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 16, 2019

Oona Meagan Holcomb, 9:59 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 TWO

 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 171 Filed 01/30/19 Page 1 of 195
 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

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 21

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 24

 25

2

Case 4:17-mj-00339-BPV Document 171 Filed 01/30/19 Page 2 of 195
 1 EXAMINATION INDEX

 2 SIDNEY SLONE

DIRECT BY MR. FIDEL . . . . . . . . . . . . . . . . . 4

 3 CROSS BY MS. WRIGHT . . . . . . . . . . . . . . . . . 48

REDIRECT BY MR. FIDEL . . . . . . . . . . . . . . . . 61

 4

 5 YURIE AITKEN

DIRECT BY MR. FIDEL . . . . . . . . . . . . . . . . . 64

 6 CROSS BY MR. WALTERS . . . . . . . . . . . . . . . . 68

REDIRECT BY MR. FIDEL . . . . . . . . . . . . . . . . 71

 7

 8 EDGAR McCULLOUGH

DIRECT BY MR. DUPONT . . . . . . . . . . . . . . . . 76

 9 CROSS BY MS. WRIGHT . . . . . . . . . . . . . . . . .110

 10 ROBERT BARTELS

DIRECT BY MS. CHAPMAN . . . . . . . . . . . . . . . .116

 11 CROSS BY MS. WRIGHT . . . . . . . . . . . . . . . . .129

REDIRECT BY MS. CHAPMAN . . . . . . . . . . . . . . .142

 12

 13 OONA HOLCOLM

DIRECT BY MR. DUPONT . . . . . . . . . . . . . . . .144

 14 CROSS BY MR. WALTERS . . . . . . . . . . . . . . . .175

REDIRECT BY MR. DUPONT . . . . . . . . . . . . . . . 190

 15

 16

 17

 18

 19

 20

 21

 22

 23

 24

 25

3

Case 4:17-mj-00339-BPV Document 171 Filed 01/30/19 Page 3 of 195
DIRECT EXAMINATION OF SIDNEY SLONE

 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 are on for bench trial. 

 6 Counsel, please state your appearances.

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

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

 9 counsel table is Officer West, our case agent.

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

 11 Anne Chapman, and Chris Dupont here on behalf of the 

 12 defendants, Oona Holcomb, Madeline Huse, Zaachila Orozco, and 

 13 Natalie Hoffman.

 14 THE COURT: Thank you. You may proceed.

 15 MR. FIDEL: We'd like to call Sid Slone.

 16 THE CLERK: You can step on into the jury box, sir. 

 17 I'm sorry, the witness stand. Yes. There's a step. 

 18 If you'd remain standing and raise your right 

 19 hand, please.

 20 SIDNEY SLONE, WITNESS, SWORN 

 21 DIRECT EXAMINATION

 22 BY MR. FIDEL:

 23 Q. Good morning, Mr. Slone. 

 24 A. Good morning.

 25 Q. Do you work out in Ajo?

4

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DIRECT EXAMINATION OF SIDNEY SLONE

 1 A. Yes, sir.

 2 Q. You live out there as well?

 3 A. Pardon? 

 4 Q. Do you live out there as well?

 5 A. Yes, sir. 

 6 Q. How long have you worked in Ajo?

 7 A. Almost ten years. 

 8 Q. And what do you do out there?

 9 A. I'm the refuge manager at the Cabeza Prieta National 

 10 Wildlife Refuge.

 11 Q. Is that under the Fish and Wildlife Service?

 12 A. Yes, sir.

 13 Q. Have you worked for Cabeza Prieta the whole time that 

 14 you've lived out there?

 15 A. Yes, sir.

 16 Q. All right. Had you worked for Fish and Wildlife previous 

 17 to Cabeza Prieta?

 18 A. No.

 19 Q. Okay. And maybe it goes without saying, but is Cabeza 

 20 Prieta the first job you had with the Fish and Wildlife 

 21 Service?

 22 A. Yes.

 23 Q. Okay. And did you say what your job is out at the 

 24 refuge?

 25 A. Yes, refuge manager.

5

Case 4:17-mj-00339-BPV Document 171 Filed 01/30/19 Page 5 of 195
DIRECT EXAMINATION OF SIDNEY SLONE

 1 Q. And what does that mean, refuge manager?

 2 A. I'm responsible for the overall management of the refuge.

 3 Q. Okay. And how many people are employed out on the refuge 

 4 there? 

 5 A. Including myself, 13.

 6 Q. All right. And so are you the -- as the manager, are you 

 7 in charge of all of them?

 8 A. Yes, sir.

 9 Q. All right. And above you, is there a regional manager? 

 10 Is that the way that works?

 11 A. Regional supervisor. 

 12 Q. Okay. And that's based in New Mexico?

 13 A. Yes.

 14 Q. Where did you move to Ajo from?

 15 A. Mexico.

 16 Q. Old Mexico or New Mexico?

 17 A. Old Mexico.

 18 Q. Got it. And as part of your job, how often are you out 

 19 on the refuge versus behind a desk?

 20 A. Maybe five percent of the time.

 21 Q. Five percent of the time on the refuge?

 22 A. Actually in the field, yes.

 23 Q. All right. And when you go out into the field, if you're 

 24 going to spend a full day out in the field, what kind of 

 25 preparation do you do? What kind of gear do you take with 

6

Case 4:17-mj-00339-BPV Document 171 Filed 01/30/19 Page 6 of 195
DIRECT EXAMINATION OF SIDNEY SLONE

 1 you?

 2 A. We have a tool kit. I take water. That's mostly it.

 3 Q. How much water do you take for yourself?

 4 A. Maybe a gallon.

 5 Q. Okay. Are you familiar with the pamphlets and fliers 

 6 that get handed out to people who are visitors to the refuge?

 7 A. Yes.

 8 Q. Do you review those things as part of your job?

 9 A. When you say do I review them --

 10 Q. Yeah. 

 11 A. -- if they're new, new documents.

 12 Q. Do you know that the flier that gets handed out advises 

 13 people to bring two gallons per person, per day, when they go 

 14 out onto the refuge?

 15 A. Yes. 

 16 Q. Okay. And you agree that's a wise practice to do?

 17 A. Yes.

 18 Q. Okay. When you go out on the field in the refuge, do you 

 19 drive out or do you hike out?

 20 A. Drive out.

 21 Q. Truck has air conditioning?

 22 A. Yes.

 23 Q. All right. And do you mostly stay in the truck?

 24 A. While I'm driving.

 25 Q. Okay. And the time that you're on the refuge, what 

7

Case 4:17-mj-00339-BPV Document 171 Filed 01/30/19 Page 7 of 195
DIRECT EXAMINATION OF SIDNEY SLONE

 1 percentage of the time when you're out in the field are you in 

 2 the truck versus out walking around in the heat?

 3 A. Given distances, probably most of the time.

 4 Q. Most of the time which?

 5 A. In the truck.

 6 Q. Okay. Thank you. 

 7 The refuge itself, that was established when?

 8 A. 1939.

 9 Q. And what was the purpose of the refuge?

 10 A. Primarily for the conservation of wildlife and plant 

 11 resources.

 12 Q. And is that the primary purpose of the refuge today?

 13 A. Yes, sir.

 14 Q. Is that -- is that what you do as refuge manager, is make 

 15 sure that that purpose is being carried out?

 16 A. Yes, sir.

 17 Q. Okay. And the policies that you adopt, are those geared 

 18 towards protecting the wilderness and the plants and animals 

 19 on the refuge?

 20 A. I'm sorry? 

 21 Q. The policies that you are enacting as an administrator, 

 22 are those geared towards protecting animals, wildlife, plants, 

 23 on the refuge?

 24 A. Yes, sir.

 25 Q. Okay. Now, part of protecting the animals on the 

8

Case 4:17-mj-00339-BPV Document 171 Filed 01/30/19 Page 8 of 195
DIRECT EXAMINATION OF SIDNEY SLONE

 1 refuge, that involves setting out water for them; right?

 2 A. Yes, sir.

 3 Q. And are there -- what are the main animals that are being 

 4 protected on the refuge?

 5 A. Well, all the animal species are protected, but the 

 6 primary species we deal with is desert bighorn sheep and 

 7 Sonoran pronghorn, which is a federally endangered species.

 8 Q. Okay. And for each of those, does the refuge put out 

 9 water tanks?

 10 A. Over the years we've developed water developments.

 11 Q. What does that mean, "water development?" 

 12 A. There are various kinds, but they're collection mechanisms 

 13 to collect rainwater and store water, and we provide it through 

 14 a trough.

 15 Q. And are there other methods of delivering water to those 

 16 developments?

 17 A. Is there what? 

 18 Q. Are there other methods that you use to get water out to 

 19 those developments?

 20 A. We haul water when we need to.

 21 Q. Like with a truck?

 22 A. Yes, sir.

 23 Q. What about helicopters. Ever use helicopters?

 24 A. We have in the past. Depends on the location.

 25 Q. Okay. And how big are these water developments?

9

Case 4:17-mj-00339-BPV Document 171 Filed 01/30/19 Page 9 of 195
DIRECT EXAMINATION OF SIDNEY SLONE

 1 A. They vary.

 2 Q. What's the range?

 3 A. A few thousand gallons to 11,000 gallons of storage. When 

 4 you talk about size, that's very variable.

 5 Q. How many of those 11,000-gallon -- I'm going to call 

 6 them -- what's the best thing to call those?

 7 A. Catchments.

 8 Q. Okay. How many of those 11,000-gallon catchments are 

 9 there on the refuge?

 10 A. Off the top of my head, I couldn't say. We have 22 waters 

 11 total, I believe.

 12 Q. And when you say "waters," you're talking about waters -- 

 13 water catchments?

 14 A. There's a variety. There's tenajas. There is catchments 

 15 that we put in. There's also old -- the windmills.

 16 Q. Okay. And what's that? That's like a pump?

 17 A. Yes.

 18 Q. Driven by a windmill?

 19 A. Well, we converted them over to solar power, but yes.

 20 Q. Okay. And are those sort of scattered around the refuge?

 21 A. Yes, sir.

 22 Q. Let me show you -- well, we'll get to an exhibit later 

 23 on. In your capacity as the refuge manager, are you aware of 

 24 the issue that migrants are dying on the Cabeza Prieta Refuge?

 25 A. I'm aware of illegal border crossers dying, yes.

10

Case 4:17-mj-00339-BPV Document 171 Filed 01/30/19 Page 10 of 195
DIRECT EXAMINATION OF SIDNEY SLONE

 1 Q. Do you know the nature of immigration status of people 

 2 who are dying on the refuge?

 3 A. I have -- in my conversations with law enforcement, most 

 4 of the people crossing the Cabeza are smuggling drugs.

 5 Q. Excuse me. Have you ever met one of these people who's 

 6 crossing through the refuge?

 7 A. I have.

 8 Q. You have. Have you interviewed that person about what 

 9 the status of his immigration was?

 10 A. No. No.

 11 Q. Interviewed him about what he was doing?

 12 A. Pardon? 

 13 Q. Have you interviewed him about why he was crossing 

 14 through the refuge?

 15 A. I don't interview illegal border crossers. Law 

 16 enforcement does.

 17 Q. Have you -- you said you didn't interview him about what 

 18 his immigration status was; right?

 19 A. Correct.

 20 Q. So how do you know that he was an illegal border crosser?

 21 A. I rely on my law enforcement and Border Patrol law 

 22 enforcement as to the individuals they encounter on the refuge.

 23 Q. Well, I'm asking about your personal knowledge. 

 24 A. I'm telling you my personal -- I have no personal 

 25 experience in interviewing illegal border crossers. I rely on 

11

Case 4:17-mj-00339-BPV Document 171 Filed 01/30/19 Page 11 of 195
DIRECT EXAMINATION OF SIDNEY SLONE

 1 my law enforcement and Border Patrol to advise me as to what 

 2 they find.

 3 Q. So your description of these people as illegal border 

 4 crossers, it sounds like that's based on what you have been 

 5 told by other people.

 6 A. That's the term that I believe Border Patrol currently 

 7 uses, so I use the same term.

 8 Q. And I'm asking you about your own personal experience. 

 9 It sounds like you have not talked to these people to 

 10 determine what their status is. 

 11 A. That's correct.

 12 Q. Okay. Now, you are aware, though, that these people are 

 13 dying on the refuge; right?

 14 A. Yes, sir.

 15 Q. And that their remains are being found on the refuge; 

 16 right?

 17 A. Yes, sir.

 18 Q. Regardless of what their status is?

 19 A. Correct, yes.

 20 Q. And I assume you agree that is a problem?

 21 A. Yes, sir.

 22 Q. All right. Now, the refuge itself, I'm going to show you 

 23 an exhibit. 

 24 Can we have the Elmo, please? 

 25 This has been admitted. This is Exhibit -- okay. So 

12

Case 4:17-mj-00339-BPV Document 171 Filed 01/30/19 Page 12 of 195
DIRECT EXAMINATION OF SIDNEY SLONE

 1 this has been previously admitted. This is Exhibit 38. Do 

 2 you recognize this map?

 3 A. I can't say this map.

 4 Q. Do you recognize what is depicted on this map?

 5 A. Yes, sir.

 6 Q. What is depicted on this map?

 7 A. The Cabeza Prieta National Wildlife Refuge.

 8 Q. All right. Now, you have taken some efforts, I take it, 

 9 as refuge manager to install some beacons on the refuge? 

 10 A. The Border Patrol installs the beacons. I make 

 11 recommendations to them, yes.

 12 Q. What kinds of recommendations do you make?

 13 A. As to where they might do the most good.

 14 Q. And that's based on what?

 15 A. On experience on how many mortalities are found out 

 16 there, how many remains are found, where they're found at.

 17 Q. And where are you getting that information?

 18 A. Mostly through law enforcement, when they notify the Pima 

 19 County Sheriff's Office, so it depends on who -- who reports 

 20 it.

 21 Q. But how do you determine where to recommend to place new 

 22 beacons? Is there someone you call, some data you access?

 23 A. Over time I've seen data, yes.

 24 Q. Prepared by who?

 25 A. By our own data we have. We don't get all the reports, 

13

Case 4:17-mj-00339-BPV Document 171 Filed 01/30/19 Page 13 of 195
DIRECT EXAMINATION OF SIDNEY SLONE

 1 but whatever information we get. We gather our intel from 

 2 Border Patrol, perhaps. We do get data that leads us -- we 

 3 kind of know where a lot of the mortalities are occurring at.

 4 Q. And when you say "we," you're talking about Fish and 

 5 Wildlife? 

 6 A. Yes.

 7 Q. Okay. Have you ever consulted with the Pima County 

 8 Office of the Medical Examiner?

 9 A. No, sir.

 10 Q. Have you ever reviewed the maps that they prepare?

 11 A. I've seen some maps. I can't recall the details on them.

 12 Q. Okay. Can you show us on this map, Exhibit 38, where -- 

 13 and I guess I'm really interested in Charlie Bell Pass, which 

 14 is, as I understand it, right here; is that right? 

 15 A. That's correct.

 16 Q. Can you show us -- 

 17 MR. FIDEL: Are we going to be able to -- 

 18 THE CLERK: You should be able to. He has to just 

 19 touch it. 

 20 MR. FIDEL: Okay.

 21 BY MR. FIDEL:

 22 Q. So that's a touch screen up there. 

 23 A. Okay.

 24 Q. Can you show us where -- let me zoom in just a little bit 

 25 just on that area. 

14

Case 4:17-mj-00339-BPV Document 171 Filed 01/30/19 Page 14 of 195
DIRECT EXAMINATION OF SIDNEY SLONE

 1 A. Show where?

 2 Q. Yeah, just if you can, where the beacons were around 

 3 Charlie Bell Pass. So I'll circle Charlie Bell Pass here. 

 4 Is that -- that's basically Charlie Bell Pass; right? 

 5 A. Yes, sir.

 6 Q. Okay. So can you point out where the beacons were nearby 

 7 there?

 8 A. When you say "were," what do you mean? 

 9 Q. Sorry. In August 2017. 

 10 A. Okay. We had one right under where your red circle is 

 11 just to the right, on top of the pass.

 12 Q. Can you just touch the screen and put a dot. 

 13 A. Right about there.

 14 Q. Okay. And --

 15 A. And what was the -- what was the date again? 

 16 Q. August of 2017.

 17 A. Okay. (Indicating.) 

 18 Q. Okay.

 19 A. And there's more out there.

 20 Q. Got it. But those would be the closest ones? 

 21 A. Yes, sir.

 22 Q. Okay. So you've got one at the top of the path, or there 

 23 was one at the top of the pass, and then there's one out 

 24 basically in the middle of the Growler Valley; right?

 25 A. Correct.

15

Case 4:17-mj-00339-BPV Document 171 Filed 01/30/19 Page 15 of 195
DIRECT EXAMINATION OF SIDNEY SLONE

 1 Q. And so if we look at the scale of this map -- let me zoom 

 2 out so we can see that. Oh, shoot. Let me not do that. Let 

 3 me move the map. 

 4 And we see the scale here.

 5 A. I think it's easier, on these squares you see there, I 

 6 think those are townships, I believe.

 7 Q. Oh, perfect. Does that help? Can I put the map back 

 8 where it was?

 9 A. Each subsquare would be where we have a mile.

 10 Q. There I think we got it -- well, here. There. We got 

 11 it --

 12 A. Correct.

 13 Q. -- basically back; right?

 14 A. Yes.

 15 Q. So how far between the one here at the top of the pass 

 16 and the one here out in the middle of the Growler Valley? Not 

 17 exactly, but what do you think that is, roughly, five, ten 

 18 miles?

 19 A. Probably seven miles.

 20 Q. Okay. And what about from the one at the top of the pass 

 21 here to this one down here. Further than that; right?

 22 A. Correct.

 23 Q. Ten, twelve, something like that?

 24 A. Yes.

 25 Q. Okay. And you mentioned or you asked specifically what 

16

Case 4:17-mj-00339-BPV Document 171 Filed 01/30/19 Page 16 of 195
DIRECT EXAMINATION OF SIDNEY SLONE

 1 time I was asking about. Has there been a new beacon 

 2 installed since August 2017?

 3 A. There's been two more.

 4 Q. Where are those?

 5 A. Just to about where your circle is on the left line as it 

 6 intersects the road, so it would be right (indicating).

 7 Q. Right there?

 8 A. (Indicating.) 

 9 Q. And that's down at the Charlie Bell Well, basically?

 10 A. Just to the west of it.

 11 Q. Okay. And the second one you mentioned?

 12 A. (Indicating.) About in there.

 13 Q. Okay. So further away?

 14 A. Yes.

 15 Q. Got it. And the one that was put in at Charlie Bell 

 16 Well, was that based on your recommendation?

 17 A. Actually, mine and the public lands liaison gentleman from 

 18 Border Patrol.

 19 Q. Okay. And is that because of a trail of deaths that had 

 20 emerged on this western flank of the Growler Mountains?

 21 A. Yes. 

 22 Q. Okay. When was that beacon installed?

 23 A. I believe in May of 2018.

 24 Q. All right. Thank you. 

 25 Do you think there need to be more beacons on the refuge?

17

Case 4:17-mj-00339-BPV Document 171 Filed 01/30/19 Page 17 of 195
DIRECT EXAMINATION OF SIDNEY SLONE

 1 MS. WRIGHT: Objection. Relevance, foundation.

 2 THE COURT: Sustained on relevance.

 3 BY MR. FIDEL:

 4 Q. Have you recommended the placement of more beacons on the 

 5 refuge?

 6 MS. WRIGHT: Same objection, relevance, Your Honor.

 7 THE COURT: Sustained. 

 8 BY MR. FIDEL:

 9 Q. You're familiar with the group No More Deaths, are you 

 10 not? 

 11 A. Pardon? 

 12 Q. You're familiar with the group No More Deaths?

 13 A. Yes, sir.

 14 Q. How long have you known about them?

 15 A. I probably became aware, I think, in the winter, around 

 16 December or January -- well, about December 2015, going into 

 17 2016, somewhere around that period, I believe.

 18 Q. Got it. And how did you become aware of them?

 19 A. I don't recall.

 20 Q. Okay. Was it -- do you think it was because they had 

 21 started to become active on the refuge?

 22 MS. WRIGHT: Objection. Calls for speculation. He 

 23 just testified he doesn't remember how he became aware.

 24 THE COURT: Sustained. 

 25 BY MR. FIDEL:

18

Case 4:17-mj-00339-BPV Document 171 Filed 01/30/19 Page 18 of 195
DIRECT EXAMINATION OF SIDNEY SLONE

 1 Q. Do you recall the first time that you learned that No 

 2 More Deaths volunteers were working on the refuge?

 3 A. I don't recall when.

 4 Q. Okay. Do you recall the first time you personally met 

 5 with representatives from No More Deaths?

 6 A. Not really, no. I say that because I'm trying to -- you 

 7 say "met with representatives."

 8 Q. Yeah.

 9 A. I recall the April 2016 meeting. That's the first meeting 

 10 I recall having a formal meeting with anybody.

 11 Q. Okay.

 12 A. You know, I may have talked to individuals before then, 

 13 but I can't recall specifics, who or dates or when or where.

 14 Q. All right. So the first one that you definitively 

 15 remember was April 2016?

 16 A. Yes, sir.

 17 Q. Were there others since April 2016, other meetings with 

 18 No More Deaths people?

 19 A. Not meetings, I don't believe, no.

 20 Q. Okay. Through those meetings, do you recall learning 

 21 what No More Deaths was doing on the refuge?

 22 A. In the April meetings, yes.

 23 Q. What did you learn that they were doing?

 24 A. They were putting out food, water, medical supplies, 

 25 blankets, whatever, as they refer to, International Red Cross 

19

Case 4:17-mj-00339-BPV Document 171 Filed 01/30/19 Page 19 of 195
DIRECT EXAMINATION OF SIDNEY SLONE

 1 standards, to -- in the desert.

 2 Q. Okay. You said April 2016. Can I show you -- I'd like 

 3 to show you an exhibit here. Let me just ask you, do you 

 4 think it's possible that it was April 2017?

 5 A. I think it was 2016.

 6 Q. Let me show you an exhibit. This is marked and this is 

 7 not -- 

 8 MR. FIDEL: Oh, there we go. Thanks. Can we just 

 9 send this to the witness?

 10 THE CLERK: Uh-huh. That's how it is.

 11 BY MR. FIDEL:

 12 Q. This is going to be Exhibit 245. Do you recognize this 

 13 email? And you can take a minute to review it. 

 14 THE COURT: Do you need it bigger?

 15 THE WITNESS: I can read it.

 16 BY MR. FIDEL:

 17 A. I don't recall necessarily writing this, but if it's, you 

 18 know -- I'm looking at the date. It says May 2017. So maybe 

 19 the meeting was in April 2017.

 20 Q. Well, let me just ask you, this email, this is from 

 21 you, Sid Slone; right?

 22 A. That's what it says, yes.

 23 Q. Okay. And this is sent to Mary Kralovec?

 24 A. Yes.

 25 Q. Who is that?

20

Case 4:17-mj-00339-BPV Document 171 Filed 01/30/19 Page 20 of 195
DIRECT EXAMINATION OF SIDNEY SLONE

 1 A. She was my assistant manager at the time.

 2 Q. And who is Brian Krukoski?

 3 A. He's the senior wildlife refuge specialist.

 4 Q. And the title of this?

 5 A. No. I'm sorry. Excuse me. He's a senior federal 

 6 wildlife officer.

 7 Q. Okay. Thank you. 

 8 And the title of this email is "Summary of No More Deaths 

 9 Meeting." 

 10 A. Okay.

 11 Q. Is that right?

 12 A. If that's what it's pertaining to, yes.

 13 Q. And is that what it says on the page?

 14 A. Yes, sir.

 15 Q. And the date is Monday, May 1st; right?

 16 A. Yes.

 17 Q. 2017; right?

 18 A. That's what it says, yeah.

 19 Q. And in this you're discussing a meeting last Friday, so 

 20 that would be back in April; right?

 21 A. Yes.

 22 MR. FIDEL: Your Honor, I'd move to admit this 

 23 Exhibit 245 as an email from Sid Slone.

 24 MS. WRIGHT: Your Honor, we would object. This is 

 25 hearsay, and the relevance hasn't been established.

21

Case 4:17-mj-00339-BPV Document 171 Filed 01/30/19 Page 21 of 195
DIRECT EXAMINATION OF SIDNEY SLONE

 1 MR. FIDEL: Well, it's not hearsay. It's a 

 2 statement from him, and it's a public record.

 3 THE COURT: What's it going to tell me? 

 4 MR. FIDEL: Well, it tells us the date of a meeting 

 5 he had with No More Deaths. 

 6 BY MR. FIDEL:

 7 Q. Is that what this describes?

 8 A. Yes, sir.

 9 Q. All right. And this describes a meeting in April 2017; 

 10 right? 

 11 A. Apparently.

 12 Q. Do you think there was a different meeting in April 2016?

 13 A. I couldn't say. I go back and try to think when things 

 14 happened and dates, and I was thinking the meeting we had with 

 15 No More Deaths was in April 2016. Maybe it was April 2017.

 16 THE COURT: I'll admit it. Go ahead.

 17 MR. FIDEL: All right. Thank you.

 18 BY MR. FIDEL:

 19 Q. In that meeting, No More Deaths people told you that they 

 20 were placing water and food and other first aid supplies on 

 21 the refuge; right?

 22 A. That or they at least intended to, yes.

 23 Q. Okay. And did they ask for this meeting, or how did this 

 24 meeting come about? Do you recall?

 25 A. They requested it. 

22

Case 4:17-mj-00339-BPV Document 171 Filed 01/30/19 Page 22 of 195
DIRECT EXAMINATION OF SIDNEY SLONE

 1 Q. Okay. And they asked -- did they ask to do anything else 

 2 on the refuge?

 3 A. I believe that's pretty much it.

 4 Q. Let me have you look at -- let me direct you to a 

 5 particular part of this email. Down here -- well, do you 

 6 recall them asking if they could drive on administrative 

 7 roads?

 8 A. Yes.

 9 Q. All right. And you recall telling them that -- well, do 

 10 you recall what you told them?

 11 A. Pardon? 

 12 Q. Do you recall what you told them?

 13 A. That they could not.

 14 Q. Do you recall telling them you needed to check with your 

 15 higher-ups about that?

 16 A. The discussion, yes. At one point, yes.

 17 Q. Okay. That --

 18 A. I told them I could not -- I would not give them 

 19 permission.

 20 Q. All right. You were not authorizing it, but you needed 

 21 to check with the higher-ups?

 22 A. Well, the policy was I could not.

 23 Q. Okay. But did you tell them you would check with the 

 24 higher-ups?

 25 A. I did tell them that I would, I would check, you know, and 

23

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DIRECT EXAMINATION OF SIDNEY SLONE

 1 they gave me the response, I thought, that it's against policy.

 2 Q. I just want to make sure I understand. In this email 

 3 here on page two, did you not tell them, "I would need 

 4 direction from a higher level before I would be willing to do 

 5 that"?

 6 A. Yes.

 7 Q. Okay. So is that basically the substance of what you 

 8 said?

 9 A. Yes.

 10 Q. You're not prepared to do it, But you need to check --

 11 A. Well, the decision was no, okay, and we told them no, that 

 12 I would not give them permission. To change that decision, I'd 

 13 have to consult with my higher-ups. And I -- they also 

 14 suggested that they contact my supervisor, and I gave them her 

 15 information so they could contact her.

 16 Q. All right. So you told them you couldn't give 

 17 permission, you need to check with your supervisor. They 

 18 said, we'd like to do it, and you gave them her information?

 19 A. Well, they wanted to talk to the person.

 20 Q. I'm sorry?

 21 A. They wanted to talk to the person.

 22 Q. And you facilitated that by giving them the information? 

 23 A. I believe so.

 24 Q. And so is that about where that discussion ends off, that 

 25 there's going to be further discussions? 

24

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DIRECT EXAMINATION OF SIDNEY SLONE

 1 A. No, we didn't talk about having further discussions. We 

 2 ended the meeting with them saying, we're going do what we have 

 3 to do, i.e., put water and food out, driving wilderness area if 

 4 we need to, and really we need to, and put the stuff out where 

 5 they weren't supposed to. 

