Melendres v. Arpaio #1549 | Nov 13 2015 TRANSCRIPT - DAY 20 Evidentiary Hearing

8/20/2019 Melendres v. Arpaio #1549 | Nov 13 2015 TRANSCRIPT - DAY 20 Evidentiary Hearing

1/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

4504

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Manuel de Jesus Ortega Melendres,et al.,

Plaintiffs,

vs.

Joseph M. Arpaio, et al.,

Defendants.

)))))))))))

No. CV 07-2513-PHX-GMS

Phoenix, ArizonaNovember 13, 20159:07 a.m.

REPORTER'S TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE G. MURRAY SNOW

(Evidentiary Hearing Day 20, Pages 4504-4580)

Court Reporter: Gary Moll401 W. Washington Street, SPC #38Phoenix, Arizona 85003(602) 322-7263

Proceedings taken by stenographic court reporterTranscript prepared by computer-aided transcription


2/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Melendres v. Arpaio, 11/13/15 Evidentiary Hearing 4505

A P P E A R A N C E S

For the Plaintiffs:American Civil Liberties Union FoundationImmigrants' Rights ProjectBy: Cecillia D. Wang, Esq.39 Drumm StreetSan Francisco, California 94111

American Civil Liberties Union of ArizonaBy: Daniel J. Pochoda, Esq.P.O. Box 17148Phoenix, Arizona 85011

Covington & Burling, LLP

By: Stanley Young, Esq.By: Michelle L. Morin, Esq.333 Twin Dolphin Drive, Suite 700Redwood Shores, California 94065

For the Defendant Maricopa County:Walker & Peskind, PLLCBy: Richard K. Walker, Esq.SGA Corporate Center16100 N. 7th Street, Suite 140Phoenix, Arizona 85254

For the Intervenor United States of America:U.S. Department of Justice - Civil Rights DivisionBy: Paul Killebrew, Esq.950 Pennsylvania Avenue NW, 5th FloorWashington, D.C. 20530

U.S. Department of Justice - Civil Rights DivisionBy: Cynthia Coe, Esq.By: Maureen Johnston, Esq.601 D. Street NW, #5011Washington, D.C. 20004

For Executive Chief Brian Sands:Lewis, Brisbois, Bisgaard & Smith, LLPBy: M. Craig Murdy, Esq.2929 N. Central Avenue, Suite 1700Phoenix, Arizona 85012


3/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


A P P E A R A N C E S

For the Defendant Joseph M. Arpaio and Maricopa CountySheriff's Office:

Iafrate & AssociatesBy: Michele M. Iafrate, Esq.649 N. 2nd AvenuePhoenix, Arizona 85003

Jones, Skelton & Hochuli, PLCBy: A. Melvin McDonald, Jr., Esq.By: John T. Masterson, Esq.By: Joseph T. Popolizio, Esq.2901 N. Central Avenue, Suite 800Phoenix, Arizona 85012

Also present:Sheriff Joseph M. ArpaioExecutive Chief Brian SandsChief Deputy Gerard Sheridan


4/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


I N D E X

Witness: Page

MICHAEL ZULLO

Direct Examination Continued by Mr. Young 4510Cross-Examination by Mr. Walker 4554

E X H I B I T S

No. Description Admitted

2098 E-mail from Mike Zullo to Dennis Montgomery re 4515

internet bill dated 1/5/2014 (MELC202272-74)

2276 E-mail from Larry Klayman to Mike Re: Progress 4518dated 3/4/2015 (MELC202254-55)

2939 E-mail from David Webb to Brian Mackiewicz cc 4519Mike Zullo re Timeline dated 8/24/2014(ZULLO_003120-ULLO_003125)

2959A (Exhibit 2959 redacted) 4520E-mail from David Webb to Mike Zullo re JohnKyl, attaching JoeArpaio.rev2.0.pdf and

JoeWeb.rev.2.0.pdf dated 1/2/2104(ZULLO_001546 - ZULLO_001551)

2962 E-mail from B Mackiewicz to Mike Zullo re 4523elemers case summary.doc, with attachmentdated 9/4/2014 (ZULLO_000793 - ZULLO_000818)

2963A (Exhibit 2963 redacted) 4524E-mail from David Webb to Mike Zullo reTimeline, with attachment ArpaioTimeline.3.0.pdf dated 9/10/2014(ZULLO_003126 - ZULLO_003128)

2975 E-mail chain, last from Brian Mackiewicz to 4552Mike Zullo re You tell me dated 8/20/2015(ZULLO002996)

2983 E-mail chain, last from Mike Zullo to Brian 4526Mackiewicz re Image dated 10/28/2014(ZULLO_003874)


5/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

09:0

09:0

09:0

09:0

09:0


P R O C E E D I N G S

THE COURT: Please be seated.

THE CLERK: This is CV 07-2513, Melendres, et al., v.

Arpaio, et al., on for continued evidentiary hearing.

Counsel, please announce your appearances.

MS. WANG: Good morning, Your Honor. Cecillia Wang of

the ACLU for plaintiffs.

