the respect 

 20 that they deserve regardless of who it is.

 21 Q. And is that -- is that a core belief that has motivated 

 22 your actions throughout your life?

 23 A. Most definitely.

 24 Q. When did you come down to start volunteering with No More 

 25 Deaths?

14

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 14 of 198
DIRECT EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 A. I believe it was April of 2017.

 2 Q. Okay. And did you go through the training process that 

 3 we heard Reverend Fife talk about?

 4 A. I did. I did not sign up as a -- I signed up as a local 

 5 volunteer, which means that I came and moved here, and so they 

 6 didn't -- I didn't volunteer in, like, the monthlong program 

 7 that they have. 

 8 But everybody who participates with No More Deaths and 

 9 does water drops does tend to, like, from what I know, 

 10 participate in the orientation. John Fife is a part of that 

 11 orientation. And like my codefendant Oona said, they do a 

 12 brief history of the organization, of how it started, and they 

 13 do a brief history of the border as well.

 14 Q. Did you feel a spiritual connection to your work with No 

 15 More Deaths?

 16 A. I did. I felt very connected to the work that was 

 17 happening, especially with how it hit home for me, I 

 18 guess, especially having heard about it for so long.

 19 Q. What do you mean that it hit home? How did that impact 

 20 your core beliefs or relate to those?

 21 A. I mean, hearing stories of people dying, even after -- 

 22 even, like, besides it just being through No More Deaths or 

 23 besides it just being through the media, which is, like -- I 

 24 mean, the border crisis is there, and from having personal 

 25 stories told to me from people that I know, it was most 

15

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 15 of 198
DIRECT EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 definitely moving, and I don't see how it couldn't be for 

 2 anybody.

 3 Q. What about the act of leaving water in the desert? How 

 4 did that speak to your spiritual beliefs?

 5 A. Well, water is life. Like, water is necessary for 

 6 everybody. We're made of water. We -- it's -- like 

 7 everybody's connected. We can't expect -- like, I don't know. 

 8 It's -- I'm sorry.

 9 Q. It's okay.

 10 A. I believe that everybody who walks on this earth should be 

 11 able to drink some water.

 12 Q. That's fair. 

 13 Did you ever participate in prayers out in the desert 

 14 with No More Deaths?

 15 A. Of a kind, yes, moments of silence for people that have 

 16 crossed or are currently crossing the desert.

 17 Q. Okay. Let's talk about August 13th. What -- what time 

 18 did you guys wake up in the morning? Do you remember?

 19 A. Very early. Very early. I don't think the sun was up.

 20 Q. Why? 

 21 A. It takes a while to get out to where we were gonna drop 

 22 water. I mean, with the sun comes the heat. With the heat 

 23 comes exhaustion. So it's best to start before it gets hot. 

 24 Yeah.

 25 Q. And you get in the truck. You drive out. What's the -- 

16

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 16 of 198
DIRECT EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 what's the ride like in the truck?

 2 A. Long and bumpy. We have air conditioning in the truck, so 

 3 it's not, like, nearly as bad as anything else. I've been in 

 4 plenty of cars without air conditioning. 

 5 But, I mean, it gets hotter as the day goes on. We arrive 

 6 to where we're going to do a water drop or where we -- the 

 7 first moment that we step out of the car, by then the sun has 

 8 risen. It's, I think, around eight, I think, in the morning. 

 9 Q. What's it feel like when you get out of the truck?

 10 A. I mean, exhausting. It's heavy. Like, it feels like, I 

 11 mean, a blanket. There's nowhere to, like, hide from the sun.

 12 Q. And you're not from Tucson or Ajo. What's your -- how do 

 13 you react when you step out of an air-conditioned truck into 

 14 the desert?

 15 A. Well, it immediately becomes harder to breathe. It's just 

 16 very tiring.

 17 Q. And are your -- is your pack -- you use a pack to bring 

 18 the water out?

 19 A. Yes. Everybody has a backpack on them. They -- we fill 

 20 as many gallon jugs as we can into the backpack, and then 

 21 usually hold about one, two, or like maybe three, depending 

 22 on -- I mean, you take what you personally can or feel capable 

 23 of taking. 

 24 Q. How many -- how many gallon jugs of water can you carry 

 25 in a pack?

17

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 17 of 198
DIRECT EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 A. I think I had about five or six. It also depends on how 

 2 many fit, but -- in the backpack, but I think I had about five 

 3 or six in my backpack and two in my hands, like, one in each 

 4 hand, and then separately our personal water bottle.

 5 Q. And you set out on foot from there?

 6 A. Yes. 

 7 Q. What's it like walking through the desert?

 8 A. I mean, it's not fun. There's that -- I believe it's, 

 9 like, the jumping cactus is, like, pretty much everywhere.

 10 Q. Chollas?

 11 A. Yeah. I know that a couple of us had to stop to unprick 

 12 ourselves. I mean, it's, like, jumping cactus for a reason. 

 13 It's not like we're going and walking into it. It can, like, 

 14 stick through your shoe, depending on how sturdy it is. It's 

 15 very, like, rough terrain, definitely.

 16 Q. And when you get to the place where you're going to put 

 17 the water, let's talk about that. What do you do when you get 

 18 there? 

 19 A. Usually it's in, like, a shaded area, shaded as you can 

 20 get in somewhere so desolate, but I think it's, like, the first 

 21 moment that we really have to rest, so everybody just kind of 

 22 sets their stuff down and takes a moment to breathe, because 

 23 it's the first time you take your backpack off, essentially, 

 24 from the walk there.

 25 I mean, it's hard. Like, you see a lot of remnants, like 

18

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 18 of 198
DIRECT EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 articles of clothing, shoes, just signs that there's obviously 

 2 been human activity there. I know that it's not something you 

 3 can, like, touch or see, necessarily always, but it's very 

 4 palpable to feel what was somebody else's presence there.

 5 Q. What does that feel like?

 6 A. It feels, like, sacred to be walking on the same ground 

 7 that somebody else was walking on in probably a much more 

 8 different state of mind than you were.

 9 Q. Now, we all live in cities, lots of people walking 

 10 around. Do you have that feeling when you're walking around 

 11 Tucson or Seattle, or is it something about that place?

 12 A. I mean, nobody stops and thinks about that always. I 

 13 think it's fair to say that, with the knowledge that we have of 

 14 what is going on at the border, that yes, it is a very 

 15 different experience to be out in the desert and know that 

 16 there probably isn't a lot of people walking around just like 

 17 there is in a city, and that when you do come across evidence 

 18 of somebody having been there, like, very obvious, it's very 

 19 different to be standing on that same ground, and it's to be 

 20 revered. It's to be respected.

 21 Q. And what's the attitude like among the group? Is this -- 

 22 is everybody chitchatting and having a good time? What's that 

 23 like when you get to this place?

 24 A. Well, like I said, it's hard to -- I mean, personally, I 

 25 find it really hard to talk when it's so hot and you're walking 

19

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 19 of 198
DIRECT EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 and exhausted, but there is, like, some conversation. But it 

 2 usually pretty much, like -- it's, like, unspoken. Like, as 

 3 soon as you arrive to where you're headed, to the water drop, 

 4 it's, like, silent. It's like -- it's like being at a 

 5 graveyard. Like, you stop talking. Everybody sets their bags 

 6 down and prepares, like, the water bottles.

 7 Q. When you say prepare them, what do you mean?

 8 A. We usually set them in a shaded area, try to, like, 

 9 position them in a place that we think is safest for them, the 

 10 water bottles. We bring Sharpies with us so that, when we do 

 11 the water drops, we also take a moment to write messages on the 

 12 water drops, on the water jugs themselves.

 13 Q. And what type of message do you write? Do you have 

 14 anything in particular that you write? We heard about 

 15 crucifixes, hearts, religious messages. 

 16 A. I've seen a lot of, yeah, I mean, crucifixes, hearts. 

 17 Personally, I mean, I've never been in an area like that 

 18 before, that was my first time in Cabeza Prieta, and so I've 

 19 never -- it was a lot more intense than anything I've ever 

 20 experienced before, so I felt the need to think about carefully 

 21 what I wanted to write on the water jugs. 

 22 And I decided to write a message that spoke to me from a 

 23 book that my dad used to read me. And it's, "Agua pasa por mi 

 24 casa, cate de mi corazón."

 25 Q. And that's Spanish?

20

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 20 of 198
DIRECT EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 A. Yes.

 2 Q. And what -- what is that, just -- just for the Court?

 3 A. It's like a rhyme or a riddle of sorts. It means, water 

 4 passes by my house, core or, like, meat of my heart. And the 

 5 first two words, "agua" and "cate," are "avocado," which is 

 6 just, like, a funny little, like, saying, but I don't put the 

 7 avocado there. I just put, "Agua pasa por mi casa," and I knew 

 8 that it was -- at least personally, it felt like something that 

 9 somebody else could maybe hopefully connect with.

 10 Q. Something that came from your father?

 11 A. Yes.

 12 Q. You mentioned finding artifacts or items along the way. 

 13 What kinds of things would you find?

 14 A. Shoes. Discarded articles of clothing. Some garbage. We 

 15 always took plastic bags out to pick garbage up. I know there 

 16 was definitely garbage in the surrounding area, very little, 

 17 but we take back almost as much as we put out.

 18 Q. What's it feel like to find items that others crossing 

 19 through have discarded along the way?

 20 A. Well, I'm, like, a very visual person. I feel like I can 

 21 see the moments when it happens. I mean, we all have an 

 22 imagination, but it's -- it makes people that much more real. 

 23 It's not just some sort of, like, entity. It's, like, humans. 

 24 You know, like, somebody that was wearing that is no longer 

 25 wearing that, and it makes you wonder why.

21

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 21 of 198
DIRECT EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 Q. Now, we talked or we heard some testimony about the 

 2 permit that was effective after July 1st, 2017. Do you recall 

 3 that testimony?

 4 A. Yes.

 5 Q. Did you have a permit to go into the refuge on August 

 6 13th?

 7 A. I did not.

 8 Q. Had you ever had a permit?

 9 A. No.

 10 Q. Were you aware of the provision in the permit where the 

 11 language had been added that said you cannot leave water and 

 12 other personal items?

 13 A. I was.

 14 Q. Did you personally see the permit?

 15 A. I did not personally see the permit.

 16 Q. How did you learn about that?

 17 A. I remember that it was -- the language had been changed, 

 18 like, around a month before, so I remember hearing about it.

 19 Q. Was that from members of the --

 20 A. Yes.

 21 Q. -- desert aid --

 22 A. Of No More Deaths. Sorry. Yes. I think it was by then, 

 23 like, pretty common knowledge. It was very specific language 

 24 which was very, like, noticeable.

 25 Q. And so why did you decide not to get that permit?

22

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 22 of 198
DIRECT EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 A. Because I didn't want to sign something that said that I 

 2 wasn't planning on leaving water and food in the desert when I 

 3 was.

 4 Q. And why were you planning on leaving water and food in 

 5 the desert?

 6 A. Because it's necessary.

 7 Q. Okay. Within No More Deaths, are there, like, weekly 

 8 meetings?

 9 A. Yes.

 10 Q. And is that the situation in which you and other members 

 11 were talking about that permit?

 12 A. Yeah. They're all voluntary, yeah, like, we all just 

 13 discuss within each other.

 14 Q. And did you also hear in those meetings about that July 

 15 6th meeting that we heard testimony about yesterday?

 16 A. I did.

 17 Q. And what was your understanding of the Government's 

 18 position about prosecuting these cases?

 19 A. It was my understanding that the -- that they were not 

 20 planning to prosecute us.

 21 Q. Was that part of your decision in going out there that 

 22 day?

 23 A. Definitely.

 24 Q. Now, did you think you could potentially encounter some 

 25 law enforcement officers out there?

23

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 23 of 198
DIRECT/CROSS-EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 A. Yes, but I didn't think that we would be -- I didn't think 

 2 anything more than a citation. 

 3 Q. Did you think you could be charged with a crime?

 4 A. Absolutely not.

 5 Q. Did you think you could be prosecuted?

 6 A. No.

 7 Q. What did you think a citation meant?

 8 A. That we would get a fine and we would get possibly banned 

 9 from the refuge.

 10 Q. That was worst-case -- 

 11 A. Kicked off.

 12 Q. That was the worst-case scenario?

 13 A. Yes.

 14 MR. FIDEL: Okay. That's all my questions.

 15 CROSS-EXAMINATION

 16 BY MS. WRIGHT:

 17 Q. Good morning, Ms. Orozco. 

 18 A. Good morning.

 19 Q. And I just want to make sure, you prefer Orozco, not 

 20 anything else hyphenated, second last name, anything like 

 21 that?

 22 A. Orozco's fine.

 23 Q. Okay. Just wanted to make sure. 

 24 Obviously you know my name. I'm Anna Wright. I'm one of 

 25 the prosecutors in this case. I have some questions I want to 

24

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 24 of 198
CROSS-EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 ask you. 

 2 Give me a minute to get my notes straight here. 

 3 A. Okay.

 4 Q. And let's start off with what happened on August 13th of 

 5 2017. Now, on that day, you drove out with your codefendants 

 6 to Charlie Bell Pass on the Cabeza Prieta National Wildlife 

 7 Refuge; correct?

 8 A. Yes.

 9 Q. And you did that in a white Dodge truck; right?

 10 A. Yes.

 11 Q. And that Dodge truck in the bed had green milk crates 

 12 with water jugs and cans of beans; right?

 13 A. Yes.

 14 Q. And you planned that trip the night before with others; 

 15 right?

 16 A. It was discussed the night before, yeah.

 17 Q. And this was your first trip onto the Cabeza; right?

 18 A. Yes.

 19 Q. And when you said you discussed it with others the night 

 20 before, you discussed where you were going to go on August 

 21 13th; right?

 22 A. Correct.

 23 Q. And you discussed the route you were going to drive; 

 24 right? 

 25 A. Correct.

25

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 25 of 198
CROSS-EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 Q. And you discussed what you were going to take with you; 

 2 right?

 3 A. Correct.

 4 Q. And you discussed where you were going to leave those 

 5 things you were taking with you; right?

 6 A. We did.

 7 Q. Let me be more specific. Some of the things you were 

 8 going to take with you were one-gallon jugs of water; right?

 9 A. Yes.

 10 Q. And also cans of beans; right?

 11 A. Yes.

 12 Q. And you discussed the night before that you were going to 

 13 leave that water and those cans of beans on the refuge; right?

 14 A. We did.

 15 Q. And you also discussed where exactly on the refuge you 

 16 were going to leave those things; right?

 17 A. Yes.

 18 Q. And the night before, you packed your own bags with the 

 19 stuff that you needed for yourself that day; right?

 20 A. Or in the morning, I don't really remember, but yeah.

 21 Q. So the night before or the morning, but before you left, 

 22 you had a bag with what you needed for you that day; right?

 23 A. Yes.

 24 Q. And you planned also as part of your discussion to not 

 25 get a permit; right?

26

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 26 of 198
CROSS-EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 A. I mean, that night?

 2 Q. Either in the night before or the morning of, you had a 

 3 discussion that you were not going to stop and get a permit; 

 4 right?

 5 A. Not that day. It was before that we discussed not getting 

 6 permits.

 7 Q. And so when you went out to the refuge that day, it was 

 8 your intention to not get a permit to enter the refuge; right?

 9 A. Correct.

 10 Q. And so as a result of that, before you went out to the 

 11 refuge, you did not stop at the refuge office to sign a Hold 

 12 Harmless Agreement; correct?

 13 A. We did not.

 14 Q. And that was on purpose; right?

 15 A. Correct. 

 16 Q. And you testified that you didn't want to sign the Hold 

 17 Harmless Agreement because you were intending to violate it by 

 18 leaving the water and the beans behind; right?

 19 A. I intended to leave water for people in the desert, yes.

 20 Q. So that's a "yes," you were intending to violate the Hold 

 21 Harmless Agreement by leaving water and beans behind; right?

 22 A. I did not sign the permit so that I wouldn't lie on the 

 23 permit, and my intention was to leave water in the desert.

 24 Q. And so you knew that the Hold Harmless Agreement told -- 

 25 said that you -- that people visiting the refuge could not 

27

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 27 of 198
CROSS-EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 leave water and other supplies behind; right?

 2 A. I'm sorry. Can you repeat the question.

 3 Q. I can. You knew that one of the provisions on that Hold 

 4 Harmless Agreement said that people visiting the refuge could 

 5 not leave water and other supplies behind; right?

 6 A. Yes, a provision that was changed a month earlier.

 7 Q. So that's a "yes," you knew that?

 8 A. Correct.

 9 Q. Now, on your drive out to Charlie Bell Pass on the 

 10 refuge, you and your codefendants passed a kiosk; right?

 11 A. Yes.

 12 Q. And that kiosk had rules posted and a sign-in sheet 

 13 there; right?

 14 A. Yes.

 15 Q. And it also had maps showing which roads were public and 

 16 which roads were not open to public vehicles; right?

 17 A. I don't recall seeing that, but I'm assuming it was there 

 18 if you -- 

 19 Q. And you and your codefendants stopped at the kiosk; 

 20 right?

 21 A. We did.

 22 Q. And you signed the sign-in sheet there; right?

 23 A. I honestly don't remember.

 24 Q. Okay. But as part of your activities that day, you 

 25 didn't call the refuge office in Ajo to let them know that you 

28

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 28 of 198
CROSS-EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 were out on the refuge, did you? 

 2 A. No.

 3 Q. And you didn't tell the refuge office in Ajo where you 

 4 were going on the refuge that day, did you?

 5 A. No.

 6 Q. And you didn't tell them what you planned to do that 

 7 day, did you?

 8 A. No.

 9 Q. And that's true for all of the other land agencies that 

 10 control that area. You didn't call anyone that manages that 

 11 area to tell them that you were out there that day, did you?

 12 A. No.

 13 Q. Now, once you got up to Charlie Bell Pass, you saw the 

 14 rescue beacon that's there; right?

 15 A. Yes.

 16 Q. And you stopped to read the sign that was on the rescue 

 17 beacon; right?

 18 A. Maybe I -- maybe.

 19 Q. And regardless of whether you read the sign or not, you 

 20 knew that, if activated, Border Patrol would respond 

 21 immediately to that beacon; right?

 22 A. Yes.

 23 Q. And you knew that a person could call for help from 

 24 Border Patrol from that beacon; right?

 25 A. Yes.

29

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 29 of 198
CROSS-EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 Q. And you knew that Border Patrol is trained and is 

 2 equipped to do search and rescue operations; right?

 3 A. Yes.

 4 Q. And you knew that Border Patrol, members of Border 

 5 Patrol, have advanced medical training for the types of 

 6 medical emergencies that can happen out on the Cabeza Prieta; 

 7 right?

 8 A. I personally don't think at that time I had that 

 9 knowledge, but yes.

 10 Q. And you knew that Border Patrol had resources like 

 11 helicopters to help people who were in medical distress on the 

 12 refuge; right?

 13 A. Like I said, I didn't know the specifics of what they had 

 14 to do, but I knew that that beacon did call Border Patrol.

 15 Q. Okay. And then let me ask you maybe a little bit -- you 

 16 knew that Border Patrol had the resources to help people in 

 17 distress on the refuge; right?

 18 A. Sure.

 19 Q. Now, after -- once you got to Charlie Bell Pass, you and 

 20 your codefendants continued to the west, down the dirt road, 

 21 past Charlie Bell Pass; right?

 22 A. Correct.

 23 Q. And that's a two-track road; right?

 24 A. A two-track road?

 25 Q. A road that has one track for one set of wheels and one 

30

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 30 of 198
CROSS-EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 track for the other set of wheels. 

 2 A. I'm sorry. Like I said, it was my first time on Cabeza 

 3 Prieta. Are you talking about going down the hill or arriving 

 4 to the hill? 

 5 Q. Let me -- so going down the hill to the west, that road 

 6 is only wide enough for one vehicle; right?

 7 A. Yes.

 8 Q. Okay. That's what I meant by "two-track." Didn't mean 

 9 to confuse you there. 

 10 A. All right.

 11 Q. Now, when you drove down the hill to the west, you saw 

 12 the signs posted on either side of that road; right?

 13 A. I don't recall.

 14 Q. You would agree with me that those are the only signs at 

 15 that particular point; right?

 16 A. I believe I think that I knew there were signs there, but 

 17 I don't remember reading them.

 18 Q. Okay. So you would agree with me that you knew they were 

 19 there, you just don't remember if you read them that 

 20 particular day?

 21 A. Correct. I'm sorry. It's very hard. It was a long time 

 22 ago, and it was very hot.

 23 Q. I'm not trying to confuse you, so if I ask you a question 

 24 that's confusing, I appreciate that you let me know. 

 25 Sometimes I can ask it a better way, like with "two-track" and 

31

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 31 of 198
CROSS-EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 "single vehicle." So I'm not trying to confuse you, and just 

 2 answer the best you can. Okay?

 3 Now, once you got down to Charlie Bell Well, you and your 

 4 codefendants dropped off some supplies; right?

 5 A. Yes.

 6 Q. And that included 70 gallons of water; right?

 7 A. Yes.

 8 Q. And 64 cans of beans, right, or approximately?

 9 A. Yes.

 10 Q. And as part of dropping off the supplies, you lifted some 

 11 crates out of the truck and set them on the ground there; 

 12 right?

 13 A. It was a joint effort, yeah.

 14 Q. I'm sorry. I couldn't hear you. 

 15 A. It was a joint effort, so yes.

 16 Q. Okay. So you participated in doing that; right?

 17 A. I did.

 18 Q. And you intended to leave those supplies, the water and 

 19 the beans, at Charlie Bell Well?

 20 A. Yes.

 21 Q. And your intention was to leave them for undocumented 

 22 migrants to take and use; right?

 23 A. For anybody that needed it.

 24 Q. So that's a "yes." That was for undocumented migrants, 

 25 as well as everyone else; right?

32

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 32 of 198
CROSS-EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 A. They fall under, "anybody that needed it," so yes.

 2 Q. And you wanted undocumented migrants to find those 

 3 particular supplies; right? 

 4 A. I wanted people that needed it to find it.

 5 Q. So that includes undocumented migrants to find those 

 6 supplies; right?

 7 A. Correct.

 8 Q. And once someone took those supplies, you had no way of 

 9 controlling what happened with those supplies next; right?

 10 A. Not always.

 11 Q. So if someone were to happen upon that cache and pick up 

 12 a gallon of water, you would have no way, once they took that 

 13 gallon of water, to get it back from them, could you? 

 14 A. Not necessarily.

 15 Q. So somebody could come to that cache, pick up a gallon of 

 16 water, and carry it miles down the way, and you wouldn't know 

 17 where that gallon of water was, would you?

 18 A. Correct.

 19 Q. Okay. So you wouldn't have a way of collecting those 

 20 particular jugs at a later date, no way of being sure that you 

 21 could do that; right?

 22 A. Correct.

 23 Q. Now, once you dropped off that cache of supplies at 

 24 Charlie Bell Well, you and your codefendants drove back up to 

 25 Charlie Bell Pass; right?

33

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 33 of 198
CROSS-EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 A. I believe so.

 2 Q. And you drove past those same signs that were at Charlie 

 3 Bell Pass on either side of the road? 

 4 A. Yes.

 5 Q. And you picked up the remainder of some supplies and 

 6 turned around and came back down the hill; right?

 7 A. Yes.

 8 Q. And when you came back down the hill, you came past the 

 9 signs again; right?

 10 A. I'm assuming we did, yes.

 11 Q. And then you drove -- you continued and you drove past, 

 12 this time, Charlie Bell Well; right?

 13 A. Yes.

 14 Q. And you drove past another set of signs on either side of 

 15 the road; right?

 16 A. I'm assuming we did.

 17 Q. You don't dispute that there were signs on either side of 

 18 the road there, do you?

 19 A. I do not. I just don't recall.

 20 Q. Okay. Just wanted to be clear there.

 21 And once you got further on down the road, you and your 

 22 codefendants pulled off the side of the road and stopped 

 23 there; right?

 24 A. Yes.

 25 Q. And then you and your codefendants put water jugs in your 

34

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 34 of 198
CROSS-EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 packs; right?

 2 A. As many as we could carry.

 3 Q. And for you, you testified that was five or six water 

 4 jugs for you, plus one in each hand; right?

 5 A. Approximately.

 6 Q. And you decided how much you could carry that day; right?

 7 A. I did.

 8 Q. Okay. And so then you hiked south with those supplies; 

 9 right?

 10 A. Yes.

 11 Q. And that was into a designated wilderness area; right?

 12 A. As I now know, yes.

 13 Q. And when you hiked south with those five or six gallons 

 14 in your pack and one or two in your hands, you possessed those 

 15 water jugs; right?

 16 A. Yes.

 17 Q. And once you got to that spot that you picked out ahead 

 18 of time in the wilderness, you left behind those water jugs 

 19 that you carried; right?

 20 A. After replacing them with old jugs in my pack.

 21 Q. I think my question wasn't clear that time. 

 22 So you hiked south with the five or six in your pack and 

 23 one in each hand; right?

 24 A. Yes.

 25 Q. And you get to a spot where you had planned to leave 

35

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 35 of 198
CROSS-EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 them; right?

 2 A. Yes.

 3 Q. And then you do leave them in that spot; right?

 4 A. Correct.

 5 Q. And that spot was in designated wilderness, yes?

 6 A. As I now know, yes.

 7 Q. And like with the jugs that you left at Charlie Bell 

 8 Well, you didn't have any assurance that you could come back 

 9 and pick up those particular jugs at a later time; right?

 10 A. No, but that's why we pick up the old ones that are there.

 11 Q. Okay. So my question is, you had no assurance that you 

 12 could pick up the particular jugs you left that day at a later 

 13 point in time; right?

 14 A. Personally, no.

 15 Q. Okay. And your intention with leaving those there was 

 16 that other people could pick them up and use them as they saw 

 17 fit; right?

 18 A. Correct.

 19 Q. And so that meant people could pick them up and drink 

 20 them right there; right?

 21 A. Correct.

 22 Q. Or they could pick them up and carry them 10 miles in any 

 23 direction; right?

 24 A. If they were physically capable to, yes.

 25 Q. Okay. So that's a "yes," they could take them 10 miles 

36

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 36 of 198
CROSS-EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 in any direction, if that's what they wanted to do?

 2 A. Yes. 

 3 Q. Now, you eventually -- after you set those down out 

 4 there, you eventually returned to the truck that had been 

 5 parked off the side of the road; right?

 6 A. Yes.

 7 Q. And when you got back, Officer West was there waiting for 

 8 you; right?

 9 A. Correct.

 10 Q. And you told Officer West that you intentionally didn't 

 11 get a permit on that day; right?

 12 A. Yes, I believe so.

 13 Q. Okay. And you also told him that it was your first time 

 14 on the refuge that day; right?

 15 A. Yes.

 16 Q. And in your conversations with Officer West, you did not 

 17 tell him where you dropped the water that day, did you?

 18 A. He did not ask.

 19 Q. And so my question is, you did not tell him where you 

 20 dropped the water that day; right?

 21 A. Correct. It didn't come up.

 22 Q. And during your conversations with Officer West, he 

 23 eventually told you that you had to leave the refuge; right?

 24 A. He did.

 25 Q. And so you and your codefendants got back in the truck, 

37

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 37 of 198
CROSS-EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 and you drove out of the refuge; right?

 2 A. Yes.

 3 Q. And you eventually ended up back at the refuge office in 

 4 Ajo; right?

 5 A. Yes.

 6 Q. And at that point in time, along the way, he had stopped 

 7 and picked up the supplies that had been left at Charlie Bell 

 8 Well; right?

 9 A. Correct.

 10 Q. And he took them back to the office in Ajo; right?

 11 A. In his truck, yeah.

 12 Q. And once you all got there, he eventually let you take 

 13 all of those supplies and put them back into the white truck; 

 14 right?

 15 A. Yes.

 16 Q. And so then you all get back in your truck, then, and 

 17 drove back into Ajo; right?

 18 A. Yes.

 19 Q. And as you left the refuge office, a crate of supplies 

 20 fell off the back of the truck; right?

 21 A. Yes. The truck was far too full.

 22 Q. And you did not stop and come back to get the crate, did 

 23 you?

 24 A. The car was so full that we didn't even realize it fell 

 25 off.