 6 And I said, well, we'll have to enforce the law.

 7 Q. And that perhaps there would be some citations --

 8 A. Yes. 

 9 Q. -- if they do that? 

 10 A. Yes, sir.

 11 Q. All right. And they could be fined?

 12 A. Pardon? 

 13 Q. And they could be fined?

 14 A. Yes, sir.

 15 Q. And they left off saying that they intended to speak with 

 16 the supervisor?

 17 A. Pardon? 

 18 Q. They left the meeting saying they intended to speak with 

 19 the supervisor; is that right?

 20 A. To see my supervisor?

 21 Q. To speak with her. 

 22 A. I'm not clear that they were -- if they were going to 

 23 follow through or not.

 24 Q. But they asked for her information and you gave it?

 25 A. My recollection I did, yes.

25

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 1 Q. All right. 

 2 A. I told them who she was anyways.

 3 Q. And they also wanted to have a meeting with the U.S. 

 4 Attorney's Office, did they not?

 5 A. Someone brought that up at some point.

 6 Q. Do you think it was in that meeting?

 7 A. I don't think it was in that meeting.

 8 Q. Perhaps a separate meeting?

 9 A. I don't think it was any meeting at all. I don't know who 

 10 brought it up. I can't recall who brought it up and when. It 

 11 wasn't in a meeting that I was at that was brought up, to my 

 12 knowledge.

 13 Q. Would you read on page two the second-to-last paragraph 

 14 on the page. Just read that to yourself.

 15 A. Okay.

 16 Q. Does that refresh your memory?

 17 A. It does.

 18 Q. It was in that meeting that people with No More Deaths 

 19 said they would look to set up a meeting with the U.S. 

 20 Attorney? 

 21 A. I guess so, if I wrote it, yes.

 22 Q. And to discuss these issues, the driving on the road, the 

 23 leaving water bottles in the desert?

 24 A. Yes.

 25 Q. To your knowledge, did that meeting take place?

26

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DIRECT EXAMINATION OF SIDNEY SLONE

 1 A. Yes.

 2 Q. Were you at that meeting?

 3 A. Not at it.

 4 Q. Okay. Would that have been in July of 2016? 

 5 A. Somewhere in the summer.

 6 Q. Okay. So July's in the ballpark?

 7 A. Yes, sir.

 8 Q. Okay. Now, do you recognize -- do you know some of the 

 9 No More Deaths volunteers who have been on the refuge, like, 

 10 personally?

 11 A. Very, very casual.

 12 Q. Yeah -- 

 13 A. Well, not even that.

 14 Q. And I don't mean to suggest that you guys are friends --

 15 A. No.

 16 Q. -- and you get together, but I mean, if they come into 

 17 the office, you know them on sight; right? 

 18 A. Well, my -- to be honest, my recognition and name together 

 19 is not very good, but I do occasionally recognize a few of the 

 20 folks that have been in the office getting permits or with 

 21 groups getting permits before. So I've seen them. I've seen a 

 22 few in other meetings.

 23 Q. Okay. And you've talked to them; right?

 24 A. Yes.

 25 Q. Okay. Now, in June of 2019 (sic), do you recall sending 

27

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DIRECT EXAMINATION OF SIDNEY SLONE

 1 out an email to your staff about No More Deaths volunteers?

 2 A. Wow, I mean, that's been a while.

 3 Q. Let me show you an email.

 4 A. Okay.

 5 Q. This is going to be Exhibit 178. It's previously been 

 6 admitted, and just take a minute. You can scan this email.

 7 A. Do I recall it? 

 8 Q. Yeah. Do you recall sending this email?

 9 A. I don't remember. I don't remember when I did it. So I 

 10 don't recall. You're saying I'm writing it, but if this is a 

 11 true document --

 12 Q. Do you see a date here?

 13 A. Yes.

 14 Q. June 19, 2017?

 15 A. Yes, sir.

 16 Q. Do you have any reason to believe that's inaccurate?

 17 A. No.

 18 Q. Do you see in the "From" line "Sid Slone"? That's you; 

 19 right?

 20 A. Yes.

 21 Q. Do you have any reason to believe that's inaccurate?

 22 A. Assuming it's a document I wrote.

 23 Q. Do you have some reason to think this is not a document 

 24 you wrote?

 25 A. I don't recall whether I did it or not. I don't recall 

28

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DIRECT EXAMINATION OF SIDNEY SLONE

 1 the specifics of writing this email, but I may very well have.

 2 Q. Do you recall in June 2019 -- well, let me go back a 

 3 second. These folks here in the "To" field line, these are 

 4 Cabeza Prieta staff; is that right?

 5 A. Yes, sir.

 6 Q. Some are law enforcement? Some are civilians?

 7 A. Yes.

 8 Q. And the title of this is "Access Permits;" right?

 9 A. Yes.

 10 Q. And in this email, you tell staff that there are one, 

 11 two, three, four people who are not to be issued permits; 

 12 right?

 13 A. Yes.

 14 Q. Do you recognize these names?

 15 A. Yes.

 16 Q. Do you recognize them to be No More Deaths volunteers?

 17 A. I'm not certain. I'm not certain that they all are No 

 18 More Deaths volunteers. I don't know the membership of the 

 19 organization.

 20 Q. Okay. I get that. But do you recognize these 

 21 individuals as being associated with No More Deaths?

 22 A. I recognize the names.

 23 Q. Just that's it? 

 24 A. Yes.

 25 Q. All right. And this mentions a Do Not Issue -- this 

29

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DIRECT EXAMINATION OF SIDNEY SLONE

 1 creates, I suppose, a Do Not Issue list. Was it Cabeza 

 2 Prieta's practice to keep a list of people who are not to be 

 3 issued permits?

 4 A. It was only a list put together so that we knew whose 

 5 permit was revoked for a violation of refuge rules and 

 6 regulations.

 7 Q. And is this email the first time that there -- that 

 8 people wound up on such a list?

 9 A. Probably.

 10 Q. Okay. In this email, you also say, "If somebody appears 

 11 they are part of No More Deaths group, get myself or Mary to 

 12 talk to them." 

 13 Is that Mary Kralovec?

 14 A. Yes.

 15 Q. How do you determine if somebody appears to be with No 

 16 More Deaths?

 17 A. A number of ways. Usually when folks or volunteers are 

 18 coming in to obtain permits to access -- and sometimes they're 

 19 accessing Barry Goldwater and not the Cabeza. Sometimes the 

 20 Cabeza and Barry Goldwater. It's all the same permit. And the 

 21 Barry Goldwater is managed by the U.S. Air Force.

 22 Q. Got it.

 23 A. But they come in groups, seven to ten individuals. 

 24 Sometimes they'll come in with folks that I have met before 

 25 that I knew was with No More Deaths. They came in for permits. 

30

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DIRECT EXAMINATION OF SIDNEY SLONE

 1 We were pretty certain what the intentions were, and we always 

 2 gave them the permits.

 3 Q. So -- but to determine if somebody appears to be with No 

 4 More Deaths, is there some set of criteria, or is it just if 

 5 they're with somebody from No More Deaths?

 6 A. Well, they come in, and it's the same story. We're going 

 7 to go hike Hat Mountain and Barry Goldwater. A couple times 

 8 when I asked them what they plan on doing, somebody in the 

 9 group would kind of make a mistake and say they're with No More 

 10 Deaths. Sometimes I'd actually ask them.

 11 Q. Well, you're assuming that's a mistake, but sometimes 

 12 somebody would say they're with No More Deaths; right?

 13 A. When you asked -- when I'd ask them, some would say no, 

 14 some would say yes, in the same group.

 15 Q. Okay. So some might be with -- some people in the group 

 16 might be with No More Deaths; some people might not. 

 17 Is that fair?

 18 A. It didn't matter who they were with.

 19 Q. Except that in this email you say that, if they appear to 

 20 be with No More Deaths, contact you or Mary?

 21 A. Because of people coming in here, coming into the refuge 

 22 for a permit, based upon experiences over the past, I don't 

 23 know, year maybe, based upon that experience, if they're with 

 24 No More Deaths, they were -- had intentions to go and put water 

 25 out.

31

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DIRECT EXAMINATION OF SIDNEY SLONE

 1 Q. And they told you that they were doing that?

 2 A. Sometimes they did.

 3 Q. Like the April meeting?

 4 A. Yes.

 5 Q. Okay. There was another update to this Do Not Issue list 

 6 that went out in August. Do you recall that?

 7 A. I have no idea when I --

 8 Q. Actually, let me, before we skip forward to August, do 

 9 you recall also in June receiving an email about No More 

 10 Deaths?

 11 A. That's a broad question.

 12 Q. It is a broad question. It's not a great question. 

 13 Let me show you an exhibit that's been marked as, well, 

 14 as 242. Did you sometimes receive emails from civilians about 

 15 No More Deaths?

 16 A. I don't recall.

 17 Q. Let me show you what's been marked as Exhibit 242. 

 18 Can you see this okay? 

 19 A. Yes.

 20 Q. Okay. Do you know who this --

 21 A. I know Fred Goodsell, yes.

 22 Q. And do you recognize this email?

 23 A. I don't recognize the email, no.

 24 Q. Do you recall receiving this?

 25 A. I don't recall receiving it.

32

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DIRECT EXAMINATION OF SIDNEY SLONE

 1 Q. Do you have any reason to question the accuracy of this 

 2 email?

 3 A. No. I mean, I just don't recall, recall it.

 4 Q. Who is Fred Goodsell?

 5 A. He's a person that was active in environmental issues on 

 6 the refuge and formed a group called Desert Protectors.

 7 Q. Okay.

 8 A. A strong wilderness advocate.

 9 Q. Okay. And he, it looks like, on June 21st sent you an 

 10 email that included a No More Deaths circular about what 

 11 they're doing. 

 12 A. Yeah. I don't recall this document, but --

 13 Q. Do you have any reason to doubt that this document is 

 14 accurate?

 15 A. No.

 16 MR. FIDEL: Okay. I would move for admission of 

 17 Exhibit 242.

 18 MS. WRIGHT: Objection, Your Honor. Hearsay, 

 19 foundation, and relevance.

 20 MR. FIDEL: Well, it's --

 21 THE COURT: What's the relevance? 

 22 MR. FIDEL: The relevance is that it establishes 

 23 discriminatory -- well, it's part of our case for 

 24 discriminatory effect and discriminatory intent, which --

 25 MS. WRIGHT: And, Your Honor, that's not been the 

33

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DIRECT EXAMINATION OF SIDNEY SLONE

 1 testimony today. We know nothing about what's in this email.

 2 MR. FIDEL: Well, we heard what's in the email. We 

 3 heard what's in the email is it's a piece of information 

 4 circulated by No More Deaths that is forwarded to Mr. Slone. 

 5 If the Court wishes, I can lay more foundation.

 6 THE COURT: From an individual who purports to 

 7 represent a group called Desert Protectors?

 8 MR. FIDEL: Yes.

 9 THE COURT: It'll be admitted.

 10 MR. FIDEL: Okay. Thank you, Your Honor.

 11 BY MR. FIDEL:

 12 Q. And he asks, "What is going on in the Growler Valley," 

 13 does he not?

 14 A. Yes.

 15 Q. Now, you forward an email. The very next day you sent an 

 16 email to No More Deaths -- or to Cabeza Prieta staff. Do you 

 17 recall that?

 18 A. You have to show me.

 19 Q. Sure. Let me show you Exhibit 241. This is an email, 

 20 June 22nd. All right? 

 21 A. That's what it says, yes.

 22 Q. And you sent -- if we look down here, you sent this 

 23 email. Well, it looks like it has been forwarded multiple 

 24 times; right?

 25 A. Yes.

34

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DIRECT EXAMINATION OF SIDNEY SLONE

 1 Q. All right. And in one of them, if we go through here, it 

 2 looks like somebody, Justin Tade -- well, let's -- maybe the 

 3 simplest one is right here. 

 4 You send this email on June 22nd, on page three, to 

 5 Juliette Gutierrez. Who is Juliette Gutierrez?

 6 A. She's my supervisor.

 7 Q. All right. The regional manager?

 8 A. No. She's -- this is the regional -- well, actually, 

 9 she's the refuge supervisor for refuges for Arizona and New 

 10 Mexico.

 11 Q. Got it. And you forwarded her an article about No More 

 12 Deaths on Cabeza Prieta?

 13 A. Okay.

 14 Q. And this is a link to it looks like a No More Deaths web 

 15 page?

 16 A. That's what it looks like.

 17 Q. Okay. Why were you forwarding to Ms. Gutierrez the link 

 18 to the No More Deaths web page?

 19 A. Forwarding to who? 

 20 Q. Forwarding to Ms. Gutierrez. Or is it Fernandez, 

 21 Ms. Fernandez?

 22 A. Yes.

 23 Q. The link to the No More Deaths web page?

 24 A. Because the regional office was aware that we had an 

 25 organization that was deliberately violating our rules by 

35

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DIRECT EXAMINATION OF SIDNEY SLONE

 1 putting out food, water, and driving roads, that kind of 

 2 activity. 

 3 So when you have those kinds of activities, I notify my 

 4 superiors.

 5 MR. FIDEL: Got it. I would move to admit Exhibit 

 6 241, Your Honor.

 7 THE COURT: Sure. It'll be admitted.

 8 MR. FIDEL: Thank you. 

 9 THE COURT: What's the number now?

 10 MR. FIDEL: 241.

 11 BY MR. FIDEL:

 12 Q. Okay. Now, let's get back to August, because in August, 

 13 you update the Do Not Issue permit list, August of 2017; is 

 14 that right?

 15 A. I don't know.

 16 Q. Let me show you an email. 

 17 A. Okay.

 18 Q. This is going to be Exhibit 179. Do you recognize this 

 19 email? 

 20 A. I don't recognize it because, you know, I write thousands 

 21 of emails.

 22 Q. Sure. 

 23 A. I communicate with -- so I can't, say, go back and do I 

 24 recognize this. No, I don't recognize it.

 25 Q. Well, let me ask you -- and I get that. Let me ask you a 

36

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DIRECT EXAMINATION OF SIDNEY SLONE

 1 question I've asked before, which is, do you have any reason 

 2 to question the accuracy of this email? 

 3 A. Yeah, I don't question the accuracy, no.

 4 Q. Okay. So August 8th, you send out an email to -- who are 

 5 these people in the "To" field? Some of them are Cabeza 

 6 Prieta staff; right?

 7 A. This are -- the "To," those are other agency folks.

 8 Q. Okay. Agencies that have some interest on what goes on 

 9 in the Cabeza?

 10 A. Those are agency -- when we issue permits, they cover not 

 11 only the Cabeza, they cover Barry Goldwater East, Barry 

 12 Goldwater West, and a piece of BLM land and vice versa, so -- 

 13 Q. And in this email, you're sending out a new Do Not Issue 

 14 list, right, or updating it?

 15 A. If that's what it says.

 16 Q. Well, it says, "The attached list of persons or 

 17 individuals that either drove or rode along with individuals 

 18 that drove in a motorized vehicle in the designated 

 19 wilderness, we will not issue permits for them for the 

 20 remainder of this permit year." 

 21 A. Okay.

 22 Q. Right? So this is updating the Do Not Issue list; right?

 23 A. Evidently.

 24 Q. And do you recognize the names on this list?

 25 A. Some I do. Some I don't necessarily know.

37

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DIRECT EXAMINATION OF SIDNEY SLONE

 1 Q. Do you recognize them to be volunteers of No More 

 2 Deaths, the ones that you do recognize?

 3 A. I can't say that.

 4 Q. Okay. When I compare this list to the list on page 178, 

 5 or excuse me, Exhibit 178, which is right here, does it looks 

 6 like Exhibit 179 just adds to the list in Exhibit 178?

 7 A. You're saying on the left?

 8 Q. Yes. The one on the left --

 9 A. That's what this does, this document does, yes.

 10 Q. Okay.

 11 A. But I can't say -- I don't know those individuals.

 12 Q. Okay.

 13 A. I know a couple of them, but most of them I don't know. 

 14 So I can't say who they're with. If they were with somebody in 

 15 the violation, you know, committing -- breaking the law out 

 16 there and riding with somebody, that doesn't mean -- I don't 

 17 know who they're with, necessarily.

 18 Q. All right. 

 19 A. It was the violation, the issue, not the organization.

 20 Q. Got it. So then let me show you Exhibit 180. This is 

 21 another email from now August 14th; is that right?

 22 A. Yes.

 23 Q. And this email from you, is this the same people who 

 24 you're sending Exhibit 179's email to? Exhibit 180's on the 

 25 left. 179 is on the right.

38

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DIRECT EXAMINATION OF SIDNEY SLONE

 1 A. It appears to be, yes. 

 2 Q. Okay. And the -- you have attached on this 170 -- 180 

 3 email a Do Not Issue Permits to These Individuals list; right?

 4 A. That's what it says, yes.

 5 Q. And this list says, "Updated August 14th, 2017;" right?

 6 A. Okay.

 7 Q. Is that right?

 8 A. That's what it says.

 9 Q. And does this appear to be an update to the list on 

 10 Exhibit 179? 180's on the left; 179's on the right. 

 11 A. That's what it appears.

 12 MR. FIDEL: Okay. I'd move to admit Exhibit 179 and 

 13 180. 

 14 THE COURT: Sure. Sure.

 15 MR. FIDEL: Thank you.

 16 THE COURT: That last exhibit I admitted was what?

 17 THE DEFENDANT: 180.

 18 THE COURT: And that's dated? 

 19 MR. FIDEL: August 14th.

 20 THE COURT: The day after this event?

 21 MR. FIDEL: Yes, correct.

 22 BY MR. FIDEL:

 23 Q. How often do individuals come into contact with law 

 24 enforcement on the refuge? Do you know?

 25 A. How often do law enforcement? 

39

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DIRECT EXAMINATION OF SIDNEY SLONE

 1 Q. Yeah, do individuals come into contact with law 

 2 enforcement officers on the refuge?

 3 A. I couldn't say.

 4 Q. Do law enforcement officers contact you when they come 

 5 into contact with individuals?

 6 A. If there's a violation they encounter. They don't -- no. 

 7 I sometimes find out after the fact. If they do a violation, I 

 8 generally hear about it later. They don't call me up and tell 

 9 me, you know. They do their job.

 10 Q. Okay. And not all people who get contacted get placed on 

 11 the Do Not Issue Permit list, correct?

 12 A. If you can -- well, read the question again.

 13 Q. Sure. Let me ask it another way. Have there been 

 14 individuals that you learned contacted by law enforcement who 

 15 are not placed on the Do Not Issue permit list?

 16 A. If they're not in violation, no.

 17 Q. If they are in violation?

 18 A. Folks on that list were folks caught violating our rules 

 19 and regulations.

 20 Q. Are there people who violate, who get caught violating 

 21 rules and regulations, that do not get placed on that list?

 22 A. Yes.

 23 Q. Okay. Individuals who enter the permit without a refuge 

 24 (sic), perhaps, do not get put on that list? Enter the refuge 

 25 without a permit? 

40

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DIRECT EXAMINATION OF SIDNEY SLONE

 1 A. I don't know -- I don't know if we had that situation of 

 2 individuals without an access permit. I couldn't tell you.

 3 Q. Do you know if there are any individuals who have been 

 4 caught violating the requirement that you have a permit to 

 5 enter the refuge? In other words, they enter the refuge 

 6 without a permit, get caught, and do not get placed on that 

 7 list?

 8 A. I just don't, off the top of my head, recall anybody -- 

 9 that's a law enforcement issue. I couldn't say, because I'm 

 10 unaware of that, of someone not having an access permit.

 11 Q. But you became aware of these individuals that you did 

 12 put on that list?

 13 A. Yes.

 14 Q. Is that because law enforcement contacted you about them?

 15 A. Of the violations, yes.

 16 Q. Would you be surprised to know that there are other 

 17 individuals who have been caught in violation of the permit 

 18 requirement by law enforcement and you are not notified?

 19 MS. WRIGHT: Objection. Relevance.

 20 THE COURT: Overruled.

 21 A. Am I aware of? 

 22 Q. Would it surprise you to know that law enforcement 

 23 officers have caught other individuals on the refuge without a 

 24 permit but have not notified you?

 25 A. That have not notified me? 

41

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DIRECT EXAMINATION OF SIDNEY SLONE

 1 Q. Yes. 

 2 A. Would it surprise me if they caught folks -- yeah, I'm not 

 3 sure if I'm aware of any time that they might issue a citation 

 4 or something like that. I don't track that.

 5 Q. Oh, all right. So you don't track every citation they 

 6 issue? 

 7 A. No.

 8 Q. And you don't ask for, like, daily updates on citations 

 9 they issue or people that they encounter who are in violation 

 10 of a permit requirement?

 11 A. No, I don't think so.

 12 Q. All right. But for the folks on this Do Not Issue 

 13 list, you -- what, did you get some kind of updates from law 

 14 enforcement?

 15 A. If there's a violation by folks putting out food and water 

 16 on the refuge, yes. Well, I can't say every time, but 

 17 generally they did notify me, because this was an ongoing 

 18 issue. It was an ongoing thing where folks were deliberately 

 19 in violation of our rules and regulations.

 20 Q. Let me show you --

 21 MR. FIDEL: Can I have a moment, Your Honor?

 22 THE COURT: Sure. 

 23 BY MR. FIDEL:

 24 Q. Let me show you a document. This is Exhibit 146. 

 25 Do you recognize the format of this document? Let me --

42

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DIRECT EXAMINATION OF SIDNEY SLONE

 1 A. I don't usually read these.

 2 Q. Okay. But it sounds like you recognize what this is. 

 3 A. It's a law enforcement report.

 4 Q. Okay. I'll move on from this.

 5 Now, in June -- well, was it June of 2017 that the access 

 6 permit was amended?

 7 A. July, I think.

 8 Q. July? Became effective July?

 9 A. Yeah, permit year is July 1st through June 30th.

 10 Q. Okay. Let me put up here -- this has been previously 

 11 admitted. This is Exhibit 132. Is this the access permit 

 12 that you're talking about?

 13 A. I couldn't say. I'd have to read the whole thing, and I'd 

 14 have to compare it to -- I don't know which permit this is 

 15 because we did make a modification.

 16 Q. Sure. Well, if you like -- if you like, I can flip pages 

 17 here. Maybe I can just walk this up to you, and you can flip 

 18 pages yourself. 

 19 A. Okay.

 20 MR. FIDEL: May I approach the witness, Your Honor? 

 21 THE COURT: Yes.

 22 MR. FIDEL: Thank you.

 23 BY MR. FIDEL:

 24 A. Okay. The question?

 25 Q. Yeah, do you recognize that to be the access permit?

43

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DIRECT EXAMINATION OF SIDNEY SLONE

 1 A. Yes, sir.

 2 Q. And is that the amended one that became effective July 

 3 1st, 2017?

 4 A. We didn't amend it.

 5 Q. You didn't?

 6 A. No.

 7 Q. Is that the same permit that was effective in -- for the 

 8 2016-'17 --

 9 A. We made modifications but we didn't amend it. "Amendment" 

 10 implies you're doing some process. We're not doing a process. 

 11 We're trying to -- we did a clarification and we made changes.

 12 Q. Okay. So --

 13 A. We didn't -- the rules were -- everything was the same in 

 14 2016 as in 2017.

 15 Q. But the language on the permit is different?

 16 A. The language is different.

 17 Q. And as you say, it's a modification, but there's no 

 18 process to that? Did I hear that right?

 19 A. No. A process?

 20 Q. Yeah. That's what you said; right?

 21 A. To do an amendment you may, you may have a process.

 22 Q. And you did not use any type of process here?

 23 A. What we did is we made these changes here, and we did it 

 24 to clarify what the rules were. We think people maybe couldn't 

 25 -- on the previous permit, it specifically said you can't 

44

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DIRECT EXAMINATION OF SIDNEY SLONE

 1 violate rules and regulations and federal and state laws on the 

 2 refuge.

 3 Q. So --

 4 A. And the thing was, evidently people -- we presumed people 

 5 understood that, so we just clarified that by putting language 

 6 in that made it pretty upfront and clear what you can and can't 

 7 do.

 8 Q. So for the -- is it the fiscal year beginning July 1st? 

 9 Is that --

 10 A. I don't know how -- no, because their fiscal year's 

 11 October 1st, so I'm not sure if that's military, July 1st, or 

 12 the old days that July 1st was the beginning of the fiscal 

 13 year.

 14 Q. So let's just call it the permit year beginning July 

 15 1st, 2017. 

 16 A. Permit year, yes.

 17 Q. That document, Exhibit 132, that is the new permit for 

 18 July 1st, 2017, through June 30th, 2018?

 19 A. On or about, because I'm not sure it's totally ready on 

 20 the 1st.

 21 Q. Got it. And it is different from the one that was 

 22 effective on or about July 1st, 2016, to June 30th, 2017?

 23 A. You said what? 

 24 Q. It is different from the previous year's permit; right?

 25 A. A little different, yes.

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DIRECT EXAMINATION OF SIDNEY SLONE

 1 Q. And the difference is that paragraph 13 on that document, 

 2 Exhibit 132, has been added; right?

 3 A. Has been what? 

 4 Q. Has been added. Has been added.

 5 A. Yeah, I think this is an expansion of a previous item but 

 6 expanded upon --

 7 Q. Okay. 

 8 A. -- to clarify on that rule.

 9 Q. And it has definitions for the term "personal property;" 

 10 right?

 11 A. It lays out examples.

 12 Q. Okay. And it has definitions for what "abandoning" 

 13 means; right?

 14 A. I don't know if it has the definition of "abandonment" or 

 15 not. It just tells you kind of what it is.

 16 Q. Okay. Is that not a definition, something that tells you 

 17 what it is?

 18 A. Not necessarily. I mean, a definition is a definition. 

 19 It's the terminology to it. An example is a little different, 

 20 necessarily.

 21 Q. Was that -- whether that paragraph was added wholesale or 

 22 expanded upon, was that change made in response to what you 

 23 had learned No More Deaths was doing on the refuge?

 24 A. Well, not only them but other folks.

 25 Q. Leaving water bottles?

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DIRECT EXAMINATION OF SIDNEY SLONE

 1 A. Yes. 

 2 Q. Were there other folks, to your knowledge, who had been 

 3 stopped on the refuge doing that?

 4 A. Not stopped, but we know they were putting water out on -- 

 5 we know for sure on BLM lands, but they were putting water out, 

 6 we suspect, on us too.

 7 Q. Okay. And these are -- do you know if any of those folks 

 8 were on the Do Not Issue Permit list?

 9 A. We never caught -- we never caught them on the refuge 

 10 violating the rules and regulations. Had we, we would have 

 11 done the same thing. 

 12 Q. I'd like to -- did you have any input in the language 

 13 that is found in paragraph 13 on Exhibit 132?

 14 A. This language may have came from the Air Force, because 

 15 they had the same issues, and it was a joint effort by us, the 

 16 Air Force, and the Bureau of Land Management to make these 

 17 changes, because we wanted it made upfront, these are the 

 18 rules, so you're really clear about it.

 19 Q. So did you have input in that language?

 20 A. Yes, I did.

 21 Q. And after you had input, did that go up to -- is it the 

 22 solicitor's office, to review it?

 23 A. Yes, sir, it is.

 24 Q. And then did it come back down from the solicitor's 

 25 office and go straight into the permit?

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DIRECT EXAMINATION OF SIDNEY SLONE

 1 A. It went to not only our solicitor, but the BLM solicitor 

 2 and the solicitor for the Air Force and the Marine Corps. 

 3 Q. Okay.

 4 A. All the respective solicitors reviewed the document to 

 5 make sure the language was appropriate.

 6 Q. So let me see if I can get it right. You and the other 

 7 land managers had some input, the language goes up to the 

 8 lawyers, the lawyers send it back down, and it winds up in the 

 9 permit?

 10 A. Yes, sir.

 11 MR. FIDEL: Okay. No further questions. Thank you.

 12 MS. WRIGHT: Your Honor, can we take a break, just 

 13 about 10 minutes maybe?

 14 THE COURT: Sure.

 15 MS. WRIGHT: Thank you.

 16 THE COURT: Stand at recess.

 17 (Off the record.) 

 18 THE COURT: You realize you're still under oath, 

 19 right, sir?

 20 THE WITNESS: Yes.

 21 THE COURT: You may proceed.

 22 MS. WRIGHT: Thank you, Your Honor.

 23 CROSS-EXAMINATION

 24 BY MS. WRIGHT:

 25 Q. Mr. Slone, as refuge manager, are you a law enforcement 

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CROSS-EXAMINATION OF SIDNEY SLONE

 1 officer?