THE COURT: Good morning.

MR. YOUNG: Good morning, Your Honor. Stanley Young

and Michelle Morin, Covington & Burling, for plaintiffs.


MR. POCHODA: Good morning. Dan Pochoda for the ACLU

of Arizona for plaintiffs.


MR. KILLEBREW: Good morning, Your Honor. Paul

Killebrew, Cynthia Coe, and Maureen Johnston for the United

States.


MR. MASTERSON: Good morning, Judge. John Masterson,

Joe Popolizio for Sheriff Arpaio and the individual alleged

contemnors, and we have Holly McGee with us this morning.


MR. WALKER: Good morning, Your Honor. Richard Walker

on behalf of Maricopa County.


6/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

09:0

09:0

09:0

09:0

09:0



MR. McDONALD: Good morning, Your Honor. Mel McDonald

making a special appearance for Sheriff Joe Arpaio.


MR. MURDY: Good morning, Your Honor. Craig Murdy on

behalf of retired Chief Brian Sands.

MS. IAFRATE: Good morning, Your Honor. Michele

Iafrate on behalf of Sheriff Arpaio and the alleged unnamed

contemnors.


Any matters to raise before we resume with Mr. Zullo,

or do you wish to resume with Mr. Zullo?

MR. YOUNG: I do, Your Honor. Based on the change

yesterday afternoon, we do have further questions for

Mr. Zullo, so I ask to be allowed to continue with my

questions.

THE COURT: All right.

Mr. Zullo, would you please take the stand, sir.

And I will remind you and clarify for you that you are

still under oath.

THE WITNESS: Yes, sir.

(Pause in proceedings.)

MR. YOUNG: Your Honor, there was some unclarity,

perhaps, yesterday. Well, actually, I don't believe there's

unclarity. On page 449 -- 4419 of the transcript, one of the


7/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

09:1

09:1

09:1

09:1

09:1

Zullo - RDX Young, 11/13/15 Evidentiary Hearing 4510

audio recordings, Exhibit 2979, was admitted, but I believe the

log may not reflect that fact, so I just want to clarify that,

that Exhibit 2979 is admitted.


THE COURT: Kathleen.

(Off-the-record discussion between the Court and the

clerk.)

THE COURT: I'm just checking to make sure.

Do you have any objection to -- other than your

previous objection to 2979, or do you --

MR. MASTERSON: I don't think -- I think we have it

admitted, but we'll take a quick look here.

THE COURT: Okay. Just to be clear. And then I'll

look at what the transcript says.

MR. MASTERSON: We don't have -- we don't have any

objections other than as previously noted.

THE COURT: I did previously admit it, according to

the transcript, and so it is admitted.

MR. YOUNG: Thank you, Your Honor.

MICHAEL ZULLO,

recalled as a witness herein, having been previously duly

sworn, was examined and testified further as follows:

REDIRECT EXAMINATION CONTINUED

BY MR. YOUNG:

Q. Mr. Zullo, let's take a look at Exhibit 2098. No, I'm


8/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

09:1

09:1

09:1

09:1

09:1


sorry. Yeah, 2098.

That's on the screen in front of you. And I realize I

did not give Ms. Zoratti a list of additional exhibits this

morning, so you may not have that on paper. But if you could

take a look --

A. There's nothing on the screen, sir.

THE CLERK: Did you want me to bring up a hard copy of

the exhibit?

MR. YOUNG: Sure, that might be beneficial if we could

do that.

THE CLERK: I apologize, I didn't catch the number.

MR. YOUNG: Actually, there's a string of them, if you

could -- and I apologize again. I did not give --

Your Honor, may I hand Ms. Zoratti a list of exhibits?

THE COURT: You may.

MR. YOUNG: Thank you.


BY MR. YOUNG:

Q. While Ms. Zoratti is doing that, Mr. Zullo, I wonder if I

could go back to your testimony about having Mr. Montgomery do

the search for the name of the judge in the Melendres case.

A. Um-hum.

Q. You discussed yesterday how you were wondering what the

judge -- who the judge was in the Melendres case, is that

right? You didn't know the name.


9/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

09:1

09:1

09:1

09:1

09:1


A. I didn't know who it was, no.

Q. And you discussed it with Detective Mackiewicz, and

initially you came up with Judge Silver, but the two of you

concluded that was not the right name, is that right?

A. Actually, Mr. Montgomery pulled it off the Internet, and

Detective Mackiewicz knew that wasn't the judge. That was the

judge before, or something to that effect.

Q. Right. Right. That was the judge in the DOJ case.

A. I have no idea.

Q. Had you heard about the Melendres case before then?

A. Yes, um-hum.

Q. Who had you heard of the Melendres case from?

A. ABC 15 and my iPhone.

Q. Before that time when you were together with Mr. Montgomery

and Detective Mackiewicz, had you ever talked to Sheriff Arpaio

or Chief Sheridan about the Melendres case?

A. I don't believe so, sir. It was never really a topic of

conversation.