38

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 38 of 198
CROSS-EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 Q. So you -- turning into Ajo, your testimony is that you 

 2 were unaware of what was happening in the back of the truck?

 3 A. I'm saying that I don't think that we realized that an 

 4 entire crate of beans fell off until later, when it was 

 5 missing, because the truck was way too full.

 6 Q. Now, I want to take us back to your decision to not get a 

 7 permit and not to sign -- to not sign the Hold Harmless 

 8 Agreement for the refuge. 

 9 Did anyone tell you not to get a permit?

 10 A. No single person told me not to get a permit.

 11 Q. Did anyone give you advice about obtaining a permit?

 12 A. No single person advised me to not get a permit.

 13 Q. Did multiple people advise you not to get a permit?

 14 A. No.

 15 Q. Okay. And you decided not to get the permit because you 

 16 knew that you could be cited for the things you were going do 

 17 that day; right?

 18 A. Yes. I mean, I didn't get a permit because I didn't want 

 19 to -- I knew that I was going to do something that the permit 

 20 specified not to.

 21 Q. Okay. So you knew you could be cited that day; right?

 22 A. Correct.

 23 Q. And let's talk about -- that leads us into your testimony 

 24 that you thought that there was some sort of understanding 

 25 with the U.S. Attorney's Office. 

39

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 39 of 198
CROSS-EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 You were never at any meetings with any representative of 

 2 the U.S. Attorney's Office; correct?

 3 A. Personally, no.

 4 Q. So that's a no?

 5 A. That's a no.

 6 Q. And you were not at any meeting on July 6th of 2017, were 

 7 you? 

 8 A. I was not.

 9 Q. And you were never at any meetings with Fish and Wildlife 

 10 service, were you?

 11 A. I was not.

 12 Q. And you never spoke directly to anyone from the U.S. 

 13 Attorney's office, did you?

 14 A. I did not. 

 15 Q. And prior to going out that day, you did not ever speak 

 16 directly to anyone from Fish and Wildlife, did you?

 17 A. No.

 18 Q. And no one ever you told that entering the refuge without 

 19 a permit was not in violation of the refuge regulations, did 

 20 they?

 21 A. I'm sorry? Can you repeat the question?

 22 Q. No one from the U.S. Attorney's Office ever told you that 

 23 entering the refuge without a permit was not in violation of 

 24 the refuge regulations?

 25 A. No.

40

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 40 of 198
CROSS-EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 Q. And same goes for Fish and Wildlife. No one from Fish 

 2 and Wildlife ever told you that you could enter the refuge 

 3 without a permit and not violate the regulations; right?

 4 A. No.

 5 Q. And the same goes for abandoning supplies. No one ever 

 6 told you that you could leave water and beans in the desert, 

 7 in the refuge, and do that not violating the regulations?

 8 A. No.

 9 Q. And the same goes for driving on restricted roads. No 

 10 one ever told you that driving on a restricted road was not in 

 11 violation of those regulations, did they?

 12 A. I wasn't driving, and no.

 13 Q. So that's a no?

 14 A. That is a no.

 15 Q. And you never saw a document signed by any representative 

 16 of the United States Attorney's Office saying that there had 

 17 been a decision to not prosecute for these violations, did 

 18 you?

 19 A. Did I ever see, sorry, a signed --

 20 Q. You never saw a written document from the United States 

 21 Attorney's Office promising not to prosecute for these 

 22 violations, did you?

 23 A. I did not.

 24 Q. And that the one written document you knew about related 

 25 to these -- to violations was the Hold Harmless Agreement; 

41

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 41 of 198
CROSS-EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 right?

 2 A. I'm sorry? Can you repeat the question? 

 3 Q. So -- and let me be clear with the verbiage, because it's 

 4 been a little confused. The Hold Harmless Agreement, the 

 5 testimony is it's the thing you sign, and then the permit is 

 6 what you get to go out on the refuge. 

 7 So I'm talking about the thing you would sign at the 

 8 office. 

 9 A. And the question was? 

 10 Q. Okay. And the question is, you knew that the one -- one 

 11 of the written documents about violations on the refuge was 

 12 the Hold Harmless Agreement?

 13 A. I knew that one of the written -- yes.

 14 Q. And you knew that the Hold Harmless Agreement now 

 15 clarified explicitly that leaving water and food behind on the 

 16 refuge was in violation of the regulations; right?

 17 A. Correct.

 18 Q. And I want to take us back now to that rescue beacon at 

 19 Charlie Bell Pass. You talked a little bit about that. And I 

 20 want to ask you a little bit more about -- about that. 

 21 You knew that that beacon could be seen from miles away 

 22 at night; right?

 23 A. At the time, no.

 24 Q. And you knew that the beacon could call Border Patrol 

 25 directly there; right?

42

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 42 of 198
CROSS-EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 MR. FIDEL: Objection. This has been asked and 

 2 answered.

 3 THE COURT: Sustained.

 4 BY MS. WRIGHT:

 5 Q. So with that knowledge, if a person is in distress or 

 6 needs help, that person could call Border Patrol directly and 

 7 get the help they needed; right?

 8 A. If they could physically reach the beacon. 

 9 MR. FIDEL: This is asked and answered as well, Your 

 10 Honor.

 11 THE COURT: Move on.

 12 BY MS. WRIGHT:

 13 Q. The downside to you of that rescue beacon is that, if 

 14 Border Patrol responded, they might take some immigration 

 15 action if that person didn't have the proper documents to be 

 16 in the United States; right?

 17 A. I don't understand the question.

 18 Q. So the downside of the beacons, the reason that your 

 19 group did not use the beacons, is because Border Patrol would 

 20 respond and might take immigration action; right?

 21 A. The reason that we didn't use the beacons? We didn't have 

 22 a need to use the beacons. 

 23 You mean one of --

 24 THE COURT: There's no question. You've answered 

 25 the question.

43

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 43 of 198
CROSS/REDIRECT EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 MS. WRIGHT: If I could have a moment, Your Honor?

 2 BY MS. WRIGHT:

 3 Q. Finally, no one ever told you that what you were planning 

 4 to do that day was legal, did they?

 5 A. No. 

 6 Q. So no one from the U.S. Attorney's Office ever told you 

 7 that that was legal?

 8 A. No.

 9 Q. And no one from Fish and Wildlife ever told you that that 

 10 was legal; correct?

 11 A. Correct.

 12 MS. WRIGHT: That's all I have, Your Honor. Thank 

 13 you.

 14 REDIRECT EXAMINATION

 15 BY MR. FIDEL:

 16 Q. Just a couple questions, Zaachila. 

 17 Ms. Wright asked you about this two-track dirt road or 

 18 two-track road. Can you describe what this road looks like. 

 19 A. I wouldn't really call it a road. It's a lot of rocks 

 20 mostly.

 21 Q. How -- what kind of truck is this? Is this a big truck?

 22 A. Very. 

 23 Q. Like a full-size pickup?

 24 A. Yes.

 25 Q. High clearance?

44

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 44 of 198
REDIRECT EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 A. Like it's tall?

 2 Q. Yeah, like it's tall; right? You've gotta step up into 

 3 it?

 4 A. Yes.

 5 Q. Okay. It's not like a monster truck, but it's a big 

 6 truck?

 7 A. Yes.

 8 Q. And are you driving fast on this road?

 9 A. No.

 10 Q. Could you drive fast on this road?

 11 A. Not -- no.

 12 Q. Okay. There are rocks in the road?

 13 A. I mean, it's literally made of rocks. It's like each 

 14 wheel is in a different place at a different time.

 15 Q. Would it be difficult to walk up this road?

 16 A. Very.

 17 Q. Or down this road?

 18 A. Very.

 19 Q. Okay. You were asked if undocumented migrants could 

 20 possibly have found the water and food that you were leaving 

 21 out in the desert.

 22 A. Yes.

 23 Q. Do you recall that?

 24 A. Yes.

 25 Q. Those are humans; right?

45

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 45 of 198
REDIRECT EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 A. Yes.

 2 Q. People, like you and me?

 3 A. People in need.

 4 Q. Men, women?

 5 A. Correct. Children.

 6 Q. Young, old?

 7 A. Yes.

 8 Q. People potentially suffering?

 9 A. Yes.

 10 Q. Is that the point of going out there and putting water 

 11 out there?

 12 A. Most definitely.

 13 MR. FIDEL: Okay. Thank you. That's all.

 14 THE COURT: Did you decide to do that whether you 

 15 broke the law or not?

 16 THE WITNESS: Did I -- I did that thinking that I 

 17 was helping someone, that I was going to maybe get cited.

 18 THE COURT: So what's your answer?

 19 THE WITNESS: I guess I don't really understand the 

 20 question. I'm sorry.

 21 THE COURT: The question is, did you -- did you 

 22 believe, do you believe that your conduct, whether it was 

 23 legal or illegal, you were going to do it?

 24 THE WITNESS: I guess I didn't think of the clause 

 25 in the permit and doing what that clause said not to do was 

46

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 46 of 198
COURT EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 breaking the law but just breaking the permit, which is why I 

 2 didn't sign the permit.

 3 THE COURT: When you were told about the brief 

 4 history of humanitarian aid in southern Arizona, did anybody 

 5 ever tell you about the prosecution of people engaged in 

 6 humanitarian activities in southern Arizona?

 7 THE WITNESS: It was a long time ago. Maybe.

 8 THE COURT: So maybe you were told that people were 

 9 prosecuted?

 10 THE WITNESS: In general? I know that there was a 

 11 case a really long time ago.

 12 THE COURT: You were told about it?

 13 THE WITNESS: Yes, but it was a very different 

 14 situation than this.

 15 THE COURT: Were you ever told that your behaviors 

 16 in some places might have criminal consequences?

 17 THE WITNESS: At the orientation? 

 18 THE COURT: Well, let's start there. At the 

 19 orientation. 

 20 THE WITNESS: From what I remember, I believe I was 

 21 told that some people might think of it as criminal, and it 

 22 wasn't in my belief to be criminal to be providing 

 23 humanitarian aid.

 24 THE COURT: So you were aware -- you were made aware 

 25 of the fact that somebody might charge you with a crime? 

47

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 47 of 198
COURT EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 THE WITNESS: No. I'm sorry. That's not what I 

 2 meant. I meant that some people might not agree with it and 

 3 think that it is a criminal thing. I guess from what I'm 

 4 trying to say is that I did not understand that humanitarian 

 5 aid was criminal.

 6 THE COURT: But you knew that others might have that 

 7 opinion?

 8 THE WITNESS: By "others," I guess I should have 

 9 specified I meant other people I might interact with, not 

 10 necessarily, like, law enforcers.

 11 THE COURT: Okay. So within people that you were 

 12 associating with, some thought it might be breaking the law, 

 13 and some thought it wasn't breaking the law? Is that what 

 14 you're saying?

 15 THE WITNESS: No. I'm sorry. I've met people who 

 16 have maybe not agreed with what I've done and might consider 

 17 it to be criminal, I guess, but I'm not -- I wasn't reliant on 

 18 -- I was reliant on the information that I was given, which 

 19 was humanitarian aid work is not criminal.

 20 THE COURT: That's what you were told, and that's 

 21 what you believed? 

 22 THE WITNESS: That humanitarian aid is not --

 23 THE COURT: That's what you believe? 

 24 THE WITNESS: Yes.

 25 THE COURT: But you seem to agree that there are 

48

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 48 of 198
COURT EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 people who think that it can be a crime, at least --

 2 THE WITNESS: Who hold that as their opinion, yes.

 3 THE COURT: Do you know -- did you know what a 

 4 designation of a wilderness or refuge meant at the time you 

 5 were there?

 6 THE WITNESS: Yeah, I mean, vaguely, yes. 

 7 THE COURT: What did you vaguely think it meant to 

 8 go into a wilderness or a refuge?

 9 THE WITNESS: What did I think that it meant to go 

 10 into -- I mean, with a permit --

 11 THE COURT: No, no. What is a wilderness area? 

 12 THE WITNESS: A wilderness area is an area protected 

 13 by the National Wildlife, like Officer West.

 14 THE COURT: And what did that mean to you at that 

 15 time? 

 16 THE WITNESS: At that time I honestly don't -- I 

 17 can't recall. It was a long time ago.

 18 THE COURT: You live in Seattle; right? 

 19 THE WITNESS: I do.

 20 THE COURT: There's forests up there; right? 

 21 THE WITNESS: There is.

 22 THE COURT: Hiking trails; right? 

 23 THE WITNESS: Yes.

 24 THE COURT: See signs that say, "Pack it in, pack it 

 25 out?" 

49

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 49 of 198
COURT EXAMINATION OF ZAACHILA OROZCO-McCORMICK

 1 THE WITNESS: I'm sorry? 

 2 THE COURT: Do you see signs that say, "Pack it 

 3 in, pack it out?" 

 4 THE WITNESS: I have seen signs that say, "Pack it 

 5 in, pack it out."

 6 THE COURT: And does it have a meaning to you when 

 7 it says that?

 8 THE WITNESS: Yes, it --

 9 THE COURT: It has significance; right?

 10 THE WITNESS: Yes.

 11 THE COURT: And you knew that this particular area 

 12 required a permit to get on the roads; true?

 13 THE WITNESS: I did.

 14 THE COURT: You knew that area had restricted 

 15 roads, true, roads you couldn't travel? 

 16 THE WITNESS: Yes.

 17 THE COURT: And whether you signed a piece of paper 

 18 or not, you knew you weren't supposed to leave things there?

 19 THE WITNESS: Correct.

 20 THE COURT: And you decided to do it whether you had 

 21 a permit or not? 

 22 THE WITNESS: I decided to do it because I believe 

 23 that there was a greater necessity, which was providing 

 24 humanitarian aid to people who were dying.

 25 THE COURT: So you were willing to suffer the 

50

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 50 of 198
DIRECT EXAMINATION OF NATALIE HOFFMAN

 1 consequences for that behavior? 

 2 THE WITNESS: The consequences which I thought were 

 3 getting a citation.

 4 THE COURT: So you wouldn't do it if you knew -- if 

 5 you had known it was a criminal prosecution?

 6 THE WITNESS: I guess that wasn't something that I 

 7 considered possible at the time.

 8 THE COURT: Okay. Thank you. 

 9 Do you have anything of her? She's stepped down.

 10 MR. FIDEL: No. We're okay. Thank you. 

 11 THE COURT: Okay. Let's take a break.

 12 MR. FIDEL: Thank you, Your Honor.

 13 THE COURT: 20 minutes.

 14 (Off the record.)

 15 THE COURT: You may proceed.

 16 MR. FIDEL: We call Natalie Hoffman.

 17 NATALIE HOFFMAN, WITNESS, SWORN

 18 DIRECT EXAMINATION

 19 BY MR. FIDEL:

 20 Q. Could you introduce yourself to the Court. 

 21 A. I'm Natalie Hoffman.

 22 Q. And how old are you, Natalie?

 23 A. I'm 23 years old.

 24 Q. Do you live in Tucson?

 25 A. I do.

51

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 51 of 198
DIRECT EXAMINATION OF NATALIE HOFFMAN

 1 Q. What do you do here?

 2 A. I work as a stagehand as my job.

 3 Q. All right. With the theaters in town?

 4 A. Yes.

 5 Q. All right. And are you from here originally?

 6 A. No. I was born in New Jersey, but I mostly grew up in 

 7 Charlottesville, Virginia.

 8 Q. And when did you come out to Tucson?

 9 A. I moved here when I was 19.

 10 Q. All right.

 11 A. Almost five years ago. 

 12 Q. Did you come out here for school?

 13 A. No. I came out to volunteer with the group No More 

 14 Deaths.

 15 Q. All right. How far did you go in school?

 16 A. I completed an EMT program, and I've done two or three 

 17 semesters of community college.

 18 Q. All right. Have you ever worked as an EMT?

 19 A. I briefly worked for the Arivaca Fire Department. I was 

 20 technically a stipended volunteer.

 21 Q. Technically a what?

 22 A. A stipended volunteer for them.

 23 Q. Got it. 

 24 All right. So you came out here to work with No More 

 25 Deaths?

52

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 52 of 198
DIRECT EXAMINATION OF NATALIE HOFFMAN

 1 A. Yes.

 2 Q. Was that to be a volunteer?

 3 A. Yes.

 4 Q. And how long ago was that?

 5 A. Well, that was in June of 2014, so about four-and-a-half 

 6 years ago.

 7 Q. And have you been continuously working with No More 

 8 Deaths or an off-and-on type of situation?

 9 A. It's been on and off the last couple years. I 

 10 continuously worked with No More Deaths -- I spent a lot of 

 11 time for the first two or three years I lived here, and since 

 12 then I've -- it's intermittent. I go out when I can.

 13 Q. All right. Mostly you're doing stagehand work?

 14 A. Yeah, among -- among other things in the community.

 15 Q. All right. In summer of 2017, were you working with No 

 16 More Deaths?

 17 A. Yes.

 18 Q. And again, I mean volunteering?

 19 A. Yes.

 20 Q. Okay. And how -- how would you describe your spiritual 

 21 beliefs?

 22 A. Well, primarily, I believe that all life is sacred. I 

 23 believe that all life is connected to the earth. I believe 

 24 that, because life is sacred, I believe really firmly in human 

 25 rights.

53

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 53 of 198
DIRECT EXAMINATION OF NATALIE HOFFMAN

 1 Q. Is that what drew you to No More Deaths?

 2 A. Yes.

 3 Q. I guess what I'm wondering is what would make you fly 

 4 across the country from Virginia to Tucson to volunteer with 

 5 this organization and then stay.

 6 A. Well, I was aware of the situation on the border and the 

 7 deaths that were occurring here, and I felt compelled to come 

 8 out here, especially because the skills I had as an EMT I 

 9 thought would be applicable.

 10 Q. So you felt compelled to come out here. What compelled 

 11 you to do that?

 12 A. I found it very disturbing that the deaths were occurring 

 13 and the suffering, and I wanted to do something about it.

 14 Q. Was that informed by your belief in the sanctity of human 

 15 life?

 16 A. Yes.

 17 Q. Did you feel a spiritual connection to your volunteer 

 18 work with No More Deaths?

 19 A. Definitely, yes.

 20 Q. Tell us about that. Explain -- explain that.

 21 A. Well, I felt a spiritual connection, well, because of what 

 22 I said about thinking that life is sacred, including human 

 23 life, and I think that water is sacred because it's a very -- 

 24 it's, like, one of the most basic aspects of life are made out 

 25 of water, like Zaachila said before, and I feel spiritually 

54

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 54 of 198
DIRECT EXAMINATION OF NATALIE HOFFMAN

 1 connected to the work of helping other people.

 2 Q. Did you hear Reverend Fife testify yesterday?

 3 A. I did.

 4 Q. Or maybe it was a couple days ago. Were you at the 

 5 trainings where he spoke?

 6 A. I was.

 7 Q. Have you had conversations with him during your time as a 

 8 volunteer with No More Deaths?

 9 A. Yes.

 10 Q. And do you agree with the -- with the spiritual grounding 

 11 that he testified about for this work in this organization?

 12 A. Yeah, more or less, yes.

 13 Q. Okay. More or less? What do you mean, "more or less?" 

 14 A. Well, what I mean is that I don't consider myself a part 

 15 of any specific congregation, and I don't -- but I agree with 

 16 his basic beliefs and human rights and having a spiritual 

 17 calling to help people.

 18 Q. Okay. Did you ever participate in prayers with No More 

 19 Deaths out in the desert?

 20 A. I guess you could call them prayers, yeah. I've 

 21 definitely participated in circles of -- where people would 

 22 share their thoughts and feelings and hold a moment of silence, 

 23 and I consider that to be a prayer. 

 24 I've also been present at, I guess you could say a 

 25 ceremony at our camp that used to exist in Arivaca where you'd 

55

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 55 of 198
DIRECT EXAMINATION OF NATALIE HOFFMAN

 1 annually have different people of faiths. A lot of people from 

 2 the churches come down and hold a ceremony to bless the camp 

 3 every year. I've been present for that before.

 4 Q. Okay. I'd like to talk about getting ready to go and do 

 5 a water drop.

 6 A. Okay.

 7 Q. What's -- what's your -- what's your headspace like as 

 8 you're preparing to go out into the desert to do this? What 

 9 are you thinking about?

 10 A. Well, it's during the summertime. It's knowing that it's 

 11 going to be really physically uncomfortable all day, and it's 

 12 going to be a long day, and so I tend to be quiet and kind of 

 13 trying to prepare myself for that. It's usually pretty quiet, 

 14 and everybody's -- you know, we eat breakfast together. We 

 15 wake up together. We get ready to go together, and it's 

 16 usually a pretty quiet time.

 17 Q. Why do you do that? Why do you wake up knowing it's 

 18 going to be a long, hot, physically uncomfortable day? What 

 19 makes you get up and do it?

 20 A. Because that's what's necessary to get the work done that 

 21 we're trying to do.

 22 Q. How many gallons of water do you carry in your pack?

 23 A. It depends. If I'm feeling good, I can carry -- I'll 

 24 carry, like, five or six gallons with me.

 25 Q. So you carry some in your hands too?

56

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 56 of 198
DIRECT EXAMINATION OF NATALIE HOFFMAN

 1 A. Uh-huh. 

 2 Q. How many do you carry in your hands?

 3 A. I usually carry one in my hand and switch it off, and I'll 

 4 carry four or five in my backpack. 

 5 Q. What's a jug of water weigh?

 6 A. I think approximately eight pounds.

 7 Q. For a gallon?

 8 A. Yeah.

 9 Q. Okay. What's that feel like, carrying a pack with four 

 10 or five gallons of water and another gallon of water, eight 

 11 pounds in your hand? What's that -- what's that feel like in 

 12 the summer?

 13 A. Exhausting.

 14 Q. How do you feel when you get to the spot where you're 

 15 going to put the water in the desert?

 16 A. Well, it depends where the spot is. Sometimes -- 

 17 sometimes I get to the place, and there will be tons of 

 18 artifacts, you know, things that people have left behind, 

 19 trash. Sometimes the gallons will be empty and appear to have 

 20 been drank. 

 21 Sometimes we'll get there and they'll be slashed and 

 22 vandalized. I've arrived at water drops where there were 

 23 really horrible racist messages written on the bottle and 

 24 they're slashed. I've even seen them have, like, gun holes in 

 25 them, bullet holes, I mean. 

57

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 57 of 198
DIRECT EXAMINATION OF NATALIE HOFFMAN

 1 So sometimes it can be kind of, kind of intense, but 

 2 it's -- you know, it's also, like, a relief when you get to 

 3 where you're going. 

 4 Q. On this particular day, August 13th, were you out in the 

 5 Cabeza Prieta wilderness?

 6 A. I was.

 7 Q. And did you get out of that -- did you drive that pickup, 

 8 the white Dodge pickup that we saw in the game photo?

 9 A. Yes.

 10 Q. All right. And did you hike out with a pack of water and 

 11 a gallon jug in your hand?

 12 A. Yes.

 13 Q. We saw one of the game cameras said it was 110 degrees. 

 14 Does that sound accurate to you?

 15 A. Definitely.

 16 Q. And when you walk out through the desert to where you're 

 17 going to drop the bottles, do you stop, take breaks?

 18 A. Not until we get to where we're going.

 19 Q. Are there places to stop and take breaks?

 20 A. Well, no. That's why we don't, because when it's that hot 

 21 out, and the ground is so rocky, you'll burn your skin if you 

 22 try to sit on the ground. There's no shade. It's better to 

 23 just keep going until you can find somewhere to rest.

 24 Q. It's 110 outside in the air. What's the temperature of 

 25 the rocks?

58

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 58 of 198
DIRECT EXAMINATION OF NATALIE HOFFMAN

 1 MR. WALTERS: Objection, Your Honor. Foundation. 

 2 Calls for speculation.

 3 BY MR. FIDEL:

 4 Q. Do you know what the temperature of the rocks is?

 5 A. I don't know exactly. I would say probably 140 degrees, 

 6 130 degrees.

 7 Q. What's it feel like when you sit on the rocks out in the 

 8 desert?

 9 A. It burns.

 10 Q. So are there shady spots along the way?

 11 A. In that area, no, not unless you can find a rock overhang 

 12 or the occasional shrubby tree.

 13 Q. And then what do you do there? Do you sit down there, or 

 14 how do you take a break, if you're going to take a break?

 15 A. Normally what I do is I would empty my backpack of all of 

 16 the supplies and then sit on my backpack or squat.

 17 Q. Okay. So you mentioned that you find things along the 

 18 way, things that other people have left behind. What kinds of 

 19 things have you found?

 20 A. A lot of shoes. A lot of articles of clothing, food, food 

 21 wrappers, like, food trash. That's the majority of it. 

 22 Abandoned backpacks.

 23 Q. And you pick that stuff up and you carry it out? 

 24 A. Yes.

 25 Q. All right.

59

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 59 of 198
DIRECT EXAMINATION OF NATALIE HOFFMAN

 1 A. Yeah, we carry trash bags, and we carry out as much trash 

 2 as we can.

 3 Q. All right. When you got -- when you get to the drop 

 4 site, we heard testimony about drawing or writing messages on 

 5 the bottles.

 6 A. Uh-huh.

 7 Q. Are there other items or things that people leave at the 

 8 drop sites?

 9 A. Yeah. We get boxes of rosaries from various churches 

 10 and --

 11 Q. Like actual rosary beads? 

 12 A. Yeah, rosary beads, and I like to carry those and hang 

 13 them in the trees or the cactuses around the drops, put them on 

 14 the bottle.

 15 Q. Why do you do that?

 16 A. Just so that people know that it's, you know, coming 

 17 from -- you know, just so that it's more welcoming to people, 

 18 and I think that, you know, regardless of if somebody is 

 19 religious or not who happens across them, it's nice to know 

 20 where they're coming from, and I think it's encouraging to 

 21 people, especially if they are religious, to have that, and 

 22 just, you know, to make it look nice and welcoming.

 23 Q. Does it reflect on your understanding of the spirituality 

 24 of leaving water in the desert?

 25 A. I'm sorry. Can you repeat that? 

60

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 60 of 198
DIRECT EXAMINATION OF NATALIE HOFFMAN

 1 Q. Yeah, when you leave a rosary in the tree near where 

 2 you're leaving this water or in the spot where you're leaving 

 3 this water, does that reflect on your belief, the spirituality 

 4 of that act, of leaving water out there?

 5 A. Yeah. I mean, like I said, I don't identify with any 

 6 specific congregation or traditional organized religion, but I 

 7 definitely support and agree with a lot of Christian beliefs 

 8 about, like, helping your neighbor and providing for people in 

 9 need, and since that's a Christian symbol, you know, I'm fine 

 10 with putting that out.

 11 Q. Yeah. All right. 

 12 Now, let's talk about the permit process. 

 13 A. Uh-huh.

 14 Q. Was August 13th, 2017, the first time you've ever been on 

 15 the Cabeza Prieta refuge?

 16 A. No.

 17 Q. When was the previous time you were there?

 18 A. I don't remember exactly when it was. It was sometime in 

 19 2015, was the last time I was there, I think.

 20 Q. Okay. Did you have a permit at that time?

 21 A. Yes.

 22 Q. In 2015?

 23 A. Uh-huh, yes.

 24 Q. Did you have a permit in 2017?

 25 A. No.

61

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 61 of 198
DIRECT EXAMINATION OF NATALIE HOFFMAN

 1 Q. Had you seen the new permit that went into effect July 

 2 1st, 2017?

 3 A. I didn't read it personally. I heard somebody summarize 

 4 what it said for me, verbally, but I didn't read it.

 5 Q. And where did you hear what was on it?

 6 A. Mostly in No More Deaths meetings and emails.

 7 Q. Okay. You guys have weekly meetings?

 8 A. Yes.

 9 Q. All right. And was that a topic of discussion, the 

 10 change to the permit?

 11 A. Yes.

 12 Q. And what did you understand the change to the permit to 

 13 be?

 14 A. I understood that they had added a paragraph specifically 

 15 addressing leaving food, water, and other supplies on the 

 16 refuge.

 17 Q. Did you decide not to get that permit?

 18 A. Yes, I did.

 19 Q. Why did you make that decision?

 20 A. Well, I heard that they had added that paragraph, and that 

 21 was what I was there to do, was to leave food, water, and other 

 22 supplies.