 2 A. No, ma'am.

 3 Q. Are you trained in law enforcement?

 4 A. No, ma'am.

 5 Q. And the law enforcement officers who do work out at 

 6 Cabeza Prieta refuge, they're under your supervision in the 

 7 hierarchy of things; correct?

 8 A. Yes, ma'am. 

 9 Q. But they do not report to you every single violation that 

 10 they encounter on the refuge, do they?

 11 A. No.

 12 Q. And they do not report to you every single time there's a 

 13 violation on the refuge, do they?

 14 A. No.

 15 Q. Now, if the officers reported to you someone of 

 16 particular concern on the refuge, you might know about that; 

 17 right?

 18 A. Yes.

 19 Q. But that's only if the law enforcement officer brings it 

 20 to your attention; correct?

 21 A. Correct. 

 22 Q. Now, in your managing of the refuge, would you -- you 

 23 would say that, when violations are committed deliberately, 

 24 those are of greater concern to you than those that might be 

 25 committed because of a lack of education or through 

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CROSS-EXAMINATION OF SIDNEY SLONE

 1 negligence; correct?

 2 A. Correct.

 3 Q. And as the refuge manager, you are generally aware that 

 4 illegal immigration is an issue on the refuge that needs to be 

 5 managed; correct?

 6 A. I'm sorry?

 7 Q. As the refuge manager, you are generally aware that 

 8 illegal immigration is an issue on the refuge that you need to 

 9 manage; correct?

 10 A. Yes.

 11 Q. Let me rephrase. There's a bad relation there. 

 12 You're aware that illegal immigration happens on the 

 13 refuge; correct? 

 14 A. You say -- "immigration" implies one thing.

 15 Q. You are aware that there is illegal activity on the 

 16 refuge; correct?

 17 A. Yes, yes.

 18 Q. You are aware that some of that illegal activity includes 

 19 people crossing illegally into the United States; correct?

 20 A. Yes, ma'am.

 21 Q. And you're also aware that some of that illegal activity 

 22 includes drug smuggling activity; correct?

 23 A. Yes, ma'am.

 24 MR. FIDEL: Objection. Relevance. This is not a 

 25 case about drug smuggling.

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 1 THE COURT: Overruled. You may proceed.

 2 MS. WRIGHT: Thank you, Your Honor.

 3 BY MS. WRIGHT:

 4 Q. Let's talk for a minute about beacons that are present on 

 5 the refuge. Are you aware -- you're aware that those beacons 

 6 can be viewed up to five miles away at night; correct?

 7 A. Yes.

 8 Q. You're also aware that, as of August of last year, August 

 9 of -- sorry, August of the year before, 2017, at Charlie Bell 

 10 Well, there were three rescue beacons within five to ten miles 

 11 of Charlie Bell Well; right?

 12 A. Yes.

 13 Q. And one of those beacons was to the south of Charlie Bell 

 14 Well; right?

 15 A. Yes.

 16 Q. And so a person who had walked as far as Charlie Bell 

 17 Well would have walked past at least one beacon at that time; 

 18 correct?

 19 A. Within viewing distance.

 20 MR. FIDEL: Objection. Calls for speculation.

 21 THE COURT: Overruled.

 22 BY MS. WRIGHT:

 23 Q. And as of today there are now two additional beacons to 

 24 the south of Charlie Bell Well; correct?

 25 A. Yes.

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CROSS-EXAMINATION OF SIDNEY SLONE

 1 Q. And so if a person were to walk as far as Charlie Bell 

 2 Well today from the southern border, they would have to walk 

 3 past three beacons before reaching Charlie Bell Well; correct?

 4 MR. FIDEL: Objection. Foundation of the route 

 5 they're walking.

 6 THE COURT: Yes, I understand that. With that 

 7 understanding, you may answer.

 8 BY MS. WRIGHT:

 9 A. They would be from the border to -- what's the question? 

 10 Q. If a person were walking from the southern border up 

 11 through generally Growler Valley, in that dry area there, to 

 12 get to Charlie Bell Well the most direct route, they would 

 13 walk past three rescue beacons before they got there?

 14 A. Within some distance, yes.

 15 Q. Now, as the refuge manager, would it be fair to say that 

 16 you receive several emails a day?

 17 A. Oh.

 18 Q. Is that a "yes?" 

 19 A. Yes.

 20 Q. Would it also be fair to say that you send several emails 

 21 a day?

 22 A. Yes.

 23 Q. Would it be fair to say that each day you encounter 

 24 several individuals, several public -- members of the public 

 25 at the refuge office?

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CROSS-EXAMINATION OF SIDNEY SLONE

 1 A. Yes.

 2 Q. And over the course of a week or a year, would it be fair 

 3 to say that you send and receive hundreds of emails each day?

 4 A. Yes.

 5 Q. Not -- I'm sorry. Hundred of emails over the course of 

 6 that time?

 7 A. (Nodding.) 

 8 Q. And would it be fair to say that you may encounter 

 9 hundreds of members of the public over the course of a year?

 10 A. Yes.

 11 Q. Do you remember every email you send or receive?

 12 A. No.

 13 Q. Do you remember every person you meet at the office?

 14 A. No.

 15 Q. I'd like to talk to you about that April 2017 meeting 

 16 between your office and members of No More Deaths.

 17 A. Okay.

 18 Q. And Margo Cowan, a member of No More Deaths, was present 

 19 at that meeting; correct?

 20 A. Yes.

 21 Q. And you were present; correct?

 22 A. Yes.

 23 Q. And Mary Kralovec was present; correct?

 24 A. Yes.

 25 Q. And there were some other members of No More Deaths 

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 1 there; correct?

 2 A. Yes.

 3 Q. Now, during that meeting, you told everyone at the 

 4 meeting that you preferred to use rescue beacons as a method 

 5 for saving lives because they actually led to rescues; 

 6 correct?

 7 A. Yes, ma'am.

 8 Q. And you also said that the reason you preferred the 

 9 rescue beacons was because they did not leave trash behind on 

 10 the refuge; correct?

 11 A. Yes.

 12 Q. You indicated that placing more beacons on the refuge was 

 13 the way to proceed forward; correct?

 14 A. Yes.

 15 Q. You also indicated that, on the refuge, it was rare to 

 16 see illegal aliens crossing through who were not carrying 

 17 drugs; correct? 

 18 A. Yes.

 19 MR. FIDEL: Relevance.

 20 THE COURT: Who are not what?

 21 MS. WRIGHT: Not carrying drugs. So if I flip it to 

 22 the affirmative --

 23 THE COURT: Overruled. I mean, the objection is 

 24 overruled. You may answer.

 25 MS. WRIGHT: Thank you, Your Honor. 

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 1 BY MS. WRIGHT:

 2 Q. So on the refuge, more often than not, illegal aliens 

 3 crossing through are carrying drugs; correct?

 4 A. That's --

 5 MR. FIDEL: Objection. Foundation.

 6 THE COURT: Sure. You want to add some foundation. 

 7 Go ahead.

 8 BY MS. WRIGHT:

 9 Q. At that same meeting, you told the folks there, including 

 10 the No More Deaths representatives, that they could not have 

 11 access to restricted wilderness roads; correct?

 12 A. Correct, for driving, for driving motorized vehicles. 

 13 They could hike in.

 14 Q. So you told many members that they could not use their 

 15 personal vehicles to drive on the restricted roads in the 

 16 wilderness at that meeting; correct?

 17 A. Correct.

 18 Q. You told them they had no permission at that time to do 

 19 that; correct?

 20 A. Correct.

 21 Q. You also told them that, if they wanted to have further 

 22 access in vehicles to the refuge, that they could think about 

 23 doing ridealongs with other law enforcement officers; correct?

 24 A. Correct.

 25 Q. And that would be members of maybe the Pima County 

55

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CROSS-EXAMINATION OF SIDNEY SLONE

 1 Sheriff's Office to do remains recovery; correct?

 2 A. Correct.

 3 Q. Now, as part of this conversation, Ms. Cowan made several 

 4 statements to you; correct?

 5 A. Pardon? 

 6 Q. Ms. Cowan made several statements to you at this meeting; 

 7 correct?

 8 A. Yeah. Yes.

 9 MR. FIDEL: Object to the hearsay, Your Honor.

 10 MS. WRIGHT: And it goes to effect on the listener, 

 11 Your Honor.

 12 THE COURT: On this listener? 

 13 MS. WRIGHT: On this listener, Your Honor. He was 

 14 asked several questions about the Do Not Issue list.

 15 THE COURT: All right. Overruled.

 16 BY MS. WRIGHT:

 17 Q. Ms. Cowan told you at that time that No More Deaths was 

 18 going to continue their activities without regard to what you 

 19 said at that meeting; correct?

 20 A. Yes.

 21 Q. She also told you that members of No More Deaths were 

 22 going to continue to put out supplies on the refuge in 

 23 violation of the regulations?

 24 A. Yes.

 25 Q. Correct?

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CROSS-EXAMINATION OF SIDNEY SLONE

 1 A. Correct.

 2 Q. And she also told you that, even if they received 

 3 citations, No More Deaths volunteers would continue to violate 

 4 the regulations; correct?

 5 A. Correct.

 6 Q. And she said that they would take the issue up in court; 

 7 correct?

 8 A. Correct.

 9 Q. So as of that meeting, there was absolutely no agreement 

 10 and no understanding that No More Deaths could put supplies 

 11 out on the refuge or drive on restricted trails on the refuge 

 12 without violating the law; correct?

 13 A. That's correct.

 14 Q. I want to talk to you a little bit about the Hold 

 15 Harmless Agreement and the history there. The Hold Harmless 

 16 Agreement, which is Exhibit 2 and also 132 that you saw, that 

 17 was started at the request of the Air Force and the Marines; 

 18 correct?

 19 A. Correct.

 20 Q. And that was because, in the past, the Air Force and the 

 21 Marines used the area encompassed by the Hold Harmless 

 22 Agreement as a bombing range; correct?

 23 A. Correct.

 24 Q. And that the Air Force and Marines were concerned that 

 25 there were still unexploded ordnances on those lands; correct?

57

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 1 A. Correct.

 2 Q. And their concern was that, if the public traveled over 

 3 that land and was injured by an unexploded ordnance, there 

 4 could be liability consequences for the Air Force and the 

 5 Marines; correct?

 6 A. Correct.

 7 Q. And so the Hold Harmless Agreement serves in one aspect 

 8 to protect the lands and the managers of those lands from 

 9 liability from unexploded ordnance; correct?

 10 A. Correct.

 11 Q. Now, in your capacity as a refuge manager for Fish and 

 12 Wildlife, do you have the ability to bind the other agencies 

 13 that are a part of the Hold Harmless Agreement?

 14 A. No.

 15 Q. And in fact, in the past, the other agencies have asked 

 16 you not to issue permits because of activities on their land; 

 17 correct?

 18 A. Correct.

 19 Q. And that's done as a courtesy for the overall management 

 20 of those lands; correct?

 21 A. Correct.

 22 Q. Now, as part of your work as the refuge manager, did you 

 23 become aware of certain information about individuals 

 24 attempting to receive permits from BLM in Phoenix?

 25 A. Yes. 

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CROSS-EXAMINATION OF SIDNEY SLONE

 1 Q. And that information that you received was that 

 2 individuals were going to go to BLM in Phoenix in order to 

 3 work around the issues that were happening on the refuge; 

 4 correct?

 5 A. Correct.

 6 Q. And that issue was that people may have been told they 

 7 could not have permits from you or from the other managers 

 8 there, and they were going to BLM in Phoenix in order to avoid 

 9 that consequence; correct?

 10 A. Correct.

 11 Q. And so the Do Not Issue list was a formalized way to let 

 12 everyone know, regardless if they were in Phoenix or Tucson, 

 13 that certain people had violated the regulations and were not 

 14 to be issued permits; correct?

 15 A. Correct.

 16 Q. Now, the Hold Harmless Agreement, prior to July 2017, it 

 17 did not allow people to leave supplies out on the refuge; 

 18 correct?

 19 A. No.

 20 Q. It did not allow people to leave gallon jugs of water on 

 21 the refuge; correct?

 22 A. No.

 23 Q. It did not allow them to leave beans or blankets; 

 24 correct?

 25 A. Correct.

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CROSS-EXAMINATION OF SIDNEY SLONE

 1 Q. In fact, it didn't matter what it was. Everyone was 

 2 required to pack back out what they packed in prior to July of 

 3 '17; correct?

 4 A. Correct.

 5 Q. And so -- and the Hold Harmless Agreement is necessary to 

 6 get a permit to access the refuge; correct?

 7 A. Correct.

 8 Q. And that has never changed, that you must sign the Hold 

 9 Harmless Agreement to get the permit; correct?

 10 A. Correct.

 11 MS. WRIGHT: Your Honor, could I have a 

 12 moment, please?

 13 THE COURT: Uh-huh, yes.

 14 MS. WRIGHT: Thank you.

 15 BY MS. WRIGHT:

 16 Q. I want to take us back a minute to the idea of unexploded 

 17 ordnance, and it's correct that an unexploded ordnance is an 

 18 item that could blow up if triggered; correct?

 19 A. Correct. 

 20 Q. And if it blew up, it could injure someone or kill 

 21 someone; correct?

 22 A. Correct.

 23 Q. And that person could be a member of the public out on 

 24 these lands; correct?

 25 A. Correct.

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CROSS-EXAMINATION OF SIDNEY SLONE

 1 Q. It could be a member of your staff or another federal 

 2 employee out on these lands; correct?

 3 A. Correct.

 4 Q. It could be someone who is volunteering with a 

 5 humanitarian organization; correct?

 6 A. Correct. 

 7 Q. And it could also be anybody who's crossing through those 

 8 lands illegally; correct?

 9 A. Correct.

 10 Q. So the ordnance doesn't care who triggers it. Anyone 

 11 could be killed or injured by that ordnance. 

 12 Correct?

 13 A. Correct.

 14 MS. WRIGHT: Your Honor, that's all I have.

 15 THE COURT: Redirect?

 16 MR. FIDEL: Sure.

 17 THE COURT: It's not required.

 18 MR. FIDEL: Just a couple questions.

 19 THE COURT: Okay.

 20 REDIRECT EXAMINATION 

 21 BY MR. FIDEL:

 22 Q. About the ordnance, the unexploded ordnance, those are 

 23 like bombs and missiles?

 24 A. And rounds of, I don't know, 50 millimeter or 200 

 25 millimeter rounds or whatever that are like, you know, giant 

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REDIRECT EXAMINATION OF SIDNEY SLONE

 1 bullets out there also, and missile, missile-type -- 

 2 Q. And those could be --

 3 A. -- bombs.

 4 Q. And those could be -- and just for the record, because 

 5 there's a court reporter, you've got your hands, like, a 

 6 foot-and-a-half apart or something?

 7 A. Oh.

 8 Q. To show the size? 

 9 A. Sure.

 10 Q. Okay.

 11 A. Or bigger.

 12 Q. And these are all -- could be anywhere on the refuge; 

 13 right?

 14 A. Yes.

 15 Q. When somebody gets a permit, you don't, like, give them a 

 16 map of where those things are; right?

 17 A. No one knows where they're at.

 18 Q. They could be anywhere?

 19 A. Yes.

 20 Q. How long was Cabeza Prieta a bombing range for?

 21 A. 1941 I believe is when it began.

 22 Q. It began. And when did it stop?

 23 A. It stopped after World War II, and the Korean War it 

 24 picked up again.

 25 Q. Okay. And it's been -- do you know when it stopped being 

62

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REDIRECT EXAMINATION OF SIDNEY SLONE

 1 a bombing range?

 2 A. It's still used as an aerial gunnery range, so the Air 

 3 Force and Marine Corps both still use -- the Barry Goldwater 

 4 airspace is managed and controlled by them, and so when they 

 5 have -- the Air Force has certain equipment on the refuge. So 

 6 they still use -- you know, the airspace on the refuge is 

 7 controlled by the military and the FAA.

 8 Q. So there's still bombs and missiles that could be flying 

 9 overhead anyways?

 10 A. Well, they're not dropping them on the refuge.

 11 Q. They're not dropping them on the refuge, but they could 

 12 be shooting them across or something?

 13 A. I don't think they -- no, I don't think they shoot them 

 14 across. They use the airspace to maneuver, but they 

 15 actually -- everything they release is on the Barry Goldwater 

 16 now.

 17 Q. Got it. But the planes are overhead? Is that what 

 18 you're saying?

 19 A. Yes.

 20 MR. FIDEL: All right. No further questions.

 21 THE COURT: You may step down, sir. You're excused.

 22 THE WITNESS: Thank you, sir.

 23 MR. FIDEL: Call Yurie Aitken next.

 24 THE COURT: If you'd come over here, sir.

 25 THE CLERK: You can step up and then raise your 

63

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DIRECT EXAMINATION OF YURIE AITKEN

 1 right hand, please. 

 2 YURIE AITKEN, WITNESS, SWORN

 3 DIRECT EXAMINATION

 4 BY MR. FIDEL:

 5 Q. Good morning.

 6 A. Good morning.

 7 Q. Is it Mr. Aitken or Officer Aitken, Agent Aitken?

 8 A. Whatever you'd like. Mr. or Officer. That's fine.

 9 Q. Okay. Are you with a law enforcement agency?

 10 A. I'm with the United States Fish and Wildlife Service. 

 11 It's not a law enforcement agency.

 12 Q. What's your position with Fish and Wildlife?

 13 A. I'm a federal wildlife zone officer.

 14 Q. And what does that mean?

 15 A. It's essentially a middle management law enforcement 

 16 position with no supervisory authority.

 17 Q. Okay. And what's the day-to-day -- what do you do 

 18 day-to-day?

 19 A. Day-to-day, I try to help the Regional Law Enforcement 

 20 Program, which is Region 2 in this particular instance. I try 

 21 to help the managers who are non-law enforcement and the law 

 22 enforcement officers who are supervised by the non-law 

 23 enforcement managers. I try to help them with the Regional Law 

 24 Enforcement Program.

 25 Q. Got it. I'd like to take you back to July 6th, 2017. Do 

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DIRECT EXAMINATION OF YURIE AITKEN

 1 you recall summer 2017?

 2 A. I believe July 6th was a conference call, if I remember 

 3 correctly.

 4 Q. Yeah. And do you recall who was on that conference call?

 5 A. I believe there were representatives from No More Deaths, 

 6 from the Fish and Wildlife Service, the solicitor's office, the 

 7 U.S. Attorney's Office, and some other agencies, not Fish and 

 8 Wildlife, but some other agencies with the Department of 

 9 Interior.

 10 Q. Do you recall what the discussion was about?

 11 A. The discussion was about No More Deaths and being on the 

 12 property with the United States Fish and Wildlife Service in 

 13 the area, past violations that may have occurred, people being 

 14 on the wilderness area and the refuge.

 15 Q. And do you recall who was there on behalf of the U.S. 

 16 Attorney's Office?

 17 A. I was on a conference call. I wasn't actually physically 

 18 present for the meeting, and I don't recall.

 19 Q. All right. Do you recall somebody from the U.S. 

 20 Attorney's Office speaking?

 21 A. Yes.

 22 Q. Do you recall them saying something about how the U.S. 

 23 Attorney's Office, the Department of Justice, would handle 

 24 cases of violations on the refuge?

 25 A. I heard him state how he handled things or perceived how 

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DIRECT EXAMINATION OF YURIE AITKEN

 1 things were handled at the court district. I didn't hear if 

 2 that was an official policy.

 3 Q. What did you hear him say?

 4 A. I believe he made statements along the lines that, if 

 5 there were violations that occurred with No More Deaths on the 

 6 U.S. Fish and Wildlife Service lands, that if they came to 

 7 court, he would hold them accountable to not or commit to not 

 8 violate again, and then the case would be dismissed.

 9 Q. I'm going to show you what's been marked as Exhibit 

 10 139-1. Does this look like a briefing report that you 

 11 prepared?

 12 A. It does.

 13 Q. Is that, in fact, what this is?

 14 A. It is.

 15 Q. All right. And I'm going to turn to the second page. 

 16 Well, some of this is in black font. Some of this is in 

 17 red font. Is that you who did that?

 18 A. I believe it is, yes.

 19 Q. What does that mean, the red font and black font?

 20 A. The black font are notes and statements taken from the 

 21 meeting. The red font, I believe, are courses of action that 

 22 might be helpful to the Government, so the recommendations that 

 23 I had.

 24 Q. Okay. And does here on page two, under subheading F, 

 25 does this have -- do I understand that to be your description 

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DIRECT EXAMINATION OF YURIE AITKEN

 1 of what you're hearing or your interpretation of what you're 

 2 hearing?

 3 A. That would be my opinion on what I perceived from the 

 4 conversation that was on the conference call.

 5 Q. All right. And there you write that DOJ does not appear 

 6 to want to prosecute violations regarding this group. Is that 

 7 right?

 8 A. Yes, that's correct.

 9 Q. Okay. There's another section here on page one, under 

 10 the Roman Numeral I, you have listed the manner in which these 

 11 tickets are handled. 

 12 Do I understand that right?

 13 A. That was information taken from the statements of the 

 14 Department of Justice representative on -- his take on how 

 15 things were handled. I don't know the official policy of the 

 16 Department of Justice.

 17 Q. Okay. So the way he was doing it, if I'm reading this 

 18 right, "Tickets issued are dismissed/not prosecuted if the 

 19 person shows up to court (DOJ has them commit to not violate 

 20 again)." 

 21 A. Yes, that's the statements I heard him make.

 22 Q. Got it. In the conclusion of the meeting, turning to 

 23 page two, in the red font, it looks like, "No More Deaths has 

 24 expressed a common goal of working with the Government to save 

 25 lives." 

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DIRECT/CROSS-EXAMINATION OF YURIE AITKEN

 1 Is that your understanding of the meeting?

 2 A. Yes. It was generally a cordial conference call, and 

 3 that's the information I put in there.

 4 MR. FIDEL: Okay. I would move to admit this 

 5 exhibit, Your Honor.

 6 MR. WALTERS: No objection, Your Honor.

 7 THE COURT: It'll be admitted.

 8 MR. FIDEL: Thank you. No further questions.

 9 THE WITNESS: Thank you.

 10 CROSS-EXAMINATION

 11 BY MR. WALTERS:

 12 Q. Mr. Aitken, you were not at Cabeza Prieta the day of this 

 13 offense; correct?

 14 A. I was not.

 15 Q. So you were not there on August 13th, 2017?

 16 A. I was not.

 17 Q. You have no personal or firsthand knowledge regarding the 

 18 charges that these defendants are charged with; correct?

 19 A. I do not.

 20 Q. Let's talk about this meeting. After that meeting 

 21 happened back in, I believe, July of 2017, did you -- you 

 22 never followed up with any AUSA about that meeting; correct?

 23 A. I did not.

 24 Q. You didn't follow up with any member from the U.S. 

 25 Attorney's Office; correct?

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 1 A. I did not.

 2 Q. You didn't follow up with emails or follow up in any way 

 3 with No More Deaths?

 4 A. I did not.

 5 Q. So is it fair to say, then, that had there been emails 

 6 between the U.S. Attorney's Office and No More Deaths, that 

 7 was not something that you were privy to?

 8 A. I was not.

 9 Q. Okay. During this meeting, did you ever hear anybody 

 10 from the U.S. Attorney's office specifically state that No 

 11 More Deaths had permission to drive in a wilderness area?

 12 A. I did not.

 13 Q. Did you ever hear anybody from the U.S. Attorney's Office 

 14 say that No More Deaths had permission to go onto a refuge 

 15 without a permit?

 16 A. I did not.

 17 Q. Did you ever hear anybody from the U.S. Attorney's Office 

 18 say that No More Deaths had permission to abandon property on 

 19 a national wildlife refuge?

 20 A. I did not.

 21 Q. Did you ever hear anybody from the Department of Interior 

 22 say that No More Deaths had any authority to do any of those 

 23 things?

 24 A. I did not.

 25 Q. With regard to those things, did any person from the U.S. 

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 1 Attorney's Office say that any of those actions were legal 

 2 under federal law?

 3 A. No.

 4 Q. Did anybody from the Department of Interior say that 

 5 those actions were legal under federal law?

 6 A. No.

 7 Q. After that July meeting, you never clarified with any 

 8 member from the U.S. Attorney's Office, again, by email, phone 

 9 call, or otherwise; correct?

 10 A. No.

 11 Q. Did you ever have a face-to-face meeting about that 

 12 meeting with any member of the U.S. Attorney's Office?

 13 A. No.

 14 MR. WALTERS: Can I have a minute, Your Honor?

 15 THE COURT: Yeah.

 16 MR. WALTERS: Couple more questions.

 17 BY MR. WALTERS:

 18 Q. At that July meeting, did you ever hear any 

 19 representative of No More Deaths say they were not going to 

 20 get permits?

 21 A. I don't recall that, no.

 22 Q. Do you recall any member of No More Deaths saying, 

 23 regardless of permissions or not, they were going to drive in 

 24 a wilderness area?

 25 A. I believe the statement I heard was that saving lives was 

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 1 going to be permissible regardless of the legal ramifications. 

 2 Q. So whether they had permission, they were going to do it 

 3 anyway?

 4 A. That's what I took from the meeting, yes.

 5 MR. WALTERS: I have no further questions, Your 

 6 Honor. 

 7 REDIRECT EXAMINATION

 8 BY MR. FIDEL:

 9 Q. Officer Aitken, looking at Exhibit 139-1, Mr. Walters 

 10 asked you if anyone from No More Deaths stated they, I 

 11 forget, would or would not apply for a permit. 

 12 Do you recall that?

 13 A. I don't recall those specific words at that specific time. 

 14 Q. Some question to that -- some question to that effect 

 15 from Mr. Walters. 

 16 Do you recall that?

 17 A. On the legality of what they would and would not do, yes, 

 18 I have.

 19 Q. Yeah. And do you recall that No More Deaths advised 

 20 that, as you document here on your report, they have no 

 21 ability to apply for permits to do humanitarian aid?

 22 A. That was their assertion, yes. No More Deaths made that 

 23 statement.

 24 Q. And when you take these notes, when you prepared this -- 

 25 what do I call it this? Briefing report?

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 1 A. I believe it's a briefing paper. 

 2 Q. This briefing paper, are you taking notes during the 

 3 conference call?

 4 A. Yes. I usually take notes during conference calls.

 5 Q. And then you prepared the report -- the briefing paper 

 6 based on the report?

 7 A. From the report and from the stuff in my memory.

 8 Q. Sure. And who gets this report?

 9 A. This was sent up to the Division of Refuge Law Enforcement 

 10 Regional Chief Joseph Mojica, who is my direct supervisor.

 11 Q. And does it go up the chain, so to speak, from there?

 12 A. I'm not sure where it goes after it goes to his office.

 13 Q. At any rate, I take it when you prepare this report, your 

 14 objective is for it to be accurate and relied upon by others?

 15 A. Yes, for the briefing paper.

 16 Q. And did you review the briefing paper and ensure that it 

 17 was accurate to the best of your memory before you sent it up 

 18 to your supervisor?

 19 A. Yes.

 20 Q. And so the way you have described things in this report, 

 21 is that your best recollection of them as documented at the 

 22 time?

 23 A. Yes.

 24 Q. And I take it you prepared this shortly after the meeting 

 25 actually took place, the conference call?

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 1 A. I believe so, but I'm not certain.

 2 Q. Okay. Is this dated? Is it your practice to date these 

 3 papers?

 4 A. This one has the date of July 6th, 2017, which I believe 

 5 was the date of the conference call.

 6 Q. Do you know if you prepared it the same day?

 7 A. I do not. If there is an email chain, it possibly has a 

 8 date on that.

 9 MR. FIDEL: Okay. Judge, this exhibit has been 

 10 admitted. Can we publish it?

 11 THE COURT: Sure. What's the number?

 12 MR. FIDEL: 139-1.

 13 BY MR. FIDEL:

 14 Q. As part of this meeting, No More Deaths informed the 

 15 Government that it had no agenda other than humanitarian aid 

 16 work and that they were not political; right?

 17 A. That was their assertion, yes.

 18 Q. And their objective here was to work cooperatively with 

 19 the Government to establish some kind of working relationship?

 20 A. That was their assertion, yes.

 21 Q. And I think you testified that the attitude was cordial 

 22 during the meeting. Was it cordial, did it appear to be 

 23 cordial, at the conclusion of the meeting as well?