Q. While you were with Mr. Montgomery at any time did you ever

do a search for Earl Wilcox?

A. No, we actually did a search for his wife, Mary Rose.

Q. Did you do a search for Mary Rose Wilcox at about the same

time you did the search for the judge in the Melendres case?

A. Yeah, they actually came -- that was the same day.

Q. How did you come up with the idea of searching for Mary


10/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

09:1

09:1

09:1

09:1

09:1


Rose Wilcox?

A. Same methodology as looking for any federal judge in

Arizona. We were looking for high-profile people in Arizona.

Q. And you found -- did you find Mary Rose Wilcox?

A. No.

Q. But you found her husband?

A. We didn't even realize it was her husband at the time when

it came up; it had connection to a business that they owned, a

restaurant. And I believe Detective Mackiewicz recognized the

restaurant name, and that's how we put that connection

together.

Q. I see. Did you mention that you had found Earl Wilcox's

name to Sheriff Arpaio?

A. To -- excuse me?

Q. Yeah. Well, you found Mary Rose Wilcox's restaurant's

name.

A. Yes.

Q. Right. Did you mention that to Sheriff Arpaio?

A. Yes, I believe so.

Q. What was his reaction when you told him that you had found

these references to Mary Rose Wilcox and Judge G. Murray Snow?

A. Well, his reaction to the judge was "he's a victim." Those

were his words, "he's a victim," with a question mark.

Mary Rose not coming up, I explained to him that I was

actually relieved, in a sense, that she didn't come up.


11/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

09:1

09:1

09:1

09:1

09:1


Because what I was also checking for was to see if

Mr. Montgomery was somehow implanting information, maybe

looking on the Internet for enemies of the sheriff and trying

to put those, you know, names in there, and he didn't. I know

I explained that to the sheriff.

The restaurant coming up as a business, there were

other businesses. I believe one of the sheriff's entities at

one point came up. My own personal business came up in that

same data flow.

Q. Did you tell the sheriff about Judge Snow and the Wilcox

business during the same phone conversation?

A. I can't recall, sir.

Q. Was it at approximately the same time? If you did those

searches on the same day with Mr. Montgomery, did you --

A. I -- you know, they very, you know, might very well be. It

wasn't a big highlight. The judge being a victim was because

of the other information that I testified to.

Q. Okay. And then that was the information relating to

penetration of the judge's financial information, such as

banking and IRS information?

A. Yes, sir. Alleged.

MR. YOUNG: All right. Ms. Zoratti, thank you for

gathering those exhibits.

BY MR. YOUNG:

Q. Let's look now at Exhibit 2098. That's an e-mail exchange


12/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

09:1

09:1

09:2

09:2

09:2


dated January 5th, 2014, between you and Mr. Montgomery,

correct?

A. Yes, sir.

Q. And you did that in the course of your investigation

involving Mr. Montgomery?

A. Yes, sir.

MR. YOUNG: I move for the admission of Exhibit 2098.

MR. MASTERSON: Relevance, hearsay, 403.

THE COURT: How many pages is this exhibit?

MR. YOUNG: Three pages, Your Honor.

THE COURT: Can I see the pages, please.


THE COURT: Overruled. Exhibit 2098 is admitted.

(Exhibit No. 2098 is admitted into evidence.)

BY MR. YOUNG:

Q. On the second page of Exhibit 2098, Mr. Zullo, you told

Mr. Montgomery, quote, "Sheriff really put his neck on the line

with Rand," end quote.

Do you see that?

A. Yes, sir.

Q. What were you talking about there?

A. I believe the sheriff was to have a meeting with Rand Paul

when he came to town, and we were going to see if there was

some avenue we could get Mr. Montgomery to somebody in the

federal government to help us out with our problem.


13/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

09:2

09:2

09:2

09:2

09:2


Q. Did that ever happen, to your knowledge?

A. No, sir, it didn't.

Q. Let's take a look at Exhibit 2276.

THE COURT: Well, I want to understand that.

When you say "it didn't," you mean what didn't?

THE WITNESS: Oh. The meeting didn't happen.

THE COURT: There was never any meeting with Rand

Paul.

THE WITNESS: No, sir.

THE COURT: But you recommended -- you represented to

Mr. Montgomery that there was such a meeting?

THE WITNESS: I don't believe I represented that there

was. It most likely was to happen in the future.

THE COURT: When you say Rand, the sheriff really

stuck his neck out with you for Rand, or whatever it was --

THE WITNESS: Well, going out on the line to try to

have a meeting to help him with his cause.

THE COURT: "Sheriff really put his neck on the line

with Rand." What were you trying to say?

THE WITNESS: Not really anything, sir. It was just

figure of speech.

THE COURT: Thank you.

THE WITNESS: Oh, you're welcome.

BY MR. YOUNG:

Q. Well, actually, going back to that, Mr. Zullo, and later on


14/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

09:2

09:2

09:2

09:2

09:2


in that e-mail you mention a meeting with Rand on Friday, and

you say that for that reason, you will not be coming out before

then.