 23 Q. And did somebody tell you not to get a permit, or was 

 24 that your own decision?

 25 A. No, that was my own decision.

62

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 62 of 198
DIRECT EXAMINATION OF NATALIE HOFFMAN

 1 Q. Okay. And so why? Why not get the permit?

 2 A. Because what's the point if I was lying? I don't like to 

 3 lie. I don't like to lie.

 4 Q. Did you think that you would be violating the permit by 

 5 going on the refuge without getting a permit?

 6 A. Did I think I'd be violating the permit by not getting a 

 7 permit?

 8 Q. Yes, and then going on the refuge. 

 9 A. I'm not sure -- well, I never agreed to the permit, so I 

 10 don't know if I'd be violating it, but I mean --

 11 Q. Well, let me ask you this. Did you know it was against 

 12 the rules to go on the refuge without a permit?

 13 A. Yes.

 14 Q. Did you know you were not allowed to drive on the 

 15 administrative road that went down from Charlie Bell Pass?

 16 A. Did I know I was allowed to drive?

 17 Q. Did you know that you were not allowed to? 

 18 A. Oh, no.

 19 Q. Okay. What did you think the punishment could be if you 

 20 were caught on the refuge without a permit?

 21 A. I thought that I would be asked to leave and potentially 

 22 banned from the refuge and that the -- I thought the most 

 23 extreme thing that would happen would be that I would get a 

 24 citation of some sort, like a fine, ticket.

 25 Q. Okay. What's a citation? What does "citation" mean to 

63

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 63 of 198
DIRECT EXAMINATION OF NATALIE HOFFMAN

 1 you?

 2 A. I don't know the legal definition of a citation, but what 

 3 I meant was, like, a ticket, like, a traffic ticket or 

 4 something like that. 

 5 Q. Did you think it was a crime for you to be on the refuge 

 6 without a permit?

 7 A. No.

 8 Q. Did you think it was a crime to be leaving water on the 

 9 refuge?

 10 A. No.

 11 Q. Did you know about -- were you at the July 6th meeting 

 12 we've heard about with No More Deaths people and 

 13 representatives of the U.S. Attorney's Office?

 14 A. No.

 15 Q. Did you hear about that meeting?

 16 A. I did.

 17 Q. Was that in those No More Deaths meetings?

 18 A. Yes.

 19 Q. And was that a topic of discussion?

 20 A. Yes.

 21 Q. And did you hear that the U.S. Attorney's Office 

 22 representative had said the Government was not interested in 

 23 prosecuting these cases?

 24 A. Yes, I heard that.

 25 Q. Had you heard about other No More Deaths volunteers in 

64

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 64 of 198
DIRECT/CROSS-EXAMINATION OF NATALIE HOFFMAN

 1 the past being prosecuted by the U.S. Attorney's Office?

 2 A. Yeah, I heard of -- I heard of one case where No More 

 3 Deaths volunteers were prosecuted and --

 4 Q. When was that?

 5 A. I don't know what year that was. It was at least eight 

 6 years ago, I think, and it was a completely different 

 7 situation, and the charges got dropped.

 8 Q. Did you hear -- from what you heard, did it involve 

 9 leaving water on a refuge or something else?

 10 A. That case before?

 11 Q. Yeah.

 12 A. No, it had nothing to do with leaving water on the refuge.

 13 Q. Okay. So as far as going on to the Cabeza refuge and 

 14 leaving water and driving on an administrative road, did you 

 15 believe that that conduct could result in you being charged 

 16 with a crime and prosecuted? 

 17 A. Certainly not.

 18 MR. FIDEL: Okay. That's all my questions.

 19 CROSS-EXAMINATION

 20 BY MR. WALTERS:

 21 Q. Good morning, Ms. Hoffman. 

 22 A. Good morning.

 23 Q. Before you got to Cabeza, you know that a permit was 

 24 required; correct?

 25 A. Yes.

65

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 65 of 198
CROSS-EXAMINATION OF NATALIE HOFFMAN

 1 Q. And a permit was required for you even to step one foot 

 2 in the refuge; correct?

 3 A. Yes.

 4 Q. So again, your testimony was that you willfully chose not 

 5 to get one?

 6 A. Yes.

 7 Q. And you didn't get one because you knew that you weren't 

 8 going to follow it?

 9 A. Yes. 

 10 Q. Did you attempt -- well, you didn't attempt to get a 

 11 special-use permit; correct?

 12 A. That's correct.

 13 Q. Are you aware of what a special permit is, special-use 

 14 permit is?

 15 A. I am aware of that now. I was not aware of that until, 

 16 like, yesterday or the day before, when I heard it here.

 17 Q. Did you ever talk to Fish and Wildlife about the -- about 

 18 whether you could drive down into a wilderness area or about 

 19 your ability to get special-use permit?

 20 A. No.

 21 Q. Did you ever ask Fish and Wildlife if you could drive 

 22 down into a wilderness area?

 23 A. No.

 24 Q. You planned -- before you went to Cabeza, you planned 

 25 what you were going to do; right?

66

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 66 of 198
CROSS-EXAMINATION OF NATALIE HOFFMAN

 1 A. Yes.

 2 Q. You planned when you were going to go?

 3 A. Yeah, yeah.

 4 Q. Generally speaking?

 5 A. Uh-huh.

 6 Q. Where you were going to go?

 7 A. Yes.

 8 Q. What you were going to do when you got there?

 9 A. Yes.

 10 Q. And what you were going to do was leave certain supplies 

 11 at that location; is that fair?

 12 A. Uh-huh, yes.

 13 Q. You wanted people to find those supplies; is that fair?

 14 A. Yeah, I -- yes, uh-huh.

 15 Q. And that -- those people would include undocumented 

 16 migrants?

 17 A. They are people, yes.

 18 Q. In terms of those supplies that you wanted people to 

 19 find, your intent in leaving those supplies was so that 

 20 someone could carry them somewhere else in the -- in that 

 21 area. 

 22 Is that fair?

 23 A. No.

 24 Q. Okay. What was your intent?

 25 A. That people could drink that water and eat the food.

67

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 67 of 198
CROSS-EXAMINATION OF NATALIE HOFFMAN

 1 Q. Okay. So if they -- if they picked it up, though, and 

 2 they continued on their journey, it's fair that they have 

 3 picked it up and taken it with them; right?

 4 A. It's fair to say that, but that was not my intent.

 5 Q. Regardless of your intent -- your intent was to leave 

 6 supplies on the refuge; right?

 7 A. Correct.

 8 Q. And you left those supplies, or at least are part of 

 9 those supplies, at Charlie Bell Well; right?

 10 A. Yes.

 11 Q. And then after you passed Charlie Bell Well, you parked 

 12 at some point; right?

 13 A. Yes.

 14 Q. And then you and your codefendants then walked off into 

 15 the desert; right?

 16 A. Correct.

 17 Q. Did you carry more supplies with you?

 18 A. Yes.

 19 Q. And your intent was to leave those supplies somewhere in 

 20 the desert; correct?

 21 A. Yes.

 22 Q. On the refuge, there are signs telling you where 

 23 wilderness boundaries begin; correct?

 24 A. Apparently so, yes.

 25 MR. WALTERS: Sarah, can I have our exhibits, the 

68

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 68 of 198
CROSS-EXAMINATION OF NATALIE HOFFMAN

 1 ones that have been admitted?

 2 BY MR. WALTERS:

 3 Q. Ms. Hoffman, is your screen up on your computer?

 4 A. Yeah. 

 5 Q. Looks like a white screen? 

 6 Okay. I'm showing you what's been admitted as 

 7 Government's Exhibit 22.

 8 A. Uh-huh.

 9 Q. This location is at Charlie Bell Pass; correct?

 10 A. Yes.

 11 Q. Or this picture is at Charlie Bell Pass?

 12 A. Yes.

 13 Q. And you see there on the right side of the screen a white 

 14 sign; correct?

 15 A. I do.

 16 Q. Did you see that when you drove down to Charlie Bell 

 17 Well?

 18 A. I don't recall.

 19 Q. You don't recall whether you saw it or you don't -- you 

 20 didn't see it?

 21 A. I don't recall seeing that sign. I don't know.

 22 Q. There is another sign over here, correct, a yellow sign?

 23 A. Yes. 

 24 Q. Do you recall seeing that sign when you drove down to 

 25 Charlie Bell Well?

69

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 69 of 198
CROSS-EXAMINATION OF NATALIE HOFFMAN

 1 A. No.

 2 Q. I'm showing you what's been admitted as Government's 

 3 Exhibit 24.

 4 A. Uh-huh.

 5 Q. You heard prior testimony in this case that this was 

 6 taken from the driver's side of a truck; correct?

 7 A. I don't -- I don't remember when that was said.

 8 Q. You don't remember Officer West saying that he took this 

 9 picture from the driver's seat of his truck?

 10 A. Yeah, I guess, yeah, I heard that, yeah.

 11 Q. So I understand that they're not the same trucks, but you 

 12 would agree with me that is a similar vantage point that you 

 13 would have had on that day?

 14 A. Probably.

 15 Q. And do you recall seeing that sign?

 16 A. No.

 17 Q. And just to zoom in, that sign specifically says that 

 18 unauthorized vehicles are prohibited; correct?

 19 A. It does.

 20 Q. Showing you what's been admitted as Government's Exhibit 

 21 No. 21. 

 22 A. Uh-huh.

 23 Q. This sign is at Charlie Bell Pass; correct?

 24 A. It appears to be.

 25 Q. Okay. And before you get to -- before you drive down to 

70

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 70 of 198
CROSS-EXAMINATION OF NATALIE HOFFMAN

 1 the wilderness area, just to orient you, this sign would be on 

 2 the passenger side of the truck; is that correct?

 3 A. Appears to be, yes.

 4 Q. And again, if we zoom in, it says, "Administrative 

 5 Trail;" correct? 

 6 A. Uh-huh, yes.

 7 Q. And No More Deaths -- did No More Deaths give you any 

 8 information or training on administrative trails out on Cabeza 

 9 Prieta?

 10 A. No.

 11 Q. This is also at Charlie Bell Pass, before you go down to 

 12 Charlie Bell Well; correct?

 13 A. It appears to be, yes.

 14 Q. And this would be the left side of the road, the driver's 

 15 side; correct?

 16 A. Yes.

 17 Q. And you told Officer West that you didn't see the sign 

 18 either?

 19 A. Yeah, yes.

 20 Q. And if we look closely, it specifically says, "Government 

 21 Use Only;" correct?

 22 A. Correct.

 23 Q. I think this goes without saying, but you are not the 

 24 Government; right?

 25 A. I am not the Government.

71

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 71 of 198
CROSS-EXAMINATION OF NATALIE HOFFMAN

 1 Q. And again, just one more picture. 

 2 You would agree with me that those signs stand out in 

 3 that picture; right?

 4 A. In that picture, yeah, they do.

 5 Q. You have a white sign amongst nothing but brown; is that 

 6 right?

 7 A. Yeah, I guess so.

 8 Q. You have a yellow sign amongst nothing but brown, a 

 9 bright yellow sign amongst nothing but brown; right?

 10 A. Yes.

 11 MR. FIDEL: Judge, excuse me. Could we just clarify 

 12 for the record that these past few photos are individual 

 13 photos of the same signs? 

 14 MR. WALTERS: Yes, that's fine.

 15 MR. FIDEL: We're all in agreement about that? 

 16 MR. WALTERS: Yeah.

 17 MS. WRIGHT: Nate, they're not all the same sign.

 18 MR. WALTERS: Let me clarify. The last few pictures 

 19 were all of the same sign. However, Exhibit No. 24 was the 

 20 sign that was past Charlie Bell Well.

 21 MR. FIDEL: Agreed.

 22 MR. WALTERS: Okay.

 23 BY MR. WALTERS:

 24 Q. So you would agree with me, then, that there is clearly 

 25 marked signs and signage on both sides of the road when you 

72

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 72 of 198
CROSS-EXAMINATION OF NATALIE HOFFMAN

 1 enter the wilderness area?

 2 A. Yes, but I'd also say that that road is incredibly rocky, 

 3 and I was focusing on driving and not reading signs.

 4 Q. It's not rocky before you pass those signs, though; 

 5 right?

 6 A. It is, yes. 

 7 Q. Before you get to those signs, in an open area, a flat 

 8 open area at Charlie Bell Pass, it's rocky?

 9 A. I would call it rocky, yes.

 10 Q. You actually at one point went down to Charlie Bell Well 

 11 for the first time; correct?

 12 A. Yes.

 13 Q. And then you went back up to Charlie Bell Pass?

 14 A. I did.

 15 Q. So in order to go down the first time, you would have 

 16 passed those signs?

 17 A. Yeah, I would have.

 18 Q. And then, when you came back up to Charlie Bell Pass, you 

 19 went back down to Charlie Bell Well; correct?

 20 A. I'm sorry. What -- can you repeat that? 

 21 Q. So you went down to Charlie Bell Well the first time; 

 22 right? 

 23 A. Yeah.

 24 Q. And then you came back up to Charlie Bell Pass?

 25 A. Uh-huh.

73

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 73 of 198
CROSS-EXAMINATION OF NATALIE HOFFMAN

 1 Q. And then you went back down to Charlie Bell Well; 

 2 correct? 

 3 A. I think so. I honestly don't remember exactly what we 

 4 did.

 5 Q. Do you recall testimony about the trail cameras that were 

 6 used in this case?

 7 A. From Officer West? 

 8 Q. Yes. 

 9 A. Yes.

 10 Q. And do you recall his testimony that you went -- that the 

 11 truck was seen going back and forth on the trail cam?

 12 A. Oh, yes. I do remember that, yes.

 13 Q. Okay. So you would agree with me, then, you made 

 14 multiple trips down to Charlie Bell Well?

 15 A. I do.

 16 Q. Specifically two?

 17 A. Yes.

 18 Q. So you would have passed those signs twice; is that fair?

 19 A. Yeah.

 20 Q. Okay. And then, going past Charlie Bell Well, you would 

 21 have obviously passed that sign as well?

 22 A. Yeah.

 23 Q. And in none of those instances, your testimony is you 

 24 never saw those signs?

 25 A. I never read those signs.

74

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 74 of 198
CROSS-EXAMINATION OF NATALIE HOFFMAN

 1 Q. But you saw them?

 2 A. I don't remember seeing them. It's possible.

 3 Q. If you saw them, would you have read them?

 4 A. Not necessarily, no.

 5 Q. Let's talk about your testimony that you thought that 

 6 there was an agreement with the U.S. Attorney's Office. Okay?

 7 A. Okay.

 8 Q. You were never at any meetings with the U.S. Attorney's 

 9 Office?

 10 A. No, and I never thought there was a written agreement or 

 11 anything. I just was under the impression that they were not 

 12 interested in pursuing these cases.

 13 Q. And that might be my fault. I wasn't speaking about a 

 14 written agreement. I was speaking about any agreement. 

 15 A. Okay.

 16 Q. Okay. You never spoke to any Assistant United States 

 17 Attorney about your actions; correct?

 18 A. Correct.

 19 Q. You never spoke to any U.S. Attorney that had been 

 20 appointed by the President; correct?

 21 A. That's correct.

 22 Q. You never spoke to any First Assistant United States 

 23 Attorney about your actions?

 24 A. No, I didn't.

 25 Q. You never spoke directly to anyone from the Fish and 

75

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 75 of 198
CROSS-EXAMINATION OF NATALIE HOFFMAN

 1 Wildlife Service?

 2 A. At any --

 3 Q. Prior to your actions. 

 4 A. I've spoken to Fish and Wildlife.

 5 Q. Sorry. That was -- let me clarify. 

 6 You never spoke to anyone from Fish and Wildlife about 

 7 whether you had permission to conduct your activities; 

 8 correct?

 9 A. On that -- on that particular day, no. Correct. Yes.

 10 Q. You heard that the U.S. Attorney's Office didn't have an 

 11 interest in prosecuting cases from a third party; is that 

 12 fair?

 13 A. Yeah.

 14 Q. And that third party being the leadership of No More 

 15 Deaths. Is that fair too?

 16 A. No.

 17 Q. Okay. Was it just a general discussion amongst everyone 

 18 then?

 19 A. Yes.

 20 Q. Okay. No one from the U.S. Attorney's Office told you 

 21 directly that you had permission to conduct your activities at 

 22 Cabeza Prieta; is that correct?

 23 A. Yes.

 24 Q. No one from the Fish and Wildlife Service told you that 

 25 you had permission to conduct your activities that day; 

76

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 76 of 198
CROSS-EXAMINATION OF NATALIE HOFFMAN

 1 correct?

 2 A. Correct.

 3 Q. No one from the Department of the Interior told you that 

 4 you had permission to conduct your activities that day; 

 5 correct?

 6 A. That's correct.

 7 Q. No one from the Department of Justice told you that you 

 8 had permission to conduct your activities that day; correct?

 9 A. Correct.

 10 Q. And none -- and nobody from those agencies, from any of 

 11 those agencies, told you that what you were doing was legal; 

 12 correct?

 13 A. That's correct. I never talked to --

 14 Q. No one ever told you, if you do this, you are not 

 15 violating federal law. Is that fair?

 16 A. That none of those people you just named? 

 17 Q. Correct. 

 18 A. Oh, I never talked to them.

 19 Q. Okay. So no one told you that it was legal?

 20 A. Well, no. I never talked to them.

 21 Q. Okay. And I think you said it earlier, but just to 

 22 clarify, you never saw a written -- any written agreement 

 23 between No More Deaths and the U.S. Attorney's Office?

 24 A. I never saw one, no.

 25 Q. Okay. Anybody ever tell you there was a written 

77

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 77 of 198
CROSS-EXAMINATION OF NATALIE HOFFMAN

 1 agreement?

 2 A. No.

 3 Q. Your testimony was that you were told that the U.S. 

 4 Attorney's Office was not interested in prosecuting these 

 5 types of cases; right?

 6 A. Right.

 7 Q. So the flip side to that is that you knew you could be 

 8 prosecuted; correct?

 9 A. Yes.

 10 Q. Just that the U.S. Attorney's Office wasn't interested; 

 11 right?

 12 A. Yes. I didn't -- yeah. Yes. Uh-huh.

 13 Q. Okay. So you knew that you could be charged with a crime 

 14 when you went out there?

 15 A. Well, that's what I was going to say, is no, I didn't know 

 16 that I could be charged with a crime. I knew that I could be 

 17 cited. I didn't think that was a crime.

 18 Q. You thought the -- you thought the United States 

 19 Attorney's Office wouldn't prosecute you; correct?

 20 A. Correct. I didn't think I was committing any crime.

 21 Q. Do you think a citation and a prosecution are the same?

 22 A. No.

 23 Q. So when someone says they won't -- they don't have an 

 24 interest in prosecuting you, you would agree with me that you 

 25 knew you could be prosecuted?

78

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 78 of 198
CROSS-EXAMINATION OF NATALIE HOFFMAN

 1 A. Okay. Well, no. I mean, when you put it like that, no. 

 2 I thought that I could get a citation. I didn't think that I 

 3 could be prosecuted for a crime. 

 4 Q. You're familiar with the rescue beacons on the refuge; 

 5 correct? 

 6 A. I am.

 7 Q. You know that those emergency beacons are a way for 

 8 anyone in distress, whether it be a citizen or an undocumented 

 9 migrant, to call for help if they are in distress; correct?

 10 A. I know that it calls the Border Patrol, yes.

 11 Q. Okay. And that's for anyone to use; correct?

 12 A. Theoretically.

 13 Q. Okay. If you had gone out to Cabeza that day and you 

 14 needed medical attention, you could have pushed the button; 

 15 right?

 16 A. I could have. 

 17 Q. And you know that Border Patrol is trained to 

 18 specifically conduct search and rescue operations; correct?

 19 A. I know that they're trained. I also know that there's a 

 20 lot of cases reported where they don't respond at all, and 

 21 that's a major problem that No More Deaths specifically has a 

 22 report about.

 23 Q. You testified that you had training as an EMT; correct?

 24 A. Correct.

 25 Q. And at one point you were -- I think you said you were a 

79

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 79 of 198
CROSS-EXAMINATION OF NATALIE HOFFMAN

 1 volunteer but you got a stipend; right? Is that what you 

 2 said? 

 3 A. As an EMT? 

 4 Q. As -- with the Arivaca Fire Department. 

 5 A. Yes.

 6 Q. Okay. So you've been trained on the signs and symptoms 

 7 of dehydration, I take it?

 8 A. I have.

 9 Q. You know what the protocols are -- the protocols are for 

 10 handling or assisting someone who is suffering from 

 11 dehydration; correct?

 12 A. More or less, yeah.

 13 Q. And one of the basic things about dehydration is, of 

 14 course, water; is that fair?

 15 A. Yes.

 16 Q. One of the other basic procedures for treating someone 

 17 with dehydration is to cool their body off; correct?

 18 A. That's correct.

 19 Q. Cold packs maybe on the back of the neck?

 20 A. Uh-huh.

 21 Q. Under the armpits?

 22 A. Yes.

 23 Q. Behind the knees?

 24 A. Uh-huh. 

 25 Q. Possibly the groin area?

80

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 80 of 198
CROSS-EXAMINATION OF NATALIE HOFFMAN

 1 A. Yeah.

 2 Q. And that's in an effort to reduce the body temperature as 

 3 quickly as possible; correct? 

 4 A. Correct.

 5 Q. So in your training as an EMT, you're aware that, if 

 6 someone is suffering from dehydration, that they should not 

 7 chug a gallon of water; is that fair?

 8 A. That is fair.

 9 Q. That they need to take controlled sips in order to 

 10 recover from that dehydration?

 11 A. Yes, and they need electrolytes.

 12 Q. Because if someone drinks a ton of water too quickly if 

 13 they are dehydrated, they can vomit?

 14 A. Yeah.

 15 Q. They can go into shock?

 16 A. Yeah. 

 17 Q. They can die?

 18 A. Right.

 19 Q. And you have no -- and you had no training or you had no 

 20 information saying that you were giving undocumented migrants 

 21 advice on how to drink the water that you were setting out. 

 22 A. I'm sorry. Can you repeat that?

 23 Q. You had no -- let me rephrase. You had no means to 

 24 control whether an undocumented migrant was going to sip that 

 25 water or chug that water; correct?

81

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 81 of 198
CROSS/REDIRECT EXAMINATION OF NATALIE HOFFMAN

 1 A. No, I never -- no.

 2 Q. I want to talk about the kiosk that you and your 

 3 codefendants signed in to. Do you remember that?

 4 A. Vaguely, yes.

 5 Q. At the kiosk -- there is a big map at the kiosk; correct?

 6 A. A map?

 7 Q. Uh-huh. 

 8 A. I don't remember.

 9 Q. So you don't recall seeing a map that showed where the 

 10 designated wilderness areas were on the refuge?

 11 A. No. I didn't look at any --

 12 Q. You don't recall seeing a big map at the kiosk showing 

 13 where the administrative roads began on the refuge?

 14 A. No. I didn't look at any map.

 15 MR. WALTERS: May I have a minute, Your Honor?

 16 THE COURT: You may.

 17 MR. WALTERS: I have no further questions, Your 

 18 Honor.

 19 REDIRECT EXAMINATION

 20 BY MR. FIDEL:

 21 Q. Natalie, were you aware of people who had driven out on 

 22 the refuge, left water, and not been cited?

 23 A. Yes.

 24 Q. Were you aware of that when you went out there on August 

 25 13th?

82

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 82 of 198
DIRECT EXAMINATION OF MADELINE HUSE

 1 A. Yes.

 2 MR. FIDEL: No further questions.

 3 THE COURT: You may step down.

 4 MS. CHAPMAN: Your Honor, we call Madeline Huse.

 5 THE COURT: Okay.

 6 MADELINE HUSE, WITNESS, SWORN

 7 DIRECT EXAMINATION

 8 BY MS. CHAPMAN:

 9 Q. Madeline, can you introduce yourself to the Court, 

 10 please. 

 11 A. My name is Madeline Huse.

 12 Q. And how old are you?

 13 A. I'm 23.

 14 Q. Where do you live Madeline?

 15 A. I live in Bellingham, Washington.

 16 Q. And have you completed some college?

 17 A. I have. Two years. 

 18 Q. And what are you doing now?

 19 A. Now I'm just working in Bellingham and trying to get into 

 20 a program in Virginia.

 21 Q. And what kind of program are you trying to get into in 

 22 Virginia?

 23 A. Conflict analysis, a mediation and arbitration program.

 24 Q. Great. And what brought you from Bellingham to Arizona?

 25 A. I learned about No More Deaths online, and I speak 

83

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 83 of 198
DIRECT EXAMINATION OF MADELINE HUSE

 1 Spanish, so I figured there was something that I could do out 

 2 here. I've always been interested in helping other people in 

 3 need, and I figured I could apply my skills.

 4 Q. When was that that you came to Arizona for the first 

 5 time?

 6 A. December 2016.

 7 Q. And how long did you stay when you were here in December?

 8 A. I stayed -- well, I went straight to Ajo, Arizona, and I 

 9 stayed for a month, living in the desert out there.

 10 Q. And then did you leave for a time?

 11 A. I did. I went to south Texas to work with some folks down 

 12 there.

 13 Q. And then you returned to Arizona in April of 2017?

 14 A. Yeah. I actually came back around February.

 15 Q. And why did you return to Arizona? What brought you 

 16 back? 

 17 A. After working in south Texas, I realized that there was a 

 18 great need, especially in the west desert, just from some of 

 19 the experiences that I had out there in December.

 20 Q. And what training did you go through when you came and 

 21 decided to volunteer for No More Deaths?

 22 A. There's a pretty long training that new volunteers go 

 23 through. It's a whole day, and there's several people that 

 24 talk and a big PowerPoint that they show you.

 25 Q. If we could show the witness the exhibit marked as 

84

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 84 of 198
DIRECT EXAMINATION OF MADELINE HUSE

 1 Exhibit 133. 

 2 Madeline, do you recognize this PowerPoint as one that 

 3 you may have seen or seen one like it as part of your 

 4 training?

 5 A. Yeah, I've seen that many times.

 6 Q. And what is covered in this training?

 7 A. Everything from protocols and procedures to why the need 

 8 is there and the history of the sanctuary movement, how we 

 9 ended up becoming No More Deaths.

 10 Q. So on the first page here, it looks like it organizes by 

 11 year and land jurisdiction recovered human remains. 

 12 Is that right?

 13 A. Yes.

 14 Q. Was that part of your training?

 15 A. It was, but I actually have witnessed human remains many 

 16 times as well.

 17 Q. Right, and I want to talk about that. 

 18 Let's look at the second page here. These are some maps 

 19 that show recovered human remains in the west desert; is that 

 20 right?

 21 A. Yeah.

 22 Q. And you recognize this as part of training that you 

 23 received as a volunteer?

 24 A. Yeah, it is.

 25 MS. CHAPMAN: Your Honor, I would move admission of 

85

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 85 of 198
DIRECT EXAMINATION OF MADELINE HUSE

 1 Exhibit 133.

 2 THE COURT: Sure.

 3 MS. CHAPMAN: May we publish the exhibit, please? 

 4 THE COURT: Sure.

 5 BY MS. CHAPMAN:

 6 Q. So you're also advised about what it means. Recovered 

 7 human remains don't necessarily mean, when they're found, it's 

 8 not necessarily the time that the person passed away; is that 

 9 right?

 10 A. Yeah.

 11 Q. And that's part of the training that you receive?

 12 A. Uh-huh.

 13 Q. And then we have some maps here. Are these maps part of 

 14 the training?

 15 A. Yeah, I've seen lots of maps like that.

 16 Q. And do you know -- you heard the testimony of 

 17 Dr. McCullough. Do you know if these maps are created with 

 18 his assistance and input?

 19 A. Yeah, I believe so.

 20 Q. And these maps show what I think Dr. McCullough called in 

 21 his testimony the trail of death?

 22 A. Yes. 

 23 Q. And this is part of the training that you received as a 

 24 volunteer?

 25 A. Yes. I also saw trainings when I was working as logistics 

86

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 86 of 198
DIRECT EXAMINATION OF MADELINE HUSE

 1 coordinator too.

 2 Q. Okay. And you said you also have some personal 

 3 experience with recovered human remains 1 Tell the Court 

 4 about that experience.