 24 A. The entire meeting, that would have been cordial. 

 25 Q. Was there a commitment to further discussion?

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 1 A. I didn't hear any concrete commitments to do anything.

 2 Q. Okay. I see in your notes, the red part -- oh, here it 

 3 is. At the bottom of page one, is this your recommendation 

 4 for future face-to-face meetings?

 5 A. This is a possible course of action that might be 

 6 beneficial, so I included that in what is there under my 

 7 general observations and possible action items for the future.

 8 Q. That's -- so this is, like, your perception of what might 

 9 be a good idea?

 10 A. Yeah, my opinion, perception.

 11 Q. Okay. And the next issue down is a review of the permit 

 12 process; is that right?

 13 A. Review of the permit -- yes, sir.

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

 15 THE COURT: Is there anything about this -- is 

 16 this -- how would you characterize this briefing paper? Is it 

 17 for your information to your boss?

 18 THE WITNESS: It was. My boss was unable to 

 19 attend, so he --

 20 THE COURT: Is it an action memo, this is what 

 21 happened and this is what I recommend?

 22 THE WITNESS: Yes. It would be a one-page briefing.

 23 THE COURT: And did you ever get a response?

 24 THE WITNESS: I don't recall ever receiving a 

 25 response, no, after I sent it up.

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 1 THE COURT: So you said something to your boss, and 

 2 your boss ignored you?

 3 THE WITNESS: On those particular items, I don't 

 4 know if it was ignored. I have -- I have no knowledge where 

 5 it was passed up to or who --

 6 THE COURT: You didn't get anything back saying, 

 7 from now on this is what we're going to do? 

 8 THE WITNESS: No, sir.

 9 THE COURT: From now on this is what's acceptable? 

 10 THE WITNESS: No, sir.

 11 THE COURT: So you just sent some information up to 

 12 your boss, and it says, we should have more meetings? 

 13 THE WITNESS: I said that's one possible action that 

 14 I could see that might be beneficial, and what they did with 

 15 that information, I don't know.

 16 THE COURT: You never heard back? 

 17 THE WITNESS: No, sir.

 18 THE COURT: So nothing came of the meeting?

 19 THE WITNESS: Not to my knowledge.

 20 THE COURT: All right. If there's nothing further, 

 21 you may step down.

 22 MR. FIDEL: Nothing further.

 23 MR. WALTERS: (Shaking head.) 

 24 MR. DUPONT: May I suggest a lunch break, Your 

 25 Honor? 

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 1 THE COURT: All right. I have -- I have a meeting. 

 2 We'll start at 1:20. I have a meeting about what we're going 

 3 to do without a budget.

 4 (Off the record.)

 5 THE COURT: You may proceed.

 6 MR. DUPONT: Thank you, Your Honor. Ed McCullough 

 7 is coming to the witness stand.

 8 THE CLERK: If you'd raise your right hand, please.

 9 EDGAR McCULLOUGH, WITNESS, SWORN 

 10 DIRECT EXAMINATION

 11 BY MR. DUPONT:

 12 Q. Good afternoon.

 13 A. Hi there.

 14 Q. Can you please introduce yourself to the Court. 

 15 A. My name is Ed McCullough.

 16 Q. And could you talk to us a little bit about your 

 17 professional experience and the education you had leading up 

 18 to that profession.

 19 A. I received my Ph.D. in geology from the University of 

 20 Arizona, 1964. I was on the -- and then went on the faculty, 

 21 and I went up through the -- through the ranks. I was an 

 22 instructor and assistant professor, associate professor, and 

 23 then I became a department head in 1970 of the geology 

 24 department. And then in 1982 I was appointed dean of the 

 25 faculty of science. And then I retired in 1994. No, 2000 -- 

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 1 no, yeah, 1994. It's been a long time.

 2 Q. And as part of geology, are you familiar with mapping? 

 3 Do you make maps? Can you talk a little bit about that?

 4 A. The specific area of geology that I was in required 

 5 working in the outdoors and doing mapping, and you're 

 6 completely dependent on the maps if you're going to collect 

 7 that information because you need to show where particular rock 

 8 formations and various properties of the rocks are, and they 

 9 need to be -- need to be shown on the map. 

 10 And many places where we didn't have maps or the details 

 11 were not enough, we actually made -- constructed our own maps 

 12 using what's called the plane table method of mapping.

 13 Q. I imagine mapping techniques changed between 1980s and 

 14 the present time.

 15 A. It's night and day. I had a guy come out to survey my 

 16 property. He drove out in a car, set up a unit, and in two 

 17 hours he had mapped my whole property, including contour 

 18 lines, and it would have taken me weeks to do that and a 

 19 half-dozen people working with me. 

 20 The GPS, the development of the GPSs, I could have been 

 21 twice as productive as a geologist if we'd had a GPS, because 

 22 half the time I was out there, I didn't know where I was.

 23 Q. Well, I'm glad you found your way here. 

 24 As technology advanced, did you advance with it? Did you 

 25 learn GPS and mapping --

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 1 A. I moved along with using the new instruments. I did not 

 2 move along with the -- all the changes in surveying. Those are 

 3 quite sophisticated now, and I didn't really need to know that 

 4 sort of thing. I needed the basic instruments that you need to 

 5 use to find out where you are and keep from getting lost.

 6 Q. And you're familiar with how to use GPS and do you have 

 7 GPS software?

 8 A. Yes. I have -- on my computer I have the software that I 

 9 need to do what I'm doing. I've got a half-dozen GP units of 

 10 my own, and I'm in the Tucson Samaritans, and I've been in 

 11 charge of obtaining and instructing people on the use of the 

 12 GPS.

 13 Q. And GP units, what are those?

 14 A. I'm sorry? 

 15 Q. What is a GP unit? You said you've got six GP units. 

 16 A. Oh, it's a hand-held, the hand-held GPS, Garmin, which I 

 17 think most people are familiar with. 300 -- you can get them 

 18 now for $300 or so, and that has everything. It does 

 19 everything that you need to do in terms of what we do.

 20 Q. When you retired in 1994, did you continue with a 

 21 professional career, or did you devote more time to volunteer 

 22 work? What have you been doing?

 23 A. I actually thought that I would do consulting, and I had a 

 24 couple bad experiences, so after a year I got out of that. I 

 25 won't tell you what the bad experiences were. But then we 

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 1 started volunteering with the Tucson Samaritans, and it turns 

 2 out that developed into pretty much a full-time job for a 

 3 number of years.

 4 Q. What is Tucson Samaritans?

 5 A. It's a humanitarian group. It works out of the Southside 

 6 Presbyterian Church.

 7 Q. Where John Fife --

 8 A. I'm sorry? 

 9 Q. Where John Fife was the minister?

 10 A. Yes, where John Fife was the minister. 

 11 And the mission of the Samaritans is to relieve pain and 

 12 suffering and prevent deaths in the desert, and --

 13 Q. And how long has Tucson Samaritans been operating?

 14 A. Well, the first group -- well, when we started having 

 15 deaths, deaths in the desert. 

 16 And we don't report deaths. We report recovered human 

 17 remains, because what you do is you find a body. One of the 

 18 things that's done, people believe that we find everybody that 

 19 dies, and that's not true. We may not find more than one in 

 20 ten. So we can't talk about the total number of deaths, but 

 21 what we can do is talk about the recovered human remains. 

 22 But there's starting to be more and more of those. The 

 23 number of those increased exponentially essentially for a few 

 24 years, and the group of humanitarian people in Tucson, 

 25 including John Fife, put together the Humane Borders, and 

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 1 Humane Borders was a group that -- they took a look at why the 

 2 deaths were occurring, and the obvious thing that causes most 

 3 of the deaths is lack of water. 

 4 And so they thought that they would put water in the 

 5 desert, and they were putting 55-gallon drums out, but there 

 6 were limitations on that in that, if you have a 55-gallon drum 

 7 of water, it's very heavy. You gotta have a heavy truck. So 

 8 it limited the places that you could go. 

 9 And in 2002, the same group of people decided we needed to 

 10 have more of a presence in the desert, and we formed the Tucson 

 11 Samaritans. Tucson Samaritans go out every day. Sometimes we 

 12 have two trips of two cars going out on a given day. They 

 13 drive the roads in the general Arivaca area, and then they walk 

 14 short distances on the trails hunting for people. And we hope 

 15 to find people before -- before they die. 

 16 Oh, and in 2004, the No More Deaths was formed. It was 

 17 actually originally in the Tucson Samaritans, and they split 

 18 off two or three years after they formed.

 19 Q. Why did you need another organization like No More 

 20 Deaths?

 21 A. The deaths kept going up, and it was decided what we 

 22 really needed was a 24/7 presence in the desert, and so No More 

 23 Deaths was set up, had a permanent camp down east of Arivaca, 

 24 and we actually stayed in that camp, and we could walk from the 

 25 camp. The camp that was established was on one of the main 

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 1 corridors of trails, so you could walk right from the camp to 

 2 the trails and hunt for people who needed help.

 3 Q. And my understanding is at some point the places where 

 4 there were more remains recovered were more remote areas, and 

 5 No More Deaths may have attracted younger people who were able 

 6 to access those areas?

 7 A. Well, the thing that attracted the younger people is that 

 8 walking the trails, you're doing 10 or 12 miles a day, and many 

 9 of the Samaritans are retired people, and they just can't 

 10 handle that kind of walking. No More Deaths tends to be 

 11 much, much younger people, and they have the capability or the 

 12 stamina to walk the trails. 

 13 Q. During -- during your work with the Samaritans, did you 

 14 begin to develop mapping systems for your work?

 15 A. Oh, the first -- I was down there the first week of the 

 16 first camp, and what we were doing was just getting out and 

 17 walking from the camp and finding the trail and walking the 

 18 trail and then coming back to camp at night, and we'd sit 

 19 around the campfire talking. 

 20 And one of the first things that became apparent was, 

 21 people would go out, and they'd wander until they'd find a 

 22 trail and then walk it, and they'd get back, and they couldn't 

 23 tell -- tell us -- couldn't really tell us where they'd been, 

 24 and not only that, when we would attempt in some cases to go 

 25 back where they'd been, we were unable do it. 

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 1 So it became apparent to me that what you really needed 

 2 was a map, and so that was the -- that summer was the 

 3 initiation of the mapping program, and the -- the mapping 

 4 program was developed to meet these needs, that we need to be 

 5 able to tell -- to tell other people where -- where the trails 

 6 were. 

 7 And then, as we extended the network of trails, we needed 

 8 to make sure our people didn't go out and get lost. One of my 

 9 biggest fears was people going out and dying, themselves dying 

 10 in the desert because they just weren't able to get back. 

 11 This is a -- this is an area with lots of ranches, very 

 12 few residences, and you can go all day and never see anybody, 

 13 so it would be plausible to get lost and actually have a 

 14 serious situation.

 15 Q. All day without seeing any ranches or other sources of 

 16 water?

 17 A. I'm sorry?

 18 Q. You could go all day even without seeing any sources of 

 19 water?

 20 A. Yeah, if you're right there in the dry period, you can go 

 21 long distances without seeing water.

 22 Q. Can we show the witness Exhibit 190. 

 23 Is it on your screen, Dr. McCullough?

 24 A. Yes.

 25 Q. Can you tell the Court what this is. I'm going to go 

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 1 through all three pages. 

 2 A. This is the trail system as we know it. The green lines 

 3 are trails. The black lines are roads. There are blue lines 

 4 on here somewhere that represent the drainage areas.

 5 Q. Did you -- were you responsible for putting together 

 6 these maps?

 7 A. Just -- just the green, the green part. The base map was 

 8 a map that National Geographic was using, and they have a 

 9 mapping program called Topo which they've sold and is no longer 

 10 available, but it allows you to walk a trail with a GPS unit 

 11 and record that trail, and then, when you get home at night, 

 12 you download it into the computer, and it leaves a line, a line 

 13 of any color. I just happened to pick green. 

 14 And so each one of those green lines represents a trail. 

 15 That's the status of the trail today. We haven't finished the 

 16 mapping. I'm not even sure we're halfway done. By finishing 

 17 the mapping, that would mean extending all the trails to 

 18 Mexico, because that's where they're all coming from.

 19 Q. And so you're charting GPS points along trails and then 

 20 uploading the data to this program?

 21 A. Right. They actually -- you've got waypoints that you use 

 22 that you can actually mark a --

 23 Q. Can I just ask if this, these maps in 190, are they 

 24 accurately reflecting the work you've done and the trails 

 25 you've created? This program is accurate?

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 1 A. Yes, yeah.

 2 MR. DUPONT: Okay. We'll ask for admission of 

 3 Exhibit 190. 

 4 MS. WRIGHT: Your Honor, we object. There are 

 5 foundation issues here as to the testimony of who recorded all 

 6 of this information on this map and how it was inputted.

 7 THE COURT: It'll be admitted.

 8 BY MR. DUPONT:

 9 Q. Okay. You were saying about the waypoints -- or 

 10 actually, let's just talk about these maps, because I'm 

 11 curious about the red lines now too.

 12 A. Well, the --

 13 MR. DUPONT: Oh, can we publish? I'm sorry.

 14 THE COURT: Sure.

 15 MR. DUPONT: Thank you, Your Honor.

 16 BY MR. DUPONT:

 17 Q. Okay. I'm sorry, sir. 

 18 A. It was apparent early on that the deaths were taking place 

 19 because of the lack of water, and we -- the Humane Border -- 

 20 Humane Border problem was that they had 55-gallon tanks, and 

 21 they couldn't put them very -- very many places, so we thought 

 22 we'd put gallon jugs of water out. 

 23 And to ensure that we hit as many -- made the water 

 24 available to as many migrants as possible, what we wanted to do 

 25 was to locate the places on the trails where the migrants were 

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DIRECT EXAMINATION OF EDGAR McCULLOUGH

 1 walking.

 2 Those red lines, that's a -- there was a road that went -- 

 3 the trails, as you can see, go north-east, south-west, and 

 4 these red lines go essentially east-west. And those are roads 

 5 that cross the trail. So every place that the road crossed a 

 6 trail, we would use the GPS and make a waypoint and just record 

 7 the location of that point. And we'd -- as you can see from 

 8 the red lines, we've got water drops on -- someplace on all the 

 9 -- all the trails, and some places we have several sets.

 10 In the lower -- in that southwest quarter, that's Buenos 

 11 Aires National Monument Wildlife Refuge, and they don't allow 

 12 the Samaritans -- they don't allow anyone to leave water on 

 13 that, so we don't have any, we don't have any marked water 

 14 drops on that southwest portion.

 15 Q. Where do you see the markings for the water drops? Are 

 16 they on this map?

 17 A. They're -- wherever a red line crosses a trail is a water 

 18 drop.

 19 Q. Oh, I see. And what's that red flag there?

 20 A. Oh, that's the No More Deaths. That was the first -- that 

 21 was the place we set up the first camp, and you can see that 

 22 it's just adjacent to that whole set of -- that corridor of 

 23 trails.

 24 Q. And this is the area around Arivaca?

 25 A. Yes. We work in that area from just west -- just east of 

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DIRECT EXAMINATION OF EDGAR McCULLOUGH

 1 Nogales to the -- going west to the Tohono O’odham boundary and 

 2 north to Tucson, about 40 miles by 60 miles. 2400 square 

 3 miles. 

 4 Q. And how many miles are marked here?

 5 A. It's about 2,000. 2,000 miles of trails.

 6 Q. Just in the Arivaca area?

 7 A. Yes.

 8 MR. DUPONT: I'm going to change out now. 

 9 BY MR. DUPONT:

 10 Q. So we started to talk about the water drops, and I put up 

 11 here Exhibit 191. Do you see that?

 12 A. Yes.

 13 Q. And what are these pages about?

 14 A. Could you back up to the previous?

 15 Q. Yes, sir. We're on page one now. 

 16 A. Oh, there was one on there before this.

 17 Q. Any of these?

 18 A. It's -- that. That. That shows everything, and then all 

 19 those others are the same thing, but this shows it better, I 

 20 think. 

 21 If you're going to put water out, you really want to put 

 22 it in a place where it's going to get used and where it's 

 23 needed, and so we've put together a program that we think 

 24 enables us to do that.

 25 Q. And in the -- is this program -- you developed this?

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 1 A. Yes.

 2 Q. And is this the same program they're using in No More 

 3 Deaths now?

 4 A. I'm not really sure. It started out that way, but they've 

 5 pretty much gone their own way on this. I know they have water 

 6 drops, but I'm not sure how they collect data.

 7 Q. But this is the model they used --

 8 A. Yes.

 9 Q. -- then and to begin, and as far as you know --

 10 A. Yeah, I suspect that they do something similar to this.

 11 MR. DUPONT: All right. I'd ask for admission of 

 12 191, Your Honor. 

 13 MS. WRIGHT: Objection, Your Honor. He just 

 14 testified he doesn't know if this is what's being presently 

 15 used.

 16 THE COURT: Sustained.

 17 BY MR. DUPONT:

 18 Q. Can you talk about the system that was developed for use 

 19 and that No More Deaths originally adopted. 

 20 A. Yes.

 21 MS. WRIGHT: Objection, Your Honor. Relevance. 

 22 What they used in the past is not relevant to the matters in 

 23 this case.

 24 MR. DUPONT: Your Honor, conditional relevance. 

 25 We're going to tie it up with our clients later. There is 

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DIRECT EXAMINATION OF EDGAR McCULLOUGH

 1 no -- there is no reason to keep objecting like this. This 

 2 should all come in. Your Honor, I'm not doing anything novel. 

 3 Our people use this method. We know they do already.

 4 THE COURT: Sure. Let's hear it.

 5 MR. DUPONT: Can we just get this admitted now too, 

 6 Your Honor? 

 7 THE COURT: No, no. I'll let him talk, but -- let 

 8 him tell me what he wants.

 9 MR. DUPONT: Yes, sir.

 10 BY MR. DUPONT:

 11 Q. So can you talk about what you're doing to get water to 

 12 the people who are dying, the people who need it.

 13 A. They --

 14 Q. Just talk to us. 

 15 A. You need -- you need some -- to do this, you need some 

 16 evidence that people are coming across, and we collect what 

 17 we're calling artifacts. This is material that's dropped by 

 18 the migrants on their way from the south to the north, and the 

 19 presence of those artifacts, empty water jugs, tuna cans, items 

 20 of clothing and so forth, indicate that they've been through 

 21 there, and the concentration of those are an indication of the 

 22 quantity or the number of people there going on those -- on 

 23 those trails. 

 24 And at each water drop, we -- the Samaritans go out once 

 25 -- once a week or try to go out once a week to each of the 

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 1 water drops, and they'll put -- they get to the water drop, and 

 2 there will be a number of water jugs there, and we know how 

 3 many jugs are left in the previous week, so if you left 10 and 

 4 there are five, five of them are being -- have been used. 

 5 And the problem, of course, is how are they being 

 6 used, and are they being used by migrants? Are they being 

 7 picked up by Border Patrol and carried away? We have a lot of 

 8 vandalism. We lose about 15 to 20 percent of the water we drop 

 9 to vandalism, slashing the jugs and so forth. There is also 

 10 damage by animals. The birds that have learned to peck these 

 11 things to get water was another 10 percent or so. So about 70 

 12 percent of the water we put out we think is being used by 

 13 somebody.

 14 The evidence that we have that it's being used by the 

 15 migrants is that we will find empty bottles that they've 

 16 carried that are filled with water from cattle tanks. You can 

 17 tell -- it's brown and greenish, and that's what -- that's what 

 18 they've been drinking when the cattle tanks are full, and 

 19 that's generally during the monsoon season. Once the monsoon 

 20 season passes, they dry right up. 

 21 But we find their bottles with the water in it at the -- 

 22 at our water drops, indicating to us they came in with dirty 

 23 water, left that water, and took our water away.

 24 Q. Is that dangerous, to drink that dirty water?

 25 A. Oh, it's devastating.

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 1 MS. WRIGHT: Objection to foundation, Your Honor.

 2 THE COURT: Overruled. 

 3 BY MR. DUPONT:

 4 A. It's devastating. It creates all sorts of intestinal 

 5 problems, diarrhea, and there's cryptosporidium and all those 

 6 organisms in that water.

 7 Q. So you don't want to --

 8 A. No, you don't want to --

 9 Q. -- drink the animal's water.

 10 A. You don't want to drink it. 

 11 But then one of the things that we do, when we drop a 

 12 jug, we write the date and the location of that jug on it, and 

 13 we'll be walking trails that are north of our water drops, and 

 14 we will find empty bottles, and since they have a label on it 

 15 that tells us where it came from and the date, we're assuming 

 16 that that was used by the migrants. 

 17 If I were a migrant, and I were walking along and I found 

 18 a pile of water, I might well be suspicious that there was 

 19 someone there watching that pile, so I'd pick the jug up and 

 20 carry it a mile or so and then use it. And that's what we 

 21 find. A mile or so north of these water drops we'll find the 

 22 jugs, and they will have the date on it, so we know where it 

 23 came from, and we know the approximate time that it was 

 24 dropped. 

 25 So that's the indication to us that the water we're 

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 1 putting out there is being used. 

 2 Q. So you monitor it in this way, and how do you chart it?

 3 A. That's what this -- that's what this item is. This is a 

 4 -- well, this is a summary of what we did, in this case, 

 5 between January 2018 to June 2018. And this is -- we have the 

 6 waypoint on the far left. The waypoint, that's where the water 

 7 is left.

 8 Q. And that's a place you can go back and find again with 

 9 your GPS unit? 

 10 A. Yes, yeah. And the efficiency is -- our intent is to get 

 11 out to every waypoint, every week. We don't -- we just don't 

 12 have enough people to do that. The efficiency is a measure of 

 13 how close we are to that. And then the quantity of water 

 14 indicates, for that period of time, on those waypoints, we put 

 15 out 308 gallons. The usage was 140 gallons.

 16 Q. And that's presumably used by human beings, excluding the 

 17 other?

 18 A. Yeah. Yes. They might have been carried away by someone 

 19 other than the migrants. There's just no way for us to tell.

 20 Q. But human beings?

 21 A. Yeah, by human beings.

 22 Q. Got it.

 23 A. And inadequate supply, what we do is, if we go into a 

 24 water drop and there's no water there, that means that, when 

 25 the migrant comes into that place, there is not any water for 

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 1 him, so we say there is an inadequate supply of water, and this 

 2 is a measure of how many times that happened during that period 

 3 of time. 

 4 And the vandalism indicates how many jugs were slashed or 

 5 holes punched in the bottom. And then the animal -- and we 

 6 also keep track of how many empties were picked up at each of 

 7 the sites. I think an empty is a sign that a migrant has used 

 8 it. Most of our experience is that Border Patrol or hunters or 

 9 something will slash the jugs instead of just pouring the water 

 10 out. 

 11 And then the last column is the -- is an indication of how 

 12 many times that you get to a water drop and there was the same 

 13 amount of water there that was there the previous week, so no 

 14 water had been used during that period of time.

 15 Q. So once you've collected data and charted it and analyzed 

 16 it, what do you do with the analysis, the information that 

 17 you --

 18 A. Well, we've got all those, all those trails, and there are 

 19 actually too many trails and not enough people to do -- to do 

 20 as much hiking and so forth as we would like. What this allows 

 21 us to do is to tell where -- where the usage is. If you've got 

 22 high usage, that indicates to us that you've had a lot of 

 23 migrants coming through that area, so that ought to be a top 

 24 priority. 

 25 If you've got an area that's very low usage, then you 

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 1 would put that -- move that down toward the bottom in terms of 

 2 priorities. If we had enough people and stuff, we'd do every 

 3 one of these every week.

 4 Q. So you've been walking these trails since '94?

 5 A. No. I didn't start with the Samaritans until about 2002.

 6 Q. Oh, 2002.

 7 A. I --

 8 Q. 16 years. 

 9 A. Well, yeah. I worked with Bosnian refugees before that.

 10 Q. And during these 16 years, you've seen paths develop and 

 11 not develop. Where -- do these paths develop on flat land? 

 12 Contoured land?

 13 A. This whole area is mountainous, and one of the reasons 

 14 that the Government was reluctant to put border walls and 

 15 resources into it was they said that the mountains would deter 

 16 anyone from coming through.

 17 MS. WRIGHT: Objection. Foundation, speculation, 

 18 and nonresponsive, Your Honor.

 19 THE COURT: Sustained on foundation.

 20 BY MR. DUPONT:

 21 Q. So without talking about the Government policies --

 22 A. Uh-huh. 

 23 Q. -- your observations about where --

 24 A. It's all mountains.

 25 Q. So are -- so you'd find a trail in a valley, but not on 

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 1 the mountain, the flat --

 2 A. If you look at that map, those lines are straight. They 

 3 were straight as they can be. They're headed for Tucson, and 

 4 they go over the mountains and down the other side. They don't 

 5 -- there are a couple of places they go around the 

 6 mountains, but in -- essentially it's a straight line. They 

 7 just go straight from the Mexican border toward Tucson and the 

 8 Avra Valley.

 9 Q. Okay. Well, hopefully they're going straighter than my 

 10 questions, because I'm not. 

 11 Do paths form on flat ground? Do they form where there's 

 12 a channel? Do you know what I mean?

 13 A. Well, there are paths on flat ground. Then you have 

 14 pastures and meadows there, and the trails cross those.

 15 Q. Okay.

 16 A. There are problems with the pastures since you've got cows 

 17 on it, and the cows walking out would destroy the trail, so 

 18 you're following a trail, you get to a pasture, you've got to 

 19 walk completely around the pasture to find out where it comes 

 20 out the other side. But you've got a trail on both sides, so 

 21 they're obviously walking across the pasture. 

 22 They -- in going over the mountains, they go over the 

 23 passes, which is what you would expect.

 24 Q. Okay. When --

 25 A. When they go up the streams, in general, they don't go up 

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 1 the stream bottoms because it's full of debris, big rocks and 

 2 stuff, and also during the rainy season, they're full of water, 

 3 so the trails tend to be up on the side, 10-15 feet above the 

 4 bottom of the water course.

 5 Q. And you've seen these paths either develop into bigger 

 6 roads or disappear altogether during your 16 years?

 7 MS. WRIGHT: Objection. Leading, Your Honor.

 8 MR. DUPONT: It's foundational question, Your Honor.

 9 THE COURT: Sure.

 10 BY MR. DUPONT:

 11 Q. Do you know what I'm asking about now?

 12 A. I can give one example. I was -- I mapped this trail, and 

 13 it went up a hillside in a fairly straight line, and someone 

 14 started driving ATVs up that trail, and then they started 

 15 driving other vehicles. And that trail is now a road. It was 

 16 not created by the migrants, I don't think, but it was created 

 17 by people.

 18 MS. WRIGHT: Objection. Speculation, Your Honor.

 19 THE COURT: Overruled. 

 20 BY MR. DUPONT:

 21 A. The road -- the road is there. It started out as a trail 

 22 and has now become a road, and I saw ATV tracks and road 

 23 tracks, so that's obvious what -- obviously what caused the 

 24 road.

 25 Q. And when there's only a walking path, what happens during 

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 1 monsoon?

 2 A. Well, over the course of it, they become water courses. 

 3 The water will run along them. 

 4 I guess maybe I don't understand. 

 5 Q. We had talked before about whether they grow over.

 6 A. Oh, yeah. During the monsoon season, even the roads down 

 7 there get covered with grass. The grass just comes out 

 8 incredibly. And at times I've had real problems navigating the 

 9 roads because of the cover, but once the rain stops and dries 

 10 out, then the roads are apparent. 

 11 Same thing for trails. But on the trails, it's dependent 

 12 on the usage. So if you've got a high-usage trail, it becomes 

 13 more apparent after the monsoon season than some of the other 

 14 trails.

 15 Q. Have you run into any migrants in that area?

 16 A. Hundreds of them.

 17 Q. Have you ever run into anyone carrying packs or smuggling 

 18 drugs?

 19 A. No. The closest thing was I did find a backpack full of 

 20 plastic pouches, but I reported it to the Border Patrol.

 21 Q. What are the condition of the migrants you've 

 22 encountered?

 23 MS. WRIGHT: Objection. Relevance, Your Honor. 

 24 This testimony has all been about an area that is not on the 

 25 Cabeza, Your Honor.

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 1 THE COURT: I understand that. Sustained.

 2 MR. DUPONT: Your Honor, may I respond, or have you 

 3 decided for good? 