Do you see that? It's at the bottom of page 273.

A. Yes, sir.

Q. Did you have a meeting with Rand Paul?

A. No. No one had a meeting with Rand Paul, sir.

Q. Let's go to Exhibit 2276.

No. Yes, 2276.

This is a March 4, 2015 e-mail involving -- it's an

e-mail chain, really, involving you, Larry Klayman, and

Mr. Montgomery, correct?

A. Yes, sir.

MR. YOUNG: I move for the admission of 2276.

MR. MASTERSON: Objection, foundation, relevance,

hearsay, 403.

THE COURT: Does this contain e-mails from

Mr. Klayman, or statements by Mr. Klayman?

MR. YOUNG: The top e-mail is a statement by

Mr. Klayman, so it appears.

THE COURT: Are you offering that statement for the

truth of the matter asserted?

MR. YOUNG: No, Your Honor.

THE COURT: What are you offering it for?

MR. YOUNG: I'm offering it to show the communication


15/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

09:2

09:2

09:2

09:2

09:2


that Mr. Zullo had relating to the Montgomery investigation.

And there are certainly statements by Mr. Zullo in it that I

again would offer to show not necessarily the truth of the

matters asserted, but at least what Mr. Zullo was communicating

to Mr. Montgomery and Mr. Montgomery's attorney.

THE COURT: All right. Objection's overruled.

Exhibit 2276 is admitted.


BY MR. YOUNG:


Do you have that in front of you, Mr. Zullo?

A. Yes.

Q. This is a set of news articles that Sheriff Arpaio sent

you, correct?

A. I've never seen these before, sir.

Q. Well, let's go on to the next exhibit. It's 2939.

Exhibit 2939 is an e-mail that Mr. Montgomery sent to

Detective Mackiewicz and to you on August 24, 2014, attaching a

longer document with the label "Timeline," is that correct?

A. Apparently, yes.

Q. And that's information that Mr. Montgomery sent to you for

your and Detective Mackiewicz's benefit during the course of

your work with him, is that correct?

A. Yes, it's authored by Mr. Montgomery.

MR. YOUNG: I move for the admission of 2939, Your


16/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

09:2

09:2

09:2

09:2

09:2


Honor, again, not for the truth of the matter asserted, but to

show what communications were taking place.


hearsay, 403.



BY MR. YOUNG:


Do you have Exhibit 2959 in front of you, Mr. Zullo?

A. Yes, I do.

Q. Exhibit 2959 is a document that Mr. Montgomery sent you on

January 2, 2014, correct?

A. Yes, sir.



hearsay, 403.

In addition, Judge, there's some redactions, I think,

that -- if this document is admitted, that need to occur.

MR. YOUNG: Yeah. The redactions, I believe, that

Mr. Masterson refers to, are the cell phone numbers of Sheriff

Arpaio and Chief Deputy Sheridan, and as with the previous

exhibits, we would agree to those redactions and would submit a

redacted copy of this exhibit.

THE COURT: I'm going to overrule all of the

objections except for the redaction objection. But I'm not


17/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

09:2

09:2

09:2

09:2

09:2


going to exhibit -- I'm not going to admit Exhibit 2959 since

it's already been submitted and marked.

If you're going to redact it, then you -- then I'm

going to admit a 2959A that contains the redactions that I

believe all parties -- well, I'm not sure there's any objection

by the County or Chief Sands. If there is, say so.

MR. WALKER: No objection, Your Honor.

MR. MURDY: No objection, Your Honor.

THE COURT: Then 2959A is admitted, which will have

the redactions that you've just specified.

(Exhibit No. 2959A is admitted into evidence.)


BY MR. YOUNG:

Q. Well, let's look, Mr. Zullo, at the first page of what will

be 2959A, and it refers to a timeline that Mr. Montgomery had

prepared, correct?

A. Yes, sir.

Q. Okay. And you received various versions of that timeline

from Mr. Montgomery during your work with him, correct?

A. Yes, sir.

Q. This particular version referred to in this e-mail says,

quote, "updated to include calls to and from Jon Kyl and

Covington.

Do you see that?

A. Yes, sir.


18/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

09:2

09:2

09:2

09:2

09:3


Q. Did you have any discussion with Mr. Montgomery about

updating his timeline to include Jon Kyl and Covington?

A. No, sir. Mr. Montgomery would just go on these tangents

and start updating things. I think that's happened a couple

times in different various timelines.

Q. Did you ever discuss Jon Kyl or Covington with Sheriff

Arpaio or Chief Sheridan?

A. Outside of how it might relate to this, no.

Q. Well, how about as it relates to this exhibit or the work

that Mr. Montgomery was doing? Did you ever discuss Jon Kyl or

Covington with Sheriff Arpaio or Chief Sheridan?

A. Would have been bringing attention to the sheriff as to

what Mr. Montgomery has given us.

Q. So did you inform the sheriff that Mr. Montgomery had given

you a timeline that that included Jon Kyl and Covington?