 5 A. The first month I was here was in Ajo, and I was going out 

 6 in the desert every day, and I think that month we found over a 

 7 dozen human remain sets, just that first month. It was a huge 

 8 shock and one of the main reasons I felt compelled to come back 

 9 after Texas, because it was traumatizing, I mean, to see the 

 10 tragedy out there.

 11 Q. And what do you do when you come upon or what did you do 

 12 when you came upon recovered human remains in that first month 

 13 when you were here?

 14 A. That had to do with training, so we would call the sheriff 

 15 right away. It's a crime scene. So we never collected 

 16 anything. We just contacted the sheriff and then made GPS 

 17 waypoints to -- and he would do a grid search, trying to find 

 18 scattered -- scattered bones or other evidence.

 19 Q. And that's part of the training you received, as well, as 

 20 a No More Deaths volunteer?

 21 A. Yes, you're -- yeah. And then generally we would 

 22 oftentimes have a moment of silence or just trying to be in 

 23 that space and really, you know, love that person and think 

 24 about them.

 25 Q. And that had a big effect on you, didn't it?

87

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 87 of 198
DIRECT EXAMINATION OF MADELINE HUSE

 1 A. It did, yeah.

 2 Q. And in some of the other trainings that you received, 

 3 were you trained on how to record the location of water that 

 4 you leave?

 5 A. Yeah, we have binders. I think that was mentioned in the 

 6 previous. The binders are just our system for logging what 

 7 water is used and how it's used. You know, there's 

 8 vandalization that happens with the water. If that happens, 

 9 you can go back and look at records and see whether or not a 

 10 water drop is useful. 

 11 And so there's the amount of jugs that were out there, and 

 12 you can tell if they've been drank or animalized, and so then 

 13 you can kind of reroute based off of that information from the 

 14 past.

 15 Q. So you're trained to record that information?

 16 A. Uh-huh.

 17 Q. And is that recording similar to the document that we saw 

 18 with Dr. McCullough's testimony?

 19 A. Yeah, it's almost exactly that.

 20 Q. Are there any No More Deaths protocols about trash?

 21 A. Yeah, we definitely pick up all the trash that we can see. 

 22 We bring -- I mean, our packs are empty by the time we get 

 23 there, and we replace that with the garbage that's around the 

 24 area, and it's not always necessarily our garbage either, 

 25 you know, if there's wrappers or jugs or, you know, anything, 

88

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 88 of 198
DIRECT EXAMINATION OF MADELINE HUSE

 1 clothes.

 2 Q. You pick it up and remove it --

 3 A. Yeah.

 4 Q. -- when you find trash?

 5 A. Put it in our packs and take it out. 

 6 Q. Okay. And so I know you said you were at some trainings. 

 7 Does No More Deaths -- how do they communicate with their 

 8 volunteers?

 9 A. We have meetings.

 10 Q. Are those weekly meetings?

 11 A. Yeah.

 12 Q. And did you attend those meetings?

 13 A. I did.

 14 Q. And does No More Deaths also have mailing lists?

 15 A. Yeah, there's an email list.

 16 Q. And we saw emails from Dr. McCullough that mentioned the 

 17 desert aid working group. Are you on that mailing list, the 

 18 desert aid mailing list?

 19 A. I am. 

 20 Q. And did you receive emails with Dr. McCullough's maps on 

 21 them as part of that desert aid working group?

 22 A. Yeah. I continue to receive those.

 23 Q. And you saw the maps that he included in the emails that 

 24 showed the number of deaths in the west desert and the 

 25 increasing numbers?

89

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 89 of 198
DIRECT EXAMINATION OF MADELINE HUSE

 1 A. Uh-huh. 

 2 Q. Is that right?

 3 A. Yes.

 4 Q. And did any of those emails include discussions about the 

 5 testimony we've heard here about that July meeting with the 

 6 United States Attorney's Office?

 7 A. Yeah. I remember being in the meeting, actually, where we 

 8 talked about that.

 9 Q. And what was your understanding about the U.S. Attorney's 

 10 Office's intent with respect to prosecuting people for leaving 

 11 water in the desert?

 12 A. My understanding was that they were not interested in 

 13 prosecuting us.

 14 Q. And did you understand that that was something that was 

 15 said at a meeting with the U.S. Attorney's Office and members 

 16 of No More Deaths?

 17 A. Yeah. There was -- I mean, it's a reliable meeting. 

 18 People report back.

 19 Q. Let's talk about August 13th. What did you do to prepare 

 20 on that day? 

 21 A. Well, I just woke up in the morning, and I packed enough 

 22 water for myself, made sure I had some food. Put -- loaded the 

 23 water into the truck and snacks, blankets, first aid supplies, 

 24 and we headed out there.

 25 Q. And how did you decide where the water would be placed 

90

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 90 of 198
DIRECT EXAMINATION OF MADELINE HUSE

 1 that day?

 2 A. Charlie Bell Well is an important part of the Growler 

 3 Valley because it is advertised as a well, and so many people 

 4 tend to try and get there with the hopes of receiving water, 

 5 but as it was testified, I think it wasn't Mr. West, but the 

 6 other Fish and Wildlife officer, it's not potable, and it's 

 7 meant for animals. And actually, in my experience, it's always 

 8 been dry every time I've been there. 

 9 So it's just logical that somebody would head there 

 10 looking for water if they needed it, and it makes sense for us 

 11 to put it there.

 12 Q. And what was the temperature that day? Do you recall?

 13 A. It was hot. I mean, when we got out there it was early, 

 14 and it was in the high '90s, and I think it was 110 by the time 

 15 we got down there, and that wasn't even noon.

 16 Q. And how many -- how much water did you pack in the truck 

 17 that day? Do you recall?

 18 A. As much as we could.

 19 Q. And when you got there and you got out of the truck, you 

 20 packed water in your backpack?

 21 A. Uh-huh. 

 22 Q. And then did you also carry water in your arms, in your 

 23 hands?

 24 A. Yes.

 25 Q. And had you been to Cabeza Prieta before?

91

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 91 of 198
DIRECT EXAMINATION OF MADELINE HUSE

 1 A. I had, yeah.

 2 Q. And when you had been before, did you have a permit?

 3 A. Yes. I had always had a permit up until that point. 

 4 Q. And in 2017, when you went in August, you did not have a 

 5 permit; is that correct?

 6 A. No, I did not.

 7 Q. And you knew that there had been a change to the permit?

 8 A. I did, yeah. I had seen the change.

 9 Q. Had you actually seen the physical permit? Had you read 

 10 it?

 11 A. Yeah, I'd read it. 

 12 Q. And what did you understand the change to be?

 13 A. Well, they added that stipulation 13 to specify we could 

 14 not bring water or food or aid into the desert, and that is 

 15 exactly why we were there, so I chose not to sign it. It does 

 16 say we were subject to civil penalties or debarment, and that 

 17 just seemed like a citation.

 18 Q. And so what did you think would happen to you if you went 

 19 onto the Cabeza without a permit and left water?

 20 A. I thought we would get, you know, kicked off, maybe, if 

 21 they saw us and --

 22 Q. Is that what you thought "debarment" meant?

 23 A. I don't know what "debarment" meant, but I definitely 

 24 figured that they would just tell us to leave, please.

 25 Q. And did you know that other No More Deaths volunteers had 

92

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 92 of 198
DIRECT EXAMINATION OF MADELINE HUSE

 1 been in the west desert in that area in the days prior to you 

 2 going out on August 13th and left water and had not been 

 3 cited --

 4 A. Yeah.

 5 Q. -- or ticketed?

 6 A. I think we try and cover that ground as much as possible. 

 7 It's really important to be out there, especially in the 

 8 Growler Valley.

 9 Q. And you --

 10 THE COURT: Let's take a break until 1:20.

 11 MS. CHAPMAN: Thank you, Your Honor.

 12 MR. DUPONT: Your Honor, if I may, I think the 

 13 Government should know who their rebuttal witnesses are going 

 14 to be, and we'd ask as soon as possible to get any 16.1 

 15 statements or any other material that would be relevant to 

 16 their testimony.

 17 MS. WRIGHT: And Your Honor, we've provided notice 

 18 of who those witnesses are, and we've provided the appropriate 

 19 disclosure.

 20 THE COURT: Okay.

 21 (Off the record.)

 22 THE COURT: Resume the stand, please. You realize 

 23 you're still under oath?

 24 THE WITNESS: Yes.

 25 BY MS. CHAPMAN:

93

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 93 of 198
DIRECT EXAMINATION OF MADELINE HUSE

 1 Q. So Madeline, excuse me, we were talking about -- when we 

 2 broke, we were talking about what you had been told about the 

 3 risks of going onto the Cabeza Prieta without a permit, and I 

 4 think you told us that you had heard about the July meetings 

 5 that we heard testimony about; is that right?

 6 A. Yes. 

 7 Q. And you had looked at the permit itself?

 8 A. I had, yeah. I've read it.

 9 Q. Okay. And so, when you got to the refuge that day, did 

 10 you sign in at a kiosk?

 11 A. I did. I signed in.

 12 Q. And tell us what you did after you signed in at the 

 13 kiosk?

 14 A. I got in the car.

 15 Q. And then did you drive to Charlie Bell Pass?

 16 A. We did.

 17 Q. And when you got there, what did you do?

 18 A. Then we drove down the hill.

 19 Q. And when you got down the hill, what did you do next?

 20 A. We unloaded the water that was in the back of the truck 

 21 and drove back up.

 22 Q. Okay. And when you drove back up, did you get additional 

 23 water and drive back down?

 24 A. Yes, we did.

 25 Q. Okay. And then what did you do?

94

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 94 of 198
DIRECT EXAMINATION OF MADELINE HUSE

 1 A. Then we continued driving west.

 2 Q. Okay. And at some point did you hike some water into the 

 3 lower part of the desert?

 4 A. Yes, we did.

 5 Q. And how -- about how far did you hike when you went with 

 6 the water?

 7 A. Probably a mile-and-a-half out.

 8 Q. And what happened when you got there? What did you do?

 9 A. Then we unloaded our water, and general practice is to sit 

 10 down and take a break, drink water for ourselves. We put 

 11 markings on the water jugs, you know, crosses, rosary. I have 

 12 a personal little drawing I like to do on the jugs.

 13 Q. And you did that?

 14 A. I did that, yeah.

 15 Q. And so you said you sat down. You took a break. You 

 16 drew on the bottles. What else happens when you leave water 

 17 at a specified location? What else happens at that time?

 18 A. Oftentimes it's just a way to be present in the moment and 

 19 think of those who are suffering and just put some love out for 

 20 them, whether that's prayer or meditation or just drawing 

 21 hearts and, you know, making sure that we're making the water 

 22 jugs look friendly enough for people to want to drink them.

 23 Q. And do you take some time for yourself, then, in those 

 24 moments to pay -- I think you said pay respect or to take a 

 25 moment of silence? What are you doing at that moment, and 

95

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 95 of 198
DIRECT EXAMINATION OF MADELINE HUSE

 1 what did you do on that day?

 2 A. I definitely always just pay my respects and try and be 

 3 conscious of why I'm there, and it's always a reminder. Every 

 4 drop of water that I drink out there is a reminder.

 5 Q. And when you say, try to take a moment to think about why 

 6 you're there, why are you there?

 7 A. We're there because there's tragedy in the desert, 

 8 especially that area, and because I've seen -- I've seen death 

 9 there, and that's why I'm there.

 10 Q. And why is that important to you personally?

 11 A. Well, life is sacred, and I just believe in love and 

 12 compassion and kindness and the sanctity of human life, whoever 

 13 you are.

 14 Q. And do you see placing water as an act of honoring the 

 15 sanctity of human life, or how -- are those things related for 

 16 you at all?

 17 A. Yeah. Well, I mean, living in the desert is not -- it's 

 18 hard. And you know, hiking around in 110 degrees is not what I 

 19 want to be doing with my time, but I do it because I feel the 

 20 need to and obligated to be there and do my part.

 21 Q. And did you hear the testimony of Reverend Fife?

 22 A. I did.

 23 Q. And have you been at any prayers in the desert?

 24 A. Yeah, I have been, and I mean, it's always welcome.

 25 Q. And do you identify with or understand what Reverend Fife 

96

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 96 of 198
DIRECT EXAMINATION OF MADELINE HUSE

 1 said was the spiritual basis or foundation for No More Deaths?

 2 A. Yeah. I grew up going to church, and that's definitely 

 3 where I learned a lot of those values. That internalized, and 

 4 I agree with a lot of John Fife's beliefs, and along with the 

 5 UUC, the Unitarian Church.

 6 Q. And have you attended the Unitarian Church?

 7 A. I have. I've attended several services in multiple 

 8 states, so not just Tucson.

 9 Q. And what did your time at No More Deaths in the west 

 10 desert during the spring and summer of 2017, what did that 

 11 mean for you? What was that experience like for you?

 12 A. It was really hard, but it was really important too, and I 

 13 mean, I felt compelled to be there, and like I said, to just do 

 14 my part as a fellow human being.

 15 Q. And did it have any effect on what you plan to do next 

 16 with your life?

 17 A. It's definitely a main reason why I want to be in conflict 

 18 analysis.

 19 Q. That's why you want to be in conflict analysis?

 20 A. Yeah, to, you know, help continue work all around and keep 

 21 working with people who are suffering.

 22 MS. CHAPMAN: Thank you, Your Honor. No further 

 23 questions.

 24 CROSS-EXAMINATION

 25 BY MS. WRIGHT:

97

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 97 of 198
CROSS-EXAMINATION OF MADELINE HUSE

 1 Q. Good afternoon, Ms. Huse. I want to start by talking 

 2 with you about the event of August 13th of 2017. 

 3 Now, on that day, you drove -- you drove out in a vehicle 

 4 to Charlie Bell Pass on the Cabeza Prieta; right? 

 5 A. I wasn't driving, but yeah.

 6 Q. So you were in a vehicle that drove out onto the Cabeza 

 7 Prieta; right?

 8 A. Yes, I was.

 9 Q. And you were there with your codefendants; right?

 10 A. I was.

 11 Q. And you were in a white Dodge truck?

 12 A. Yes.

 13 Q. And that truck had been loaded with green milk grates 

 14 filled with water jugs and cans of beans; right?

 15 A. Along with some other supplies.

 16 Q. And the night before and on the morning of, you'd done 

 17 some planning about this trip with others; right?

 18 A. We always kind of meet, whether it's in the night before 

 19 or the morning of, about where we're going.

 20 Q. So either way you'd done some planning before you entered 

 21 the refuge that day?

 22 A. Yeah, making sure everyone's on the same page. 

 23 Q. And as part of that planning, you planned to drive into a 

 24 designated wilderness area; right?

 25 A. We did.

98

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 98 of 198
CROSS-EXAMINATION OF MADELINE HUSE

 1 Q. And prior to going out that day, you packed your own bag 

 2 with your own supplies for that day?

 3 A. Uh-huh. Water, lunch.

 4 Q. And prior to going out to the refuge, you helped load up 

 5 that white Dodge truck; right?

 6 A. I did.

 7 Q. And so you helped put the crates into the truck bed; 

 8 right?

 9 A. Yes. Everyone works together.

 10 Q. And part of the plan for those crates and the supplies in 

 11 those crates was that those would be left behind on the 

 12 refuge; right?

 13 A. That's what we're there to do.

 14 Q. So that was the plan, was to leave those supplies behind; 

 15 right?

 16 A. The water and beans.

 17 Q. So that's a "yes?" 

 18 A. Yes. We go put water out.

 19 Q. And also part of the plan was to not get a permit; right?

 20 A. I mean, that kind of was the result of the permit changing 

 21 the month prior.

 22 Q. So the reason you didn't get a permit that day wasn't 

 23 because you forgot to get one, was it?

 24 A. No. It's because it directly targeted our work there.

 25 Q. And so you planned that day to not get a permit; correct?

99

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 99 of 198
CROSS-EXAMINATION OF MADELINE HUSE

 1 A. Yes, because it -- we were going to violate the section 13 

 2 that was changed.

 3 Q. And so it goes almost without saying that, before you 

 4 went out to the refuge that day, you didn't stop by the refuge 

 5 office in Ajo, did you?

 6 A. No.

 7 Q. And so you didn't sign the Hold Harmless Agreement; 

 8 correct?

 9 A. No, I did not.

 10 Q. And that's because you didn't intend to follow the 

 11 provisions of the Hold Harmless Agreement; correct?

 12 A. It interfered with, you know, my moral beliefs and 

 13 obligations to be putting water out for people who needed it.

 14 Q. So that's a "yes," you didn't intend to follow it?

 15 A. I definitely hold, yeah, myself to a higher standard than 

 16 that. 

 17 Q. So that's a "yes?" 

 18 A. Yes.

 19 Q. And what you didn't intend to follow is that you intended 

 20 to leave supplies behind?

 21 A. Water and food. 

 22 Q. And you also didn't get a special-use permit; correct?

 23 A. Special use for what?

 24 Q. It's a special-use permit. You did not get a special-use 

 25 permit, did you?

100

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 100 of 198
CROSS-EXAMINATION OF MADELINE HUSE

 1 A. What is that? 

 2 Q. Okay. So that's a no, you didn't get one?

 3 A. Are you talking about the driving a vehicle?

 4 Q. I'm asking if you got something from the Fish and 

 5 Wildlife called a special-use permit. You did not do that, 

 6 did you?

 7 A. No.

 8 Q. And on the drive out to Charlie Bell Pass, you've 

 9 testified that you passed a kiosk?

 10 A. Yeah.

 11 Q. And that you stopped there and signed in at the kiosk; 

 12 right?

 13 A. I did.

 14 Q. And so at the kiosk, there are rules for the refuge 

 15 posted; correct?

 16 A. I believe it's the same permit that I had read previously.

 17 Q. So the rules are posted at the kiosk; right?

 18 A. Yes.

 19 Q. And also posted at the kiosk are maps showing the roads 

 20 that are on the refuge; right?

 21 A. Possibly.

 22 Q. And so those maps show which roads the public can drive 

 23 on; right?

 24 A. I don't recall looking at a map.

 25 Q. And you also, before you went out to the refuge that day, 

101

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 101 of 198
CROSS-EXAMINATION OF MADELINE HUSE

 1 didn't call the Ajo refuge office to tell them that you were 

 2 going to be on the refuge, did you?

 3 A. I did not, no.

 4 Q. And you didn't call them and tell them where you would be 

 5 on the refuge, did you?

 6 A. No.

 7 Q. And you didn't call and tell them what you were going to 

 8 do there either, did you?

 9 A. No.

 10 Q. So you didn't give notice to anyone at the Ajo refuge 

 11 office that you were going to leave supplies behind or that 

 12 you were going to drive on a road that you were not allowed to 

 13 drive on, did you?

 14 A. I don't know why we would have done that.

 15 Q. Now, once you got to Charlie Bell Pass, you saw the 

 16 rescue beacon there; right?

 17 A. Yes.

 18 Q. And then you drove past the rescue beacon and down the 

 19 hill to the west on Charlie Bell Road; correct?

 20 A. We did.

 21 Q. And you saw the signs that are there on either side of 

 22 the road; right?

 23 A. Yeah. I saw the signs. It was really rocky, and the -- I 

 24 was sitting in the back seat, so I was mostly worried about us 

 25 getting over the giant boulders.

102

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 102 of 198
CROSS-EXAMINATION OF MADELINE HUSE

 1 Q. And after you drove past those signs, you stopped at 

 2 Charlie Bell Well; right?

 3 A. We did, yes.

 4 Q. And there you and your codefendants dropped off 70 

 5 gallons of water and some crates of beans; right?

 6 A. Uh-huh.

 7 Q. And you intended to leave those supplies behind at 

 8 Charlie Bell Well; right?

 9 A. Yeah, because the well was dry, and that's where people 

 10 go.

 11 Q. And you were leaving them there for other people to take; 

 12 right?

 13 A. Yeah, those who needed it.

 14 Q. And you didn't put a GPS tracker on the supplies, did 

 15 you?

 16 A. No.

 17 Q. And you had no other way of tracking those supplies down 

 18 if they left Charlie Bell Well, did you?

 19 A. I mean, besides the markings that we put on the gallons. 

 20 I said earlier I have markings that I would recognize.

 21 Q. But that wouldn't help you find it if it was not within 

 22 your line of sight, would it?

 23 A. No, but I mean, I spend plenty of time hiking around 

 24 there.

 25 Q. So once someone else took any of those supplies away from 

103

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 103 of 198
CROSS-EXAMINATION OF MADELINE HUSE

 1 Charlie Bell Well, you had no way of controlling what that 

 2 person did with those items, did you?

 3 A. I mean, if you're referring to somebody bringing it 10 

 4 miles north, it's quite possible that we could walk there in 

 5 the future.

 6 Q. So my question to you is, if someone else took those 

 7 supplies, you couldn't control what someone did with those 

 8 supplies, could you?

 9 A. No.

 10 Q. And so regardless of your intent, you left those supplies 

 11 behind at Charlie Bell Well; right?

 12 A. Yes.

 13 Q. And once you left the supplies behind at Charlie Bell 

 14 Well, you and your codefendants drove back up to Charlie Bell 

 15 Pass; right?

 16 A. Yes.

 17 Q. And you drove past those signs again, and you picked up 

 18 more supplies; right?

 19 A. Yes, the rest of the water.

 20 Q. And then you drove back out onto Charlie Bell Road to the 

 21 west; right?

 22 A. We did.

 23 Q. And you drove past those signs again; right?

 24 A. If they were still there. They were.

 25 Q. You drove past those signs; right?

104

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 104 of 198
CROSS-EXAMINATION OF MADELINE HUSE

 1 A. Yes.

 2 Q. And then you actually drove past Charlie Bell Well that 

 3 time; right?

 4 A. We did. We continued west on the road.

 5 Q. And as you did that, you traveled past another set of 

 6 signs; right?

 7 A. Possibly. I don't recall that.

 8 Q. And eventually you stopped and parked off the side of the 

 9 road; right?

 10 A. Yes, we did. We pulled over into a parking spot.

 11 Q. And then all of you loaded up your packs with water; 

 12 right?

 13 A. Yeah, as much as we could carry. 

 14 Q. And then you hiked one-and-a-half miles, about, south, 

 15 into the designated wilderness?

 16 A. We did.

 17 Q. And once you got to where you were going, you left the 

 18 supplies, the water jugs, behind; right?

 19 A. After signing them and taking a break ourselves.

 20 Q. And just like the supplies you left at Charlie Bell Well, 

 21 you had no way of controlling what someone might do with them 

 22 later; right?

 23 A. I mean, ideally, they would drink them.

 24 Q. But you had no way of making sure that would happen, did 

 25 you?

105

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 105 of 198
CROSS-EXAMINATION OF MADELINE HUSE

 1 A. No.

 2 Q. And you had no way of making sure that they didn't carry 

 3 them further into the refuge, did you?

 4 A. I mean, based on our research that we do, we do pick the 

 5 spots that we put water, you know, based off of those times.

 6 Q. But you have no way of controlling if that -- if any one 

 7 person would take a jug anywhere else on the refuge, do you?

 8 A. I mean, no, I don't.

 9 Q. And so, again, regardless of your intent, your plans, 

 10 your research, you intended to leave those supplies behind in 

 11 the designated wilderness area; right?

 12 A. Yes.

 13 Q. Now, you hiked back north the one-and-a-half miles to the 

 14 truck; right?

 15 A. Uh-huh.

 16 Q. And Officer West was waiting for you when you returned; 

 17 right?

 18 A. He was.

 19 Q. And you told Officer West at that time, when he asked 

 20 you, that you didn't -- you intentionally did not get a permit 

 21 for that day; right?

 22 A. In order to not violate the permit, we didn't get a 

 23 permit.

 24 Q. And you didn't tell him where you had been, did you?

 25 A. Well, I don't recall him ever asking.

106

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 106 of 198
CROSS-EXAMINATION OF MADELINE HUSE

 1 Q. So you didn't volunteer any information to him, did you, 

 2 about where you had placed the supplies?

 3 A. If he would have asked, maybe we would have told him.

 4 Q. Now, on August 13th of 2017, you didn't have any 

 5 information that day when you entered the refuge that there 

 6 was a particular person in danger of dying that day, did you?

 7 A. Besides it being 110 degrees.

 8 Q. So my question is, you didn't have any information about 

 9 a specific person in danger of dying? You did not?

 10 A. No specific individuals, but there was plenty of evidence 

 11 of that around us.

 12 Q. And if you had had information about a specific 

 13 individual, you would have called 911; right?

 14 A. Yeah. I mean, we have satellite phones that we can use.

 15 Q. So that's a "yes?" 

 16 A. There's plenty of things that you can do in that 

 17 situation.

 18 Q. So if you knew and had specific information about a 

 19 specific person in danger of dying, you would not have called 

 20 911?

 21 A. Getting them help is my first priority.

 22 Q. And you're aware, as one of the tools you can use to get 

 23 help to someone who might be in distress, that there is a 

 24 search and rescue beacon at Charlie Bell Pass?

 25 A. Up the really steep hill at the top.

107

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 107 of 198
CROSS-EXAMINATION OF MADELINE HUSE

 1 Q. That's a "yes?" 

 2 A. Yeah, it's at the top.

 3 Q. And so you're aware that it's there?

 4 A. Yes.

 5 Q. And you know that there are other rescue beacons on the 

 6 refuge; right?

 7 A. I mean, it was during the day, so it was a hard to see 

 8 them. There's no lights actually flashing during the day, so 

 9 it's only at night that you would be able to see the ones that 

 10 are far away.

 11 Q. Okay. But you're aware that there are other rescue 

 12 beacons on refuge; right?

 13 A. I have seen them before.

 14 Q. And you know that those beacons allow people to activate 

 15 the beacon and speak directly with Border Patrol; right?

 16 A. Yes, there is a button.

 17 Q. And if activated, Border Patrol can send a person 

 18 directly to that beacon to help that person; right?

 19 A. They could, theoretically.

 20 Q. Let's talk for a minute about your testimony that you 

 21 thought that there was an agreement with the United States 

 22 Attorney's Office.

 23 MS. CHAPMAN: Misstates the testimony, Your Honor. 

 24 Excuse me.

 25 BY MS. WRIGHT:

108

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 108 of 198
CROSS-EXAMINATION OF MADELINE HUSE

 1 Q. Well, let's talk about your testimony about what you 

 2 thought might happen. You testified that you were not at the 

 3 meeting on July 6th with the United States Attorney's Office; 

 4 right?

 5 A. I don't remember testifying to that, but I don't recall 

 6 being at the meeting.

 7 Q. So you were not at any meeting with the United States 

 8 Attorney's Office on July 6th; right?

 9 A. I was not, no.

 10 Q. And any information you had about what happened in that 

 11 meeting came to you through a third party; right?

 12 A. Yeah, during the meetings with the rest of my coworkers.

 13 Q. You never spoke directly, prior to August 13th, with 

 14 anyone from the United States Attorney's Office, did you?

 15 A. No. I heard about it through kind of a debrief meeting.

 16 Q. And prior to August 13th of 2017, you never spoke 

 17 directly with anyone at Fish and Wildlife, did you?

 18 A. I mean, I've met Fish and Wildlife officers in the field 

 19 before.

 20 Q. So let me clarify. Prior to August 13th, 2017, you never 

 21 spoke directly to anyone at Fish and Wildlife about whether or 

 22 not you had permission on August 13th to do what you did?

 23 A. No.

 24 Q. And the same goes for Border Patrol? You never got 

 25 permission or had any conversations with anyone from Border 

109

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 109 of 198
CROSS-EXAMINATION OF MADELINE HUSE

 1 Patrol about permission to conduct your activities?

 2 A. On the wildlife refuge?

 3 Q. Yes. 

 4 A. I mean, I was in meetings about that.

 5 Q. No one ever told you from any agency that you could enter 

 6 the refuge without a permit, did they?

 7 A. No, but we were told that they were uninterested in 

 8 pursuing anything with regard to that.

 9 Q. No one ever you told that you could abandon supplies in 

 10 the refuge, did they?

 11 A. No.

 12 Q. And no one ever told you that you could drive on 

 13 restricted roads on the refuge, did you? Did they? Sorry.