 4 THE COURT: Well, part of my job is to listen. Part 

 5 of my job is to listen. What do you want him to -- what are 

 6 you going to tell me to answer that question? 

 7 Do you ever find people in distress out there? 

 8 THE WITNESS: Oh, yes, all the time. I think maybe 

 9 I guess, I don't know, 30 percent of the people that I've 

 10 found were in what I would call distress, and in some cases, 

 11 as soon as I see them, we immediately call 911 to get help.

 12 BY MR. DUPONT:

 13 Q. Let me put up Exhibit 192 for the witness. I'm going to 

 14 kind of go through these and ask you, are you collecting the 

 15 data from the same -- the Medical Examiner's data that's going 

 16 out to Humane Borders?

 17 A. Yes. If could you back up to that first one, the next 

 18 one, yeah, this one --

 19 Q. Before you go, I'd like to see if I can get it admitted. 

 20 A. Oh.

 21 Q. So are you collecting the data from --

 22 A. Yeah, this -- every month I get a report from the Pima 

 23 County Coroner's Office that tells me how many -- they assign a 

 24 case number, and then we have the date that the human remains 

 25 were found and then the coordinate, the coordinates of the 

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 1 location, latitude and longitude. 

 2 Q. The GPS locations?

 3 A. Yes, uh-huh. GPS is based upon latitude. Well, GPS can 

 4 use the latitude/longitude.

 5 Q. That's the same data that's being inputted into that 

 6 interactive map by Humane Borders?

 7 A. Humane Borders, yes.

 8 Q. And the Medical Examiner's Office?

 9 A. I think all that data comes from the -- all the data we 

 10 use comes from the Medical Examiner's Office.

 11 Q. And then you're just putting into your National 

 12 Geographic --

 13 A. Yeah, whatever they send us. There are occasionally 

 14 corrections that they make, but we enter those when they come 

 15 in.

 16 Q. And this Exhibit 192 is an analysis of that data, both 

 17 has the data, some of the data points, and analysis and 

 18 mapping of that data; is that right?

 19 A. On this one, yes.

 20 MR. DUPONT: Move for admission of 192, Your Honor.

 21 MS. WRIGHT: Objection on foundation, Your Honor.

 22 THE COURT: Is this the Medical Examiner's report?

 23 MR. DUPONT: No, sir. This is just the same 

 24 data, but this is actually the data, then, that he's going to 

 25 be sending to No More Deaths that they're using to -- so I'm 

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 1 not going to go over all that Medical Examiner stuff again. I 

 2 just want to get this stuff in and get you the data, the 

 3 evidence, and how it gets to our clients.

 4 THE COURT: Okay. So you want to admit an exhibit 

 5 that he gets from the Medical Examiner that he creates that he 

 6 transmits to No More Deaths? 

 7 MR. DUPONT: Yes, sir, and the only difference --

 8 THE COURT: It'll be admitted.

 9 MR. DUPONT: Thank you. 

 10 BY MR. DUPONT:

 11 Q. So if we could talk about, then, on page two here, what 

 12 is that?

 13 A. This is a summary going back to 2010-2011 of what's 

 14 happened by month. What we're interested in is that we want to 

 15 put water in the -- in the best areas, and one -- one guideline 

 16 that we're using is, if you have recovered human remains, 

 17 someone died there, and if you have human remains concentrated 

 18 in certain areas, that ought to be a high priority area for the 

 19 work that we're doing, either trail walking or leaving water. 

 20 So what happens, this data goes to -- goes out to the 

 21 whole membership, and it tells for any given month where all of 

 22 the deaths have taken place. So that guides us in using the 

 23 other things that we have, guides us in to where we want to put 

 24 water and do hiking.

 25 Q. And so this page two is a chart showing when things are 

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 1 happening?

 2 A. Right.

 3 Q. And this page three, four -- three and four?

 4 A. Yeah, that's copies of the Medical -- what comes from the 

 5 Medical Examiner.

 6 Q. So that might actually be if it was enough room on the 

 7 page?

 8 A. It's an Excel chart that comes.

 9 Q. So for example, the top line here that talks about male, 

 10 fully fleshed, from Mexico, and then this next part would be 

 11 the GPS coordinates?

 12 A. Those are the -- yeah, those are the latitude/longitudes.

 13 Q. And then you enter that data into your National 

 14 Geographic map?

 15 A. Each month we put a map together that shows the location 

 16 of all of the recovered human remains, and that goes out to the 

 17 -- to the membership, and then, at the end of the year, we do a 

 18 summary for the year.

 19 Q. And each month you're sending out information to No More 

 20 Deaths?

 21 A. I send it to -- and I've forgotten her name.

 22 Q. Catherine Gaffney?

 23 A. Yes. And she sends it -- she sends it out and sends me a 

 24 copy of what she sends out.

 25 Q. And these other examples, like page six and page seven, 

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 1 these are the maps you're creating?

 2 A. Yes. 

 3 Q. And sending out?

 4 A. And we're interested in what's happening monthly, but 

 5 we're also interested in what's happening on a yearly basis. 

 6 In fact, the last few years, the major migration routes have 

 7 shifted over to the Organ Pipe area, and I think our maps 

 8 picked that up early on, indicating that more and more 

 9 migration was taking place over there, and we ought to put more 

 10 emphasis over there, which No More Deaths has done. 

 11 MR. DUPONT: Did you take it off display?

 12 Thank you, Sarah.

 13 BY MR. DUPONT:

 14 Q. Sir, you may have Exhibit 157 in front of you. Do you 

 15 see it?

 16 A. That's a letter from Catherine. 

 17 Q. And is it a letter she's sending back to you?

 18 A. That's the copy. Yeah, that's what I got from her. I 

 19 think she sent it out. Well, it tells who she sent it out to. 

 20 And she just sent me a copy of what she sent out.

 21 Q. Because you're part of the desert aid group or you're on 

 22 that distribution list?

 23 A. No, I worked with the -- I worked with No More Deaths and 

 24 the Samaritans until about 2010, and then there was plenty of 

 25 stuff to do in Samaritans, so -- and I dropped the work with 

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 1 the No More Deaths, other than this mapping, and I'm spending 

 2 my time now with the Samaritans.

 3 Q. So she sent you an email right back that you had just 

 4 sent her?

 5 A. Yeah, yes.

 6 Q. And this is -- what's the date on this?

 7 A. March 2, '17. 2017.

 8 Q. What was the point of sending this to No More Deaths?

 9 A. Just -- I just do it for information. If it's something 

 10 that I think would be of interest to them, I send it.

 11 Q. And does this have mapping and analysis of where the 

 12 deaths are happening?

 13 A. The written part points out what I think are interesting 

 14 things and --

 15 Q. Before you read from it, sir --

 16 A. I'm sorry? 

 17 Q. I don't mean to interrupt you, because we want to hear 

 18 this, but I need to get this admitted first. 

 19 A. Oh, okay.

 20 Q. So you're informing them so they've got knowledge where 

 21 the trends are for where people are dying?

 22 A. Yeah, I'd like for them to know everything that I know.

 23 MR. DUPONT: Move for admission of Exhibit 157, Your 

 24 Honor.

 25 MS. WRIGHT: Objection, Your Honor. Hearsay and 

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 1 foundation, as well as relevance.

 2 THE COURT: You're trying to introduce an email he 

 3 received as opposed to one he sent? 

 4 MR. DUPONT: Is it on your screen too, Your Honor?

 5 THE COURT: Well, it's on the screen, but I can't 

 6 read it. What I'm asking you is --

 7 MR. DUPONT: Excuse me. What happens, I think, to 

 8 summarize his testimony, is he creates this map and sends it 

 9 to No More Deaths. Automatically they send it back to him, 

 10 whether it's to show that they've received it or because he's 

 11 part of just the distribution list that they've developed on 

 12 their own. 

 13 So he sent this to them, is what he's testified to, 

 14 and so now they've got the knowledge. Whether it's the truth 

 15 of the matter --

 16 THE COURT: So you want to introduce it as a copy of 

 17 an email he sent them about trends.

 18 MR. DUPONT: Yes, for the effect on the listener. 

 19 We think we've also established the truth of the matter, that 

 20 the people are dying in all these places, but yes.

 21 MS. WRIGHT: And Your Honor, it's not clear to me 

 22 which listener this is. This email lists Caitlin Deighan as 

 23 the sender, as well as Catherine Gaffney, but it doesn't list 

 24 any of the defendants as someone who received this 

 25 information.

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 1 MR. DUPONT: We're asking for conditional admission, 

 2 Your Honor.

 3 THE COURT: It'll be admitted.

 4 MR. DUPONT: So if we could publish, please. 

 5 BY MR. DUPONT:

 6 Q. Can you tell us the -- what you're sending to them and 

 7 the reason why. 

 8 A. Well, these are things that I thought were important, and 

 9 I noted at this time that -- that there were reports going out 

 10 that the number of deaths was falling, and this then indicated 

 11 to me that, if you look at the total number of RHRs over the 

 12 last eight years, that this was the time for the highest 

 13 number, indicating that something had happened, for some reason 

 14 the number of deaths was not decreasing but staying at about 

 15 the same.

 16 Q. But shifting?

 17 A. I'm sorry.

 18 Q. But it was shifting to another location?

 19 A. Yes. The second sentence there points out that what we 

 20 were starting to see over just north of, well, through Organ 

 21 Pipe, up through the Growler Mountains -- and I called it a 

 22 trail of death, because it was a definite trail of these RHRs.

 23 Q. Numerous deaths in that?

 24 A. Numerous, yes. And I also pointed out that, in the third 

 25 paragraph, is that there was a -- what looks like the beginning 

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 1 of such a trail along Avra Valley, on Highway 286 north of 

 2 Sasabe. 

 3 And what this thing does is it indicates to us trends and 

 4 where we ought to start -- things that we ought to start 

 5 looking at and places where we ought to expend more resources.

 6 Q. And then to that, did you attach a map?

 7 A. Yes.

 8 Q. I'm going to bring up another exhibit. And can you see 

 9 Exhibit 158?

 10 A. I'm sorry? 

 11 Q. Can you see Exhibit 158 in front of you?

 12 A. One?

 13 Q. You can kind of see up here where it says "Exhibit 158."

 14 A. Oh, up there. Exhibit 158. Yes, okay.

 15 Q. And what is this?

 16 A. This is a copy of the map that I sent to Catherine which 

 17 she then distributed.

 18 Q. And does that show more deaths on the west side of the 

 19 Growler Mountains?

 20 A. This was a map for just April, and in April there were two 

 21 deaths. If you connect -- I hesitate to draw much conclusion 

 22 from two points. You can draw a line through any two points. 

 23 But if you look at the data for the whole year, there are 

 24 dozens of other points that all align along this line between 

 25 those two.

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 1 Q. Okay. So this is just showing evidence from one month --

 2 A. Yeah.

 3 Q. -- that deaths are still happening on the west side of 

 4 the valley?

 5 A. And along the same path.

 6 MR. DUPONT: Move for admission of 158, Your Honor.

 7 THE COURT: It'll be admitted.

 8 MR. DUPONT: If I could go back, I might as well let 

 9 people see it, if we could publish just briefly.

 10 THE COURT: Certainly. 

 11 MR. DUPONT: Okay. Thank you.

 12 BY MR. DUPONT:

 13 Q. Exhibit 159. Can you tell us what this is.

 14 A. I think it's the same thing we talked about a minute ago. 

 15 Oh, this is the summary chart that we put out every month, and 

 16 I sent this -- the first sentence is, "Attached is the data for 

 17 RHR for June 2017." 

 18 That data is last entry in that last two columns, but it 

 19 includes all the data going back to 2010-2011.

 20 Q. And you're trying to warn them that the numbers are 

 21 higher even than in the past?

 22 A. Yes. We look at it by the month, and this happens to be 

 23 the -- this was sent out in June, and so in July I had another 

 24 one going out that had July data on it.

 25 Q. Now, we're seeing that -- do you ever compare this data 

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 1 to the data put out by Border Patrol on apprehensions?

 2 A. Yeah, yes. In fact, the first few columns starting back 

 3 in 2010-2011, I was doing comparisons for the -- on the whole 

 4 border. Then I started noticing that the -- that the Border 

 5 Patrol was reporting a certain number of deaths, and the number 

 6 of deaths that they were reporting was half the number of 

 7 bodies that the coroner had in his possession. 

 8 And then we -- I made a whole series of phone calls trying 

 9 to find out what was happening, and just recently, talking to 

 10 Hess, it appears that the --

 11 MS. WRIGHT: Objection. Hearsay, Your Honor.

 12 MR. DUPONT: I'll move admission for Exhibit 159. 

 13 It does not contain that hearsay, Judge.

 14 THE COURT: Okay. It'll be admitted.

 15 BY MR. DUPONT:

 16 Q. And that last map you sent was on July 12th, 2017, sir?

 17 A. This one's July the 13th.

 18 Q. Oh, I meant that last one. Let me pull up that last one.

 19 THE COURT: 159 was data from June 17th.

 20 MR. DUPONT: Thank you, Your Honor. 

 21 BY MR. DUPONT:

 22 Q. Can you see Exhibit 156 in front of you? 

 23 A. Yes.

 24 Q. What is this?

 25 A. That -- that was -- I sent the map that was -- that 

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 1 recorded the RHRs for June 2017.

 2 Q. In the same way and sent it to the same person, Catherine 

 3 Gaffney?

 4 A. Yes. What I do is that I have one map that shows the 

 5 whole Tucson sector, and then, because it's hard to locate 

 6 exactly where those are, I put a map together just for the area 

 7 west of the Tohono O’odham Reservation so they can more 

 8 accurately locate the positions of these RHRs for the Ajo Organ 

 9 Pipe area.

 10 Q. And I guess you're aware that this is an area of interest 

 11 to No More Deaths?

 12 A. Yes.

 13 Q. That's why you sent this section to them?

 14 A. Yes.

 15 MR. DUPONT: All right. Move for admission of 156, 

 16 Your Honor.

 17 THE COURT: Sure. It'll be admitted.

 18 BY MR. DUPONT:

 19 Q. And what do we know is happening in June of 2017?

 20 A. In the letter I say, notice the clump of six RHRs just 

 21 west of the Growler Mountains. This is a continuation of the 

 22 RHRs on a trail of death. 

 23 MR. DUPONT: I'm going to switch.

 24 THE CLERK: Moving on?

 25 BY MR. DUPONT:

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 1 Q. You see Exhibit 155?

 2 A. (No response.)

 3 Q. Dr. McCullough?

 4 A. I'm sorry? 

 5 Q. You see Exhibit 155?

 6 A. Yes.

 7 Q. What is that?

 8 A. It says, "Attached are more detailed maps showing the 

 9 areas of concern."

 10 Q. Sent to the same person?

 11 A. Yes, uh-huh. All my correspondence with No More Deaths is 

 12 through Catherine.

 13 Q. And I'm seeing the dates are generally available around 

 14 the middle of each month that you're sending these out.

 15 A. There have been times -- I get these either the first or 

 16 the second of the month, and I try to get them out right away. 

 17 Sometimes it's a little later than others.

 18 Q. What are we -- what are we learning from July 16th in 

 19 this data? 

 20 MR. DUPONT: Excuse me. I'm sorry. I'm a little 

 21 frazzled. Judge, admit 155, please?

 22 THE COURT: That's this email?

 23 MR. DUPONT: Yes, sir.

 24 THE COURT: Sure.

 25 MR. DUPONT: No more questions.

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CROSS-EXAMINATION OF EDGAR McCULLOUGH

 1 THE COURT: For the record, I took a geology class 

 2 from the professor.

 3 THE WITNESS: What kind of grade did you get? 

 4 THE COURT: If I remembered, I'd be asking you about 

 5 it. I decided to become a lawyer though. 

 6 CROSS-EXAMINATION

 7 BY MS. WRIGHT:

 8 Q. Good afternoon, Mr. McCullough. I'm Anna Wright. I'm 

 9 one of the prosecutors in this case, and I have a few things I 

 10 want to ask you to make sure I understand your testimony.

 11 So first, my understanding is that you are a member of 

 12 the Tucson Samaritans group; correct?

 13 A. Correct.

 14 Q. And that the information you've gathered is based on the 

 15 Tucson Samaritans' activities; correct? 

 16 And let be me more specific with you. 

 17 A. It's information I provide to the Samaritans for their 

 18 use.

 19 Q. And I'm asking about the information collected, so let me 

 20 be a little bit more specific. Exhibit 190 that had that 

 21 green trail system, that's information you collected for the 

 22 Tucson Samaritans; correct?

 23 A. No More Deaths. I started at Tucson Samaritans, and No 

 24 More Deaths were -- No More Deaths was formed within the Tucson 

 25 Samaritans for the first five or six years, and then after 

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CROSS-EXAMINATION OF EDGAR McCULLOUGH

 1 that, then they separated. 

 2 And so all this started for the Samaritans and No More 

 3 Deaths.

 4 Q. Okay. So my question for you, though, is the map, 

 5 Exhibit 190 -- and if I could have the hard copy, dig that 

 6 out, and I'll move on to something else to take off the time 

 7 pressure there.

 8 Now --

 9 A. It's the map of the green trails? 

 10 Q. The map with the green trails. 

 11 A. Yeah.

 12 Q. And the map with the green trails, Exhibit 190, that 

 13 shows the area around Arivaca, Arizona; correct?

 14 A. Correct, between --

 15 Q. It does not show Cabeza Prieta; correct?

 16 A. No.

 17 Q. All right. Now, these emails that Mr. Dupont went over 

 18 with you, you only sent them to Ms. Gaffney; correct?

 19 A. Yes.

 20 Q. And you don't know -- you have no information about 

 21 whether or not the defendants in this case ever saw those 

 22 emails; correct? 

 23 A. Do I know whether people read emails that were sent to 

 24 them? 

 25 Q. Let me ask you this. You didn't send this information 

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CROSS-EXAMINATION OF EDGAR McCULLOUGH

 1 directly to the defendants, did you?

 2 A. I sent it to Catherine, and I have a copy of her email 

 3 where she sent it out.

 4 Q. My question to you is, you didn't send it to the 

 5 defendants directly, did you?

 6 A. Oh, no, I didn't, no. It went right to -- all my 

 7 correspondence is with Catherine.

 8 Q. And sitting there today, you don't know whether these 

 9 defendants ever looked at these emails, do you?

 10 A. No, I don't.

 11 Q. Now, your maps did not contain pinpoints for the 

 12 beacons, the water beacons, the rescue beacons. I'm sorry. 

 13 Let me try that again with one word. 

 14 These maps don't contain pinpoints for the rescue 

 15 beacons, do they?

 16 A. You mean the coordinates? 

 17 Q. They do not contain pinpoints showing where the rescue 

 18 beacons are. 

 19 A. What do you mean by "pinpoint?" 

 20 Q. Any information on that map that would tell someone where 

 21 a rescue beacon is. 

 22 A. No, it doesn't, no.

 23 Q. So those aren't reflected on your maps at all?

 24 A. No.

 25 Q. And rescue beacons, you would agree with me --

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CROSS-EXAMINATION OF EDGAR McCULLOUGH

 1 A. We have maps with all the rescue beacons on them.

 2 Q. But none of those you talked about with Mr. Dupont today, 

 3 did you?

 4 A. No. 

 5 Q. Okay. So the maps we've been looking at that you sent on 

 6 to Ms. Gaffney did not have any data points on them for the 

 7 rescue beacons, did they?

 8 A. No.

 9 Q. And you would agree with me that rescue beacons are a 

 10 permanent feature out there in the desert; correct? They 

 11 don't come and go from day to day, do they?

 12 A. No, uh-huh. That's true.

 13 Q. However, at times in the past, some of the water caches 

 14 that you have left, you have found that they have been empty; 

 15 correct?

 16 A. Yes.

 17 Q. And so in the past, there may have been times when 

 18 someone traveling through the desert came upon your water 

 19 cache and found no water; correct?

 20 A. We know that's the case.

 21 Q. Now, you talked a little bit about putting dates and 

 22 coordinates on gallons of water. You cannot say, can you, 

 23 that every single gallon of water placed in the desert has 

 24 been picked up by an illegal alien, can you?

 25 A. No.

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CROSS-EXAMINATION OF EDGAR McCULLOUGH

 1 Q. And you can't say that all of those water jugs that have 

 2 been placed in the desert by people associated with Samaritan 

 3 groups has been later picked up and recovered by someone from 

 4 a Samaritan group?

 5 A. No.

 6 Q. And am I correct, this chart we were talking about that 

 7 had data related to Chimney --

 8 A. Chimney Canyon.

 9 Q. That's not on Cabeza Prieta, is it?

 10 A. No.

 11 Q. Now, the data points that you've put in these maps that 

 12 you sent on to Ms. Gaffney that show where human remains were 

 13 recovered, you don't know when those particular individuals 

 14 died, do you?

 15 A. No one does.

 16 Q. And you don't know how those particular individuals died, 

 17 do you?

 18 A. No one does.

 19 MS. WRIGHT: If I could have one minute, Your Honor? 

 20 THE COURT: Uh-huh.

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

 22 THE COURT: Anything further? 

 23 MR. DUPONT: I can't. No.

 24 THE COURT: You may step down, sir. Thank you.

 25 MS. CHAPMAN: Your Honor, we call Bob Bartels.

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 1 MS. WRIGHT: Your Honor, if we could approach for a 

 2 moment, please.

 3 THE COURT: Sure.

 4 MS. WRIGHT: Thank you.

 5 (The following proceedings occurred at sidebar.)

 6 MS. WRIGHT: Are we waiting on Mr. Dupont?

 7 MS. CHAPMAN: Yes.

 8 MS. WRIGHT: Okay. 

 9 (Pause in proceedings.) 

 10 MS. WRIGHT: Your Honor, we wanted to raise an issue 

 11 here before Mr. Bartels takes the stand. My understanding is 

 12 that he formerly worked for the U.S. Attorney's Office here in 

 13 Arizona, and we just want to make sure that he will not be 

 14 testifying about any of his personal involvement with issues 

 15 at the U.S. Attorney's Office as the basis for his testimony 

 16 today. 

 17 There's some statutes on point, and we want to make 

 18 sure he's not going to get up there and violate those 

 19 statutes.

 20 THE COURT: Where did he work?

 21 MS. WRIGHT: My understanding is he worked in the 

 22 civil division in Phoenix.

 23 THE COURT: Okay.

 24 MS. CHAPMAN: Your Honor, he's a summary witness 

 25 with respect to some Fish and Wildlife Service FOIA Title 50 

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DIRECT EXAMINATION OF ROBERT BARTELS

 1 CFR violations. That's what he's going to testify about. So 

 2 it has nothing to do with his experience, which I believe was 

 3 over 20 years ago, at the U.S. Attorney's Office. 

 4 He will talk about the fact that he worked there and 

 5 did land use cases for the U.S. Attorney's Office but nothing 

 6 about those particular cases.

 7 THE COURT: Okay.

 8 MS. WRIGHT: Thank you, Your Honor. Appreciate it.

 9 THE COURT: Thank you.

 10 (End of bench conference.)

 11 ROBERT BARTELS, WITNESS, SWORN

 12 DIRECT EXAMINATION

 13 BY MS. CHAPMAN:

 14 Q. Good afternoon, Professor Bartels. 

 15 A. Good afternoon.

 16 Q. Could you please introduce yourself to the Court. 

 17 A. I am Robert Bartels.

 18 Q. And could you tell the Court a little bit about your 

 19 background, education, and what you've been doing for the last 

 20 several years. 

 21 A. Well, let me start with law school. I went to law school. 

 22 Graduated in about -- actually, exactly 1969. I worked in 

 23 Legal Services in Detroit, went back to do a fellowship at my 

 24 law school for a year, and then I started teaching at the 

 25 University of Iowa law school. 

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DIRECT EXAMINATION OF ROBERT BARTELS

 1 I was there for 10 years and came -- went to ASU law 

 2 school to teach. And I did that continuously until 

 3 2013, except for about two-and-a-half years, when I was an 

 4 Assistant U.S. Attorney in Phoenix, in the District of Arizona.

 5 Q. And what were the subjects that you taught at ASU?

 6 A. Well, predominantly civil procedure and evidence, in 

 7 recent years fact investigation, and I taught environmental 

 8 law, constitutional law, various other subjects.

 9 Q. Ran the gamut? 

 10 A. Pardon? 

 11 Q. Ran the gamut?

 12 A. Well, not tax.

 13 Q. And your work at the U.S. Attorney's Office, what kind of 

 14 work did you do while you were an Assistant United States 

 15 Attorney?

 16 A. I worked on civil rights cases, and I was a deputy chief 

 17 for affirmative civil action, so I supervised government fraud 

 18 cases. I spent about half of my time on public land cases 

 19 primarily involving mining claims that were on BLM or Forest 

 20 Service lands, and a smaller part of that was cases having to 

 21 do with trees, forest sales, and one timber rustling case.

 22 Q. Okay. And you are admitted to the Bar in Arizona or you 

 23 were admitted to the Bar in Arizona?

 24 A. I was, yes.

 25 Q. Any other Bars that you were admitted to?

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DIRECT EXAMINATION OF ROBERT BARTELS

 1 A. Pardon? 

 2 Q. Any other Bars that you were admitted to?

 3 A. Yes. California, Iowa, Michigan.

 4 Q. And you were admitted to practice in this Court, the 

 5 District of Arizona?

 6 A. Yes.

 7 Q. Any other Courts that you were admitted to practice in? 

 8 A. Other District Courts, the Eighth and Ninth Circuits, and 

 9 the Supreme Court.

 10 Q. And how many cases did you argue before the U.S. Supreme 

 11 Court?

 12 A. Five.

 13 Q. And this might become relevant later, but what was your 

 14 undergraduate degree in?

 15 A. Mathematics.

 16 Q. Okay. We might come back to that. 

 17 What were you asked to do in this case?

 18 A. I was asked to prepare a summary under Rule 1006 of a 

 19 number of documents that had to do with citations or warnings 

 20 for violations of sections of the Code of Federal Regulations 

 21 at the Cabeza Prieta Wildlife Refuge.

 22 Q. And what was the time frame that you were asked to review 

 23 documents from?

 24 A. 2015 through 2018.

 25 Q. And did you prepare a summary chart as requested?

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DIRECT EXAMINATION OF ROBERT BARTELS

 1 A. I did.

 2 MS. CHAPMAN: And could I show -- could we show the 

 3 witness Exhibit 240?

 4 BY MS. CHAPMAN:

 5 Q. Can you see that document on your screen?

 6 A. I can.

 7 Q. Is the --

 8 A. Except for the last line, but I remember it. That's okay.

 9 Q. Is that the document -- does that document reflect the 

 10 work that you did on this case in reviewing the documents and 

 11 creating a summary?

 12 A. Yes. That's a summary that I did.

 13 Q. And does the summary reflected in the document adequately 

 14 reflect the work that you did?

 15 A. Yes.

 16 MS. CHAPMAN: Your Honor, I would move for admission 

 17 of Exhibit 214. I'm sorry. It's not Exhibit 214. It's 

 18 Exhibit 240.

 19 MS. WRIGHT: And Your Honor, can I have a moment to 

 20 confer with defense counsel about when this was disclosed to 

 21 us? 

 22 THE COURT: Sure.

 23 (A discussion was had off the record between 

 24 counsel.) 

 25 MS. CHAPMAN: Your Honor, if we could take a short 

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DIRECT EXAMINATION OF ROBERT BARTELS

 1 recess, Ms. Wright would like to review the document briefly, 

 2 and we have no objection to that, before we continue with 

 3 Mr. Bartels' testimony.

 4 THE COURT: Sure. We'll stand at recess until 3:00.

 5 MS. CHAPMAN: Thank you.

 6 (Off the record.)

 7 THE COURT: All right. Where are we on Exhibit 240? 

 8 MS. CHAPMAN: I would move for its admission, Your 

 9 Honor, under 1006.

 10 MS. WRIGHT: And Your Honor, I'm objecting to its 

 11 admission. It is not an accurate summary of the information. 

 12 Also, my understanding, it's based on information previously 

 13 presented to the Court that did not amount to prima facie 

 14 information, so it is irrelevant as to selective enforcement. 

 15 And to the extent it refers to referrals to the 

 16 USAO, that refers to selective prosecution, so we would object 

 17 to it coming in for foundation and relevance reasons, Your 

 18 Honor.

 19 THE COURT: All right. It'll be admitted subject to 

 20 cross. 