A. Most likely.

Q. What did Sheriff Arpaio say in reaction to that?

A. Nothing that comes to my mind that stood out, nothing but a

normal conversation.

Q. You don't remember the sheriff saying anything at all about

Jon Kyl in connection with the information you were getting

from Mr. Montgomery?

A. I don't recall, no.

Q. Was the sheriff interested in the fact that Mr. Montgomery

was giving you things that had Jon Kyl's name on them?


19/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

09:3

09:3

09:3

09:3

09:3


MR. MASTERSON: Objection, foundation.

MR. YOUNG: Well, let me raise -- let me revise the

question.

BY MR. YOUNG:

Q. Did Sheriff Arpaio express to you any interest in any

information that Mr. Montgomery might provide relating to

Jon Kyl or Covington?

A. I remember Jon Kyl. I remember -- I remember the name when

we talked about Jon Kyl, and I think the sheriff said something

to the effect of: Big deal. Everybody knows he went to

Covington. Something like that.

Q. Did the sheriff express any desire to obtain more

information through Mr. Montgomery relating to either Jon Kyl

or Covington?

A. No, sir.


Exhibit 2962 starts off with an e-mail from Detective

Mackiewicz to you dated September 4, 2014, is that correct?

A. Yes, sir.

Q. And the subject is "Elmer's case summary"?

A. Yes, sir.

Q. The attachment is a summary of what was happening in your

work with Mr. Montgomery that you and Mr. Mackiewicz,

Detective Mackiewicz, co-authored, is that correct?

A. Yes, sir.


20/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

09:3

09:3

09:3

09:3

09:3


Q. Okay. And that was your attempt to put together what you

had found to that point with Mr. Montgomery, is that right?

A. We were instructed to start writing up a final report, and

that's part of that project.

Q. Who instructed you to do that?

A. Chief Sheridan.

Q. Did you send this report, or any version of it, to Chief

Sheridan?

A. No, sir.

Q. In preparing Exhibit 2962, did you attempt to be as

accurate as you could be in summarizing the state of the

investigation to that point?

A. I would certainly hope so. It's a law enforcement

document.

MR. YOUNG: Your Honor, I move for this admission of

Exhibit 2962.


hearsay, 403.



BY MR. YOUNG:

Q. Let's look now at Exhibit 2963.

Do you have that there in front of you, Mr. Zullo?

A. Yes, sir.

Q. Okay. Now, that's another timeline document that


21/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

09:3

09:3

09:3

09:3

09:3


Mr. Montgomery sent you, correct?

A. Yes, sir.

Q. And it, as with some others, contains references to Judge

Snow and the Department of Justice, a former law clerk of Judge

Snow, Dennis Burke, the U.S. attorney general, Covington &

Burling, and Jon Kyl, correct?

A. Yes, and some others, yes.

Q. Um-hum. The cover e-mail is dated September 10, 2014.

Did Mr. Montgomery send this timeline to you on that

date?

A. I would assume if that's what the header is, that's how he

sent it.

MR. YOUNG: Your Honor, I move for the admission of

Exhibit 2963.


hearsay, 403, and again, there's some redaction issues here.

MR. YOUNG: Again, we'll submit a redacted version of

this exhibit removing the phone numbers of Sheriff Arpaio and

Chief Sheridan.

THE COURT: All right. Then you're going to have to

mark it 2963A. Admit 2963A. I'm going to overrule all the

objections except for the agreed-upon redactions in 2963A

reflecting the redactions that you've just agreed to will be

admitted.

(Exhibit No. 2963A is admitted into evidence.)


22/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

09:3

09:3

09:3

09:3

09:3



BY MR. YOUNG:

Q. Mr. Montgomery says to you on September 10, 2014, when he

sends you this timeline: "Here it is."

Do you see that?

A. Yes, sir.

Q. You had discussed this with him before he sent it, correct?

A. There was most likely telephone conversation in between all

these e-mails.

Q. So when he e-mailed it to you, it wasn't a surprise to you,

is that right?

A. No, he probably told me he did it.

Q. Do you remember anything else being said in the

conversation in which he told you that he had done this

timeline and was going to send it to you?

MR. MASTERSON: Objection, hearsay.

THE COURT: Overruled. He merely asked him if he

remembered anything else.

THE WITNESS: No, sir, I don't.

BY MR. YOUNG:

Q. Let's now look at Exhibit 2983.

Do you have Exhibit 2983 in front of you?

A. Yes, sir.

Q. That's an e-mail exchange that you had with

Detective Mackiewicz on October 28, 2014, correct?


23/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

09:3

09:3

09:3

09:3

09:3


A. Yes, sir.


MR. MASTERSON: Objection, relevance, hearsay, 403.



BY MR. YOUNG:

Q. So by this time, October 2014, if you look at the bottom of

the e-mail, I take it that Mr. Montgomery and Mr. Blixseth were

not on good terms then, is that correct?

A. That's an understatement, sir.

Q. And then he says something about reverse engineering the

code. What was he talking about, in your understanding?