 14 A. They did not tell us we could drive on restricted roads.

 15 Q. So you never saw any document signed by the United States 

 16 Attorney's Office or anyone from the United States Attorney's 

 17 Office telling you that your conduct was legal, did you?

 18 A. I did not realize my conduct was illegal.

 19 Q. My question is, did you ever see a document from the 

 20 United States Attorney's Office telling you that your conduct 

 21 was legal?

 22 A. I didn't see a document saying that, no.

 23 Q. And in fact, you had read the Hold Harmless Agreement 

 24 which indicated that leaving behind supplies like water and 

 25 food on the refuge was against the rules on the refuge; right?

110

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 110 of 198
CROSS-EXAMINATION OF MADELINE HUSE

 1 A. Yes. It was against the rules on the refuge.

 2 Q. I want to talk to you about how you became aware of No 

 3 More Deaths. You testified on direct that you became aware of 

 4 No More Deaths by doing some research online when you were 

 5 still living in Washington? 

 6 That's right?

 7 A. Yes, that's right.

 8 Q. And then you came and volunteered for No More Deaths for 

 9 about a month; right?

 10 A. Yes.

 11 Q. And from your No More Deaths volunteer position, then you 

 12 went to a center in Texas; is that right?

 13 A. That's true.

 14 Q. And that's the South Texas Human Rights Center that you 

 15 went to?

 16 A. It is.

 17 Q. And after being at that center for a while, you testified 

 18 that you decided to return to No More Deaths in Arizona; 

 19 right?

 20 A. Yeah. Based off of what I'd experienced in Ajo, I felt 

 21 compelled to come back.

 22 Q. Now, Ms. Huse, you remember writing a declaration for 

 23 this case; right?

 24 A. I do.

 25 Q. And you wrote that or signed that on April 24th of 2018; 

111

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 111 of 198
CROSS-EXAMINATION OF MADELINE HUSE

 1 right?

 2 A. Yes.

 3 Q. And you signed that and you signed it under penalty of 

 4 perjury stating that what you put in that declaration was 

 5 true?

 6 A. Yes, I did. I mean --

 7 MS. WRIGHT: Sarah, could I have Exhibit 119 from 

 8 the defendants?

 9 MS. CHAPMAN: I have it over here.

 10 BY MS. WRIGHT:

 11 Q. Now, Ms. Huse, looking at paragraph one, in your 

 12 declaration that you previously filed, you stated that you 

 13 learned about No More Deaths after you were working at the 

 14 South Texas Human Rights Center; correct?

 15 A. I could see how that would be confusing. When I was in 

 16 Bellingham, I was researching a bunch of different 

 17 organizations on the border, and I was planning on going to 

 18 South Texas Human Rights Center first, but I got called to No 

 19 More Deaths really last minute.

 20 Q. Tell me if I'm reading this line correctly. "I learned 

 21 about No More Deaths while working with the South Texas Human 

 22 Rights Center." 

 23 Did I read that accurately?

 24 A. Yes.

 25 Q. Thank you. 

112

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 112 of 198
CROSS-EXAMINATION OF MADELINE HUSE

 1 Now, let's talk about the South Texas Human Rights Center 

 2 for a second. That is headquartered in a place called 

 3 Falfurrias, Texas; is that correct?

 4 A. Yes, it is.

 5 Q. And that's in Brooks County? 

 6 A. Yes.

 7 Q. And that's about 80 miles from the international border 

 8 there; right?

 9 A. Approximately.

 10 Q. And according to the South Texas Human Rights Center, 

 11 Texas has the most migrant deaths of any border state; 

 12 correct?

 13 MS. CHAPMAN: Foundation, Your Honor. 

 14 MS. WRIGHT: I'll go ahead and ask the question. 

 15 BY MS. WRIGHT:

 16 Q. Ms. Huse, are you aware of what the South Texas Human 

 17 Rights Center reports about deaths in its area of 

 18 responsibility?

 19 A. I have been aware, yes.

 20 Q. Okay. So you're aware that they report that Texas has 

 21 the most migrant deaths of border states; right?

 22 A. I've heard that before.

 23 Q. And the South Texas Human Rights Center, one of the 

 24 things or the main thing that they do is that they build water 

 25 stations in the desert area in Brooks County and the 

113

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 113 of 198
CROSS/REDIRECT EXAMINATION OF MADELINE HUSE

 1 surrounding counties; right?

 2 A. That's true.

 3 Q. And they do that in order to prevent the death of those 

 4 walking through the desert, the area there; right?

 5 A. Yes. It's a different -- it's different down there 

 6 because it's not BLM land, so there's lots of ranches.

 7 Q. And the South Texas Human Rights Center, through its 

 8 volunteers, install water stations that are permanent on 

 9 private land; right?

 10 A. With the permission of the owners, yeah.

 11 Q. So it's with the permission and the cooperation of those 

 12 owners; right?

 13 A. Yes.

 14 MS. WRIGHT: If I could have a minute, Your Honor?

 15 That's all I have. Thank you.

 16 REDIRECT EXAMINATION

 17 BY MS. CHAPMAN:

 18 Q. Madeline, looking at Exhibit 119, it says that you 

 19 learned about No More Deaths while working with South Texas 

 20 Human Rights Center, and the center has a mission very similar 

 21 to No More Deaths. 

 22 Is it correct to say that you learned about No More 

 23 Deaths while you were planning -- when you were planning to go 

 24 work at the Southern Texas Human Rights Center and they have 

 25 similar missions?

114

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 114 of 198
REDIRECT EXAMINATION OF MADELINE HUSE

 1 A. I learned about them both about the same time.

 2 Q. Okay. And you had originally planned to go to South 

 3 Texas Human Rights Center?

 4 A. Yes. I was in communication with both organizations, and 

 5 it just worked out to be at No More Deaths first.

 6 Q. Okay. The rest of this declaration, other than -- 

 7 actually, I think there is one other correction, right, in 

 8 paragraph two? Could you tell us what it is?

 9 A. Yeah. The date, when I came here was 2016, not 2017. 

 10 Q. Okay. Other than that date and that chronological error 

 11 about learning about No More Deaths and the South Texas Human 

 12 Rights Center at the same time, is the declaration true and 

 13 correct?

 14 A. It is.

 15 MS. CHAPMAN: Your Honor, I'd move for the admission 

 16 of Exhibit 119.

 17 MS. WRIGHT: Your Honor, I would object. The 

 18 witness' testimony stands as it is, and admitting this adds 

 19 nothing to that. It is hearsay and it's inadmissible.

 20 THE COURT: Sustained.

 21 BY MS. CHAPMAN:

 22 Q. All right. We'll go through it. 

 23 So Madeline, in paragraph three, it says your work with 

 24 No More Deaths is motivated by the belief that people should 

 25 have access to the basic needs of life. 

115

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 115 of 198
REDIRECT EXAMINATION OF MADELINE HUSE

 1 Is that true?

 2 A. Very true, yes.

 3 Q. And it says, "I am obligated as a service to humanity to 

 4 try to provide these necessities to other human beings in 

 5 need." 

 6 Is that still true?

 7 A. Yes.

 8 Q. Does that accurately state your beliefs?

 9 A. Yes.

 10 Q. Does it accurately state why you were motivated to be in 

 11 the west desert in the summer of 2017?

 12 A. It does.

 13 Q. "I believe in the power of good and the greater ideals of 

 14 love and compassion." 

 15 Still true?

 16 A. Always true.

 17 Q. "This is in accord with the first principle of the 

 18 Unitarian Universalist Church that I use those gifts given to 

 19 me to offer love, heal injury, and support my fellow human 

 20 beings." 

 21 Still true?

 22 A. Yes, anywhere on the border.

 23 Q. And this is the last paragraph. "I firmly believe I am 

 24 morally, ethically, and spiritually bound to offer assistance 

 25 to human beings in need of basic necessities. I hold these 

116

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 116 of 198
REDIRECT EXAMINATION OF MADELINE HUSE

 1 beliefs with the strength of traditional religious 

 2 convictions." 

 3 Still true?

 4 MS. WRIGHT: Objection, Your Honor. Calls for a 

 5 legal conclusion.

 6 THE COURT: Overruled.

 7 BY MS. CHAPMAN:

 8 Q. I'm sorry, Madeline. Still true?

 9 A. Yeah, still true.

 10 Q. And when you were receiving -- I just want to go back. 

 11 You recall questions from Ms. Wright about learning about this 

 12 July 2016 meeting with the U.S. Attorney's Office? Do you 

 13 recall those questions?

 14 A. I do.

 15 Q. And you recall that you testified that you heard about 

 16 the meeting and about the statement from the U.S. Attorney's 

 17 Office that they weren't interested in prosecuting those cases 

 18 from third parties? Do you remember that?

 19 A. Yes, I do. 

 20 Q. Were those third parties, to your knowledge, at the 

 21 meeting in July?

 22 A. I believe so, yeah, they were.

 23 Q. And they communicated to you that they were at the 

 24 meeting, and that's what they were told?

 25 A. Yes.

117

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 117 of 198
REDIRECT EXAMINATION OF MADELINE HUSE

 1 MS. WRIGHT: Objection. Calls for hearsay.

 2 MS. CHAPMAN: It goes to state of mind, Your Honor. 

 3 THE COURT: Yeah, it doesn't go to the truth of the 

 4 statement.

 5 MS. CHAPMAN: Right. It goes to state of mind. 

 6 BY MS. CHAPMAN:

 7 Q. So you were told by the people who told you about the 

 8 meeting that they were at the meeting; is that correct?

 9 A. Yes.

 10 Q. And you relied on those statements when you decided to go 

 11 into the desert to leave water; correct?

 12 A. Yes.

 13 Q. And the other thing you relied on is what the permit 

 14 said; correct?

 15 A. Yes.

 16 Q. And you were aware that the permit said that you could be 

 17 debarred; correct?

 18 A. Yes.

 19 Q. And you weren't quite sure what that meant?

 20 A. No.

 21 Q. And you were aware that the permit said you could be 

 22 subject to civil penalties; correct?

 23 A. Yes, which I figured was fines or just getting, you know, 

 24 a slap on the wrist. 

 25 MS. CHAPMAN: Okay. No further questions. Thank 

118

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 118 of 198
COURT EXAMINATION OF MADELINE HUSE

 1 you.

 2 THE COURT: I have one. On your affidavit, would 

 3 you put a paragraph five that says, I'm prepared to serve time 

 4 in prison for my belief?

 5 THE WITNESS: You know, that wasn't something that 

 6 I --

 7 THE COURT: No, I'm asking you right now.

 8 THE WITNESS: Would I amend my affidavit now?

 9 THE COURT: Right.

 10 THE WITNESS: When I went on the refuge, I was not 

 11 prepared to go to prison. I was prepared to deal with fines 

 12 in court.

 13 THE COURT: Let me ask you a question. When you 

 14 look at that permit, that permit basically says, if you sign 

 15 this, you could be debarred or you could be fined. That's 

 16 kind of what it says to you; right? 

 17 THE WITNESS: Yeah.

 18 THE COURT: Okay. That's if you enter into a signed 

 19 agreement with the wilderness; right?

 20 THE WITNESS: Sure, if I sign the permit.

 21 THE COURT: And if you don't sign it, what happens?

 22 THE WITNESS: You know, we thought it would be 

 23 less --

 24 THE COURT: You -- go ahead.

 25 THE WITNESS: I thought that was the lesser. I 

119

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 119 of 198
COURT EXAMINATION OF MADELINE HUSE

 1 didn't want to lie and sign something that I knew I was going 

 2 to violate.

 3 THE COURT: I understand that, but what I'm trying 

 4 to ask you is, did it enter your mind, your thought process, 

 5 that by not signing, you might be exposing yourself to a 

 6 greater harm?

 7 THE WITNESS: No.

 8 THE COURT: All right. Did anybody who provided you 

 9 any training and guidance ever tell you, this is what we 

 10 think, but there may be other people, specifically law 

 11 enforcement, who might think this is a crime punishable by 

 12 incarceration? 

 13 Anybody ever tell you that?

 14 THE WITNESS: I never heard that, no.

 15 THE COURT: Do you think that would have been 

 16 important?

 17 THE WITNESS: I don't know if opinions are 

 18 necessarily the most important. It's more about what the 

 19 Court believes and, you know, what we were -- we decided.

 20 THE COURT: Well, did they ever tell you, you might 

 21 be charged with a crime, you might be in front of a judge, you 

 22 might be looking at penalties?

 23 THE WITNESS: I didn't I believe I was committing a 

 24 crime, Your Honor.

 25 THE COURT: I didn't ask you that. I asked you if 

120

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 120 of 198
COURT EXAMINATION OF MADELINE HUSE

 1 somebody warned you about what could happen if somebody 

 2 thought about things differently than you.

 3 THE WITNESS: I mean, I know people think about 

 4 things different than I do.

 5 THE COURT: Okay. And that's why we're here today; 

 6 right?

 7 THE WITNESS: Yes.

 8 THE COURT: Okay. Do you think you and these other 

 9 three ladies should have been told about the possible 

 10 consequences?

 11 THE WITNESS: It didn't seem like a risk at the 

 12 time.

 13 THE COURT: Well. 

 14 THE WITNESS: To be here a year later did not cross 

 15 our minds.

 16 THE COURT: Okay. Do you have a sister?

 17 THE WITNESS: I have two sisters.

 18 THE COURT: Okay. Younger than you? 

 19 THE WITNESS: Yes.

 20 THE COURT: Assuming they don't know anything about 

 21 this, would you want them to be told about your experience?

 22 THE WITNESS: To be told about my experience? 

 23 THE COURT: Told, to be told -- let's say they are 

 24 thinking about joining this organization, these activities.

 25 THE WITNESS: I would --

121

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 121 of 198
COURT EXAMINATION OF MADELINE HUSE

 1 THE COURT: Would you want them to know that there's 

 2 a possibility that somebody would charge them with a crime and 

 3 they'd end up in court?

 4 THE WITNESS: I would encourage them to follow their 

 5 beliefs and do what they believe is right.

 6 THE COURT: Okay. And in making that assessment, 

 7 would you tell them there's a consequence, there is a possible 

 8 consequence? 

 9 THE WITNESS: I think there's consequences to 

 10 everything.

 11 THE COURT: So you don't care if your sister ends up 

 12 in the same situation as you? 

 13 THE WITNESS: I care if my sister -- I care about my 

 14 sisters' well beings.

 15 THE COURT: Okay. Would you want her to know what 

 16 the possible consequences are before she makes decisions? 

 17 THE WITNESS: Sure, yeah.

 18 THE COURT: Don't you think you should have been 

 19 given the same right from the organization you belong to? 

 20 THE WITNESS: I think we are all trying our best, 

 21 and I think I would have been warned if we would have foreseen 

 22 something like that. 

 23 THE COURT: If they had foreseen something like 

 24 that?

 25 THE WITNESS: I believe so.

122

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 122 of 198
DIRECT EXAMINATION OF JULIETTE FERNANDEZ

 1 THE COURT: Okay. Thank you.

 2 MS. CHAPMAN: One moment, please, Your Honor.

 3 THE COURT: Okay. 

 4 MS. CHAPMAN: No further questions. Thank you, Your 

 5 Honor.

 6 THE COURT: You may step down.

 7 MS. CHAPMAN: Your Honor, the defense rests.

 8 THE COURT: Does the Government have anything?

 9 MS. WRIGHT: Yes, Your Honor, please. We have one 

 10 witness. The Government calls Juliette Fernandez.

 11 JULIETTE FERNANDEZ, WITNESS, SWORN

 12 DIRECT EXAMINATION

 13 BY MS. WRIGHT:

 14 Q. Ms. Fernandez, if you could state your name for the 

 15 record and tell the Court where it is that you work. 

 16 A. Juliette Fernandez, and I work for the U.S. Fish and 

 17 Wildlife Service.

 18 Q. And what is your current position with the Fish and 

 19 Wildlife Service?

 20 A. I'm the refuge supervisor for Arizona and New Mexico.

 21 Q. Do you have any other current positions with Fish and 

 22 Wildlife?

 23 A. Not current.

 24 Q. And as the -- how long have you been the refuge 

 25 supervisor?

123

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 123 of 198
DIRECT EXAMINATION OF JULIETTE FERNANDEZ

 1 A. Since 2015.

 2 Q. And what sorts of duties do you have as the refuge 

 3 supervisor?

 4 A. I supervise the National Wildlife Refuges located in the 

 5 states of Arizona and New Mexico. Part of that responsibility 

 6 is overseeing personnel. I might advise on various compliance 

 7 issues, NEPA, biological priorities. I assign work and I 

 8 review performance with my subordinates. I work with them on 

 9 various management issues that they may be working through, 

 10 habitat management, public use, a variety of issues that may 

 11 arise on any of the wildlife refuges within my designation.

 12 Q. Prior to becoming the refuge supervisor, were you a 

 13 wilderness coordinator?

 14 A. I am a wilderness coordinator in addition to my current 

 15 position.

 16 Q. How long have you had that responsibility?

 17 A. Since 2015 as well.

 18 Q. And are those basically the same duties you just 

 19 described, or do you have additional duties as the wilderness 

 20 coordinator?

 21 A. As wilderness coordinator, within the southwest 

 22 region, there are refuges with designated wilderness in New 

 23 Mexico, Arizona, and Oklahoma, so for those three states and 

 24 for refuges with wilderness, I help to advise on Wilderness Act 

 25 and our policies and help to facilitate that process.

124

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 124 of 198
DIRECT EXAMINATION OF JULIETTE FERNANDEZ

 1 Q. Now, prior to becoming the refuge supervisor and 

 2 wilderness coordinator for this region, did you hold any other 

 3 positions with Fish and Wildlife?

 4 A. I did.

 5 Q. And what were that? Excuse me. What were those?

 6 A. Prior to this position I worked at Buenos Aires National 

 7 Wildlife Refuge in southern Arizona, and I was there in two 

 8 different capacities. 

 9 More recently I was the supervisory wildlife refuge 

 10 specialist, which is essentially an assistant manager, and in 

 11 that position I oversaw the maintenance program, visitor 

 12 services and biology program, namely the work with the 

 13 endangered masked bobwhite quail and habitat improvements and a 

 14 lot of that oversight. And in an acting capacity, I was also 

 15 -- I also served as refuge manager at times.

 16 Q. And altogether between those duties how many years were 

 17 you at Buenos Aires?

 18 A. About eight.

 19 Q. And prior to that did you have any other positions with 

 20 Fish and Wildlife?

 21 A. I did.

 22 Q. And what was that?

 23 A. I worked at Imperial National Wildlife Refuge located on 

 24 the Colorado River. I was the biologist there. And for that 

 25 position I did all of the studies and surveys for that refuge, 

125

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 125 of 198
DIRECT EXAMINATION OF JULIETTE FERNANDEZ

 1 analysis, recommendations to refuge management. I worked with 

 2 local, state, and other federal entities to manage endangered 

 3 species populations and habitat. Those were some of my primary 

 4 duties.

 5 Q. How long did you do that for?

 6 A. About three years.

 7 Q. And prior to that, did you have any other positions with 

 8 Fish and Wildlife?

 9 A. That was my first permanent position.

 10 Q. Okay. And prior to joining Fish and Wildlife, did you 

 11 have any education that prepared you for those positions?

 12 A. Yeah, I have a bachelor of science in wildlife science. 

 13 Q. And what sorts of things do you study as a wildlife 

 14 science major?

 15 A. Some of the different courses that I was required to take 

 16 was a lot of identification courses such as mammology, 

 17 ornithology, herpetology. We also take wildlife management 

 18 courses, wildlife disease, statistics, environmental law. 

 19 Those are some of the main -- some of the main coursework.

 20 Q. And since joining Fish and Wildlife, have you had 

 21 opportunities to continue your education and professional 

 22 development?

 23 A. I have.

 24 Q. If you could briefly summarize what some of those 

 25 opportunities are.

126

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 126 of 198
DIRECT EXAMINATION OF JULIETTE FERNANDEZ

 1 A. I've taken refuge management academy, advanced refuge 

 2 management academy, courses in NEPA --

 3 Q. And stop there. What's NEPA?

 4 A. National Environmental Protection Act.

 5 Q. Thank you. 

 6 Okay. Carry on.

 7 A. And I've taken courses in fire management, law enforcement 

 8 for supervisors, wilderness courses, and I've helped to teach 

 9 some wilderness courses within that as well. So it's a little 

 10 bit of a mix of what I've done.

 11 Q. Now, through your training and your experience that 

 12 you've just described, have you become familiar with the 

 13 principles of wilderness management? 

 14 A. I have. 

 15 Q. And when I say "wilderness," does that word have a 

 16 particular meaning to you?

 17 A. So wilderness is undeveloped federal land with a specific 

 18 designation. It's designated by Congress, and it's undeveloped 

 19 federal land where we are required to uphold certain qualities 

 20 of wilderness character.

 21 Q. And before we get to those qualities, I just want to help 

 22 the Court understand a little bit. Where does a piece of land 

 23 that's designated as wilderness fall within the spectrum of 

 24 federal public lands that might have some protection?

 25 A. Sure. So various land management agencies have 

127

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 127 of 198
DIRECT EXAMINATION OF JULIETTE FERNANDEZ

 1 wilderness, but for the U.S. Fish and Wildlife Service, we 

 2 first have a mission, which is to preserve, conserve, protect, 

 3 and enhance fish, wildlife, plants and their habitats for the 

 4 American people, and that's the mission of the U.S. Fish and 

 5 Wildlife Service. 

 6 On top of that, various wildlife refuges will have a 

 7 specific purpose for which they're established, and as the -- 

 8 as the federal agency in charge of those lands, we're required 

 9 to uphold the mission and the purpose for which they are 

 10 established.

 11 When you get a wilderness designation, that is 

 12 supplemental to the mission and purpose that we're already 

 13 managing for on refuge land, so it's a more specific 

 14 requirement for how these lands have to be managed.

 15 Q. Now, within the lands managed by Fish and Wildlife, is 

 16 there a land designation that is more restrictive than 

 17 wilderness?

 18 A. Wilderness is probably one of the highest designations, 

 19 aside from some refuges that may be closed to the public for 

 20 sensitive species, or if we have an overlay with the military 

 21 installation, for example, there is some more restricted areas.

 22 Q. And you mentioned previously some qualities of wilderness 

 23 character. In your -- are you charged with managing the Fish 

 24 and Wildlife -- I'm sorry. I'm trying this again. 

 25 Are you charged with managing areas designated as 

128

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 128 of 198
DIRECT EXAMINATION OF JULIETTE FERNANDEZ

 1 wilderness for what's called qualities of wilderness 

 2 character?

 3 A. That's correct. The Wilderness Act of 1964 outlines the 

 4 laws and the qualities by which we need to manage wilderness 

 5 areas, and so within that there's five specific qualities that 

 6 all wilderness areas across the nation all follow.

 7 Q. And so let's just take them, each of the five, in turn 

 8 and briefly describe them, and I'd like to start with the 

 9 first, which I understand is a combo. 

 10 Is one of the qualities the combination of primitive, 

 11 solitude, and unconfined?

 12 A. Right. So we are supposed to manage for the opportunity 

 13 for primitive solitude and unconfined recreation, so 

 14 essentially somebody that's visiting a wilderness area should 

 15 be able to go out into the wilderness and have minimal 

 16 interaction with other people. They should be able to feel 

 17 that they're truly having a primitive experience as they 

 18 recreate, and they're unconfined by other human interactions. 

 19 So for example, in a traditional refuge, you might have a 

 20 visitor services specialist out there greeting people and 

 21 teaching them about plants and animals and directing 

 22 them, whereas in a wilderness designation you wouldn't have any 

 23 of that, because it would detract from that quality.

 24 Q. And is untrammeled one of the five qualities? 

 25 A. Untrammeled is. 

129

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 129 of 198
DIRECT EXAMINATION OF JULIETTE FERNANDEZ

 1 Q. If you could describe that briefly, please. 

 2 A. Untrammeled essentially means not restricted. So in 

 3 wilderness we're supposed to allow natural processes to take 

 4 place and have minimal interaction to obstruct that. For 

 5 example, on a traditional wildlife refuge, you may plan a fish 

 6 barrier in a stream, whereas in designated wilderness you're 

 7 supposed to allow natural processes to happen on their own 

 8 without a lot of human interaction altering the landscape.

 9 Q. Is undeveloped the third quality?

 10 A. Undeveloped is another quality, yes. 

 11 Q. Please describe that. 

 12 A. Undeveloped is ensuring that a wilderness area is free 

 13 from a human development, so structures, human habitation 

 14 inside wilderness would not be allowed. Roads, motor 

 15 vehicles, airplanes, anything motorized would deter from the 

 16 undeveloped quality of the wilderness.

 17 Q. And when we're talking about the quality of being 

 18 undeveloped, does that also extend to the tools that might be 

 19 used to manage the land?

 20 A. Yeah, so for all of these, when you need to do something 

 21 in wilderness, you need to use the minimum tool to get a job 

 22 done. So for example, in a wilderness area, having a chainsaw 

 23 would disrupt the undeveloped quality of a wilderness area, so 

 24 you should be using a hand axe, a primitive tool, to the 

 25 greatest extent possible, to complete your management action.

130

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 130 of 198
DIRECT EXAMINATION OF JULIETTE FERNANDEZ

 1 Q. And is natural one of the qualities that is managed for?

 2 A. It is.

 3 Q. And please describe what that means in this context for 

 4 the Court. 

 5 A. Often with the natural quality we do look at the plant and 

 6 animal communities within the area and try not to alter what 

 7 occurs there naturally. So allowing native species to exist 

 8 there and not -- for example, on a traditional refuge you might 

 9 plants crops for waterfowl. In a wilderness area, you would 

 10 not want to do anything that would -- that would change the 

 11 plant communities and the ecosystems that exist there.

 12 Q. And we've done four now. Is the last quality of 

 13 wilderness awkwardly named "other features of value?" 

 14 A. It is.

 15 Q. And what does that mean?

 16 A. Other features of value are specific to each different 

 17 wilderness areas. They can vary, but it can be something 

 18 scientific or educational or scenic or historic. So for 

 19 example, a ruin in a wildlife refuge, even though it was 

 20 obviously made by a human, because of its historic value, it 

 21 would be something that would be allowed to remain within that 

 22 wilderness area.

 23 Q. And so when we're talking about these, I think you said 

 24 ruins or maybe other structures, are these things that predate 

 25 the wilderness designation?

131

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 131 of 198
DIRECT EXAMINATION OF JULIETTE FERNANDEZ

 1 A. They would be, right.

 2 Q. Now, you mentioned briefly in describing these five 

 3 qualities something called the minimum tool or minimum 

 4 requirements analysis.

 5 A. Right.

 6 Q. Please describe briefly what that analysis is.

 7 A. So sometimes certain things do need to take place within a 

 8 wilderness area, and our requirement per the Wilderness Act of 

 9 1964 is that we will do a minimum requirements analysis. And 

 10 essentially what that means is, if there's something that needs 

 11 to be done that is consistent with the U.S. Fish and Wildlife 

 12 Service mission or consistent with the purpose for which that 

 13 individual refuge was established, then we can do a management 

 14 action within the wilderness area, but we're required to first 

 15 determine if that action is at all necessary, because ideally 

 16 you wouldn't do any of it, but is that action necessary, can it 

 17 be done outside a designated wilderness, and if not, what is 

 18 the minimum tool that can be used in order to complete that 

 19 action with the least disturbance to the qualities of 

 20 wilderness character.

 21 Q. And so if you could illustrate this concept with perhaps 

 22 a tree that has fallen within an area in wilderness.

 23 A. So if there's a tree, let's say, that falls in wilderness 

 24 in a sensitive area and it needs to be moved, for example, you 

 25 would need to do a minimum requirements analysis, number one, 

132

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 132 of 198
DIRECT EXAMINATION OF JULIETTE FERNANDEZ

 1 to say, for example, how are you going to get there, can you 

 2 hike it? That would be the least, the minimum tool. If 

 3 not, can you drive there? Do you have to get there by 

 4 helicopters? It's evaluating all alternatives to determine 

 5 what the minimum opportunity is. 

 6 And then, once you get to that tree, can you -- do you 

 7 have to cut it down with a chainsaw or, again, can you do it 

 8 with a hand axe or a hand saw, because those primitive tools 

 9 should be followed in order to meet the minimum requirement for 

 10 administering those actions.

 11 Q. And when you talk about minimum requirement, are you 

 12 talking about minimum impact on the environment, or are you 

 13 talking about a different concept there?