 21 Go ahead.

 22 MS. CHAPMAN: Thank you, Your Honor.

 23 BY MS. CHAPMAN:

 24 Q. So Professor Bartels, I think you said this chart 

 25 summarizes the documents that you were asked to review; is 

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DIRECT EXAMINATION OF ROBERT BARTELS

 1 that correct?

 2 A. Yes.

 3 Q. And what were the documents that you were asked to 

 4 review? 

 5 A. The chart is based primarily on violation notices and 

 6 incident reports, both by the Fish and Wildlife Service. I 

 7 also looked at FOIA requests relating to incidents involving 

 8 violations of the CFRs at the wildlife refuge. 

 9 There were some emails that were exchanged as a result of 

 10 requests for information from the Central Violations Bureau. 

 11 That information didn't figure in this chart very much. A 

 12 little bit. It sometimes confirmed to me whether or not 

 13 somebody was referred for prosecution. And in that regard, I 

 14 also saw the Informations in this case, and I think it's 339 

 15 and 340.

 16 Q. Thank you. And so there are a couple of terms on this 

 17 charge. "Incidents," I see and then also you have, "Number of 

 18 Violators."

 19 Can you describe for the Court what you meant when you 

 20 put "Incidents" versus "Violators."

 21 A. Sure. The incident reports would refer to a particular 

 22 encounter between somebody from Fish and Wildlife Service and 

 23 people on the wildlife refuge who -- and in all of those cases 

 24 I think they were violating some regulation. 

 25 And so I simply took, if there was one incident report, 

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DIRECT EXAMINATION OF ROBERT BARTELS

 1 that's an incident. Some of those incidents involved more than 

 2 one person committing a violation. For example, the incident 

 3 report that relates to this particular prosecution involved 

 4 four different people.

 5 Q. And so -- I'm sorry. Go ahead. 

 6 A. And so those, just looking at that incident report, one 

 7 incident, four violators in my chart.

 8 Q. In the nomenclature of your chart?

 9 A. Yes. 

 10 Q. Okay. So let's look at the incidents before June 17th, 

 11 2017, and you've got, "Number of incidents with No More Deaths 

 12 Members," "Referrals to USAO" -- and by that you mean the U.S. 

 13 Attorney's Office?

 14 A. Yes.

 15 Q. And then following horizontally, "Number of Incidents 

 16 Without No More Deaths Members," and then, "Referrals to 

 17 USAO," on the top. 

 18 Could you describe what the data reveals from your review 

 19 along this top portion of the chart?

 20 A. Well, there was one incident that I saw, one incident 

 21 report, that involved a No More Deaths member that occurred 

 22 before June 17th, 2017, and that case was referred to the 

 23 United States Attorney's Office. 

 24 The material that I saw seemed to make it pretty clear 

 25 that the referral did not take place until after June 17th.

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DIRECT EXAMINATION OF ROBERT BARTELS

 1 Q. So the incident --

 2 A. The incident took place before June 17th.

 3 Q. Okay. And so then moving over, "Number of incidents 

 4 Without No More Deaths Members," there were five incidents 

 5 before June 17th, 2017?

 6 A. Yes, and none of those was referred to the United States 

 7 Attorney's Office, according to any materials I saw. Some 

 8 people received -- some of the violators in those incidents 

 9 received oral warnings, some written warnings, and I'm pretty 

 10 sure that five includes some written Notices of Violation. 

 11 And those typically would say toward the end, you have a 

 12 choice. You can either go to court about this, or you can pay 

 13 what I think was described as a forfeiture, and the amount was 

 14 indicated there. 

 15 The materials I looked at indicated that, in every case 

 16 where there was a violation notice issued, the person who 

 17 received the notice did pay the forfeiture, and I think there 

 18 were five of those, but not all of them were before June 17th.

 19 Q. Understood. 

 20 So by, "Referral to the U.S. Attorney's Office," you 

 21 don't mean that the person didn't receive any Notice of 

 22 Violation or any kind of penalty, because they might have paid 

 23 a money penalty/forfeiture, but they were not referred to the 

 24 United States Attorney's Office for criminal prosecution. 

 25 Is that the distinction that you're drawing? 

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DIRECT EXAMINATION OF ROBERT BARTELS

 1 A. To my knowledge, none of the people who paid the 

 2 forfeiture and were given that option and paid it were referred 

 3 to the U.S. Attorney's Office.

 4 Q. Okay. Let's move down the chart, then, to look at 

 5 "Incidents." And again, here we're talking about incidents, 

 6 so it could involve a number of people, but by incidents after 

 7 June 16th, 2017, and could you please summarize for the Court 

 8 what the findings of your data were.

 9 A. Well, there were three incidents involving No More Deaths 

 10 members, a total of nine members, but just three incidents. 

 11 People from those incidents, from two of those incidents, were 

 12 referred to the United States Attorney's Office. 

 13 And actually, in -- well, some of the people in the third 

 14 incident were people who had already -- were being referred for 

 15 an incident that occurred the day before.

 16 Q. Okay.

 17 A. There was one person in that incident who was the only one 

 18 who received a warning, and she did not get referred to the 

 19 United States Attorney's Office, as far as I know. I never saw 

 20 any information indicating that.

 21 Q. And that will be reflected under the next column, under 

 22 "Violators after June 17th," I guess two columns down, 

 23 right, 2017, the individual violators?

 24 A. Yes.

 25 Q. Okay.

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DIRECT EXAMINATION OF ROBERT BARTELS

 1 A. Though I'm not sure that person -- yes. That's correct.

 2 Q. Okay. So with respect to incidents after June 17th, 

 3 you've got three incidents with No More Deaths members. Two 

 4 of those incidents were referred for criminal prosecution to 

 5 the United States Attorney's Office?

 6 A. And then there were four incidents without No More Deaths 

 7 members, and none of those were referred to the United States 

 8 Attorney's Office for prosecution. Probably some of those were 

 9 the Notices of Violation. 

 10 Q. And again, with the Notices of Violation, you may pay a 

 11 forfeiture amount, but you're not -- you're not referred for 

 12 criminal prosecution; correct?

 13 A. That's my understanding, yes. I saw no evidence of that.

 14 Q. And again, the evidence you were reviewing, those were 

 15 incident reports, all incident reports from the Cabeza Prieta 

 16 for 2015, 2016, 2017, and 2018; is that correct?

 17 A. Correct.

 18 Q. Great. So let's look at the "Violators," the next column 

 19 down, "Before June 17, 2017." And again, this refers to 

 20 individuals who may be involved in an incident, and there may 

 21 be more than one person involved in an incident; correct?

 22 A. Yes.

 23 Q. Okay. So before June 17th, 2017, I think you've got the 

 24 same number of violators. One refers to the U.S. Attorney's 

 25 Office, also one. That's the same as the incident above?

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DIRECT EXAMINATION OF ROBERT BARTELS

 1 A. That one incident that occurred before June 17th involved 

 2 a number of people, but only one person who committed a 

 3 violation.

 4 Q. Okay. And then the non No More Deaths members before 

 5 2017, or excuse me, before June 17th, 2017, what is that 

 6 number?

 7 A. Well, it's at least eight, and my problem was that, in one 

 8 of the incident reports, the report indicated that several 

 9 people were there and would have committed violations, and I 

 10 didn't -- I assumed several meant more than two, but I didn't 

 11 know how many, so I was basically trying to be as conservative 

 12 as possible.

 13 Q. And this -- I'm sorry. This was an incident report that 

 14 referred to several vehicles; is that right?

 15 A. You know, I can't remember whether it was several vehicles 

 16 or several people.

 17 Q. Okay. And you have a note here that it involves a group. 

 18 Do you recall whether that group was identified in the 

 19 incident report as a humanitarian group?

 20 A. Yes. It was -- now I see my own footnote three, which it 

 21 was several vehicles, Aguilas del Desierto, which is described 

 22 in the report as a humanitarian group.

 23 Q. And none of those people who belong to that humanitarian 

 24 group who were found in violation were referred to the U.S. 

 25 Attorney's Office for criminal prosecution; is that correct?

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DIRECT EXAMINATION OF ROBERT BARTELS

 1 A. That's correct. One person in that group was given a 

 2 Notice of Violation, and he did pay the forfeiture amount. 

 3 That was Mr. Rodriguez.

 4 Q. Okay. And then going down, violators after June 17th, 

 5 2017, can you tell us what your -- the documentation that we 

 6 received from Fish and Wildlife demonstrated?

 7 A. Well, there were -- we had three incidents with No More 

 8 Death members, but that was a total of nine people who would 

 9 have been in violation of CFRs, and of those nine people, eight 

 10 were referred to the United States Attorney's Office. 

 11 There was one person in an incident on June 20th -- there 

 12 had been a similar incident the day before, and on the June -- 

 13 July 20th incident, all but one of those people had also been 

 14 there the day before. The one person who was new was the 

 15 person who was the driver. She was given a warning, but I've 

 16 seen no evidence that she was ever referred for prosecution. 

 17 And then, for the non No More Death violators, there were 

 18 a total of six after June 17th, and none of those were referred 

 19 to the United States Attorney's Office.

 20 Q. And again, these were all reflective of people who were 

 21 on Cabeza Prieta, incidents on Cabeza Prieta; is that correct?

 22 A. That's correct.

 23 Q. And they were all incidents involving people who 

 24 violated, in various ways, CFRs under Title 50; correct?

 25 A. Correct.

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DIRECT EXAMINATION OF ROBERT BARTELS

 1 Q. And did you determine the statistical probability of 

 2 these violators after June 17th, 2017, occurring randomly?

 3 A. The violators?

 4 Q. Yes, the number. 

 5 A. That's, in my view, difficult to do, because the way to do 

 6 it would be to use the product rule for -- it's the same 

 7 problem as having colored ping-pong balls in a box and picking 

 8 them out. 

 9 But I don't -- I'm not sure I can say those are -- the 

 10 violators are independent events. The incidents, though, I 

 11 think, clearly are, and I can give you the probability for the 

 12 incidents.

 13 Q. Please do. 

 14 MS. WRIGHT: Objection, Your Honor. We don't have 

 15 any foundation for this, and this was not part of -- this 

 16 testimony was not part of the notice we were given as part of 

 17 Document 141. We were given no notice of some statistical 

 18 analysis by this witness.

 19 MS. CHAPMAN: Your Honor, I think it's simply a 

 20 mathematical equation based on the information in the 

 21 document.

 22 THE COURT: Well, yes, but I suppose it should be 

 23 disclosed, so it's sustained.

 24 BY MS. CHAPMAN:

 25 Q. So just to summarize your findings, then, the difference 

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DIRECT EXAMINATION OF ROBERT BARTELS

 1 between non No More Deaths members who commit violations on 

 2 the Cabeza Prieta is that none of them were referred for 

 3 criminal prosecution in any of the documents that you 

 4 reviewed; is that correct? 

 5 A. Correct.

 6 Q. And with respect to No More Deaths members after June 

 7 17th, 2017, eight out of nine were referred for criminal 

 8 prosecution to the U.S. Attorney's Office?

 9 A. Yes, and if you count the incident that happened before 

 10 June 17th as a referral after, then you could say it's nine out 

 11 of 10 referrals.

 12 Q. Of No More Deaths members?

 13 A. Yes.

 14 Q. Thank you. 

 15 A. And zero, no matter how you look at it, what part of it 

 16 you look at, nobody who was not a No More Deaths member was 

 17 referred for prosecution.

 18 Q. And that includes members of humanitarian aid groups who 

 19 are not members of No More Deaths, as well, were not referred?

 20 A. That's correct.

 21 MS. CHAPMAN: Thank you. No further questions.

 22 CROSS-EXAMINATION

 23 BY MS. WRIGHT:

 24 Q. Good afternoon, Mr. Bartels. My name is Anna Wright. 

 25 I'm one of the prosecutors in this matter, and I have a few 

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CROSS-EXAMINATION OF ROBERT BARTELS

 1 questions for you. 

 2 I'd like to start first with your experience as a lawyer, 

 3 and first I would note Defense Exhibit 214 is your résumé. I 

 4 assume that what you provided to defense counsel is your most 

 5 recent résumé? And here. Let me show you. I have this 

 6 sticker on here. 

 7 Sarah, if you could dig that out for me, 214. 

 8 Okay. Take a look at that. Is that your most recent 

 9 résumé?

 10 A. I think so.

 11 Q. All right. Let me page through it. And let me show you 

 12 the back page. Is that your most recent résumé?

 13 A. It is except one thing that's changed since I provided 

 14 this résumé. Last month I became inactive in California, one 

 15 week ago.

 16 Q. Now, as I look at this résumé, what I see, and tell 

 17 me, you do not have any criminal experience in a federal 

 18 court; correct?

 19 A. (No verbal response.)

 20 Q. Let's look at paragraph C. You do not have listed there 

 21 any federal criminal experience; correct?

 22 A. Yes, that's correct. I did have a couple of cases when I 

 23 was at the U.S. Attorney's Office back in the 1990s that were 

 24 criminal prosecutions. One of them was a grand jury 

 25 investigation that resulted in an Information misdemeanor case 

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CROSS-EXAMINATION OF ROBERT BARTELS

 1 and a guilty plea. 

 2 And I also had my timber rustling case. It never got 

 3 filed. There was never an ongoing prosecution, but it was a 

 4 criminal investigation. 

 5 And then I had actually several civil rights, criminal 

 6 civil rights, investigations.

 7 Q. And so your federal criminal experience is limited to a 

 8 misdemeanor matter that was plea bargained out, a timber 

 9 rustling case that never got filed, and some civil rights 

 10 cases, all from the 1990s; correct?

 11 A. Yeah, and that's not counting the federal habeas corpus 

 12 cases, and those were not federal prosecutions, any of them.

 13 Q. You do not have any experience with the CVB docket here 

 14 in the Tucson federal courthouse, do you?

 15 A. I do not.

 16 Q. You have never appeared on the CVB docket for any party 

 17 here in the Tucson federal courthouse; correct?

 18 A. That's correct. That's correct.

 19 Q. You have never been involved in the issuing of a ticket 

 20 for a CVB violation off of any of the land in this 

 21 jurisdiction; correct?

 22 A. Right.

 23 Q. And you have not been involved in any of the handling of 

 24 those matters once they are filed; correct?

 25 A. Right.

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 1 Q. So you do not have any information about who makes the 

 2 decisions in the Tucson office of the U.S. Attorney's Office 

 3 about how to proceed on Civil Violations Bureaus matters, do 

 4 you?

 5 A. That's correct.

 6 Q. And you do not have any information about what 

 7 prosecution policy the U.S. Attorney's Office in Tucson may or 

 8 may not have with which matters get referred for prosecution 

 9 as an Information and which are handled otherwise, do you?

 10 A. I do not.

 11 Q. So you have no idea what the criteria is that is used by 

 12 the United States Attorney's Office in Tucson to decide how to 

 13 handle CVB matters, do you?

 14 A. No.

 15 Q. And so you would be completely unaware if perhaps one of 

 16 those criteria were committing multiple violations at the same 

 17 time; correct?

 18 A. That's correct.

 19 Q. And you would not know what, if any, direction the United 

 20 States Attorney's Office may give about its prosecution policy 

 21 out to the enforcement agencies and the land agencies, would 

 22 you?

 23 A. That's correct.

 24 Q. And you also wouldn't know whether or not intentional or 

 25 deliberate misconduct plays into the United States Attorney's 

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CROSS-EXAMINATION OF ROBERT BARTELS

 1 Office criteria in accepting cases or having them referred for 

 2 prosecution, would you? 

 3 A. That's correct.

 4 Q. Now, in looking at these documents that you reviewed, the 

 5 violations you reviewed to make this chart that is 240 -- 

 6 MS. WRIGHT: If I can have just one moment, Your 

 7 Honor, I want to make sure of one thing.

 8 BY MS. WRIGHT:

 9 Q. So let's take them in turn. And my understanding is you 

 10 have these tickets in front of you. Is that correct? Or do 

 11 you need a copy?

 12 A. I can. I have them in a file here.

 13 Q. Let me grab a marked copy so we're both looking at the 

 14 same thing. 

 15 A. When you refer to "tickets," I'm not sure.

 16 Q. That's -- let me grab the marked copy.

 17 MS. WRIGHT: Sarah, could we have 213, please.

 18 THE CLERK: 213?

 19 MS. WRIGHT: 213. 

 20 (A discussion was had off the record between 

 21 Ms. Wright and the clerk.)

 22 BY MS. WRIGHT:

 23 Q. And I'll put these up on the Elmo for you, Mr. Bartels. 

 24 Let's start with Violation No. 4310642. Do you see that 

 25 there?

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 1 A. Yes.

 2 Q. And do you see just below the violation number the date 

 3 and time of offense?

 4 A. Yes.

 5 Q. And you see that the date is April 29th of 2015; correct? 

 6 A. Correct.

 7 Q. And that there is only one violation described down here 

 8 in the offense description; correct?

 9 A. I'm sorry. I need to...

 10 Q. And Mr. Bartels, are you looking at what's on the Elmo 

 11 screen, or are you looking at something else?

 12 A. I'm actually looking at -- it's easier for me to read the 

 13 piece of paper that I have that corresponds to it. 

 14 Yeah, there's only one charge on the Notice of Violation.

 15 Q. And let's take a look at the page that follows that 

 16 includes the statement of probable cause. 

 17 Do you see that there?

 18 A. Uh-huh.

 19 Q. And in this, it's correct that nowhere in here does it 

 20 state that this offense happened in a designated wilderness 

 21 area; correct?

 22 MS. CHAPMAN: Excuse me, Your Honor. What exhibit 

 23 number is on the screen now? 

 24 MS. WRIGHT: We are on 214 still. 

 25 THE CLERK: 213. 

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 1 MS. WRIGHT: 213. I'm sorry. 213. This is the 

 2 whole packet. Page two.

 3 MS. CHAPMAN: Thank you.

 4 BY MS. WRIGHT:

 5 A. That's correct. It's off of -- it's driving off the 

 6 designated route.

 7 Q. And so that's a yes. Nowhere in here does it say that 

 8 this offense happened in a designated wilderness area; is that 

 9 correct?

 10 A. That's true. That's true.

 11 Q. Let's look at the third page, which is Violation No. 

 12 4310643. 

 13 Do you see that there?

 14 A. Yeah.

 15 Q. You would agree with me that the offense date is February 

 16 16th of 2015; correct?

 17 A. Correct.

 18 Q. And that the offense description is, "Discharge of a 

 19 firearm on the refuge;" correct?

 20 A. Right.

 21 Q. And now let's move on to 431064 -- 0644. Do you see that 

 22 there?

 23 A. Yeah. That's the same incident, the other, Mr. Hernandez, 

 24 and also the same single charge.

 25 Q. And the same incident date in February of 2015; correct?

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 1 A. Correct, yeah.

 2 Q. Let's move on to the next violation, 3198084. 

 3 You see here the offense date, right, July of 2016?

 4 A. Yes.

 5 Q. And looking at the probable cause statement, which I'll 

 6 put up here now, nowhere in there does it say that this 

 7 offense happened in a designated wilderness area; correct?

 8 A. That's correct. It's off a designated roadway, yeah.

 9 Q. So it's correct that it does not state in there that this 

 10 offense happened on a designated wilderness area; right?

 11 A. Right. That's correct.

 12 Q. And now let's look at the Offense No. 6976503, and I want 

 13 to show you the probable cause statement for that offense. 

 14 And nowhere in that probable cause statement does it say 

 15 that this offense happened on a designated wilderness area; 

 16 correct?

 17 A. That's correct, yes. It's the same, not driving on the 

 18 designated route of travel.

 19 Q. So that's a yes. Nowhere in this probable cause 

 20 statement does it indicate that this offense happened on a 

 21 designated wilderness area; right?

 22 A. That's correct, yeah.

 23 Q. And turning back now to your chart, Exhibit 240, there's 

 24 no column on your chart to indicate where these offenses 

 25 happened or whether they were on a designated wilderness area; 

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 1 correct?

 2 A. That's correct.

 3 Q. And so it would be fair to say that, in your analysis of 

 4 these documents, you did not include in your analysis whether 

 5 these offenses happened on a designated wilderness area; 

 6 correct?

 7 A. That's correct.

 8 Q. And it would also be fair to say that, based on your 

 9 chart, you did not indicate the number of violations committed 

 10 by any individual person; correct?

 11 A. Oh, that's correct, yeah.

 12 Q. And so as part of your analysis in determining whether or 

 13 not these were referred for prosecution, you did not take into 

 14 account whether or not someone committed multiple violations 

 15 on the same day; correct?

 16 A. I wasn't asked to do anything about -- that had to do with 

 17 that.

 18 Q. And so that's correct. Your analysis did not take into 

 19 account whether or not a person committed multiple violations 

 20 at the same time, did it?

 21 A. The information that's summarized on this chart does not 

 22 take that into account, no.

 23 Q. And your analysis did not take that into account, did it?

 24 A. I'm not sure what analysis there is besides the chart, 

 25 but --

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 1 Q. So that's a no?

 2 A. -- I haven't taken that into account. That's correct.

 3 Q. Okay. Now, the only thing that your analysis takes into 

 4 account, the only variable, is No More Deaths membership; 

 5 correct?

 6 A. Well, and whether there's a violation of the CFRs --

 7 Q. And so the information about whether or not a person --

 8 A. -- and if there was a referral for prosecution. That's 

 9 it. Yeah.

 10 Q. So let me ask you about this last column here, "Referral 

 11 For Prosecution." You didn't review any documents from the 

 12 United States Attorney's Office in relation to this chart, did 

 13 you?

 14 A. No. It's just reflecting that I had no information 

 15 indicating to me that there was a referral for prosecution. I 

 16 would have found it odd to see that for the people who paid the 

 17 forfeitures and also for the people who just got warnings, but 

 18 no, I haven't seen the documentation, if there is any --

 19 Q. And you did not --

 20 A. -- between Fish and Wildlife and the U.S. Attorney's 

 21 Office. 

 22 Q. So you have no information about any communications that 

 23 might have happened between Fish and Wildlife and the United 

 24 States Attorney's Office in reference to any of these 

 25 violations; correct?

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 1 A. That's correct. Yeah.

 2 Q. And so this chart is based off of your understanding of 

 3 the CVB process; correct?

 4 A. It's based off the information that I received about 

 5 incidents, records of incidents, and how those incidents were 

 6 disposed of.

 7 Q. Well, let's talk about the information you had. Let's 

 8 look again at 4310642, and that relates to a Mr. Herritt. Did 

 9 you interview -- you didn't interview Mr. Herritt, did you?

 10 A. No.

 11 Q. And so you haven't had any conversations with him about 

 12 his participation in any humanitarian group, have you?

 13 A. No, I have not.

 14 Q. And so you cannot say whether or not Mr. Herritt is a 

 15 member of any humanitarian group or not, can you?

 16 A. No. All I can say is that the incident report does not 

 17 say anything about that.

 18 Q. And so the only thing you can say about that is that a 

 19 law enforcement officer did not document someone's membership 

 20 in a group in that incident report; is that correct?

 21 A. There is no mention of it, that's correct, yeah.

 22 Q. And let's look at 3198084. Do you see that on your 

 23 screen?

 24 A. Yes.

 25 Q. And the offense there is operating a motor vehicle off a 

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CROSS-EXAMINATION OF ROBERT BARTELS

 1 designated route; correct?

 2 A. Yes.

 3 Q. And the person listed there is Vicente Rodriguez; 

 4 correct?

 5 A. Correct.

 6 Q. And you did not interview Mr. Rodriguez either, did you?

 7 A. No, I did not.

 8 Q. And so you have no information you can provide the Court 

 9 about whether or not Mr. Rodriguez is a member of any 

 10 humanitarian group, can you? 

 11 A. All I know is that that's what the incident report says.

 12 Q. And the incident report does not mention any membership 

 13 in a humanitarian group, does it?

 14 A. It does. It says they identified themselves as a 

 15 humanitarian group called Aguilas del Desierto.

 16 Q. Thank you for pointing that out. Let's move on. 

 17 And now let's look at 6976503. Do you see that on your 

 18 screen?

 19 A. Yes.

 20 Q. And that is an incident in March of 2018; correct?

 21 A. That's correct.

 22 Q. And this is, again, an offense related to driving off of 

 23 a designated route; correct?

 24 A. Yes.

 25 Q. And you did not interview this defendant either, did you?

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 1 A. I did not.

 2 Q. And so you have no information about whether or not this 

 3 person is a member of No More Deaths; correct? 

 4 A. No. All I know is that there's no mention of that on 

 5 the --

 6 Q. And let's go back for just a second, Mr. Bartels, to 

 7 3198084, Mr. Rodriguez. You would agree with me that it's 

 8 possible to be a member of multiple organizations at the same 

 9 time, wouldn't you?

 10 A. I'm sorry. Could you repeat that?

 11 Q. You would agree with me that it's possible to be a member 

 12 of multiple organizations at the same time; correct?

 13 A. Oh, yes.

 14 Q. And so you have no information about Mr. Rodriguez's 

 15 membership in No More Deaths, do you?

 16 A. No, I don't.

 17 Q. And so when your chart here refers to people as being not 

 18 members of No More Deaths, you had no information about that, 

 19 did you?

 20 A. Oh, I wouldn't agree with that. I have the information 

 21 that there was no mention of that in most of the incident 

 22 reports. All I'm representing is I'm summarizing the 

 23 information that's in the incident reports and the Notices of 

 24 Violation, and there's -- I was not asked to do any further 

 25 investigation on that.

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CROSS/REDIRECT EXAMINATION OF ROBERT BARTELS

 1 Q. So it's correct this column that you labeled as not -- 

 2 incidents without No More Deaths members, you did not 

 3 interview any of those individuals, did you?

 4 A. No.

 5 Q. You do not have any independent information about their 

 6 membership in No More Deaths, do you?

 7 A. No.

 8 Q. And you would agree with me that it's possible that those 

 9 people are No More Deaths members and that simply wasn't 

 10 reflected in a report; correct?

 11 A. It's possible.

 12 MS. WRIGHT: If I could have just one moment, Your 

 13 Honor? 

 14 THE COURT: You may.

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

 16 THE COURT: Redirect?

 17 MS. CHAPMAN: Thank you.

 18 REDIRECT EXAMINATION

 19 BY MS. CHAPMAN:

 20 Q. Professor Bartels, you were asked a series of questions 

 21 about whether you were aware of the U.S. Attorney policy with 

 22 respect to Notice of Violation and criminal prosecution 

 23 relating to a number of violations at one time; is that 

 24 correct? 

 25 Do you recall those questions?

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REDIRECT EXAMINATION OF ROBERT BARTELS

 1 A. Yes.

 2 Q. And do you recall reviewing in the number of -- in No 

 3 More Deaths member violators after June 17th, 2017, the case, 

 4 I think you referred to it as No. 340, that involved four 

 5 defendants? 

 6 Do you recall that?

 7 A. Yes. 

 8 Q. And do you recall that, of those four people, one of them 

 9 was charged with two violations, driving without a permit and 

 10 -- or excuse me -- driving in a place they shouldn't be 

 11 driving and not having a permit? 

 12 Do you recall that?

 13 A. Are we talking about 340? 

 14 Q. Yes.

 15 A. Yes. I do recall that.

 16 Q. And do you recall that the other three individuals were 

 17 charged with one violation?

 18 A. Yes, that's true in No. 340. There's one person who's 

 19 charged with two offenses, and the other three are just charged 

 20 with one. I think that's also true in 339.

 21 Q. And that would not be consistent with a policy that only 

 22 put to criminal referral for multiple violations at the same 

 23 time; correct?

 24 A. Yes.

 25 Q. And you noticed in reviewing the incident reports that 

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REDIRECT EXAMINATION OF ROBERT BARTELS

 1 Fish and Wildlife Service did make identification of human 

 2 rights groups with respect to some of the incidents; correct?

 3 A. I'm sorry. Can you repeat that?

 4 Q. With respect to the incident reports you reviewed, the 

 5 Fish and Wildlife Service in the incident reports did on 

 6 occasion identify the human rights group if a person was 

 7 associated with a human rights group; correct?