A. I'm not sure I even know, sir. Mr. Montgomery would

exhibit these kind of paranoid behaviors and start accusing us

of doing things. I believe at one point in time, according to

him -- actually, I think it was reported in the media -- the

federal government had sent a software package that he had

created to some French company, and they reverse engineered it

and said it didn't work, which Montgomery's always maintained

it worked.

So I don't really know what he was talking about at

that point. That was -- that would happen quite frequently.

Q. Well, Mr. -- sorry, Detective Mackiewicz wrote to you at

7:32 p.m. about a threat that at least he perceived.

Do you see that?


24/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

09:3

09:3

09:3

09:3

09:3


A. Yes, sir.

Q. What was your understanding of -- well, and then you

responded that you knew?

A. Yeah.

Q. What sort of threat were you and he discussing?

A. Sir, for the life of me, I can't tell you. There were so

many instances like this where Mr. Montgomery would lash out

and level false accusations, I can't tell you.

Q. Were you and Detective Mackiewicz talking about a threat

that Mr. Montgomery was making to stop working with you?

A. Oh, I don't -- I don't think that would be it, no.

Q. Well, in his e-mail down at the bottom of the exhibit,

Mr. Montgomery said, quote, "Obviously, you have no need of my

services," end quote.

What was he talking about there, in your

understanding?

A. Mr. Montgomery's the type of individual that when he gets

angry with you, he likes to take his toys and leave the

playground. This is his type of control.

Q. Now, let's go back to Exhibit 2074A. I think you said

yesterday that you had seen this before.

Can you tell me what context, or how and when you saw

it?

A. I believe this timeline was created by Mr. Montgomery, and

it was in the morning of one of the first few days we were


25/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

09:4

09:4

09:4

09:4

09:4


there he presented this to us, telling us that he had this

information, or whatever he was saying. That was the first

time I saw it.

Q. Now, in the unredacted version of this sheet, the

cell phone numbers of Chief Sheridan and Sheriff Arpaio appear.

Do you know how Mr. Montgomery got those numbers?

A. Are you talking about this bottom number? 'Cause I don't

even know whose number that is.

Q. Well, I'll represent to you in the middle of the page --

A. Oh, okay.

Q. -- where it says "DOJ wiretap," and then there are --

A. Yeah.

Q. -- two numbers, the copy you're looking at on the screen

may not show this, but there used to be two phone numbers

there.

A. Yes, I remember now, sir.

Q. Okay. Do you know where Mr. Montgomery got those phone

numbers?

A. No. That was the fascinating thing about this, is he

pulled up a block of telephone numbers that belonged to the

Sheriff's Office.

Q. Okay. Did you give those numbers to Mr. Montgomery?

A. No, I didn't even know those cell phone numbers.

Q. So Mr. Montgomery showed you this page at some point,

the --


26/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

09:4

09:4

09:4

09:4

09:4


A. Yes.

Q. -- during the first visit to you?

A. Oh, yes.

Q. What did you and he discuss about it?

MR. MASTERSON: Objection, hearsay.

THE COURT: Overruled.

THE WITNESS: If this is the same document that I

recall, I believe, after looking at this, I conferred with

Detective Mackiewicz, and we thought the best thing to do with

this thing was to fax it over to Sheriff Arpaio and Chief

Sheridan. I think that's what we did with this one.

BY MR. YOUNG:

Q. So you asked Mr. Montgomery to fax it to Sheriff Arpaio?

A. Yes.

Q. Did you and Sheriff Arpaio then discuss this document?

A. Probably later on, a little bit on the phone. We didn't

know, really, what to make of it. We didn't know how he got

this. We had more discussions about this when we got back into

town.

Q. Please tell me what you discussed with Sheriff Arpaio or

Chief Sheridan with respect to this document at any time.

A. Basically, we didn't know how he acquired this information.

He was representing to us that this information would have been

in the drives that he had from when he was a contractor working

for the government.


27/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

09:4

09:4

09:4

09:4

09:4


We weren't there when he came up with this, we didn't

attempt to verify any of it, with the exception of the

cell phone numbers belonging to the Sheriff's Office. That was

pretty easy for us to figure out.

Q. Okay. Did Sheriff Arpaio or Chief Sheridan ask you to look

further into any of the issues raised by this document?

A. I don't believe they were asking us to look further into

it. Montgomery was processing information, so our objective

there was to relieve him of as much information as he was going

to process for us. So I don't believe there was any direction,

to my recollection.

Q. Now, there's a fax number at the bottom of that page.

Did you provide that fax number to Mr. Montgomery so

he could send it to Sheriff Arpaio?

A. If that's a fax number, most likely, yeah.

Q. So Mr. Montgomery didn't find the fax number on his own?

A. No. I don't know. He probably could have, I don't know.

Q. Now, you mentioned some flowcharts that had been given to

Judge Lamberth, and I'm going to show you Exhibit 2072.

Do you have that in front of you in paper form?