 14 A. Minimum, it could be minimum impact on the environment, 

 15 but more so minimum impact to wilderness qualities.

 16 Q. So those five qualities you just described are the 

 17 benchmarks for what you're looking at? 

 18 A. Correct. And within those qualities, the environment 

 19 falls. I'm sorry.

 20 Q. I'm sorry? Say again.

 21 A. And within those qualities, the environment would fall.

 22 Q. Okay. Thank you. 

 23 Now, this minimum tool analysis, does it apply to all 

 24 steps of a proposed action within a wilderness area?

 25 A. It does. So again, let's say there was a fire in 

133

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 133 of 198
DIRECT EXAMINATION OF JULIETTE FERNANDEZ

 1 wilderness, and you would need to do a minimum tool -- minimum 

 2 requirements analysis to not only determine if you're going to 

 3 put the fire out, but how you're going to get there, what 

 4 methods are you going to use in order to put it out. It goes 

 5 over every step of that process to minimize any impacts to 

 6 quality. 

 7 Q. Now, where does life-saving activity fall within this 

 8 minimum tool requirements analysis?

 9 A. The Wilderness Act of 1964 does allow for entrance into a 

 10 wilderness area for emergency, emergency access, such as search 

 11 and rescue, and in those cases, because the emergency is 

 12 imminent, you have to get out there right away, they do not 

 13 require you to do a minimum requirements analysis prior to 

 14 entering for the search and rescue, but you should follow up 

 15 afterwards for reporting and analysis of any impacts to that 

 16 wilderness area.

 17 Q. And in taking life-saving activity in a wilderness area, 

 18 does it ever happen that Fish and Wildlife needs to coordinate 

 19 with another agency or another entity?

 20 A. Yes. So we would coordinate with another entity that has 

 21 the ability to have the quickest means to ensure that that 

 22 person's search and rescue can be done immediately.

 23 Q. And in doing a life-saving activity, under the Wilderness 

 24 Act, are you allowed to do the quickest action, or are there 

 25 other things that come into play?

134

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 134 of 198
DIRECT EXAMINATION OF JULIETTE FERNANDEZ

 1 A. Yeah, so generally, for a management action, you know, if 

 2 it was a nonemergency, the time it takes doesn't factor in. 

 3 You need to use the minimum tool. 

 4 But for an emergency situation, it should be the quickest 

 5 means by which you can take somebody out, because that 

 6 emergency would be imminent. So we don't want to hold up the 

 7 process with paperwork or anything like that. We need to allow 

 8 these emergency services to get in as quickly as possible and 

 9 provide help to that individual.

 10 Q. So after a life-saving activity of this imminent nature 

 11 has happened, is there a procedural follow-up that happens 

 12 afterwards?

 13 A. We do document and ensure that we assess any impacts to 

 14 wilderness, wilderness character, and we do annual analysis, as 

 15 well, on top of that to evaluate the wilderness area and make 

 16 sure that we're upholding the qualities.

 17 Q. I'd like to turn your attention more particularly now to 

 18 the Cabeza Prieta National Wildlife Refuge. Does that fall 

 19 within your management responsibilities?

 20 A. It does.

 21 Q. And how many refuges are within your area of 

 22 responsibility?

 23 A. I have 17 refuges under my supervision.

 24 Q. Now, Cabeza Prieta, can you give the Court an idea of how 

 25 large Cabeza Prieta is in -- well, first, how large is Cabeza 

135

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 135 of 198
DIRECT EXAMINATION OF JULIETTE FERNANDEZ

 1 Prieta?

 2 A. Cabeza Prieta is 860,000 acres. It is the largest, I'm 

 3 sorry, the third-largest wildlife refuge in the lower 48 

 4 states. It's the largest designated wilderness in the lower 48 

 5 states, and it's -- on the refuges, I should specify -- and 

 6 it's the largest designated wilderness within the state of 

 7 Arizona among any land management agency. 

 8 So it's a big refuge.

 9 Q. Of the 860,000 acres that is the refuge, how much of that 

 10 is designated wilderness?

 11 A. A little over 803,000, so the majority of -- the vast 

 12 majority of the refuge is designated wilderness.

 13 Q. Can you put a percentage on it?

 14 A. 93 percent.

 15 Q. Thank you. 

 16 And is that unusual among the refuges that you manage?

 17 A. That's the highest percent, certainly, and another refuge 

 18 in Arizona, Kofa, has a lot of designated wilderness, but not 

 19 as much as the Cabeza Prieta. 

 20 And among wildlife refuges, so for example, in the 

 21 southwest region there's 47 refuges total, only seven of which 

 22 have designated wilderness, so it's not a typical thing 

 23 necessarily, but Cabeza is very prominent for being such a 

 24 strong wilderness -- wilderness refuge.

 25 Q. And before we move on, for the benefit of the record, you 

136

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 136 of 198
DIRECT EXAMINATION OF JULIETTE FERNANDEZ

 1 said "Kofa." Could you please spell that for us. 

 2 A. K-o-f-a.

 3 Q. Thank you. 

 4 Now, are you aware of the staffing or of the number of 

 5 positions that have been assigned to manage the Cabeza Prieta?

 6 A. In total, there are 13 staff on site.

 7 Q. Are any of those positions law enforcement positions?

 8 A. Because it's a border refuge, we have more there, and so 

 9 there are five law enforcement officers.

 10 Q. And so you said you have more there. Is having five out 

 11 of 13 staff members be law enforcement unusual at all?

 12 A. On a border refuge, we do have more law enforcement 

 13 officers. It's pretty atypical for a traditional wildlife 

 14 refuge. For example, the state of New Mexico, which I also 

 15 supervise, there is only two law enforcement officers for the 

 16 entire state.

 17 Q. And do any of the refuges in New Mexico have as part of 

 18 their border the international border?

 19 A. None of them are right on the border the way that Cabeza 

 20 Prieta is.

 21 Q. And are you aware of the reasons why there might be more 

 22 law enforcement officers assigned to a refuge that has the 

 23 international border, the southern border, as part of its 

 24 boundary?

 25 A. So typically on a refuge our federal wildlife officers are 

137

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 137 of 198
DIRECT EXAMINATION OF JULIETTE FERNANDEZ

 1 able to enforce wildlife-specific laws as their main 

 2 responsibilities. So for example checking in with hunters or 

 3 checking boundary lines or looking into poaching cases, for 

 4 example, are some things that you would do on a typical refuge. 

 5 On a border refuge, such as the Cabeza Prieta, they have 

 6 additional duties related to borders, such as, you know, the 

 7 amount of undocumented aliens coming in or smuggling coming 

 8 in, safety of the staff that are working out there, so there's 

 9 coordination with Customs and Border Protection. 

 10 There's just an additional layer of enforcement 

 11 responsibility on border refuges.

 12 Q. And in your capacity, are you aware of various law 

 13 enforcement activity on the Cabeza Prieta?

 14 A. I am. For serious incidents, I am informed of those.

 15 Q. And how do you become aware of those, I think you said 

 16 serious incidents?

 17 A. Through -- the refuge manager would notify me if there was 

 18 something that's taking place on the refuge, and then I would 

 19 notify my upper command as well.

 20 Q. So it would be fair to stay it comes up through the chain 

 21 of command to you?

 22 A. That's correct.

 23 Q. So you're not directly involved in the law enforcement?

 24 A. No, not on site.

 25 Q. Okay. Now, in terms of -- you described some of the 

138

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 138 of 198
DIRECT EXAMINATION OF JULIETTE FERNANDEZ

 1 concerns related to illegal activity that might happen on a 

 2 border refuge, including Cabeza Prieta. Does illegal activity 

 3 happening, could that have impacts on the qualities of 

 4 wilderness that you're managing for?

 5 A. It could. With people coming through the desert, some of 

 6 the impacts could be trail networks, which can alter some of 

 7 the natural quality. You know, any materials that are left 

 8 behind as they're walking through can alter wildlife behavior. 

 9 If there are roads used or areas that are frequently 

 10 traveled as opposed to just an individual here or there, that 

 11 can alter the natural -- natural quality. And also the 

 12 undeveloped qualities, if there's a road, for example, it can 

 13 alter the habitat for wildlife out there, cause some 

 14 fragmentations. 

 15 So there's various issues that can arise from additional 

 16 activity in wilderness.

 17 Q. And let me ask you about that last phrase you used. You 

 18 talked about fragmentation. Can you please describe what that 

 19 is to the Court. 

 20 A. Sure. So fragmentation, when you have a large area of 

 21 habitat, for example, and the Cabeza Prieta is the primary area 

 22 responsible for the Sonoran pronghorn -- and I can tell you a 

 23 little bit of background on that.

 24 Q. Nope. Not necessary. Let's focus on what fragmentation 

 25 is. If you want to use the pronghorn as an illustration, that 

139

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 139 of 198
DIRECT EXAMINATION OF JULIETTE FERNANDEZ

 1 would be fine, I think. 

 2 A. Sure. Okay. So pronghorn are endangered species, and so 

 3 they rely heavily on their habitat. So if you have a large 

 4 area of habitat, and let's say a road goes through the center 

 5 of it and it's frequently traveled, that can alter the behavior 

 6 of the pronghorn so that they no longer use that full extent of 

 7 their habitat and, rather, stay to a subsection of what they 

 8 would normally use to forage or to rest. 

 9 And so fragmentation is when you have a large area that 

 10 something divides and causes wildlife to remain in the 

 11 subsection of that area.

 12 Q. Would it be fair to say that fragmentation is something 

 13 that can happen on a continuum?

 14 A. Yes.

 15 Q. And so it could be more or less serious or more or less 

 16 impactful depending on what's happening?

 17 A. Yes.

 18 Q. And I wanted to ask you if, based on human activity on a 

 19 wilderness area, if that can have impact on wildlife behavior. 

 20 A. It can.

 21 Q. And how can that happen?

 22 A. So if there's -- and just speaking of a fragmentation 

 23 example, if there's a lot of activity in one area that 

 24 traditionally they would use, they might alter their behavior 

 25 and no longer use that area. For pronghorn especially, that 

140

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 140 of 198
DIRECT EXAMINATION OF JULIETTE FERNANDEZ

 1 could be very detrimental, because it is an endangered species, 

 2 and they only have so much area where they exist now. 

 3 In addition, human scents, like if things are left behind, 

 4 the smell of them may either attract wildlife or scare them, 

 5 and so they might opt to not use a specific area, so it can 

 6 alter wildlife behavior in that way as well.

 7 Q. Are you familiar with the Hold Harmless Agreement that is 

 8 in use at the Cabeza Prieta Refuge?

 9 A. I am.

 10 Q. Have you had a chance to review that?

 11 A. I have.

 12 Q. And based on your experience and the things that you've 

 13 just talked about, have you formed an opinion about whether or 

 14 not the Hold Harmless Agreement promotes managing for 

 15 wilderness character?

 16 A. I think the Hold Harmless Agreement, you know, it notifies 

 17 of risks and regulations within that area, and within that they 

 18 do address a number of qualities you would find in wilderness. 

 19 For example, it's remote. It's extreme environment. There's 

 20 minimal patrol, as opposed to what you would find on another 

 21 refuge. There's potential to need search and rescue 

 22 operations, and there's minimal signage, which is something 

 23 that's important in wilderness. 

 24 So it does speak to a lot of the things you would find in 

 25 a wilderness area.

141

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 141 of 198
DIRECT EXAMINATION OF JULIETTE FERNANDEZ

 1 Q. Is it important when managing for wilderness character 

 2 that the visitors to a wilderness area be aware of those 

 3 dangers in the nature of how that land is?

 4 A. Absolutely. Often people that specifically seek out 

 5 designated wilderness are looking for that primitive 

 6 experience, and so being aware that they need to be prepared to 

 7 enter some more rugged terrain, where there is not a lot of 

 8 people, there is not a lot of refuge staff around, is something 

 9 that they need be aware of. 

 10 Q. Is it important when managing for wilderness character to 

 11 limit the amount of life-saving search and rescue activities 

 12 on a wilderness area?

 13 A. To the greatest extent possible. Well, we don't want to 

 14 have to do any search and rescue operations in wilderness at 

 15 all, so I would say yes.

 16 Q. Now, I want to turn your attention to the general topic 

 17 of road management within wilderness areas. Are there 

 18 supposed to be roads in wilderness areas? 

 19 A. There's not. The Wilderness Act specifically says there 

 20 are not to be roads or vehicles or mechanized transport within 

 21 designated wilderness. So even in maintaining roads, like if 

 22 there is an administrative road that has to be kept in 

 23 wilderness, traditionally on a refuge you would use a road 

 24 grader in going in and fix the road. In this case it would 

 25 have to all be primitive, moving a rock, you know, one at a 

142

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 142 of 198
DIRECT EXAMINATION OF JULIETTE FERNANDEZ

 1 time. 

 2 But there's not to be any kind of, as part of the 

 3 undeveloped quality, there's not to be any roads or vehicle or, 

 4 like I said, mechanical transport.

 5 Q. And how does this general prohibition on roads fit within 

 6 your responsibilities to manage for wilderness character, for 

 7 the qualities of wilderness?

 8 A. It is -- it does fall under the undeveloped quality, and 

 9 so it's the Service's responsibility to ensure that that is 

 10 upheld.

 11 Q. And what happens if there is already a road in an area 

 12 when it is designated as wilderness?

 13 A. If there is a road in an area, it's not to be used, 

 14 except, like I said, in emergency situation, and through the 

 15 minimum requirements analysis, roads may be used if they are -- 

 16 if it is for administering refuge lands for the mission of the 

 17 Fish and Wildlife Refuge, or the purpose for which that refuge 

 18 was established, or for managing wilderness character.

 19 Q. And let's say none of those exceptions apply. What 

 20 happens to a road that predates a wilderness?

 21 A. Then you would let the road grow back or do a treatment to 

 22 remove that road.

 23 Q. Now, are you aware of any roads on the Cabeza Prieta?

 24 A. Not so much on site, but --

 25 Q. Are you aware that there are roads on Cabeza Prieta?

143

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 143 of 198
DIRECT EXAMINATION OF JULIETTE FERNANDEZ

 1 A. I am, yes.

 2 Q. Ask a better question. And are you aware of a road that 

 3 is designated for public use that is on the refuge?

 4 A. The public use roads are outside of designated wilderness, 

 5 but yes.

 6 Q. Okay. So they're outside of wilderness but still on the 

 7 refuge?

 8 A. Correct.

 9 Q. So they're in that small percent that hasn't been 

 10 designated as a wilderness area?

 11 A. Correct.

 12 Q. And do you know the name of that primary road? 

 13 A. Camino del Diablo and also Christmas Pass is another one. 

 14 And Charlie Bell Well Road before it goes into wilderness is 

 15 the other. So those are the three public, public roads.

 16 Q. So a portion of Charlie Bell Road is outside of 

 17 wilderness; is that correct?

 18 A. Correct.

 19 Q. Okay. And once it enters wilderness, does its 

 20 designation change?

 21 A. It's Charlie Bell -- it enters wilderness at Charlie Bell 

 22 Pass, and then at that point it's no longer a public road.

 23 Q. Now, along the Camino del Diablo, are you aware -- let me 

 24 ask you a different question. 

 25 Now, the roads that are in the -- excuse me. Are there 

144

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 144 of 198
DIRECT EXAMINATION OF JULIETTE FERNANDEZ

 1 roads in the wilderness in Cabeza Prieta?

 2 A. There are. 

 3 Q. Okay. And those roads, can they be used by law 

 4 enforcement officers operating in the area?

 5 A. The Arizona Wilderness Act of 1990, which actually 

 6 established the designated wilderness within the Cabeza Prieta, 

 7 did say that the U.S. Fish and Wildlife Service will not 

 8 preclude INS, DEA, or Customs from using those roads for law 

 9 enforcement operations, so they are used.

 10 Q. Are there limitations on how law enforcement can use 

 11 them, either in the Act or from subsequent agreements, et 

 12 cetera?

 13 A. Yes. So the 2016 MOU between -- it's a nationwide MOU 

 14 of -- in which the Department of Interior and Customs and 

 15 Border Protection are two of the signatories. It does say that 

 16 they will use the minimal tool or have the least amount of 

 17 impact possible while doing those operations.

 18 Q. And as part of that, is there an understanding of when 

 19 using the roads may be allowed?

 20 A. They may use it for -- for operations, law enforcement 

 21 operations, when in pursuit or, you know, managing border law 

 22 enforcement.

 23 Q. And refuge staff, can they use these same roads as part 

 24 of their regular duties?

 25 A. Refuge staff are not to use any roads in wilderness unless 

145

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 145 of 198
DIRECT EXAMINATION OF JULIETTE FERNANDEZ

 1 it's, like I said, to further the mission of the U.S. Fish and 

 2 Wildlife Service or the purposes for which the refuge was 

 3 established.

 4 Q. And I'd like now to take a second to put these particular 

 5 roads in context with managing for wilderness quality, and 

 6 let's talk first about non Fish and Wildlife law enforcement, 

 7 I think you said Border Patrol, using roads for their 

 8 enforcement activities. 

 9 How does that use fall within, say, your minimum 

 10 requirements analysis?

 11 A. So because the Arizona Wilderness Act of 1990 said that 

 12 they are allowed to use these areas, that's a law, and so the 

 13 Customs and Border Protection is able to use those without 

 14 having to do a minimum requirements analysis, although they do 

 15 inform us when they are, you know, have to go offroad or, you 

 16 know, any issues within wilderness that we might have to 

 17 address.

 18 Q. As a land manager for Fish and Wildlife charged with 

 19 managing for these qualities, does allowing Border Patrol to 

 20 conduct its enforcement activities, is that consistent with 

 21 managing for those qualities?

 22 A. It is -- well, driving on a road is not consistent with 

 23 managing for those qualities. However, you know, we're a small 

 24 agency. We don't have a lot of capacity, so having enforcement 

 25 out in some of these areas does help us to manage some of those 

146

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 146 of 198
DIRECT EXAMINATION OF JULIETTE FERNANDEZ

 1 qualities.

 2 Q. And so let me ask you this. Is one of the effects of 

 3 having Border Patrol out there conducting their enforcement 

 4 activities that they are addressing illegal activity on the 

 5 refuge?

 6 A. Yes.

 7 Q. And is the illegal activity present on the refuge 

 8 something that you need to manage as part of your duties?

 9 A. Yes. It's something that does have impact to wildlife 

 10 resources, so it's something that we do need to address.

 11 Q. Would it be fair to say that steps taken to reduce this 

 12 illegal activity generally enhances the wilderness quality 

 13 that is there?

 14 A. It can.

 15 Q. And I want to take us now to the refuge staff, the Fish 

 16 and Wildlfe law enforcement officers, and we talked about that 

 17 they can sometimes, under the minimal tool analysis, use these 

 18 roads. 

 19 Would doing an enforcement activity related to a 

 20 violation on the refuge be something that falls within those 

 21 parameters?

 22 A. Yes. We need to protect the land with which we're 

 23 entrusted, and so enforcement of these areas in conjunction 

 24 with the Customs and Border Protection is important.

 25 Q. And you had mentioned earlier and I hit pause on talking 

147

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 147 of 198
DIRECT EXAMINATION OF JULIETTE FERNANDEZ

 1 about the Sonoran pronghorn. Can you please just tell the 

 2 Court about how the Sonoran pronghorn plays into how the 

 3 Cabeza Prieta is managed. 

 4 A. Sure. So the Sonoran pronghorn traditionally had a much 

 5 larger range, and they would migrate quite a bit. But with 

 6 urbanization and development, by the 1920s, they used only 

 7 eight percent of their historic range. 

 8 By 2002, the population was thought to be down to about 20 

 9 individuals. So in 2003, Cabeza Prieta started a captive 

 10 breeding program and started doing releases again in 2006, and 

 11 today the population estimate is closer to 230 individuals. So 

 12 we've had some really excellent success on this landscape, and 

 13 having a wilderness area that is protected and that we ensure 

 14 is providing optimal habitat for these pronghorn is something 

 15 that we really strive to achieve.

 16 Q. And we discussed fragmentation earlier. Is that 

 17 something that's of concern in managing the Sonoran pronghorn?

 18 A. It is. In fact, as I mentioned, fragmentation of its 

 19 habitat is one thing that was very detrimental to the pronghorn 

 20 historically, so as much as we can protect the species and 

 21 avoid things like fragmentation from impacting them and their 

 22 behaviors, that's something that we do. 

 23 They can be sensitive to that disturbance, especially in 

 24 fawning season, and so it's something that we are very cautious 

 25 about.

148

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 148 of 198
DIRECT EXAMINATION OF JULIETTE FERNANDEZ

 1 Q. And I want to turn your attention now, we had talked 

 2 about life-saving activities generally within wilderness 

 3 areas. Are you aware of any life-saving steps that the Fish 

 4 and Wildlife Service has taken regarding Cabeza Prieta?

 5 A. Yes. So on the Cabeza Prieta, we have worked with Customs 

 6 and Border Protection to install 10 rescue beacons within the 

 7 refuge. Even within designated wilderness, we did a minimum 

 8 requirements analysis and determined that these rescue beacons 

 9 could provide immediate emergency relief to anybody in 

 10 distress. 

 11 And so they're stationary. They're always in the same 

 12 location and available for somebody to use. And so when -- 

 13 when an individual does go to a rescue beacon, we are able to 

 14 get immediate help to them and get them a Life Flight out of 

 15 the Cabeza Prieta for life-savings measures. 

 16 In addition to that, there's blue flags. In working with 

 17 Humane Borders, there are blue flags at a number of wildlife 

 18 waters for cooling on the refuge, and there's also a stationary 

 19 drum with Humane Borders out of designated wilderness on the 

 20 Camino that is available for individuals. 

 21 But the rescue beacons have really -- were something that 

 22 we put in place as an immediate measure to help individuals.

 23 Q. Now, using the minimum tool or minimum requirements 

 24 analysis, could you place more of these drums like the one 

 25 that is on the Camino within the wilderness area?

149

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 149 of 198
DIRECT EXAMINATION OF JULIETTE FERNANDEZ

 1 A. The rescue beacon? Oh, that --

 2 Q. No, the stationary water sources like the one that's on 

 3 the Camino. 

 4 A. Within designated wilderness, the rescue beacons have 

 5 really been the tool of least impact that we've decided to go 

 6 with. Because they are stationary, they are -- will be there, 

 7 we can decide areas that will have the least impact, and 

 8 because they will get immediate help to whomever gets to the 

 9 beacon, we feel that that is the minimum tool to -- for the 

 10 emergency purpose of getting help out there.

 11 Q. And so stationary water sources, let's say, like a 

 12 drinking tank or something like that, would that pass the 

 13 minimum requirements analysis for the Cabeza Prieta?

 14 A. I think in evaluating those drinking stations versus the 

 15 rescue beacons, we found the rescue beacon to be the minimum 

 16 tool because it will truly get life-saving help out 

 17 immediately.

 18 Q. So it would be fair to say, since the rescue beacon has 

 19 been identified as the least impactful tool, that anything 

 20 more impactful will fail the analysis?

 21 A. Right. Our requirement in doing a minimum requirements 

 22 analysis is to evaluate alternatives and determine the least -- 

 23 the tool that will have the least impact on wilderness quality. 

 24 Q. And I want to be sure, I think I heard you say this, but 

 25 the water drum that you discussed that Humane Borders has on 

150

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 150 of 198
DIRECT EXAMINATION OF JULIETTE FERNANDEZ

 1 the Camino, do you know if that's within wilderness area, or 

 2 is it outside of wilderness area?

 3 A. That's outside of wilderness area.

 4 Q. Now, in terms of managing a wilderness area, particularly 

 5 the refuge, Cabeza Prieta, would deposits or caches of 

 6 one-gallon plastic jugs cause you any concern regarding 

 7 managing for wilderness quality? 

 8 A. It would. Because they're mobile, that is one concern. 

 9 They can -- whereas a beacon, for example, is in one location 

 10 where we can determine that's the -- will have the minimum 

 11 impact. 

 12 Having multiple jugs, having plastic containers that can 

 13 break down in the sun and create microtrash that can be 

 14 dispersed would be concerning, but also for, in thinking about 

 15 the wilderness qualities, it would not be consistent with 

 16 natural, for example, or undeveloped as legal requirements that 

 17 we need to uphold within our wilderness.

 18 MS. WRIGHT: Your Honor, if I could have a moment?

 19 THE COURT: Sure. 

 20 MS. WRIGHT: That's all I have for now, Your Honor. 

 21 Thank you.

 22 THE COURT: All right.

 23 CROSS-EXAMINATION

 24 BY MR. DUPONT:

 25 Q. Good afternoon. 

151

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 151 of 198
CROSS-EXAMINATION OF JULIETTE FERNANDEZ

 1 A. Hi.

 2 Q. I'm Chris Dupont.

 3 A. I'm sorry? 

 4 Q. I'm Chris Dupont. I only have a couple of questions for 

 5 you. 

 6 A. Okay.

 7 Q. So from my understanding, the Sonoran pronghorn sheep are 

 8 doing great.

 9 A. Yes.

 10 Q. They're numbers have gone up 11 times?

 11 A. I'd say about that, yes.

 12 Q. Up to 230 times? Up to 230 animals?

 13 A. Individuals, correct, yes.

 14 Q. And what about the bighorn sheep?

 15 A. The bighorn sheep population is also doing well.

 16 Q. Doing very well also, but they're sensitive to 

 17 fragmentation?

 18 A. They are.

 19 Q. How many Sonoran pronghorns have died in the last 10 

 20 years?

 21 A. I wouldn't have that number.

 22 Q. Do you know of one?

 23 A. I'm not located on the refuge, so I couldn't tell you.

 24 Q. You're responsible for the refuge?

 25 A. Yes. 

152

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 152 of 198
CROSS-EXAMINATION OF JULIETTE FERNANDEZ

 1 Q. Has a single Sonoran pronghorn died on your watch?

 2 A. I couldn't tell you.

 3 Q. How many human beings have died?

 4 A. I don't know that number.

 5 Q. We've got some evidence that they found 249 human remains 

 6 there. Would that surprise you?

 7 MS. WRIGHT: Objection. Calls for speculation.

 8 THE COURT: Overruled.

 9 BY MS. FERNANDEZ:

 10 Q. Would that surprise you?

 11 A. No. I'm aware that they happen on the wildlife refuge.

 12 Q. What have you done to gather data on how many people are 

 13 dying in the Cabeza?

 14 A. We -- the mission of the U.S. Fish and Wildlife Service is 

 15 specifically wildlife, so it's not within my job 

 16 responsibilities to do that.

 17 Q. So you've taken zero effort to collect data? Is that 

 18 what you're saying?

 19 A. It's not within my responsibility.

 20 Q. Okay. I hear you saying that. I want you to know -- 

 21 answer this question. Is it true that you've taken no effort 

 22 at all to find out or collect data on how many human beings --

 23 A. That's correct.

 24 Q. So the pronghorn are sensitive to fragmentation; people 

 25 are sensitive to heat. 

153

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 153 of 198
CROSS-EXAMINATION OF JULIETTE FERNANDEZ

 1 Right?

 2 A. Yes.

 3 Q. Desolation, being in desolate areas, sensitive to that; 

 4 right?

 5 A. I suppose they can be, yes.

 6 Q. Lack of water; right?

 7 A. Yes.

 8 Q. Assuming 249 people have died in Cabeza Prieta, is there 

 9 some number of people that will have to die before you 

 10 transform this --

 11 MS. WRIGHT: Objection. Argumentative. Calls for 

 12 speculation.

 13 THE COURT: Sustained. 

 14 BY MR. DUPONT: 

 15 Q. Have you applied the minimum requirements analysis to 

 16 figure out how to avoid 249 people dying on Cabeza Prieta?

 17 A. The minimum requirements analysis evaluates specific tools 

 18 for management actions.

 19 MR. DUPONT: Thank you, Your Honor.

 20 THE COURT: Anything further?

 21 MS. WRIGHT: Yes, Your Honor. 

 22 REDIRECT EXAMINATION

 23 BY MS. WRIGHT:

 24 Q. Ms. Fernandez, the Sonoran pronghorn, are they still 

 25 designated as an endangered species? 

154

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 154 of 198
 1 A. They are.