 8 MS. WRIGHT: Objection. Leading, Your Honor.

 9 THE COURT: Overruled.

 10 BY MS. CHAPMAN:

 11 Q. I'm sorry. Could you repeat your answer?

 12 A. Yes.

 13 Q. You did see that?

 14 A. Yes.

 15 Q. On how --

 16 A. They did it on several occasions, yes. 

 17 MS. CHAPMAN: Thank you. No further questions.

 18 THE COURT: You may step down, sir.

 19 THE CLERK: Can someone give me those things? 

 20 MS. WRIGHT: Yes. 

 21 MR. DUPONT: Your Honor, the defense will call Oona 

 22 Holcomb.

 23 OONA HOLCOLM, WITNESS, SWORN 

 24 DIRECT EXAMINATION

 25 BY MR. DUPONT:

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DIRECT EXAMINATION OF OONA HOLCOLM

 1 Q. Hello, Oona. 

 2 A. Hi, Chris.

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

 4 A. My name is Oona Holcomb.

 5 Q. How old are you, Oona?

 6 A. I'm doing well.

 7 Q. Pardon me?

 8 A. Did you ask how am I? I can't hear you very well.

 9 Q. That would be fine. How are you?

 10 A. I'm well.

 11 Q. Okay. How old are you?

 12 A. I'm 39 years old.

 13 Q. And what do you do?

 14 A. Primarily I'm a master's student at St. Catherine 

 15 University in St. Paul, Minnesota. I also work part-time and 

 16 do other things in my community.

 17 Q. What are you studying at St. Catherine?

 18 A. It's a master's program in public health and global 

 19 health.

 20 Q. And what kind of school is St. Catherine?

 21 A. It's a private university in the Catholic tradition.

 22 Q. And other employment?

 23 A. I also work part-time in a customer service job to pay the 

 24 bills.

 25 Q. Can you tell the Court how you came to be involved with 

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DIRECT EXAMINATION OF OONA HOLCOLM

 1 No More Deaths in Arizona. 

 2 A. Yeah, so over -- it was over a decade ago. I was doing -- 

 3 I was in relationship to similar work, organizations doing 

 4 similar work in California, and through some of that work I met 

 5 individuals who at the time were part of No More Deaths and 

 6 learned about the organization and the work that they were 

 7 doing here in Arizona.

 8 Q. What did you learn?

 9 A. I learned that they were, among other things, doing direct 

 10 humanitarian aid, providing water, food, medical care, et 

 11 cetera, to -- for the purpose of preventing the suffering and 

 12 dying that was happening in the desert in southern Arizona.

 13 Q. Why were they doing that? Why did they have to do that?

 14 A. Because there had been a surge in migration from the 

 15 southern border from people coming from south of the United 

 16 States walking in across the desert, and there were -- there 

 17 was an upsurge in deaths that they were -- that they were 

 18 learning about, and so they were trying to directly prevent 

 19 those deaths from continuing to happen.

 20 Q. So addressing this surge in migration which led to 

 21 suffering and death on the border?

 22 A. Well, I would say there was a surge in deaths on the 

 23 border. I don't know if that's the same as a surge in 

 24 migration.

 25 Q. In response to this surge in deaths and suffering and 

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DIRECT EXAMINATION OF OONA HOLCOLM

 1 dying on the border and deciding to come here, was -- did your 

 2 own personal moral and ethical beliefs play any part in you 

 3 making the decision to make that life move?

 4 A. Oh, most definitely. I felt like when I learned what was 

 5 happening here, it was actually a relatively short amount of 

 6 time, I mean, in my life that I decided to come. I felt 

 7 compelled to come and participate for weeks or months at a time 

 8 in the summer, making other arrangements in my life because it 

 9 felt so important to me to be here.

 10 Q. Why is it so important to help people suffering and 

 11 dying?

 12 A. I don't believe anyone should be suffering or dying simply 

 13 because they are trying to build a life that is fulfilling for 

 14 them.

 15 Q. Do you speak Spanish?

 16 A. Conversationally. It was better at the time. It's worse 

 17 now.

 18 Q. When you first got here a decade ago, can you talk about 

 19 what that process was like in terms of training. 

 20 A. Training?

 21 Q. Yes.

 22 A. Yeah, so at that time you would come to Tucson, and there 

 23 -- there were three summers in a row that I was here, so it 

 24 varied a little bit summer to summer, but there would be a day 

 25 or two days of training that you would be required to go 

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DIRECT EXAMINATION OF OONA HOLCOLM

 1 through. 

 2 And then you would go out to the desert to participate in 

 3 what were generally broken down as weeklong sessions where you 

 4 were living and working every day doing this humanitarian aid 

 5 work.

 6 Q. During the training, what kind of topics would be 

 7 addressed?

 8 A. Some of them were more like logistical or tactical types 

 9 of things in terms of understanding the GPS system that 

 10 Dr. McCullough talked about. There would be some level of at 

 11 least basic first aid and medical training for those of us who 

 12 did not have it. 

 13 And also there was -- so things like that, but then also 

 14 there were conversations about why we were called to do this 

 15 work, the history of the organization, you know, why the 

 16 mission -- you know, what the mission was and how that was 

 17 being played out, how that would look on a day-to-day basis. 

 18 Does that answer your question? 

 19 Q. Sure. And when you say "mission," do you mean the 

 20 ministry too?

 21 A. The ministry, yeah, exactly.

 22 Q. You heard John Fife talking about the ministry and the 

 23 spiritual basis of the work you're doing?

 24 A. I have in training.

 25 Q. Do you share those beliefs?

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DIRECT EXAMINATION OF OONA HOLCOLM

 1 A. Do I share those beliefs with John? 

 2 Q. Yes. 

 3 A. Yeah, I have very similar beliefs. I think that we 

 4 probably speak about them and have lived them in different 

 5 ways, but I definitely share the belief that there is, like, a 

 6 deep, for me, I will say, like a deep spiritual need and a 

 7 calling to do work based on what I believe in the world.

 8 Q. And you worked a couple of summers, a couple or three 

 9 summers, did you say?

 10 A. Uh-huh, three summers.

 11 Q. And then you decided to come back in August of 2017?

 12 A. I did.

 13 Q. Why?

 14 A. I was in conversation at that time with people that I had 

 15 known from the time I had been here before and was encouraged 

 16 and was told it would be very -- I would be very welcome as 

 17 someone who had experience as a volunteer to come back because 

 18 of how dire the situation was in the area that they were 

 19 working.

 20 Q. What did you learn about how dire the situation is?

 21 A. So when I was here in 2008, '09, and '10, we worked in the 

 22 Arivaca area similar to the maps that Dr. McCullough showed.

 23 Q. We're mentioning Dr. McCullough. 

 24 A. I'm sorry, the witness, yes.

 25 Q. Yes. Do you guys use the same water tracking charts and 

149

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DIRECT EXAMINATION OF OONA HOLCOLM

 1 stuff like that, the same basic model?

 2 A. Oh, yes, definitely. 

 3 Q. So you learned about the dire situation. If you could 

 4 please --

 5 A. Yeah, so, well, what I'm explaining, so at that time I was 

 6 not part of any work that was happening in other areas. What 

 7 had happened in the time from when I stopped being a volunteer 

 8 after 2010 until I was in a conversation with people before I 

 9 came back in 2017 was the work had begun to happen in the Ajo 

 10 area, in this -- the Growler Valley, the area that we've been 

 11 talking about, and that they were seeing that it was just an -- 

 12 it was even more remote and intense and dangerous than what we 

 13 had experienced in the Altar Valley, which was saying 

 14 something, and that there were remains being found on a daily 

 15 basis almost, that people were just seeing an immense amount of 

 16 suffering and death that even surpassed what we had seen 10 

 17 years ago, which was already a lot.

 18 Q. And did you begin to start to see some of the maps that 

 19 were going around?

 20 A. Uh-huh, of the area, the Ajo, like, Growler Valley area 

 21 that we're talking about? 

 22 Q. Yes. 

 23 A. Uh-huh, yes.

 24 Q. So you knew the work of leaving water had been going on 

 25 10 years, but people continued to die; is that right?

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DIRECT EXAMINATION OF OONA HOLCOLM

 1 A. Yes.

 2 Q. And did you learn about people destroying water that was 

 3 being left for migrants?

 4 A. Oh, yes. That's been a practice as long as I've been a 

 5 part of this organization, seeing that people destroy the 

 6 water.

 7 Q. And before coming back in August of 2017, had you seen 

 8 that video depicted in Exhibit No. 184?

 9 MR. WALTERS: Objection, Your Honor. Relevance.

 10 THE COURT: Overruled.

 11 BY MR. DUPONT:

 12 A. Of the -- is that the exhibit where the Border Patrol is 

 13 pouring the water out of the jugs? Is that what you're 

 14 referring to? 

 15 Q. Yeah, the one you saw again, what, yesterday?

 16 A. Yes, yes. No, I'd seen that, yes.

 17 Q. You'd seen that before you came back in August of 2017?

 18 A. Yes.

 19 Q. Did that play a part in your decision to come back and 

 20 your analysis of how dire the situation was?

 21 A. Yes. I mean, I would say knowing that that was happening 

 22 is significant to me feeling the need to -- feeling compelled 

 23 to return, as one of many things, yes.

 24 Q. Was part of that the idea that we couldn't depend on the 

 25 Government to stem this death and suffering?

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DIRECT EXAMINATION OF OONA HOLCOLM

 1 A. Most definitely.

 2 MR. DUPONT: Move for admission of Exhibit 184, Your 

 3 Honor.

 4 MR. WALTERS: Which is what, the video?

 5 MR. DUPONT: Yes.

 6 MR. WALTERS: Again, I would object on relevance 

 7 grounds to this particular case, Your Honor.

 8 THE COURT: Overruled.

 9 MR. DUPONT: Permission to publish? 

 10 THE COURT: Sure.

 11 (The recording played in open court.)

 12 MR. DUPONT: We've only got it on one, this one. 

 13 Okay.

 14 (The recording continued to be played in open 

 15 court.)

 16 BY MR. DUPONT:

 17 Q. Any indication those agents who kicked over the water 

 18 were picking up the trash?

 19 A. I had no reason to believe that they did.

 20 (The recording continued to be played in open 

 21 court.)

 22 BY MR. DUPONT:

 23 Q. Had you ever personally witnessed this type of act?

 24 A. Yes.

 25 Q. Tell the Court, please.

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 1 A. In the time that I was here approximately a decade ago, 

 2 there were often times when we would see Border Patrol out in 

 3 the field or in the desert, and on several of those occasions, 

 4 we saw them right in front of us pour out water. 

 5 (The recording continued to be played in open 

 6 court.)

 7 BY MR. DUPONT:

 8 Q. Oona. I'm sorry. Did I cut you off?

 9 A. I was just going to say, this is -- what he is doing here 

 10 is something that I have seen, and then also, you know, as has 

 11 been brought up by a previous witness, the destruction of -- we 

 12 have found bottles that were cut clearly with a knife, 

 13 vandalism. Obviously we don't know who did that, but there's 

 14 definitely destruction of the water out in the desert.

 15 Q. Do you see markings on this jug?

 16 THE COURT: Pardon me? 

 17 MR. DUPONT: Oh, I'm sorry. I was talking to the 

 18 witness. I was just looking at you, Your Honor. 

 19 BY MR. DUPONT:

 20 A. I'm sorry. What did you say? 

 21 Q. I wanted to make a note, because I think this is 

 22 important, the markings on this jug --

 23 A. Uh-huh.

 24 Q. -- that the officer's pouring out --

 25 A. Yes.

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 1 Q. -- what does that look like?

 2 A. I can't read what's underneath it, but it's a cross that's 

 3 drawn on the water jug.

 4 Q. A crucifix?

 5 A. I mean, I can see that it's a cross, possibly, yeah. I 

 6 mean, it looks like a Christian cross, is what I can see from 

 7 this.

 8 Q. Is that a common practice for No More Deaths, to draw 

 9 Christian crosses on water jugs?

 10 A. I would say that, in my experience, it's a common 

 11 practice, and I've participated in drawing things on the water 

 12 jugs. Sometimes, often, those are Christian symbols or other 

 13 religious or faith-based symbols, as well as, you know, things 

 14 like hearts and messages.

 15 (The recording continued to be played in open 

 16 court.)

 17 BY MR. DUPONT:

 18 Q. Is that officer slashing the water bottles?

 19 A. I mean, that's what it looks like. It's a little hard to 

 20 see, but yeah.

 21 (The recording continued to be played in open 

 22 court.)

 23 BY MR. DUPONT:

 24 Q. All right. When you get back, prior to August 

 25 13th, where do you go?

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 1 A. When I come back to Arizona before August 13th? 

 2 Q. Yes. 

 3 A. The week prior to that week I was in the Arivaca area, and 

 4 then in the several days or so before August 13th, I was in the 

 5 Ajo area as a volunteer.

 6 Q. Tell me -- tell us what a day would look like as a 

 7 volunteer No More Deaths person whose duty is to put water out 

 8 in the desert. 

 9 A. Sure. I mean, it varies a little bit, but generally you 

 10 wake up pretty early, because it's already hot and it's just 

 11 going to get hotter, so the idea is to try to get things done 

 12 as soon as -- as early as possible to beat the heat and, you 

 13 know, have breakfast and, you know, clean up, et cetera, make 

 14 sure that, you know, you start the day, kind of like we all 

 15 would. 

 16 And then either the night before or that morning you have 

 17 a conversation, it would look like a collective meeting, to 

 18 make a decision as to what you're going to do that day.

 19 Q. And what do you look at while you're making the 

 20 decisions? What kind of data do you analyze?

 21 A. So generally -- so as long as I've been in No More Deaths 

 22 camps, there are these, like, binders that we keep that 

 23 basically look like written versions of that chart that was 

 24 shown previously, so it says, you know, these are the places 

 25 where water drops are happening.

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 1 Q. You mean the charts shown by Dr. McCullough?

 2 A. Yes, thank you. These are where they're happening. This 

 3 is the last time we were there. This is what was left. You 

 4 know, like the same thing, charting out what we can record from 

 5 what's happening and also when we're doing that so that we have 

 6 a sense of how much water is moving out of certain areas, and 

 7 that indicates to us that there are more people who are taking 

 8 it. And we also record things like, you know, when animals get 

 9 into it and stuff like that. 

 10 But -- and then in places where it seems like there is a 

 11 high need, we try to go as much as possible, and also, if we 

 12 haven't been somewhere for some time, we try to make a point, 

 13 you know, like a week or two, we try to make a point to get 

 14 back there. 

 15 This all varies a little bit depending on where exactly 

 16 you're working, so we would be looking at that information in 

 17 that kind of like chart format and then also maps. You know, 

 18 we're out in a camp or wherever in the desert, and so we're 

 19 actually looking at physical maps that have markings of where 

 20 things are and also at times refer to other important 

 21 information, for example, where remains have been found or, you 

 22 know, things like that. 

 23 So we're -- that's kind of what we're looking at, and 

 24 we're making a decision about our day and what we need to do.

 25 Q. Are you looking at the trends of where human remains are 

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 1 found?

 2 A. Sometimes.

 3 Q. As you got ready to go out in that time period, had you 

 4 heard about the three people that had gone missing July 19th?

 5 A. Yes, I had.

 6 Q. What had you heard?

 7 MR. WALTERS: Objection, Your Honor. Hearsay. 

 8 Calls for hearsay.

 9 THE COURT: Overruled.

 10 BY MR. DUPONT:

 11 A. I had heard -- there was discussion that there were three 

 12 people. Two people had been found. There was concern about 

 13 the third person. 

 14 I'll be honest with you. There was minimal discussion, 

 15 mostly because an incident had happened in the day or two, 

 16 maybe three at most, prior that was really traumatic around 

 17 finding a body that just more conversation was happening around 

 18 that, but there was some reference to the July 19th, the three 

 19 people and then being concerned about the third.

 20 Q. What -- I mean, what were people talking about, this 

 21 fourth person?

 22 A. Well, this was a separate incident that had happened where 

 23 the discussion that was happening was that people had gone to 

 24 do water drops. They had parked a truck. They had walked away 

 25 from the truck. They had come back to the truck, and there was 

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 1 a body of a deceased person at the truck. 

 2 There's only an assumption of whether that person walked 

 3 up to that truck and then died or someone carried that person 

 4 and left them. There's -- at that point, I don't know if we 

 5 know now, but there wasn't knowledge as to what exactly had 

 6 happened, but there was someone who was assumed to be migrating 

 7 who had just died, which was obviously very traumatic.

 8 Q. Did it -- did you have any feeling, because of that, the 

 9 situation was more critical?

 10 A. Yes. I -- based on the information I was given going into 

 11 the Ajo area that week, it was -- we were told to expect that 

 12 we would find human remains. It was likely enough that we were 

 13 being prepared for it.

 14 Q. And that people were likely dying in the wilderness at 

 15 the time?

 16 A. Yeah.

 17 Q. So I want to kind of transition from the humanitarian 

 18 crisis to the bureaucratic crisis. 

 19 A. Okay.

 20 Q. And the permit process.

 21 A. Okay.

 22 Q. By the time you got back in August, did you learn they 

 23 had changed the permitting?

 24 A. Yes.

 25 Q. What had you heard?

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 1 A. What I had been informed was that there had been -- there 

 2 had been -- the permit had looked one way, and then recently, 

 3 within like the last month or so, they had altered the language 

 4 on the permit to be very specific about things that would be 

 5 left, which was basically the things that we do as humanitarian 

 6 aid workers, and so -- but that that had happened, and I was 

 7 told that by someone who was a core of No More Deaths who I 

 8 believe had heard it from, like, legal team folks.

 9 Q. Did you have some reason to believe you might be 

 10 ticketed?

 11 A. Oh, yes. I mean, we thought it was possible we could be 

 12 ticketed.

 13 Q. Did you have any reason to think you could be charged 

 14 with a crime?

 15 A. Like a criminal?

 16 Q. Like a criminal offense --

 17 A. No, no.

 18 Q. -- like you're charged with now?

 19 A. No.

 20 Q. We heard some people talking about an April meeting 

 21 between, I think, Margo Cowan and Sid Slone. 

 22 Did you hear that testimony?

 23 A. In the courtroom today? 

 24 Q. Yes. 

 25 A. Yes.

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 1 Q. Had you ever heard that before?

 2 A. No.

 3 Q. Nobody had ever told you about that meeting before?

 4 A. No.

 5 Q. What about the July 6th meeting where the Department of 

 6 Justice said they had no interest in prosecuting?

 7 A. Yeah. That was communicated to us. It was communicated 

 8 to us, like, given that we knew what was happening with the 

 9 permits, which also in that moment it felt kind of like we're 

 10 unsure, as this is a new thing, and so we're working this 

 11 out, but that we would, you know, yes, because of that, in 

 12 doing the work that we do, yeah, maybe we would get a ticket or 

 13 a fine, but we were told that there had been some level of 

 14 communication and that we did not have any reason to believe 

 15 that we would be criminally charged.

 16 Q. Were you aware of other people who had been in the 

 17 wilderness area driving and leaving water who had been stopped 

 18 by Forest Service, Fish and Wildlife?

 19 A. Uh-huh, yeah.

 20 Q. What had you heard about that?

 21 A. The people who had been stopped had been asked to leave or 

 22 like -- but --

 23 Q. No tickets, nothing?

 24 A. I mean, I don't recall if people had received tickets on 

 25 the spot or if they had just been stopped and asked to leave or 

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 1 if it was a combination of both, but there had been no further 

 2 action taken against them.

 3 Q. Now, I understand that you've been involved in different 

 4 things that are just more political action. 

 5 A. Uh-huh.

 6 Q. And in fact, you've been arrested before?

 7 A. I have.

 8 Q. And you've been cited before?

 9 A. Yes.

 10 Q. When you were arrested, that was an intentional thing?

 11 A. The first time, yes.

 12 Q. You went out to do what you were doing with the idea you 

 13 were going to get arrested?

 14 A. Yes.

 15 Q. What did you --

 16 A. What happened?

 17 Q. No, not what happened, but I mean, did you learn anything 

 18 about that?

 19 A. Oh, yeah. I mean, you know, I was 19. It was a long time 

 20 ago. I was in college, and it was, you know, as an early -- a 

 21 young, young organizer learning things, and we, you know, were 

 22 arrested intentionally. 

 23 And coming away from that, I felt like that was just not 

 24 for me. That's not part of what I think is genuinely a useful 

 25 political strategy. That's just speaking for myself. But I 

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 1 didn't plan on doing it again.

 2 Q. You planned on never getting arrested again?

 3 A. Yeah, that was the goal.

 4 Q. Did you plan on getting arrested in Cabeza Prieta or 

 5 getting criminally charged?

 6 A. No.

 7 Q. And after hearing that the prosecutors were not 

 8 interested in prosecuting and that several people had been 

 9 stopped and no one was arrested, did you have any reason to 

 10 think maybe you'd be arrested?

 11 A. No.

 12 Q. August 13th, 2017.

 13 A. Uh-huh.

 14 Q. Tell us about your day.

 15 A. I'll try. It was really hot, which makes it hard for our 

 16 brains to function. We, like a normalish day, got up, 

 17 breakfast, all that stuff. Made a decision about what we were 

 18 going to do, where it seemed like water was needed. Proceeded 

 19 to carry that out, which was in the -- just basically, I mean, 

 20 you know, different people were doing different things, but the 

 21 role that I was going to play. 

 22 And there's decision-making as to why people, you know, 

 23 are put together in different groupings and things like that. 

 24 You know, we think through all of that. We were going to 

 25 basically try to get water drops out along that, like, edge of 

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 1 that ridge, kind of like right where it gets flat down at the 

 2 bottom of the road. 

 3 Sorry. I don't -- that's the only time I've ever been out 

 4 there, so I'm not good at referring to --

 5 Q. As we looked at the maps, kind of the --

 6 A. Yes, like where you drive down past Charlie Bell Well and 

 7 basically to where it levels out and there's, like, a road that 

 8 continues, to make water drops at places along that road.

 9 Q. You guys stayed on the established road --

 10 A. Yeah.

 11 Q. -- with the vehicle? 

 12 A. Uh-huh.

 13 Q. Why that particular area?

 14 A. Because we believed that those spots were places that 

 15 people would be able to access the water, because they were 

 16 walking there, and there were a lot of deaths happening and 

 17 people really suffering coming through that corridor. 

 18 I mean, it's easily the most, like, desolate place I've 

 19 ever been. It's brutal.

 20 Q. Did you take your own -- were those gallon jugs, did 

 21 those belong to you, or did they belong to the church? Whose 

 22 water was that?

 23 A. That we carried to put out? 

 24 Q. Yes. 

 25 A. Yeah, I mean, I don't know the specifics of it, but yeah, 

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 1 they're not mine. They're, you know, part of the organization, 

 2 or the organization provides them for the work we're doing.

 3 Q. And before you went, did you get a -- did you obtain a 

 4 permit?

 5 A. No.

 6 Q. Did that have anything to do with the new Hold Harmless 

 7 Agreement?

 8 MR. WALTERS: Objection, Your Honor. Leading.

 9 THE COURT: Overruled.

 10 BY MR. DUPONT:

 11 Q. The new --

 12 A. I did not get a permit because the language in the permit 

 13 had changed, and I felt that it would be lying to acquire a 

 14 permit and sign it knowing what I was going to do what I was 

 15 going to do. That felt dishonest.

 16 Q. Lying about what?

 17 A. I was going to put water. My plan was to put water in the 

 18 desert, and I didn't want to lie and say, no, I'm not going to 

 19 do that. That's dishonest.

 20 Q. As you drove closer to the wilderness area, is there a 

 21 place you're supposed to sign in, a visitors kiosk?

 22 A. Uh-huh, yeah, yes.

 23 Q. And you found that place?

 24 A. Yes.

 25 Q. And what did you do when you got there?

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 1 A. We -- and I'll be honest with you, again, it was really 

 2 hot. We signed in. I don't know if we signed in as, like, a 

 3 vehicle or as individuals. I honestly don't remember. But the 

 4 idea was that we wanted to make sure that -- we were trying to 

 5 be transparent about the fact that we were there and not hide 

 6 that.

 7 Q. Is that one of the policies of No More Deaths, to be 

 8 transparent?

 9 A. Yes. It's part of kind of the core, what we call civil 

 10 initiative. It's possible Mr. Fife talked about that, but 

 11 yeah, being transparent is core to our work.

 12 Q. What's the difference between, for example, civil 

 13 initiative and civil disobedience?

 14 A. I am not an expert on this, but my understanding is, being 

 15 trained, is that civil disobedience is intentionally breaking a 

 16 law to show that it is unjust.

 17 Q. Kind of like when you got arrested as a 19-year-old?

 18 A. Sort of like that.

 19 Q. And you've evolved into someone who engages in civil 

 20 initiative. What's that?

 21 A. Civil initiative is believing that the law -- the greatest 

 22 law that applies, in this case it would be humanitarian law, 

 23 international law, and moral law, moral code, that the 

 24 Government is not actually following the law or, like, you 

 25 know, refugee law, asylum law, these greater laws, that the 

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 1 Government is not doing that, and so we are acting in a way 

 2 so -- to show and push that the Government do that, and also we 

 3 are basically following the law, the higher law.

 4 Q. You're following your religious or spiritual or moral --

 5 A. Yes.

 6 Q. -- imperative?

 7 A. As well as, you know, international human rights law.

 8 Q. Got it.

 9 MR. DUPONT: Can we show on the -- just the witness, 

 10 I think. We've gone blank.

 11 THE COURT: Excuse me. I didn't -- you said there's 

 12 civil disobedience and what's the other one? Civil -- 

 13 THE WITNESS: Civil initiative.

 14 BY MR. DUPONT:

 15 Q. So could you tell the Court about going out there with 

 16 the truck. What did you have? What kind of supplies did you 

 17 have?

 18 A. In addition to personal supplies, we had crates with 

 19 gallon jugs of water, flats of beans.

 20 Q. Why beans?

 21 A. So dehydration is a primary concern, and dehydration is 

 22 helped by drinking water, but it's actually also an electrolyte 

 23 imbalance. I believe that the --

 24 Q. Dr. Hess?

 25 A. Yeah, that Dr. Hess talked about this. So not only is 

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 1 food important for survival, but also, if you're going to be 

 2 drinking water and you're in these extreme conditions, having 

 3 something to eat is one other way of helping balance that.

 4 Q. So salt and carbohydrates balance your electrolytes a 

 5 little better?

 6 A. Better, yeah.

 7 Q. All right. And what kind of personal supplies?

 8 A. It would depend on the person. Given my training, I carry 

 9 a medic kit with me, so things that would apply for basic first 

 10 aid, though given the specifics, you know, additionally things 

 11 like electrolyte packets, but you know, things that would be 

 12 more useful in the desert as opposed to, you know, if I were in 

 13 the tundra or something. But first aid supplies, my own 

 14 water, and my own means of sustaining myself.

 15 Q. Can you see Exhibit 205 in front of you?

 16 A. Uh-huh.

 17 Q. It's already been admitted, if we could publish. 

 18 A. Yep.

 19 Q. So this is the green truck --

 20 A. Uh-huh.

 21 Q. -- on Growler Road --

 22 A. Uh-huh. 

 23 Q. -- right above the valley to the left; right?

 24 A. Yes.

 25 Q. Was that green truck there when you went down? Was the 

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 1 green -- did you pass that green truck already, or do you 

 2 remember the green truck?

 3 A. Yes. Are you saying, like, was it there when we drove 

 4 down the road? 

 5 Q. Yes. 

 6 A. Yes.

 7 Q. Okay.

 8 A. As I recall.

 9 Q. And this is the established road you went down in picture 

 10 two?

 11 A. Yes. As I recall, yeah.

 12 Q. The sign saying, "Government Road," did you see the sign?

 13 A. I mean, to be honest, I didn't really pay attention to the 

 14 signs. I mean, obviously they're there.

 15 Q. And you knew you were supposed to have a permit?

 16 A. Yeah.

 17 Q. According to the --

 18 A. Yes, but I didn't go and read the signs closely.

 19 Q. All right. And then what did you guys do there in 

 20 picture five?

 21 A. I mean, we kept driving past this. You're saying on the 

 22 way down? 

 23 Q. Yeah, who's -- did you guys leave this water there?

 24 A. Yes. As I recall, yeah.

 25 Q. Why?

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 1 A. Like, why did we leave the water?

 2 Q. Yeah.

 3 A. For -- I mean, for -- if people -- if humanitarian aid 

 4 volunteers were in the area, that they could take from that and 

 5 further take it out to, like, other waypoints, as well as -- I 

 6 mean, and if people came across it and needed it, obviously 

 7 they could also drink it.

 8 Q. Because you knew this was animal water here; right?

 9 A. My understanding of that was, yes, that it was -- if there 

 10 was water in it, which actually apparently that is not 

 11 something that we generally assumed, that it wasn't -- it 

 12 wasn't good enough to support human life.