A. Yes, I'm looking at it here.

Q. Please take a look at Exhibit 2072, and my question is:

How much of that information was provided to Judge Lamberth?

A. Mr. Montgomery brought information with him; we didn't

bring any information with us. I think I recall seeing the


28/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

09:4

09:4

09:4

09:4

09:4


flowchart being handed; I don't know about any other

information.

Q. What do you mean when you say "flowchart"?

A. The thing that's up on my screen right now.

Q. Okay. So that's page MELC199933? In the bottom right-hand

corner it has a red 6 --

A. Oh, I'm sorry. Yes. Yes, it is.

Q. Okay. It's a little hard to read on the screen, but it may

be easier to read on the paper version.

You see in the upper right-hand corner there's a

reference to DOJ wiretap in the second box from the top?

A. Yes, sir.

Q. And it says underneath that in yellow font "G. Murray Snow

orders," or --

A. Yes, sir, I see that.

Q. Okay. Did you discuss -- I think it says "orders" -- yes.

Did you discuss that aspect of this flowchart with

Judge Lamberth?

A. No, sir.

Q. Was there any mention of any alleged wiretap ordered by

Judge Snow in any of your discussions with Judge Lamberth?

A. No, sir. There -- I think if that conversation came up,

that would have been a pretty big red flag. I don't believe

Judge Snow was ordering wiretaps.

Q. Well, you knew that -- I mean, you had this information


29/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

09:4

09:4

09:4

09:4

09:4


yourself that Mr. Montgomery handed to Judge Lamberth, is that

right? You had seen this before.

A. Yeah, um-hum.

Q. What was your understanding of why -- well, strike this.

Was there any discussion of the reason that

Mr. Montgomery's giving this information to Judge Lamberth?

Any of the information that's on this flowchart, not just the

wiretap reference, but any of it.

A. Mr. Montgomery, from what we were able to verify, tried to

become a whistle-blower regarding his government issues I

believe it was either 14 or 18 different times. Whatever he

was going to bring to Judge Lamberth I'm sure was going to be

that same type of information. If this was something in his

reservoir of information, I guess he brought it.

Q. Did you say anything to Judge Lamberth about any of the

information that's on this flowchart?

A. I believe we had advised the judge that none of this had

been corroborated by us.

Q. Okay. Was there any other discussion with Judge Lamberth

about any of the information on this flowchart?

A. No, sir.

Q. At some later point you came to the realization that you

could not verify any of the information on this flowchart,

correct?

A. No. We did not have any authority to try to verify any


30/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

09:4

09:4

09:4

09:4

09:4


information on this flowchart.

Q. Did you at any time ever tell Judge Lamberth that any of

the information on the flowchart was incorrect?

A. No, sir.

Q. How many meetings with Judge Lamberth did you participate

in?

A. There were three.

Q. And when did those happen?

A. I believe two were in the month of August, I -- either

August or September. And one would have been a few weeks prior

to that of '14 -- I don't have exact dates.

Q. Did you ever communicate again with Judge Lamberth, or to

your knowledge, did Detective Mackiewicz, or anyone else at the

MCSO, ever communicate with Judge Lamberth with respect to

Mr. Montgomery at any time after September 2014?

A. No, sir.

Q. Let's look at Exhibit 2960. Now, we looked at this briefly

yesterday. This July 8, 2014 e-mail string shows that

Mr. Montgomery was talking to you about Travis Anglin and what

Sergeant Anglin had told Mr. Montgomery to do, correct?

A. This was what -- what would have happened outside of my

presence, yeah, he's telling me that this is what happened.

Q. You mentioned that you were gone from February to May, or

something like that?

A. February to I believe almost the end of July.


31/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

09:4

09:5

09:5

09:5

09:5


Q. During that time you were not communicating with

Mr. Montgomery?

A. I was communicating with Mr. Montgomery, but I wasn't

physically present --

Q. I see.

A. -- during those months.

Q. Okay. Was Sergeant Anglin physically present there, in

your understanding?

A. My understanding.

Q. Okay. So during the time that you were not in Seattle,

Mr. Montgomery was talking to Sergeant Anglin without you being

there, is that right?

A. Yes, sir.

Q. So at some point in July, you started to catch up with

Mr. Montgomery on what he'd been hearing from Sergeant Anglin,

is that correct?

A. I don't know if that's the way it went, sir. This was kind

of strange to me. Going back, you have that audiotape of when

I was there in April, I believe it was, and he started to bring

this up all over again. And when he wrote this out to me, it

started to look like some contradictions to what he actually

told me in April.

I don't know -- I don't know anything, really, about

this. I don't know if this is real; I don't know if it's half

real; I don't know what this is. This is what he was just


32/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

09:5

09:5

09:5

09:5

09:5


complaining about. And like I said earlier, it's not unusual

for Mr. Montgomery, if he's upset with you, to start doing

things like this. It's happened in the past.

Q. What had he told you in April that this somehow

contradicted?