 2 Q. And is that also true for the bighorn?

 3 A. They are not endangered.

 4 Q. Have they moved up a level?

 5 A. Yes.

 6 Q. And we were discussing earlier -- well, on cross-

 7 examination, Mr. Dupont asked you about the minimum tool 

 8 requirements analysis for life-saving activity; right?

 9 A. Yes.

 10 Q. And correct me if I'm wrong, but that analysis was done, 

 11 and that led to the placement of the rescue beacons on the 

 12 refuge; correct?

 13 A. The rescue beacons are the mechanism that we have 

 14 determined would be the greatest opportunity for live saving, 

 15 correct.

 16 MS. WRIGHT: Thank you. 

 17 I have nothing further, Your Honor.

 18 THE COURT: You may step down. You're excused.

 19 THE WITNESS: Thank you.

 20 THE COURT: Anything further? 

 21 MS. WRIGHT: No, Your Honor. The United States 

 22 rests.

 23 THE COURT: We're going to take a break. When I 

 24 come back -- we'll take a break until 3:10 -- I want to hear 

 25 about, first of all, whatever you want to tell me. Second of 

155

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 155 of 198
 1 all, I want to get to how do I evaluate the defendants' 

 2 beliefs, taking into consideration their apparent ignorance of 

 3 the consequences of the criminal law, deceptive information 

 4 they receive. 

 5 Then I want to hear you talk to me about RFRA, about 

 6 whether it's a positive right, negative right, or some other 

 7 combination, and as I said, anything else you think that needs 

 8 to be brought to my attention.

 9 MR. DUPONT: Yes, Your Honor.

 10 MS. CHAPMAN: Thank you.

 11 THE COURT: Stand at recess until 3:10.

 12 (Off the record.)

 13 THE COURT: All right. The record should reflect 

 14 that we're back in session. 

 15 Government, you may proceed.

 16 MR. WALTERS: Thank you, Your Honor.

 17 Your Honor, this case is about choices at the end of 

 18 the day. The defendants had other options available to them 

 19 that could have reduced the number of illegal alien deaths, 

 20 but they made a choice to break federal law. Their choice to 

 21 break the law came because these defendants thought their 

 22 personal beliefs were more important than acting in a legal 

 23 way. And Your Honor, no one is above the law.

 24 First I will run through each charged offense, Your 

 25 Honor, and discuss how the United States has proven each 

156

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 156 of 198
 1 element of each charge beyond a reasonable doubt, and then I 

 2 will go through some of the various defenses that were raised 

 3 either in the pretrial litigation phase or at trial and show 

 4 that the defense has failed to make a prima facie showing for 

 5 any of those defenses.

 6 At the outset, Your Honor, I would -- in terms of 

 7 the substantive offense, I would note that, even though the 

 8 United States has proven that each defendant knowingly 

 9 committed each of these charged offenses, that there is no 

 10 mens rea requirement in this case. All three defendants were 

 11 charged with class B misdemeanors without a knowing mens rea. 

 12 So in other words, they are strict liability offenses.

 13 The first offense that I will discuss is operating a 

 14 motor vehicle in a wilderness area, and obviously this offense 

 15 only applies to Defendant Hoffman. The first element, Your 

 16 Honor, is whether Ms. Hoffman used a motor vehicle, and during 

 17 the trial, Your Honor heard testimony from Fish and Wildlife 

 18 Officer Mike West who testified that, when he initially spoke 

 19 to the defendants, it was Defendant Hoffman who admitted to 

 20 being the driver of the truck. Finally, Defendant Hoffman in 

 21 her own testimony admitted to being the driver of the truck, 

 22 so the United States has proven this element.

 23 The second element is that the defendants then used 

 24 or drove a truck in a wilderness area, and the Court heard 

 25 testimony from Officer West that he located the white truck 

157

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 157 of 198
 1 and the defendants near -- a little further past Charlie Bell 

 2 Road or Charlie Bell Well, excuse me, on an administrative 

 3 road that was off limits to the public. 

 4 The Court also heard testimony from Fish and 

 5 Wildlife Officer Brian Krukoski regarding the geographical 

 6 boundaries of Cabeza Prieta, and Officer West's testimony 

 7 included information that the wilderness boundaries on Charlie 

 8 Bell Road began at Charlie Bell Pass and that Charlie Bell 

 9 Well and anything past Charlie Bell Well on that 

 10 administrative road is well within the boundaries of the 

 11 wilderness area. 

 12 In this case, Defendant Hoffman passed clearly 

 13 marked signage on at least three occasions while they were 

 14 loading and unloading supplies. The Court heard testimony 

 15 from Defendant Hoffman today stating that she didn't -- she 

 16 didn't recall seeing the signs, and if she did, she just 

 17 didn't think they were important enough to read.

 18 The idea that she did not see those signs or take 

 19 time to read them on at least three different occasions is not 

 20 credible in the slightest, Your Honor. So as a result of -- 

 21 as a result of this, the Government has proven beyond a 

 22 reasonable doubt that she did drive a truck into a designated 

 23 wilderness area.

 24 The third element we need to prove is that Cabeza 

 25 Prieta has wilderness area on the refuge. And frankly, Your 

158

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 158 of 198
 1 Honor, no one disputes this element. So the Government would 

 2 submit that we have proven this element beyond a reasonable 

 3 doubt.

 4 Finally, we have to show that Defendant Hoffman, or 

 5 frankly any of the defendants, had a special-use permit or 

 6 some type of lawful authority that allowed them to drive or 

 7 allowed Defendant Hoffman to drive into the wilderness area. 

 8 Since Defendant Hoffman is the only one charged, we'll stick 

 9 with her. 

 10 But again, the Court heard testimony from Officer 

 11 Krukoski that, for a wilderness area, members of the public 

 12 are strictly prohibited from operating a motor vehicle in that 

 13 area. There was clear signage stating that it is an 

 14 administrative road and that only government vehicles are 

 15 allowed to go past Charlie Bell Pass and into -- and into the 

 16 wilderness area.

 17 Officer Krukoski also testified about something 

 18 called special-use permit, which he noted as something that is 

 19 only granted by the refuge manager, and as the Court heard, 

 20 that was Sid Slone. Officer Krukoski talked about how those 

 21 records are kept, that he checked those records about a 

 22 week-and-a-half prior to his testimony, and none of the 

 23 defendants had a special-use permit, specifically Defendant 

 24 Hoffman, that allowed her to drive that truck into a 

 25 wilderness area. 

159

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 159 of 198
 1 And frankly, Your Honor, she also admitted during 

 2 her testimony that she did not have the special-use permit 

 3 that allowed her to do that. Your Honor, as such, the United 

 4 States has proven each element of this charge beyond a 

 5 reasonable doubt, and we ask that you find Defendant Hoffman 

 6 guilty of this charge.

 7 Your Honor, the second charge, the abandonment of 

 8 property, has also been proven beyond a reasonable doubt. 

 9 Now, the first element of this charge requires that the 

 10 defendants abandoned, discarded, or otherwise left personal 

 11 property. 

 12 Here it is undisputed that these defendants left 

 13 crates full of supplies on different locations in the refuge. 

 14 The Court also heard testimony that Officer West had waited 

 15 for the defendants when he located the truck, and they had 

 16 been gone for some time before he -- before they arrived back 

 17 to the truck. 

 18 All the defendants admitted to carrying jugs of 

 19 water and other supplies with them after they got out of the 

 20 truck and left those supplies at an unknown location before 

 21 returning to the truck where they encountered Officer West.

 22 Your Honor, there's no question these defendants 

 23 possessed these supplies. All of them took part in loading 

 24 the truck. They took part in getting the -- in assisting in 

 25 getting the supplies to the refuge before and after their 

160

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 160 of 198
 1 contact with Officer West, and all of them took part in 

 2 transporting those supplies to different areas of the refuge.

 3 Officer West also testified that he found crates 

 4 full of supplies, frankly, a large amount of supplies, at 

 5 Charlie Bell Well, and all the defendants admitted on Officer 

 6 West's body camera footage, which was admitted, that those 

 7 crates belonged to them and that they left those supplies at 

 8 Charlie Bell Well. 

 9 And finally, each defendant acknowledged in their 

 10 testimony to doing those things, and also to -- and also what 

 11 is noted on the video, on Officer West's body camera footage, 

 12 is that all of the defendants loaded those supplies once they 

 13 were back at the Ajo visitor center and then drove off with 

 14 those supplies together.

 15 Finally, Your Honor, the United States has to prove 

 16 that this personal property was abandoned, discarded, or 

 17 otherwise left in a national wildlife refuge. Again, there is 

 18 no dispute that the Cabeza Prieta is a national wildlife 

 19 refuge, and there's no dispute that the defendants left 

 20 property on Cabeza Prieta, and so thus the United States has 

 21 met its burden. 

 22 In conclusion, Your Honor, the United States has met 

 23 its burden of proving this charge beyond a reasonable doubt, 

 24 and the United States thus asks the Court to enter a judgment 

 25 of guilty.

161

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 161 of 198
 1 The final charged offense, Your Honor, is entering a 

 2 National Wildlife Refuge without a permit. I would submit to 

 3 the Court that this is probably the easiest charge in terms of 

 4 the United States' burden in that every single defendant 

 5 admitted to willfully not obtaining a permit prior to entering 

 6 the Cabeza Prieta National Wildlife Refuge. 

 7 Again, there is no dispute that Cabeza Prieta is a 

 8 National Wildlife Refuge, so we have met that -- we have met 

 9 that element, and we also have to prove that the defendants 

 10 actually entered Cabeza Prieta, which, again, is not in 

 11 dispute. 

 12 So based on the defendants' testimony, Your 

 13 Honor, as well as Officer West's testimony, the United States 

 14 would submit that we have proven each element of each charge 

 15 beyond a reasonable defense and therefore ask that you find 

 16 the defendants guilty on that charge as well.

 17 Your Honor, now I will transition to some of the 

 18 defenses raised, not only during the pretrial litigation 

 19 stage, but also here at trial. As I'm sure the Court is 

 20 aware, and we pointed out during our pretrial litigation, the 

 21 United States does not have a burden of disproving a defense 

 22 until the defendants have made a prima facie showing of that 

 23 defense. 

 24 And here, Your Honor, the defendants have not made a 

 25 prima facie showing of any defense. But even if the Court 

162

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 162 of 198
 1 disagrees with that, the United States has still proven each 

 2 element of each charge beyond a reasonable doubt and that each 

 3 -- that each defense does not entitle the defendants to an 

 4 acquittal.

 5 Your Honor, I'll start very briefly with a few, 

 6 specifically with selective enforcement. Here, Your Honor, 

 7 the defendants simply cannot show that a similarly situated 

 8 person was not referred for prosecution. Without this 

 9 showing, they cannot make a prima facie showing. And in 

 10 addition, there was no evidence presented at trial that would 

 11 cause this Court to overturn its previous ruling. As such, 

 12 they have completely failed to meet their burden. 

 13 In terms of any violations of international law or 

 14 the Administrative Procedure Act, again, there was no -- there 

 15 was no evidence presented here at trial that would cause the 

 16 Court to overturn its prior rulings, and the Government would 

 17 submit, Your Honor, that those are purely legal issues in 

 18 nature, and those were dealt with during the pretrial 

 19 litigation phase. 

 20 Your Honor, I will spend some considerable time on 

 21 RFRA, or the Religious Freedom Restoration Act, as I think 

 22 that's probably going to be the crux of the defendants' 

 23 closing argument. First, in answering one of the Court's 

 24 questions prior to the break, the Court had asked about 

 25 whether RFRA was a positive right, a negative right, or both, 

163

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 163 of 198
 1 and the United States would submit to the Court, Your Honor, 

 2 that RFRA is both. 

 3 It's both a positive right because -- and a negative 

 4 right because any defendant can use RFRA as a proactive 

 5 exercise of religion, but they can also use it as a shield if 

 6 the Government decided to prosecute someone for the sincere 

 7 exercise of one's religion.

 8 But I want to be very clear that RFRA is not a First 

 9 Amendment analysis, Your Honor. There is no -- there is no 

 10 analysis when it comes to RFRA about the rule of general 

 11 applicability. It is a separate -- a separate analysis 

 12 altogether from the First Amendment.

 13 The first thing I'll point out, Your Honor, is that 

 14 the defendants' actions in this case were not an exercise of 

 15 religion because their beliefs are political and philosophical 

 16 and not religious in nature. In this case, the defendants 

 17 have completely failed to articulate a scope of beliefs, and 

 18 thus they have not shown that their beliefs are equivalent to 

 19 some type of religious system of beliefs. 

 20 Also, the defendants are not credible in general, 

 21 but they are also not credible as to their beliefs, and I want 

 22 to point out that the Court can gauge the defendants' 

 23 credibility specifically about whether they have a 

 24 sincerely-held religious belief based on the overall 

 25 credibility of the defendants, including testimony that is not 

164

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 164 of 198
 1 relevant to their religious beliefs.

 2 Your Honor, furthermore, nothing in the defendants' 

 3 stated beliefs is about the specific actions in this case. 

 4 Their stated beliefs both in, well, in their testimonies, is 

 5 more akin to, let's say, the Golden Rule. Here the 

 6 defendants' attempt to frame the Golden Rule into a belief 

 7 structure as the -- and try to characterize that belief 

 8 structure as the most effective way possible to achieve their 

 9 belief shows that those beliefs are political or philosophical 

 10 in nature because they are concerned about implementing policy 

 11 for humanitarian aid on the Cabeza Prieta National Wildlife 

 12 Refuge.

 13 There was no testimony about water jugs and their 

 14 effectiveness versus methods that point to religious thinking. 

 15 For example, ultimate ideas, metaphysical beliefs, or moral or 

 16 ethical systems. The defendants are simply -- the defendants 

 17 are simply trying to skirt criminal liability by draping 

 18 religious garb over their political or philosophical activity, 

 19 and that is language that comes from United States vs. 

 20 Christie.

 21 For all of these reasons, Your Honor, the defendants 

 22 have not demonstrated the existence of a sincerely-held 

 23 belief, and they therefore have not even made a prima facie 

 24 showing for RFRA, let alone proven RFRA in order to require an 

 25 acquittal.

165

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 165 of 198
 1 Your Honor, in order to carry their burden of making 

 2 a prima facie showing, they must also show that Cabeza Prieta 

 3 regulations do not impose a substantial, or sorry, do impose a 

 4 substantial burden on their exercise of religion. Your Honor, 

 5 the Government regulating access to and control of its own 

 6 land can never be a substantial burden on these defendants. 

 7 Also, similar to the analysis for necessity, the 

 8 defendants must have been put in a position where there was no 

 9 other -- no other alternative to practicing their religion 

 10 other than to break the law. The regulations at Cabeza Prieta 

 11 do not put the defendants to a choice or impose a 

 12 significantly great restriction on their exercise of religion. 

 13 Finally, there were no stated beliefs about or 

 14 regarding driving in a wilderness area or the defendants' 

 15 failure to obtain a permit. Helping people in need does not 

 16 absolutely require the defendants, Defendant Hoffman, to for 

 17 example drive her truck in a wilderness area, but as it 

 18 relates to all the defendants, helping people in need does not 

 19 require that they forgo their legal obligation to obtain a 

 20 permit prior to entering the refuge. 

 21 Your Honor, the defendants have also failed to make 

 22 a prima facie showing of this element, and therefore, they 

 23 should not be entitled to relief from this defense. If the 

 24 Court believes the defendants have met their burden of making 

 25 a prima facie showing that they have a sincerely-held 

166

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 166 of 198
 1 religious belief that was substantially burdened by the 

 2 Government, only then does the burden shift to the Government 

 3 to show that it has a compelling interest to enforce the 

 4 regulations as to these particular defendants.

 5 First, the wilderness designation requires 

 6 restrictive management, and the defendants' actions in this 

 7 case impinge on the wilderness experience. The Court heard 

 8 from Juliette Fernandez that driving in a wilderness area even 

 9 one time brings the modern world, for example, sight, smell, 

 10 noise, et cetera, of those vehicles into Cabeza Prieta and 

 11 ruins the experience for the visitors. 

 12 Under federal law, Fish and Wildlife is tasked, 

 13 specifically tasked, with preserving that experience for the 

 14 enjoyment of all visitors. But Fish and Wildlife is also 

 15 tasked, and again, under federal law, with preserving the 

 16 habitats of so many species of animals that call Cabeza Prieta 

 17 their home. 

 18 Illegal activity can drive wildlife away. I think 

 19 that was very clear in Ms. Fernandez's testimony. It can 

 20 fragment animals' habitats. The point is that there are so 

 21 many considerations that Fish and Wildlife must take into 

 22 account that the defendants simply do not, and they don't have 

 23 the expertise to take those into account.

 24 Second, Your Honor, during this trial, the Court has 

 25 heard evidence about signage regarding motor vehicle use in 

167

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 167 of 198
 1 the wilderness area. And as the Court heard from 

 2 Ms. Fernandez, that signage reduces the need for rescue, which 

 3 is in line with Fish and Wildlife's mission, because rescue 

 4 operations bring the modern world, for example, law 

 5 enforcement vehicles, ATVs, helicopters, et cetera, that ruin 

 6 the experience of other visitors and can have a significantly 

 7 detrimental effect on wildlife migration patterns, as well as 

 8 the fragmentation of their habitats. 

 9 Finally, supplies like the supplies the defendants 

 10 left and abandoned in this case can also alter wildlife 

 11 patterns and, again, bring the modern world into Cabeza 

 12 Prieta.

 13 Your Honor, to the extent that the defendants' 

 14 actions were motivated by a desire to help illegal aliens 

 15 avoid apprehension and certain deportation, the Government 

 16 always has a compelling interest in enforcing the border and 

 17 controlling immigration. Border Patrol's presence on Cabeza 

 18 Prieta to discourage illegal activity does not mean the 

 19 Government could or should allow the defendants' presence on 

 20 Cabeza Prieta to encourage illegal activity. 

 21 However, with that said, the Government -- the 

 22 United States Government has brought the modern world into the 

 23 wilderness area in an effort to reduce the illegal alien 

 24 deaths on Cabeza Prieta. The Government has placed dozens of 

 25 emergency rescue beacons throughout the refuge so that any 

168

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 168 of 198
 1 illegal alien in distress or any person, frankly, for that 

 2 matter in distress can call for help. 

 3 But the defendants' actions of abandoning these 

 4 supplies encourage illegal activity on Cabeza Prieta, which 

 5 equals more roads, more foot paths, more interference with 

 6 wildlife through human interaction and garbage that is tossed 

 7 away through that illegal activity, and more safety concerns 

 8 throughout the refuge. 

 9 With regard to the emergency beacons, Sid Slone, the 

 10 refuge manager, testified that these beacons are the preferred 

 11 way to save lives in the desert. That was undisputed during 

 12 this trial, Your Honor. The testimony during trial 

 13 specifically pointed out that the rescue beacons are 

 14 stationary, meaning they never move, they're always there, and 

 15 they are always -- and the Court also heard testimony from 

 16 Officer Krukoski that, in the dark, those -- the lights, the 

 17 blue lights on top of the emergency beacons, can be seen for 

 18 up to five to six miles away. 

 19 There was no evidence presented that any illegal 

 20 alien, or any person, for that matter, who was in need or 

 21 distress can find or locate a stash of water or food in the 

 22 complete darkness of Cabeza Prieta. Your Honor, those 

 23 emergency beacons will always be there if an illegal alien or 

 24 any other person needs help, but there is no guarantee that a 

 25 water stash will be there. The defendants, however, want this 

169

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 169 of 198
 1 Court to adopt their inexperienced belief that putting 

 2 nonstationary water jugs in the desert is the best way to 

 3 reduce illegal alien deaths.

 4 In cases like this, Your Honor, the United States 

 5 Government cannot enforce the regulations on Cabeza Prieta any 

 6 less strictly without falling short of meeting its compelling 

 7 interest. As noted, one vehicle impairs the wilderness 

 8 experience of all visitors but can have a, again, seriously 

 9 detrimental effect on wildlife in the area that call the 

 10 refuge their home.

 11 Permits are required to enter the refuge not only 

 12 for liability concerns, but to raise awareness for those 

 13 different issues, specifically about the wilderness area, the 

 14 dangers of going onto the Barry Goldwater bombing range, as 

 15 well as any other potential harms of being on the refuge. The 

 16 purpose of the supplies that the defendants left in this case 

 17 and that they abandoned on Cabeza Prieta have already been met 

 18 through various water stations located just off wilderness 

 19 areas, as well as the rescue beacons. 

 20 In sum, Your Honor, the defendants cannot make a 

 21 prima facie showing that they hold a sincerely-held religious 

 22 belief, religious or spiritual belief, that was substantially 

 23 burdened by the United States Government. Even if they could 

 24 make that showing, the United States Government has a 

 25 compelling interest that would override any of those charges, 

170

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 170 of 198
 1 and therefore, the Government -- sorry -- the Court should 

 2 still find the defendants guilty on all charges.

 3 Your Honor, now I will move on to necessity, and 

 4 it's something that maybe was not raised specifically by name 

 5 during the trial, but I think it was definitely presented 

 6 through the defendants' testimony.

 7 Here the defendants cannot prove the first element 

 8 of necessity, which requires the defendants to show that they 

 9 were faced with a choice of two evils and that they chose the 

 10 lesser evil. The defense of necessity has traditionally 

 11 arisen in situations where someone finds themselves in an 

 12 immediate -- in a situation where they have to make an 

 13 immediate decision. 

 14 So for example, a prisoner breaking out of a prison 

 15 cell in order to escape a fire, for example. Here the 

 16 defendants did not find themselves in some immediate 

 17 situation. They planned what they were going to do, when they 

 18 were going to do it, how they were going to do it, where they 

 19 were going to do it, and then they deliberately placed 

 20 themselves in that situation. They did not act out of 

 21 necessity. They acted out choice, Your Honor, and as such 

 22 they cannot meet this element. 

 23 The defendants also have to show that they acted to 

 24 prevent an immediate harm. The defendants testified -- 

 25 several of the defendants testified that they had no knowledge 

171

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 171 of 198
 1 of an illegal -- that an illegal alien was in need of supplies 

 2 at the particular point in time where the defendants broke the 

 3 law. Thus there was no immediate harm, Your Honor. 

 4 They also testified -- there was no testimony that 

 5 they knew when an illegal alien would come up on this stash of 

 6 supplies they left. They couldn't even testify if an illegal 

 7 alien would come upon the stash of supplies that they left. 

 8 Again, there was no immediate harm of trying to 

 9 prevent -- there was no immediate harm they were trying to 

 10 prevent because any harm that they were trying to prevent in 

 11 this case was purely a future harm, which is not -- which is 

 12 not how the elements make a prima facie showing of necessity.

 13 The defendants must also show there were no legal 

 14 alternatives to their illegal actions. The Court heard 

 15 testimony about how the defendants could have chosen to try 

 16 and obtain a special-use permit, but none of them chose to 

 17 even do that. None of to them spoke to any Fish and Wildlife 

 18 officers or management at the Cabeza Prieta National Wildlife 

 19 Refuge about their abilities to try and go about performing 

 20 their actions in a legal way.

 21 In addition, Your Honor, if they had some 

 22 information on an immediate harm, they could have chosen to 

 23 call 911. Despite the defendants' knowing there were several 

 24 legal alternatives to their illegal actions, they deliberately 

 25 chose to break the law because, again, they believed their 

172

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 172 of 198
 1 political beliefs overrode the law. As such they cannot meet 

 2 this element or any of those elements that I've discussed 

 3 regarding their prima facie showing of necessity, and 

 4 therefore, they have not met their burden of a -- of making a 

 5 prima facie showing, as I stated.

 6 The last defense I will argue against, Your Honor, 

 7 is entrapment by estoppel, and I suspect this might be another 

 8 crux of the defendants' closing argument, but again, it's a 

 9 defense to which these defendants have failed to make a prima 

 10 facie showing. 

 11 The first element is that the defense must show that 

 12 someone with authority to bind the U.S. Government made the 

 13 statement. Simply put, Your Honor, the defense -- simply put, 

 14 Your Honor, the defense did not present any evidence 

 15 whatsoever that any AUSA who had authority to bind any 

 16 Government agency made any statement to the defendants. 

 17 Every single one of the defendants admitted to never 

 18 hearing anything directly from the United States Attorney's 

 19 Office, the Department of Justice, the Department of the 

 20 Interior, or Fish and Wildlife Service. But even if they had 

 21 heard one of -- someone from one of those agencies say that 

 22 what they were doing was permissible, there was still no 

 23 evidence that that person had the authority to bind any of 

 24 those agencies, and thus they have not, again, failed -- they 

 25 have failed to make a prima facie showing for the first 

173

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 173 of 198
 1 element.

 2 Another element that is problematic for them, Your 

 3 Honor, in terms of their entrapment defense, entrapment by 

 4 estoppel defense, excuse me, is that an AUSA or any Government 

 5 official affirmatively told them that their proscribed conduct 

 6 was permissible. 

 7 The Ninth Circuit has consistently held in as 

 8 recently as United States v. Lynch, which was -- the opinion 

 9 came out in September of 2018, that this element must be 

 10 proven by a clear and unambiguous statement to the defendants.

 11 Your Honor, the Government would submit that, in 

 12 terms of the question that was raised by the Court about how 

 13 does the Court evaluate beliefs in terms of deceptive 

 14 information, that I would respond, the Government would 

 15 respond, Your Honor, that that is precisely why this element 

 16 exists. 

 17 That is precisely why the defendants must show that 

 18 there was an affirmative statement directly made to them, so 

 19 that we don't come Court, and we're not faced with a situation 

 20 where we said, well, he said or she said or we're talking 

 21 about gossip that was told to someone about how they could 

 22 violate federal law or had permission to break the law.

 23 In other words, Your Honor, the defendants must show 

 24 that the Government actively told them they could violate 

 25 federal law or that their conduct was legal. Here the only 

174

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 174 of 198
 1 statements offered by the defendants are that some AUSA said 

 2 he had no interest in prosecuting these types of cases. 

 3 First, assuming -- let me back up. Assuming that 

 4 that is true, Your Honor, it is problematic for defendants for 

 5 several reasons, at least two. First, the AUSA stating he had 

 6 no interest in prosecuting these cases is not a clear and 

 7 unambiguous statement that they have permission to break the 

 8 law or that their conduct was legal. 

 9 Presumably, even if a prosecutor has no interest in 

 10 prosecuting a specific type of case, that case can still be 

 11 prosecuted because there is no legal requirement that a 

 12 prosecutor have an interest in prosecuting cases in order for 

 13 them to do their job.

 14 Second, Your Honor, no reasonable person could 

 15 believe that the AUSA saying he has no interest in prosecuting 

 16 these types of cases means that he was telling the defendants 

 17 that their actions were legal. Quite the opposite, Your 

 18 Honor. If the defendants admit that their belief was that the 

 19 United States Attorney's office had no interest in prosecuting 

 20 these cases, they logically and necessarily have to admit that 

 21 it was possible for them to be prosecuted. It was a matter of 

 22 whether the AUSA had an interest in prosecuting, and I think 

 23 those are two separate things that the Court should take 

 24 notice of that the defense frankly failed to articulate during 

 25 testimony. 

175

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 175 of 198
 1 What is clear and unambiguous in this case, Your 

 2 Honor, is that no one, not a single person from the 

 3 Government, told any of these defendants, or any member of No 

 4 More Deaths for that matter, that they had permission to go on 

 5 to the National -- Cabeza Prieta National Wildlife Refuge and 

 6 break the law, and no one from the United States Government 

 7 told these defendants or any member of No More Deaths that 

 8 their activities out on Cabeza Prieta was legal in any way. 

 9 And as such, Your Honor, they have failed to meet this element 

 10 as well in terms of making a prima facie showing. 

 11 Finally, Your Honor, assuming they can meet the 

 12 other elements of entrapment by estoppel, their reliance was 

 13 completely unreasonable. The Ninth Circuit has held, again in 

 14 Lynch, that the determination of reasonable reliance is a 

 15 relatively common sense inquiry. Reasonable reliance occurs 

 16 if a person who sincerely desires to obey the law would have 

 17 accepted the information as true and would not have been put 

 18 on notice to make further inquiries. 