 13 Q. It can make people sick, was your understanding?

 14 A. Yeah, that it would make people sick if there was anything 

 15 in there, or it had the likelihood to. 

 16 Q. So people could -- you were aware that, up in this 

 17 area, up in north, there were a lot of people being -- a lot 

 18 of remains being recovered?

 19 A. Yes.

 20 Q. So presumably people dying up in there?

 21 A. Yes.

 22 Q. This is the white truck you guys are in?

 23 A. Yes.

 24 Q. Is that your shirt there hanging off to the right?

 25 A. I don't think so.

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 1 Q. Another picture of your truck?

 2 A. Uh-huh. 

 3 Q. You guys kind of pulled off in what looked like a parking 

 4 area or a barren area?

 5 A. Uh-huh, yeah.

 6 Q. You never drove to where the plants were and stuff?

 7 A. No.

 8 Q. Okay. Now we're back on the back of the truck. What's 

 9 back here?

 10 A. What do I see back there?

 11 Q. Yeah. 

 12 A. Some of the crates that we put water in, some of the -- 

 13 you can kind of see -- Sun Vista is the beans that we carry.

 14 Q. And that's over here? These are beans?

 15 A. Yeah, those are beans.

 16 Q. Okay.

 17 A. The green box is granola bars, again, an easy --

 18 Q. Salt?

 19 A. -- snack that will keep in the heat, and some empty water 

 20 jugs. And you can kind of see in the bottom these blue, if you 

 21 can see those, those are -- those carry water for us.

 22 Q. This is where you guys pack your water?

 23 A. Yeah. So you know, I would -- personally I would carry a 

 24 couple of water bottles, and I can refill out of those tanks. 

 25 They're like these blue tank things that we carry.

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 1 Q. And these are empties that you guys have brought back?

 2 A. Yes. When we find empty bottles and debris in the desert, 

 3 we try our best to pack it out.

 4 Q. How could you tell they were yours?

 5 A. I mean, because there's writing on them. So, I mean, I 

 6 would have to look carefully at it, but like I said, we write 

 7 on the bottles, and so when we find bottles with the writing 

 8 we've done, we know that they were ours.

 9 Q. The religious and spiritual messages that are put on the 

 10 bottles?

 11 A. Yeah.

 12 Q. Can you tell me again what kind of messages are being 

 13 put?

 14 A. I think that, you know, each volunteer has their 

 15 preferences. Some people draw. I'm not an artist, so I don't 

 16 draw things on them more than hearts. But people would say 

 17 things, like, you know, in Spanish, "Good luck." Often I like 

 18 to, like, "Go," basically, like, "Walk," "Go with God." 

 19 Q. In Spanish?

 20 A. "Vaya con Dios."

 21 Q. Is that what you'd write?

 22 A. Sometimes, yeah, or "Suerte," or things -- the idea is to 

 23 both be encouraging and also to say, like, you know, we're here 

 24 with you, we're thinking of you, and we want you to be okay. 

 25 Q. And do you have -- tell us about how leaving water feels 

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 1 like a spiritual experience through either rituals or through 

 2 the feeling you have when you do it. 

 3 A. So in my experience of doing many water drops, countless 

 4 over the years, generally I feel like what happens when you get 

 5 to the spot you're going to drop the water, you know, maybe 

 6 you've been, like, talking as you're walking with people, with 

 7 other volunteers, but often there's this kind of like quiet 

 8 that happens. 

 9 I mean, on one hand you get to stop. You get to rest. 

 10 It's usually in a shaded spot, if possible. But also, and I 

 11 can only speak for myself, but there's this kind of intense 

 12 feeling in those spaces, especially when you have found things 

 13 that people who are migrating have left or empty water bottles 

 14 that they've left, because you know that they were there. 

 15 You can feel their presence, which I feel like then, for 

 16 me, feels like this really spiritual, like, tie to those people 

 17 and wondering where they are, are they okay, are they not okay. 

 18 But I feel like those spaces, especially the longer that 

 19 they are established in different places, often also, you know, 

 20 people will leave things in, like, alters, small alters. 

 21 Sometimes -- there's just -- it's clear -- it's like the shared 

 22 -- it's like the space that we share under really horrible 

 23 circumstances, but they feel very sacred, and you can almost -- 

 24 when you walk in it, it's often just like this quiet moment, 

 25 even though we're -- you're sitting with a group of people.

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 1 Q. Are there other rituals around camp, around the work, the 

 2 work you're doing?

 3 A. In my experience, there's often time taken, somewhat a 

 4 process, but also to just be together and kind of like honor 

 5 this experience that we're having. So in my experience, that's 

 6 often, like, at the end of the day, usually like with a fire, 

 7 though not necessarily, sitting around together and talking 

 8 about our experiences and kind of having this just, like, 

 9 shared moment, sometimes just taking moments of silence.

 10 Q. And you're aware of, I think you talked about some of the 

 11 rituals around the artifacts found in the desert --

 12 A. Uh-huh.

 13 Q. -- that belonged to the people who are suffering and 

 14 dying there?

 15 A. Yeah. I mean, at Bird Camp, a camp that existed for a 

 16 long time in the Arivaca area, there was a large alter, and I 

 17 know -- I mean, so there's alters like that in our space that 

 18 we've built, but also you see migrants build alters along the 

 19 paths, and you find them. 

 20 But yeah, I mean, I -- and I know people have personal -- 

 21 you know, like, I, on my personal alter in my home, keep like a 

 22 ring of a water bottle that I picked up in the desert.

 23 Q. And if you can look at 193 on your screen.

 24 A. Uh-huh.

 25 Q. Are these examples of some of the rituals that go on 

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 1 around the artifacts found?

 2 A. Yeah. I mean, I think that people have different ways of 

 3 interacting with them, but yeah, this would be one way, yeah.

 4 MR. DUPONT: Move Exhibit 193.

 5 MR. WALTERS: Objection on relevance grounds. 

 6 THE COURT: Did you create that? 

 7 THE WITNESS: No, I didn't create that.

 8 THE COURT: Is it yours?

 9 THE WITNESS: Huh-uh. I did not create that.

 10 BY MR. DUPONT:

 11 Q. But you're aware of it, and this helps you form your 

 12 spiritual experience?

 13 A. Yes, I'm aware of projects like this one, yes.

 14 Q. And it forms your spiritual experience?

 15 A. Uh-huh. Yeah, I would say that. That's true. 

 16 MR. DUPONT: Move to admit.

 17 THE COURT: When did you first see this?

 18 THE WITNESS: This particular picture? 

 19 THE COURT: Well, yes.

 20 THE WITNESS: Well, I don't know. This more 

 21 recently, this particular example. 

 22 THE COURT: After you got charged or before? 

 23 THE WITNESS: I think after. I've seen a lot of 

 24 projects like this, but I think this is from after.

 25 THE COURT: The objection's sustained.

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 1 MR. DUPONT: No further questions -- or excuse me. 

 2 No further questions.

 3 CROSS-EXAMINATION

 4 BY MR. WALTERS:

 5 Q. Let's talk about your failure to get a permit in this 

 6 case. Okay?

 7 A. Sure.

 8 Q. Before you got to Cabeza Prieta, you knew that you had to 

 9 get a permit; right?

 10 A. Uh-huh, yes.

 11 Q. You knew that it was federal law that required you to get 

 12 a permit to go onto that National Wildlife Refuge?

 13 A. I don't know if I knew it was federal law. I knew we 

 14 needed to get a permit. That would be stretching my knowledge.

 15 Q. Were you counseled by anyone not to obtain a permit?

 16 A. Not to obtain a permit?

 17 Q. Yes.

 18 A. Define "counsel."

 19 MR. DUPONT: Objection, Your Honor. Calls for 

 20 attorney-client privilege. I don't know --

 21 MR. WALTERS: Not necessarily. It could have been 

 22 anybody else in the organization as well.

 23 THE COURT: Yeah, ask her that.

 24 BY MR. WALTERS:

 25 Q. Did anybody other than your attorneys, your current 

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 1 attorneys, advise you to not get a permit?

 2 MR. DUPONT: Objection, Your Honor. She may have 

 3 had past counsel. I just want to limit this part. 

 4 THE COURT: Well, other than a lawyer, did somebody 

 5 tell you not to get a permit? 

 6 THE WITNESS: No one told me not to get a permit. 

 7 That's not how decision-making happens.

 8 MR. WALTERS: But Your Honor, it's a specific 

 9 question about whether any lawyer other than these three 

 10 sitting at counsel table -- she at one point specifically said 

 11 that she had been given advice by the legal team, and the 

 12 defense, as far as I know, is relying on an entrapment by 

 13 estoppel defense which partly comes, I would imagine, from any 

 14 advice that she may have received from her -- from No More 

 15 Deaths' legal counsel. 

 16 I think you also have an issue of whether No More 

 17 Deaths' legal counsel applied to -- that attorney-client 

 18 privilege applied all the way down to this particular 

 19 defendant. 

 20 MR. DUPONT: Your Honor, I don't know what principle 

 21 of law he's getting at that would allow -- that forces her to 

 22 waive attorney-client privilege. She's not done that, if she 

 23 had previous counsel before, which I believe they did. We 

 24 haven't -- I don't think reliance on counsel's advice is a 

 25 defense in this case.

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 1 THE COURT: All right. Okay. If that's -- I'll 

 2 accept that. Reliance on counsel is not a defense.

 3 MR. WALTERS: That's fine. That's what I'm saying, 

 4 Your Honor, but the Ninth Circuit has been very clear that, 

 5 when there is an entrapment by estoppel defense raised, in 

 6 part because of -- and I should back up. 

 7 I believe the Ninth Circuit is clear on that, that 

 8 the Government should not be precluded from exploring 

 9 that, exploring any conversations that she may have had with 

 10 legal counsel of No More Deaths because it goes specifically 

 11 to whether that reliance on counsel was unreasonable or not. 

 12 In order for us to determine whether that reliance was 

 13 reasonable, we first have to be able to establish that that 

 14 communication took place.

 15 MR. DUPONT: Your Honor, I think this is the third 

 16 time today I've heard the Government say there's all kinds of 

 17 Ninth Circuit case law, but I haven't seen a single case. 

 18 She's not waiving her attorney-client privilege.

 19 THE COURT: And as such, she won't be able to rely 

 20 on what her lawyer may have told her or if a lawyer told her.

 21 MR. WALTERS: That's fair enough, Your Honor.

 22 BY MR. WALTERS:

 23 Q. Did anyone other than a lawyer that was representing you 

 24 or No More Deaths counsel you to not get a permit?

 25 A. Are you asking if anyone who was not a lawyer counseled 

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 1 me? 

 2 Q. Correct. 

 3 A. No. That's not how decisions are made.

 4 Q. Okay. But despite that, you willfully chose not to get 

 5 one that day?

 6 A. That's correct.

 7 Q. And you knew -- you didn't get one because, frankly, you 

 8 knew you were going to violate it?

 9 A. Yes. I wanted to be honest.

 10 Q. Because you knew you were going to violate it.

 11 A. Yes.

 12 Q. You also never got a special-use permit; correct?

 13 A. No.

 14 Q. Are you aware of what a special-use permit is?

 15 A. Vaguely.

 16 Q. You know that getting a special-use permit would allow 

 17 you to drive a motor vehicle into a wilderness area; correct?

 18 A. Oh, yes.

 19 Q. So you know what those are?

 20 A. I know what you just told me.

 21 Q. You know what those are?

 22 A. Yes.

 23 Q. And you never tried to get one of those?

 24 A. No.

 25 Q. Did anyone ever counsel you, other than a lawyer, again, 

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 1 counsel you not to get a special-use permit?

 2 A. No one counseled me in that way.

 3 Q. Your testimony was that you didn't -- I'll scratch that.

 4 You would agree with me that at the time that you were on 

 5 Cabeza Prieta, you possessed those supplies; correct?

 6 A. Can you define "possessed."

 7 Q. You had control over them. 

 8 A. I don't know if I really understand your question, that I 

 9 -- what does that mean? 

 10 Q. You took part in moving them; right?

 11 A. Some of them.

 12 Q. Okay. And frankly, you intended to leave those supplies 

 13 at Charlie Bell Well and other places; right?

 14 A. Some of them.

 15 Q. Okay. You wanted illegal aliens to find those supplies?

 16 A. I wanted people who were at risk of dying in the desert to 

 17 find water, yes.

 18 Q. That's not what I asked you. You wanted illegal aliens 

 19 to find those supplies; right?

 20 MR. DUPONT: Objection. Asked and answered, Your 

 21 Honor, in full.

 22 THE COURT: Try "undocumented migrants."

 23 MR. WALTERS: It's a legal term, Your Honor. 

 24 THE COURT: I know it is, but --

 25 MR. WALTERS: The Court -- the audience can know 

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 1 that as well. 

 2 BY MR. WALTERS:

 3 Q. You wanted those people to take those supplies with them; 

 4 correct?

 5 A. To take them or drink them or whatever they needed to do 

 6 to survive, yes.

 7 Q. So is that a "yes?" 

 8 A. Yes.

 9 Q. Okay. Obviously if one of those people were to take some 

 10 of those supplies and carry them with them, you would not be 

 11 able to pick them up later; right?

 12 A. It's possible.

 13 Q. But you might not?

 14 A. Possibly not.

 15 Q. And if you didn't pick them up, that was something that 

 16 was okay with you because you knew that maybe they picked them 

 17 up instead?

 18 A. Yes, given how much we take out of the desert, yes, and 

 19 given someone's possibility of death, yes. That was a tradeoff 

 20 I was willing to make.

 21 Q. Regardless of your intent, you left -- you and your 

 22 codefendants left those supplies there; right?

 23 A. Yes.

 24 Q. And after you parked the truck, you and your codefendants 

 25 went off into the desert; right?

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 1 A. Yes.

 2 Q. Did you drop off additional supplies there?

 3 A. Yes.

 4 Q. And again, your intent with those supplies was that 

 5 someone would come and take those supplies?

 6 A. Yes.

 7 Q. Let's talk about your testimony that you thought there 

 8 was an agreement between No More Deaths and the U.S. 

 9 Attorney's Office. Okay?

 10 A. Okay.

 11 Q. You were never at any meetings with the U.S. Attorney's 

 12 Office?

 13 A. No.

 14 Q. You never spoke directly to any Assistant United States 

 15 Attorney?

 16 A. No.

 17 Q. You never spoke to someone who was appointed by the 

 18 President as the United States Attorney?

 19 A. No.

 20 Q. You never spoke to the First Assistant United States 

 21 Attorney?

 22 A. No.

 23 Q. You never spoke to anyone at all from the U.S. Attorney's 

 24 Office?

 25 A. No.

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 1 Q. You only heard that you have -- that you may have 

 2 permission from a third party. Is that fair?

 3 A. That I may have permission to do what? 

 4 Q. That you may have permission to conduct your activities 

 5 out on Cabeza Prieta from a third party. You heard that from 

 6 someone else? 

 7 A. I don't think that that's a correct statement of what I 

 8 heard.

 9 Q. You heard that the U.S. Attorney's Office had no interest 

 10 in these cases from a third party?

 11 A. Yes, from a third party, yes.

 12 Q. Were you ever aware of a search warrant that was executed 

 13 at the Arivaca camp?

 14 MR. DUPONT: Objection. Relevance.

 15 THE COURT: Overruled.

 16 BY MR. WALTERS:

 17 A. Can you repeat the question? 

 18 Q. Sure. Were you ever made aware of a search warrant that 

 19 was executed at the Arivaca camp prior to your incident?

 20 A. I don't have any recollection of that.

 21 Q. That's fine. Before you went to Cabeza Prieta, you 

 22 planned ahead; right?

 23 A. Uh-huh, yes. 

 24 Q. You discussed with other people where you were going?

 25 A. Yes. 

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 1 Q. What you were going to do there?

 2 A. Yes.

 3 Q. Where you were going to drop the supplies?

 4 A. Yes.

 5 Q. Were the plans made that day or were they made prior to 

 6 that day?

 7 A. That would be a both/and.

 8 Q. Okay. You were not faced with a situation on August 13th 

 9 where you had to immediately act to save another person's 

 10 life; correct?

 11 A. No, not on that day.

 12 Q. So if you wouldn't have -- so if you would not have 

 13 acted, somebody would have died immediately?

 14 A. I don't understand the question.

 15 Q. Well, I'm asking you, did you know of an immediate harm 

 16 at that particular point in time when you went to Cabeza 

 17 Prieta?

 18 A. It's a difficult question to answer, to be honest. I have 

 19 been in the desert dropping water and had someone almost die in 

 20 front of me, so a specific individual on that day, I don't know 

 21 which specific individual, but I had all likelihood an 

 22 experience to believe that it was possible that people not 

 23 finding water could die that day.

 24 Q. Did you have information that, at the particular time of 

 25 your actions, there was someone in need of immediate medical 

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 1 assistance?

 2 A. I guess what I'm trying to ascertain is, if someone was in 

 3 the desert, walking for days in 110 degree heat, then yes, that 

 4 would be knowledge that they could possibly die if there wasn't 

 5 water put there.

 6 Q. Could die when?

 7 A. That day. The next day.

 8 Q. Five days later?

 9 A. Sure.

 10 Q. Ten days later?

 11 A. I mean, I guess.

 12 Q. You are aware that Border Patrol has the ability to 

 13 conduct search and rescue missions; right?

 14 A. Yes.

 15 Q. So if you did know about someone who was in need of 

 16 immediate medical assistance, you could have called 911; 

 17 correct?

 18 A. If I knew where that person was.

 19 Q. Sure. But you didn't know where anyone was that needed 

 20 immediate medical assistance?

 21 A. Not to that specific location -- not that specific of a 

 22 location knowledge, no.

 23 Q. Are you familiar with the rescue beacons on the refuge?

 24 A. I am.

 25 Q. You know there's one at Charlie Bell Pass; correct?

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 1 A. Yes.

 2 Q. And these beacons, you know, allow people who are having 

 3 medical emergencies to call Border Patrol directly?

 4 A. Yes.

 5 Q. The downside is that the person may be removed or 

 6 deported; correct?

 7 A. That's a possibility.

 8 Q. And that's the part you disagree with; right?

 9 A. Which? I disagree with what?

 10 Q. That as part of getting help, they may be deported or 

 11 removed. 

 12 A. I don't disagree with that fact, that that is factually 

 13 possible.

 14 Q. Let me put it a different way. You do not believe that 

 15 medical attention should be tied to deportation. 

 16 Is that a fair statement?

 17 A. Yeah. 

 18 MR. DUPONT: Objection. Irrelevant, Your Honor.

 19 BY MR. WALTERS:

 20 Q. Was that a "yes?" I'm sorry. 

 21 A. Yeah.

 22 Q. Thank you. 

 23 So we've established that your intent was to leave 

 24 supplies on the refuge; correct?

 25 A. Yes.

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 1 Q. You wanted a person to find the stash or cache of 

 2 supplies that you were leaving so that that person could 

 3 continue their journey north; right?

 4 A. I want them to find it so that they are less likely to 

 5 suffer and die. Where they go after that is up to them.

 6 Q. You testified about No More Deaths being transparent; 

 7 right?

 8 A. Yes.

 9 Q. You never told Fish and Wildlife that you were going to 

 10 be on the refuge that day, correct, before you got there?

 11 A. I personally did not.

 12 Q. Okay. You never personally told Fish and Wildlife where 

 13 you were going to place those stashes or caches of water; 

 14 right?

 15 A. Not me personally.

 16 Q. When you got to Cabeza Prieta, you didn't stop by the 

 17 main office to let the administration know that you were going 

 18 to be there and what your activities were going to be? 

 19 A. No, I don't recall doing that.

 20 Q. You would never tell any law enforcement officer where 

 21 these stashes of supplies were. Is that fair?

 22 A. Can you clarify the question? I would not -- 

 23 Q. When you were approached by Officer West, did you tell 

 24 him where your stashes were?

 25 A. I don't think so.

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 1 Q. Why not?

 2 A. I don't know why I would.

 3 Q. If part of your testimony was that you try to be 

 4 transparent along with No More Deaths, why wouldn't you tell 

 5 him?

 6 A. I mean, if he asked, I might be faced with that question. 

 7 I don't recall him asking.

 8 Q. You didn't volunteer that information though; right?

 9 A. No.

 10 Q. In terms of the permit, your testimony was that you 

 11 didn't sign it because of the change that had occurred in the 

 12 permit; right?

 13 A. Yes.

 14 Q. Were you given any information about the permit changing 

 15 regarding being on the refuge without a permit?

 16 A. I don't understand the question. Can you ask it again? 

 17 Q. Were you given any information about the Hold Harmless 

 18 Agreement changing as to your requirement to get a permit?

 19 A. I'm sorry. I don't understand the question.

 20 Q. Regardless of the change in the Hold Harmless Agreement, 

 21 you still knew that you had to get a permit; correct?

 22 A. Yes.

 23 Q. And regardless of the change in permit, you still knew 

 24 that you were not allowed to operate or be part of a motor 

 25 vehicle that was driving in the wilderness area?

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 1 MR. DUPONT: Objection, Your Honor. Misstates the 

 2 law. Being a part of a vehicle?

 3 THE COURT: Rephrase your question.

 4 BY MR. WALTERS:

 5 Q. Regardless of the change in the permit, you knew that you 

 6 couldn't drive -- and I understand that you weren't driving -- 

 7 but that you knew you still could not drive in a wilderness 

 8 area? 

 9 A. Are you asking me if I know that I can't drive in a 

 10 restricted area?

 11 Q. Correct.

 12 A. I mean, yeah.

 13 Q. And specifically a restricted area on the Cabeza Prieta 

 14 National Wildlife Refuge. 

 15 A. Yeah, I suppose.

 16 Q. Okay. Did you relay that information to Ms. Hoffman?

 17 A. No.

 18 Q. Okay. You never told her, hey, we can't drive down 

 19 there?

 20 A. No.

 21 Q. Okay. I want to talk about some of the messages that you 

 22 leave on the bottles. Okay?

 23 A. Sure. 

 24 Q. One of those messages you testified was, "Buena suerte"; 

 25 correct?

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 1 A. Uh-huh.

 2 Q. And I believe that translates -- I don't speak Spanish, 

 3 but I believe that translates to, "Good luck;" right?

 4 A. Yeah.

 5 Q. Good luck with what?

 6 A. Surviving.

 7 Q. Just surviving? 

 8 A. And thriving. I want the best for people.

 9 Q. And it has nothing to do with good luck on your journey?

 10 A. I mean, I'm not quite sure exactly what you're trying to 

 11 ask me, but if someone is walking through the terrain -- and I 

 12 don't know if you've ever seen this terrain, but it is 

 13 incredibly rugged and difficult to get through. I would wish 

 14 anyone good luck in surviving that.

 15 Q. Okay. Your testimony was that you never thought that 

 16 you'd be prosecuted for any criminal charges relating to this; 

 17 correct?

 18 A. That's correct.

 19 Q. And just to be clear, you were not arrested in this case; 

 20 correct?

 21 A. Nope.

 22 Q. You were not arrested the day that you had interactions 

 23 with Officer West?

 24 A. No.

 25 Q. And you were given a summons in this case; correct?

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 1 A. That's correct.

 2 Q. You were not hauled off in cuffs and put in jail; right?

 3 A. Nope.

 4 MR. WALTERS: Okay. May I have a minute, Your 

 5 Honor?

 6 THE COURT: Yes.

 7 MR. WALTERS: I have no further questions, Your 

 8 Honor.

 9 REDIRECT EXAMINATION

 10 BY MR. DUPONT:

 11 Q. Hello again. 

 12 A. Hi again.

 13 Q. You were asked whether you or anyone else you were aware 

 14 had told the Government that you intend -- that No More Deaths 

 15 intended to drive the roads and leave water; is that right? 

 16 A. Uh-huh.

 17 Q. Now, you heard the testimony --

 18 A. Uh-huh.

 19 Q. -- also of Yurie Aitken reporting on a meeting?

 20 A. Yes. 

 21 Q. And during that meeting, you heard him testify that No 

 22 More Deaths told the Government that they -- that No More 

 23 Deaths intended to drive the roads and leave water; right?

 24 MR. WALTERS: Objection, Your Honor. It's 

 25 irrelevant. She wasn't part of that meeting, and what she's 

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REDIRECT EXAMINATION OF OONA HOLCOLM

 1 heard here at testimony, you know, approximately a 

 2 year-and-a-half later is not relevant.

 3 MR. DUPONT: I'll get to that, Judge.

 4 THE COURT: The objection is overruled.

 5 BY MR. DUPONT:

 6 Q. You heard Yurie Aitken's testimony that No More Deaths 

 7 told the Government --

 8 A. Uh-huh.

 9 Q. -- you intended to drive the roads and leave water; 

 10 right?

 11 A. Yes.

 12 Q. And you heard testimony that the response was the 

 13 Government does not intend to prosecute; right?

 14 A. Yes.

 15 Q. Had you heard basically those same facts before you went 

 16 out August 13th?

 17 A. Yes.

 18 Q. You were aware that many people had been stopped between 

 19 July 6th and August 13th driving and leaving water by Forest 

 20 Service, and no one had been prosecuted to your knowledge; 

 21 right?

 22 A. Yes.

 23 Q. You know, I looked at the video. Did you -- the video of 

 24 you guys out there when it was 110 degrees that day. 

 25 A. Uh-huh.

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 1 Q. Do you remember being out there in that heat?

 2 A. Yeah.

 3 Q. Where had you come from, before you came to Arizona?

 4 A. Before I came to Arizona, I live in Minneapolis, 

 5 Minnesota. I had come from there.

 6 Q. Different climate? 

 7 A. Little bit.

 8 Q. How did it feel to be out there in 110?

 9 A. I mean, it's really difficult. It's disorienting. It's 

 10 really hard, I'll be honest with you.

 11 Q. Physically, how did you feel?

 12 A. Very physically -- it's incredibly straining on the body. 

 13 It's really tiring. It takes -- it takes me days, even after 

 14 all these years, it takes me days to acclimate and be able to 

 15 be at my best. It's exhausting. 

 16 To be in the -- you know, in my training, to be in the 

 17 desert at that -- in those conditions, at that temperature, 

 18 you're just -- you're dehydrated just by being there, so it's 

 19 really taxing on the body. It makes you -- your brain kind of 

 20 fuzzy and hard to think clearly. It's very intense.

 21 Q. Do you know how much water you drank that day?

 22 A. I mean, many, many water bottles. You know, I carry more 

 23 or less, like, whatever, you know, like, a Nalgene kind of 

 24 thing is. I mean, more of those than I can even remember.

 25 Q. More than a gallon?

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 1 A. Oh, yeah.

 2 Q. From where you were down past Charlie Bell Well, I think 

 3 we heard testimony you were about 2.2 miles from the pass?

 4 A. Uh-huh.

 5 Q. And there's a beacon up there?

 6 A. Uh-huh.

 7 Q. That's kind of a steep hike.

 8 A. To say the least.

 9 Q. Without water, do you think you could have walked down 

 10 from there and walked back up?

 11 A. Oh, no. I actually, just from trying to acclimate in the 

 12 few days I had been there, opted to be in this truck because I 

 13 was -- my body was, like, struggling to keep up, and I didn't 

 14 want to do that hike, and I get to rest and drink all the water 

 15 I want and have all the food I want.

 16 Q. Would you have been physically able to walk up that hill 

 17 with no water?

 18 A. No. No way. 

 19 MR. DUPONT: No other questions.

 20 THE COURT: Do you know the maximum punishment for 

 21 this offense is six months incarceration?

 22 THE WITNESS: I have been made aware of that, yes. 

 23 THE COURT: Did you ever know that before you 

 24 started this?

 25 THE WITNESS: No.

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 1 THE COURT: Okay. Thanks.

 2 MR. DUPONT: May she be excused? 

 3 THE COURT: Yes, she may step down.

 4 (A discussion was had off the record between the 

 5 Court and the clerk.)

 6 THE COURT: Let's stop now.

 7 MR. DUPONT: Thank you.

 8 THE COURT: Thank you. We'll stand at recess until 

 9 9:30.

 10 (Proceedings conclude at 4:41 p.m.)

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 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 29th day of January, 2019.

 12

 

 13 s/Erica R. McQuillen 

 Erica R. McQuillen, RDR, CRR

 14 Federal Official Court Reporter

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