 19 The first part, Your Honor, about a person having a 

 20 desire to break the law, there is no question whatsoever that 

 21 any of these defendants had any desire to obey the law 

 22 whatsoever. They went out there and knew that they were 

 23 breaking federal regulations because they thought that they 

 24 were only going to get cited, or in other words, a slap on the 

 25 wrist. 

176

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 176 of 198
 1 On at least two of those -- two of those defendants 

 2 testified that, had they known about the penalties ahead of 

 3 time, that they would not have gone out there, and I would say 

 4 that that not only goes to the sincerity of their religious 

 5 beliefs, but it also goes to whether they reasonably relied on 

 6 the advice of anybody in No More Deaths.

 7 Frank, Your Honor, I know there was a lot of 

 8 discussion as to the Court's final point of how -- how to 

 9 evaluate their beliefs in terms of ignorance about whether or 

 10 not they could have been prosecuted, criminally prosecuted, 

 11 and face the penalties in this case. Your Honor, the United 

 12 States would respond by saying that that is dangerously close 

 13 to an ignorance of the law defense, which is not a defense 

 14 under any case law or statute that I am aware of. Just 

 15 because they didn't know that they could be criminally 

 16 prosecuted does not mean that they should be able to skirt 

 17 criminal liability because of their illegal actions.

 18 In terms of the second part of that, Your Honor, if 

 19 we really stretch the truth and assume that they had a desire 

 20 to obey the law in this case, they have reason to make further 

 21 inquiries in this case. They knew that people had been 

 22 charged in the past, and there was a vague statement about not 

 23 having an interest in prosecuting. And to any reasonable 

 24 person, Your Honor, that would have required them to at least 

 25 make an inquiry about whether it was possible to still be 

177

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 177 of 198
 1 prosecuted. Either way you cut it, Your Honor, the defendants 

 2 have failed to meet all of the elements of entrapment by 

 3 estoppel, and therefore, they have not met their burden 

 4 entitling them to an acquittal.

 5 Your Honor, these defendants made deliberate choices 

 6 to break federal law because of their shared personal belief 

 7 and disagreement about how the Government does its business. 

 8 The fact of the matter is the defendants are guilty of the 

 9 charged offenses, they did not act out of necessity, the 

 10 United States Government made them zero promises, and yet they 

 11 ask this Court to accept that religion motivated their illegal 

 12 behavior. 

 13 The evidence proved the defendants are guilty beyond 

 14 a reasonable doubt, and thus the United States asks the Court 

 15 to come to the only logical conclusion based on the evidence 

 16 here at trial that the defendants are guilty.

 17 MR. FIDEL: Your Honor, in the summer of 2017, there 

 18 was a trail of death in the Cabeza Prieta Wildlife Refuge. A 

 19 trail of death. Bodies, skeletons, human remains, and bones, 

 20 all through the desert, specifically here, up the western 

 21 phase of the Growler Mountains on the Cabeza Prieta Wildlife 

 22 Refuge. Each of these dots is a set of human remains that was 

 23 found on the refuge, on the western slope of those mountains. 

 24 And these women went out in the heat of summer to 

 25 place life-saving aid in the middle of this trail. And we 

178

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 178 of 198
 1 heard the agent who put an arrow right in the middle of it. 

 2 That's where these women were doing their work. And this map 

 3 is shocking. We heard that this is just remains. This is not 

 4 the deaths. We heard testimony that it's estimated the actual 

 5 deaths could be 10 times as much. These are just the ones 

 6 that are found. 

 7 So that's -- that's what this case is about. It's 

 8 about what do you do when you know that people are dying in 

 9 droves, agonizing, suffering death of hyperthermia and 

 10 exposure. And you know that dehydration is a factor, because 

 11 that's how we cool off as humans. You sweat, and that helps 

 12 you cool off, and when you don't have water, you can't sweat, 

 13 and when you can't sweat, you can't cool off, and then you die 

 14 of hyperthermia. 

 15 And we heard from Dr. Hess, the Medical Examiner, 

 16 that access to aid is key in somebody who's suffering from 

 17 hyperthermia. Access to aid is key because hyperthermia makes 

 18 you act erratically. It affects your thinking, your 

 19 decisionmaking. It makes you nauseous, dizzy, disoriented. 

 20 It can make you hallucinate. They find bodies of people, and 

 21 when they examine them, they find that they've been eating 

 22 dirt before they die. 

 23 So it makes it difficult to walk two miles up a 

 24 steep hill in a pass in a mountain range in the Growler 

 25 Mountains to a beacon that could be flashing in the dead of 

179

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 179 of 198
 1 night, or maybe in the bright sun of the day you can't see it, 

 2 as we heard our clients' testimony, or maybe you're going to 

 3 walk five miles, 10 miles, 12 miles across the flat Growler 

 4 Valley under the sun in August. 

 5 The beacons are a gesture, and it's a nice gesture, 

 6 but they're not enough, because access is key. Maybe they do 

 7 work great, and I hope they do, if somebody can get to them. 

 8 But how do you get to them when you're dying of hyperthermia? 

 9 The problem is we know they don't work, and we know 

 10 they don't work because the remains are tracked. Here's 

 11 another exhibit. Look at this. Cabeza Prieta Wildlife 

 12 Refuge. These are recovered human remains, RHRs, based on 

 13 land jurisdiction, tabulated year by year and region by 

 14 region. 

 15 Cabeza Prieta Wildlife Refuge. 2012, four remains. 

 16 '13, three remains. 2014, eight remains. 2015, 19. 2016, 

 17 19. 2017, 32. There are beacons there, but the deaths keep 

 18 climbing. Access is key. You've gotta get to the beacon for 

 19 it to save your life. 

 20 Now, it is an unquestionable truth that people in 

 21 the desert need water, and we heard from the agents or the 

 22 officers that there is one tank of water along this trail of 

 23 death from the Mexico border down here, between there and up 

 24 at the top of the Cabeza Prieta Wildlife Refuge. When you get 

 25 onto the bombing range, there's another one. And it's not 

180

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 180 of 198
 1 potable water. 

 2 The only other one between the Mexican border and 

 3 the northern stretch of the Cabeza Prieta Wildlife Refuge is 

 4 at Charlie Bell Well. And what did Officer West say? I don't 

 5 know if those tanks are evaluated to see how clean the water 

 6 is. Would you drink out of it? That's it. That's the only 

 7 water there is between Mexico and the end of the Cabeza Prieta 

 8 Range. 

 9 There's another 12-15 miles across the desert, but 

 10 we don't know, is that potable? Remember, we saw that on the 

 11 map too, out in the middle of the Growler Valley. We heard 

 12 from a witness that it is devastating to the human body to 

 13 drink dirty water. So what is there along this trail of death 

 14 for people who are suffering? What other water is there? 

 15 So what do you do in the face of this crisis? These 

 16 are public records. The Medical Examiner published these 

 17 maps. This is the Medical Examiner's web site. They collect 

 18 this information. They put the dots on the maps that show 

 19 where the people are dying. That's how No More Deaths and 

 20 their volunteers learn where the deaths are happening and 

 21 decide where we're going to put this water. 

 22 So what do you do when you learn about that? We 

 23 heard from the regional manager today that Fish and Wildlife, 

 24 if they had their druthers, doesn't want to do search and 

 25 rescue. Well, it's essential. There are people dying in 

181

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 181 of 198
 1 droves on the Fish and Wildlife Refuge at Cabeza Prieta. 

 2 Whether they want to do it or not, it's a situation 

 3 that calls for action, and these women took action. They 

 4 traveled across the country, from Minnesota, from Seattle, 

 5 from Virginia, to come and volunteer with No More Deaths. 

 6 And the Court asked how you evaluate the beliefs of 

 7 these women, their religious beliefs. Well, you look at the 

 8 things they did, and you look at the organization that they 

 9 chose to join and what Reverend Fife had to say about that 

 10 organization and its principles and it's -- and what it was 

 11 founded to do and the way volunteers are trained. 

 12 These women knew what they were compelled to do. 

 13 They felt a spiritual calling that was informed by their own 

 14 beliefs, the way they were raised by their parents. And it's 

 15 different for each one, but each of them spoke to the sanctity 

 16 of life and the centrality of that principle to their beliefs 

 17 and the decisions they make, and that's why they came out 

 18 here. 

 19 And Reverend Fife talked about the spiritual calling 

 20 to act and the role it plays with this organization, but I 

 21 think it's telling -- we'll get back to Reverend Fife. I 

 22 think it's telling that these women came to the desert to help 

 23 people. They didn't ask who. They didn't ask where these 

 24 people came from. They didn't ask how they got here to the 

 25 Cabeza Prieta. They did not seek to label them as illegal 

182

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 182 of 198
 1 aliens or something else. They're just people who are 

 2 suffering and dying and leaving their bones in the dirt, in 

 3 the sun, on Cabeza Prieta.

 4 So Reverend Fife said that this act of helping 

 5 strangers, people who are not known to you, people who come in 

 6 to this country and suffer in the desert, people you don't 

 7 know, it is a fundamentally religious act, and that cuts 

 8 across all traditions of faith, whether it's the Torah that 

 9 tells us to love our neighbors, but also to love the strangers 

 10 among us, or whether it's the New Testament, which Reverend 

 11 Fife described as giving a profound mandate. 

 12 And he quoted the passage, and I'll try to do it 

 13 justice, but it's, "For I was hungry and you fed me; for I was 

 14 thirsty, and you gave me something to drink; for I was a 

 15 stranger, and you took me in. As you do it to others, you do 

 16 it to me." That's what Reverend Fife told us. 

 17 He said any of the traditions of wisdom, all of 

 18 them, we are all commanded to love without exception. That's 

 19 the spiritual obligation that formed this group No More 

 20 Deaths, and it drew these women to it to do this act of 

 21 helping people dying in the desert by leaving water. 

 22 And we heard each of these women testify about their 

 23 beliefs, and that's how -- that's how the Court evaluates it. 

 24 They testified about what compelled them to come out here, 

 25 their core belief, sanctity of human life. They described the 

183

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 183 of 198
 1 spirituality of the work, of the connection they felt to No 

 2 More Deaths and the mission of No More Deaths, the ministry of 

 3 No More Deaths, and to the work they did that day, whether it 

 4 was the meditative quality of preparing to go on a water drop 

 5 for those who had done it before, preparing your gear, getting 

 6 the truck ready, getting the things together that you need, 

 7 preparing yourself for a long, physical, uncomfortable, hot, 

 8 spiritually difficult day where you might find a dead body 

 9 next to your truck when you get back or bones in the desert or 

 10 shoes that somebody left behind. 

 11 And you can close your eyes and you can picture the 

 12 strength of these beliefs as you wake up before the sun, and 

 13 you get the truck ready, and it's early, and you're in Ajo, 

 14 and it's hot. And the game camera tells us that by 11:30, 

 15 it's 97 degrees, and half-hour later it's 100, and then by 

 16 3:00 in the afternoon it's 110, which is literally a lethal 

 17 temperature. 

 18 Dr. Hess talks about that modeling study that at 104 

 19 degrees there is a 50 percent chance somebody's going to die 

 20 out there on the refuge. At 110 it's as high as 80 percent. 

 21 70 to 80 percent chance there's going to be another red dot on 

 22 this map when it's 110. 

 23 So they prepare to go out and carry this water, 

 24 eight pounds per gallon, five or six of them. Your pack's 

 25 full, you've got one in each hand, and you're going to go trek 

184

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 184 of 198
 1 through the desert, over the rocks, between the chollas. 

 2 There is no shade and you can't sit down because there's no 

 3 shade to sit down in, and if you do find some, the rocks will 

 4 burn your backside. 

 5 That's the strength of their spiritual beliefs that 

 6 compelled them to do this work. And as you go, you find these 

 7 artifacts, signs of people who have crossed through there, and 

 8 you take a moment to think about their journey. Then you get 

 9 to the place where you're going to leave the water, and 

 10 there's a moment of silence. You put a rosary in the tree, 

 11 write messages on the bottles. Maybe it's a crucifix. Maybe 

 12 you draw a rosary. Maybe you write, "Go with God," or 

 13 something you learned from your father that will have meaning 

 14 to other people who grew up in Mexico. 

 15 And when you go back, you try and be a good steward, 

 16 and you pick up trash you find along the way. You carry your 

 17 full pack in of water, and you carry a full pack out with 

 18 things you find. And when you get back to town, you reflect 

 19 together on the experience that you've been through. That is 

 20 a profoundly spiritual experience, and it is absolutely a 

 21 sincere and deeply spiritual reflection of their religious 

 22 beliefs.

 23 So -- so that brings us to the question, and the 

 24 question the Court asked is that, is this a crime? And what 

 25 about RFRA? And we agree with the Government, I guess, on one 

185

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 185 of 198
 1 thing, which is that RFRA is both a positive and negative 

 2 defense, because on the one hand you have the right not to 

 3 have your religious beliefs infringed upon, and on the other 

 4 hand, you can assert your religious beliefs as a defense. So 

 5 it's both. 

 6 And the burden is initially on the defense. It's on 

 7 the defendants. The defendants have to show at the outset 

 8 that there was a substantial burden on a sincerely-held 

 9 religious belief. Well, we talked about their religious 

 10 belief and how sincere it was, and the fact that this may 

 11 overlap with some political ideologies, it has no bearing on 

 12 the analysis. That's clear from the Hobby Lobby case. Just 

 13 because the religious beliefs of the Hobby Lobby owners 

 14 overlap with a politically conservative position about 

 15 contraception did not preclude them from asserting a religious 

 16 freedom belief, religious freedom defense. The two are not 

 17 mutually exclusive. 

 18 And in this case, the political beliefs are not part 

 19 of -- are not part of what motivated these women. If you have 

 20 a political belief, you go and you picket the Governor's 

 21 office, or you send a letter, or you go work for a campaign, 

 22 or you vote. You don't fly across the country to Ajo, in the 

 23 middle of summer, to carry a 40-pound pack of water out to the 

 24 desert when it's 110 degrees outside. And is it a substantial 

 25 burden? You bet. Look at this trail of death. That's the 

186

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 186 of 198
 1 substantial burden. They couldn't take no action. They were 

 2 compelled to act.

 3 Once that burden is satisfied, the Government has an 

 4 enormous burden. They have to show that there is a compelling 

 5 interest, and it's not a compelling interest in border 

 6 enforcement. That's not what the Cabeza Prieta Refuge is 

 7 about. The Cabeza Prieta Refuge is about protecting the 

 8 pronghorns and preserving wilderness and the bighorn sheep and 

 9 the other flora and fauna that live there. 

 10 And they have to show a compelling interest, and 

 11 they have to show that the action is the least restrictive 

 12 possible. And the analysis is not -- it's not whether all 

 13 border crossers harm the environment. It's not whether all 

 14 humanitarian aid work in Arizona's west desert, or even all 

 15 humanitarian aid work in Cabeza Prieta, challenges a -- 

 16 presents a problem to the compelling Government interest. 

 17 It's whether these four women's actions did. That's 

 18 the analysis. In other words, can the Government provide an 

 19 exception to these four women on that day for what they were 

 20 doing and still protect the interest of Fish and Wildlife on 

 21 the refuge? And what did Ms. Fernandez talk about today with 

 22 regard to a water jug, microdegradations of the environment? 

 23 That's -- that's what these women are up against.

 24 So the next question that I think is important to 

 25 ask is, can we convict these women when the Government has 

187

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 187 of 198
 1 told them by words and by conduct that it is not interested in 

 2 prosecuting cases like this? Because since at least April, No 

 3 More Deaths as an organization had been telling Fish and 

 4 Wildlife and Cabeza Prieta specifically what they were doing 

 5 and wanted to do on the refuge. They wanted to drive the 

 6 roads. They wanted to leave water. There was no secrecy. 

 7 And in July 2017, there was a meeting set up. July 

 8 6th, we've heard about that, for further discussions. 

 9 Can we click over to this, the Elmo? Thank you. 

 10 Now, we know what was said because we have Officer 

 11 Aitken's report about it. And the Department of Justice was 

 12 at that meeting. We know the Department of Justice was at 

 13 that meeting because the Department of Justice's statements -- 

 14 how do I make that -- statements are right there on the memo. 

 15 Officer Aitken was there to take notes that were 

 16 accurate and write this briefing report. I forget the exact 

 17 thing he called it, but it's for his supervisor. It says 

 18 right on there the purpose is to advise the R2 division of the 

 19 refuge law enforcement chief. 

 20 That's who it's for, to advise his chain of command 

 21 about what happened at this meeting and what was told at this 

 22 meeting, not just in No More Deaths's view, not just the way 

 23 these women understood it and heard it from people who were at 

 24 the meeting, but in Officer Aitken's report, that here we are. 

 25 "Tickets that are issued are dismissed/not prosecuted if the 

188

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 188 of 198
 1 person shows up to court. DOJ has them commit to not violate 

 2 again." 

 3 That's what these women heard. The Government is 

 4 not interested in prosecuting these cases. And that's a 

 5 reasonable thing for them to understand to have been said at 

 6 the meeting, because Mr. Aitken heard it too. Not only did he 

 7 write it down in that section of his report, but at the end, 

 8 on page two. 

 9 His impression, his understanding of what was said, 

 10 DOJ does not appear to want to prosecute violations regarding 

 11 this group. Was it reasonable for these women to understand 

 12 exactly that? Absolutely, because Officer Aitken understood 

 13 that too, and he put it in his report for his supervisor to go 

 14 up the chain. 

 15 But it's not just -- it's not just that meeting. 

 16 It's not just what was told to them verbally.

 17 Can we go back to the computer? Thank you. 

 18 It's also the language of the permit, because the 

 19 language of the permit says, some things, if you do them on 

 20 the refuge that you are not permitted to do, like violate 

 21 here, paragraph 10, if you violate the air space over the 

 22 refuge, you're subject to criminal charges, civil penalties, 

 23 and other administrative actions. That's what they tell the 

 24 public. That's in the Government's writings. So yes, there 

 25 is a Government writing. 

189

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 189 of 198
 1 And then, if we go down, anyone who violates the 

 2 parameters for access to this permit, paragraph 11, subject to 

 3 judicial penalties to include fines, civil action, and/or 

 4 debarment. It doesn't say criminal.

 5 THE COURT: Does it say anywhere in there that they 

 6 can speak for the Court?

 7 MR. FIDEL: It does not. It does not. But this is 

 8 what the Government represents to the public and what these 

 9 women understood was the language of this permit. And so it 

 10 restricts the Government's ability to prosecute these people 

 11 for a crime when they say you could --

 12 THE COURT: Perhaps if you sign this.

 13 MR. FIDEL: Perhaps if you do.

 14 THE COURT: Certainly not if you don't.

 15 MR. FIDEL: But these women signed it knowing what 

 16 was in the document.

 17 THE COURT: No, they didn't sign it. 

 18 MR. FIDEL: No, these women, excuse me, did not sign 

 19 it because they knew what was in the document, and they did 

 20 not want to sign paragraph 13.

 21 THE COURT: No, no. They didn't want to sign at 

 22 all.

 23 MR. FIDEL: No. They testified that they couldn't 

 24 sign this document because they didn't want to initial 

 25 paragraph 13.

190

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 190 of 198
 1 THE COURT: But we both agree they don't -- nobody 

 2 speaks for the Court.

 3 MR. FIDEL: Agreed. Without question.

 4 THE COURT: All right.

 5 MR. FIDEL: But what the Government told these women 

 6 and told the public is that the abandonment of personal 

 7 property and possessions, this new paragraph 13, which was 

 8 added in July 2017, that I may be subject to judicial 

 9 penalties, to include civil action and/or debarment, for 

 10 failure to remove all items. That's what they were told, and 

 11 so that's what they were put on notice of. 

 12 They had -- these women received information from 

 13 two places, and ultimately they received it from others in No 

 14 More Deaths, but the information came from others in No More 

 15 Deaths who received it from the Government, at the meeting and 

 16 in the permit, which says civil penalties and we are not 

 17 interest in prosecuting these cases. That's what these women 

 18 understood when they went on the refuge. They expected 

 19 perhaps we will get a ticket, and that is an acceptable risk 

 20 to us for this work that we feel obligated to do because of 

 21 our beliefs. 

 22 They did not think that it was a criminal risk that 

 23 they were taking, and so if there is blame for that, it is not 

 24 on these women. It is on those who told them.

 25 THE COURT: It's on who?

191

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 191 of 198
 1 MR. FIDEL: It's on those who told them what they 

 2 could expect.

 3 THE COURT: Who told them? 

 4 MR. FIDEL: Well, they received information from two 

 5 sources, from the Government and from others at No More Deaths 

 6 who heard it from the Government.

 7 THE COURT: Who?

 8 MR. FIDEL: We did not hear testimony about that. 

 9 So these women went out into this trail of deaths to 

 10 leave water, which is the least they could do to be effective, 

 11 the least they could do to leave clean, drinkable, life-saving 

 12 water for people crossing through the desert, to give them 

 13 strength to carry on a journey, perhaps to a beacon to be 

 14 rescued so that they could make it up a hill and avoid being 

 15 entered on a column in Dr. Hess' list as a skeletal remain or 

 16 a mummified remain or a fully-fleshed remain. Those are the 

 17 categories. 

 18 Do they harm the refuge? We heard that the 

 19 wilderness is meant to be an untrammeled area, and perhaps 

 20 some of them are, but not Cabeza Prieta. This is a vast, 

 21 vast, 800,000, I think, square-kilometer area that is a former 

 22 bombing range. It's littered with unexploded bombs, missiles, 

 23 artillery shells, such that you have to sign a waiver of 

 24 liability to set foot in there. And it's full of cisterns and 

 25 tanks and catchments dug for sheep and pronghorns, up to 

192

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 192 of 198
 1 11,000-gallon tanks that can be reloaded by trucks, tanker 

 2 trucks, or helicopters, but no water for people. 

 3 They went into that zone, they went into that 

 4 trail, they went into that sea of red dots, and they left jugs 

 5 of water, and these women should not be labeled as criminals 

 6 because of that action. They do not bear that responsibility. 

 7 They were acting out of their religious beliefs based on the 

 8 information they had, and they should not be convicted as 

 9 criminals. 

 10 Thank you.

 11 THE COURT: Thank you. 

 12 Does the Government have anything?

 13 MR. WALTERS: Very briefly, Your Honor. 

 14 Your Honor, in terms of the entrapment by estoppel 

 15 defense, I think it's interesting to point out that an AUSA 

 16 said, essentially, I, AUSA, have no interest in prosecuting 

 17 this case. The reason there is a requirement that someone 

 18 with authority to actually make that decision and to bind 

 19 specific government agencies into that decision is because, 

 20 just because one prosecutor doesn't have an interest in 

 21 prosecuting cases doesn't mean that another prosecutor in that 

 22 same office could -- that doesn't mean they couldn't prosecute 

 23 that case. It's essentially -- that's exactly why someone 

 24 with authority has to do it, so that it specifically covers an 

 25 entire agency.

193

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 193 of 198
 1 A couple things that I just wanted to clarify, Your 

 2 Honor. I think I mentioned dozens of beacons out on the 

 3 Cabeza Prieta Refuge. I just wanted to clarify that 

 4 Ms. Fernandez testified to there being 10 beacons on the 

 5 refuge.

 6 And Your Honor, I want to talk about this trail of 

 7 death that the defense has kept raising in this case. The 

 8 United States Government put up emergency rescue beacons to 

 9 specifically save the lives of anybody who chose to push a 

 10 button or make a phone call, but what these defendants do by 

 11 putting gallon jugs of water and beans is you give illegal 

 12 aliens a false hope that, if they drink this gallon jug of 

 13 water, if they eat this can of beans, that they will survive. 

 14 And even according to their chart, leaving water out 

 15 at Charlie Bell Well, if you look, just looking at the map on 

 16 how far they have to travel north, it does not mean that this 

 17 is going to be a life-saving measure. The only reliable life-

 18 saving measure out on the Cabeza Prieta National Wildlife 

 19 Refuge are those emergency beacons because it is a direct line 

 20 to a government agency who can save their life.

 21 Your Honor, I wanted to clarify something the 

 22 defense said. The Government is not arguing that their 

 23 political -- that the defendants' political and philosophical 

 24 beliefs overlap with their religious or spiritual beliefs. 

 25 The Government is asserting that the evidence during this 

194

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 194 of 198
 1 trial showed that their actions are completely political and 

 2 philosophical. 

 3 I also wanted to talk about Mr. Aitken's testimony. 

 4 If the Court were to look at that exhibit again, there was 

 5 nothing from No More Deaths telling the United States 

 6 Government that they are going to willfully fail to get 

 7 permits, that they are willfully going to drive in a 

 8 wilderness area. So even if there was a promise, there 

 9 certainly wasn't full disclosure from No More Deaths about 

 10 what they were going to do in terms of relying on any promise 

 11 that was made by the Government. 

 12 In terms of the Hold Harmless Agreement that the 

 13 defense raised, there was no evidence presented at this trial 

 14 that the United States Attorney's Office for the District of 

 15 Arizona had any input whatsoever in drafting that Hold 

 16 Harmless Agreement, whether it be the original copy or the 

 17 modified copy. 

 18 And as I'm sure the Court knows, the United States 

 19 Attorney's Office makes the ultimate decision about whether to 

 20 charge federal crimes. That is not up to the Fish and 

 21 Wildlife Service. It's not up to the Department of Interior. 

 22 But Your Honor, again, the defense essentially 

 23 coming up here and saying, these defendants didn't know, they 

 24 didn't know that it was against the law or that they could be 

 25 criminally prosecuted for violating the law, and so therefore 

195

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 195 of 198
 1 this Court should find them not guilty, is exactly arguing an 

 2 ignorance of the law defense, which as I stated earlier is not 

 3 a defense. 

 4 That would be like somebody -- a drug trafficker 

 5 arguing that you can't convict me because I didn't know there 

 6 was a 10-year mandatory minimum. It doesn't make sense, and 

 7 it's not a legal defense to make. 

 8 And finally, Your Honor, in terms of RFRA, there was 

 9 no testimony that these particular defendants investigated any 

 10 other ways to comply with any alleged religious or spiritual 

 11 beliefs. In fact, Defendant Huse testified that she was 

 12 volunteering in another state doing essentially the exact same 

 13 thing but in a completely legal way. 

 14 And that is a substantial burden that the defense 

 15 must make a prima facie showing. They must show that there 

 16 were no other legal alternatives to do what they had -- to do 

 17 what they were going to do based on their religious or 

 18 spiritual beliefs except for break the law. So if Defendant 

 19 Huse could do it in a completely legal way, there is 

 20 absolutely no reason why the other defendants couldn't have 

 21 done the same thing. 

 22 Again, Your Honor, the evidence proves that all of 

 23 these defendants are guilty beyond a reasonable doubt, and 

 24 none of the defendants have made a prima facie showing of any 

 25 defense in this case, and therefore, again, they are not 

196

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 196 of 198
 1 entitled to an acquittal, and we would therefore ask the Court 

 2 to find them guilty on all charges.

 3 THE COURT: Thank you. I'll take the matter under 

 4 advisement. We'll stand at recess.

 5 MR. DUPONT: Your Honor, should we all just wait 

 6 here? 

 7 THE COURT: No. Go home. You'll get -- find out by 

 8 minute entry.

 9 MR. DUPONT: By minute entry?

 10 THE COURT: Yes.

 11 MR. DUPONT: Thank you, Your Honor.

 12 (Proceedings conclude at 4:22 p.m.)

 13

 14

 15

 16

 17

 18

 19

 20

 21

 22

 23

 24

 25

197

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 197 of 198
 1 C E R T I F I C A T E

 2

 3 I, Erica R. McQuillen, Federal Official Realtime 

 4 Reporter, in and for the United States District Court for the 

 5 District of Arizona, do hereby certify that, pursuant to 

 6 Section 753, Title 28, United States Code, the foregoing is a 

 7 true and correct transcript of the stenographically reported 

 8 proceedings held in the above-entitled matter and that the 

 9 transcript page format is in conformance with the regulations 

 10 of the Judicial Conference of the United States.

 11 Dated this 30th day of January, 2019.

 12

 

 13 s/Erica R. McQuillen 

 Erica R. McQuillen, RDR, CRR

 14 Federal Official Court Reporter 14

 15

 16

 17

 18

 19

 20

 21

 22

 23

 24

 25

198

Case 4:17-mj-00339-BPV Document 172 Filed 01/30/19 Page 198 of 198