A. I believe he's talking about Travis told me that Sheridan

wanted to take info on Judge Snow and told me to dump it, which

I did. That's a contradiction to what he told me in April,

where he tried to tell me that he was working on this

information and had this information. Now he's telling me that

he was told to dump it.

If you listen to the tape in April, he says he never

did anything to obtain that information. It's a contradiction.

This is -- this is the kind of stuff that we would go through.

Q. Well, he could have gotten something between April and July

and then dumped it, is that right?

MR. MASTERSON: Objection, foundation, speculation.

MR. YOUNG: Yeah, I'll withdraw that question.

BY MR. YOUNG:

Q. So did Sergeant Anglin not want Mr. Montgomery to do

anything with respect to Judge Snow, in your knowledge?

MR. MASTERSON: Objection, foundation.

BY MR. YOUNG:

Q. Do you know one way or the other whether Sergeant Anglin

had a view on that question of whether Mr. Montgomery should be


33/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

09:5

09:5

09:5

09:5

09:5


working on anything with respect to Judge Snow?

A. My understanding, up until the time I wasn't part of this,

was that we were to do nothing on Judge Snow, with the

exception of keep pressing the informant to provide

Judge Snow's sensitive information like he said, from the very

beginning. Other than that, we had a completely hands-off

anything to do with the judge.

Q. In response to Mr. Montgomery's e-mail at 9:06 a.m. on July

8, you sent Mr. Montgomery a series of questions, correct?

A. Yes, sir.

Q. Okay. Did you ever get answers to any of those questions?

A. I don't believe so, sir.

Q. Okay. Did you ever find out from any source any of the

answers to your questions that you asked to Mr. Montgomery

about what Sergeant Anglin had told Mr. Montgomery, et cetera?

A. Well, the only thing that I knew to be accurate was Chief

Sheridan didn't want to do anything with that flowchart or

those lists of telephone numbers and whatever he had, because

when this information was first presented, the first thing the

chief said at the table was: We're not going down this road,

'cause this judge will think that we're retaliating against

him. We're not going there. And that was bad. So I know that

to be accurate. Everything else about --

Q. Excuse me. Did Sheriff Arpaio ever say that to you?

A. Yes, actually, he did.


34/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

09:5

09:5

09:5

09:5

09:5


Q. Okay.

A. Twice.

Q. Okay. When?

A. At that same meeting he said it to me. He goes: We're not

going down here. We're not going to do this. And then he was

walking me out to the elevator and he wanted to make sure I

completely understood that we're not going anywhere near this.

Q. I'm sorry, I interrupted your answer.

A. Yeah, you interrupt -- I don't even know what I was --

Q. Well, if you remember anything about what you were going to

say, please let me know.

A. Oh, I'm sorry. I do remember. I was telling you that was

about the only thing on here that I knew was true. I don't

know about anything else.

Q. Well, you were interested in knowing why Sergeant Anglin

had told -- well, you were interested in the answers to these

questions, right?

A. Yes, sir.

Q. Okay. Why were you interested in the answers to your

questions?

A. Because I wanted him to answer those questions so I could

see if there was any validity to what he was saying.

Q. At this time, July 8, 2014, was Mr. Montgomery working on

the banking investigation information relating to Judge Snow,

in your knowledge and understanding?


35/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

09:5

09:5

09:5

09:5

09:5


A. I don't believe so, sir.

Q. When did Mr. Montgomery start working on any information

relating to Judge Snow in the course of the banking identity

theft investigation?

A. I don't truly believe he ever did.

Q. Well, what was your understanding as to when that began?

A. That would have been within those first few days that we

were there where he identified the IRS and breach of the

judge's banking information. He represented that he had that

information because that information comes up whenever

something was breached in that time frame, in that snapshot of

time, it should be on one of the drives that he's got out of

the 425.

Q. Did Sheriff Arpaio or Chief Sheridan ever tell you, or

anyone else, to stop searching for that information relating to

the banking investigation?

A. No, sir.

Sir, if I can clarify, you keep referring to "banking

information." I don't know what you've heard prior. I don't

know if the information pertaining to the judge in the banking

information that you're referring to are both the same things.

Q. Well, what information were you and are you referring to

with respect to Judge Snow as a victim?

A. It would have been his bank account, bank account balances,

dates, possibly transactions, passwords. I don't -- I've never


36/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

09:5

09:5

09:5

09:5

09:5


seen any of that.

Q. You mentioned IRS investigation?

A. That would be something else that we have never seen, other

than what the computer indicates, IRS information was taken.

Q. Well, you -- you believe that if Mr. Montgomery could show

access to Judge Snow's IRS information, that would also be a

situation where he would be potentially a victim, correct?

A. My God, yes.

Q. And that was something that you were trying to get

Mr. Montgomery to help look into?

A. I don't believe I was asking him to help look into it. He

represented to us that he had it; we were trying to get it.

Q. Let's look at Exhibit 2090. Now, at 6:41 p.m.

Mr. Montgomery refers to processing some data.

You see that at the bottom of the e-mail string?

A. Yes, sir.

Q. Okay. And then there's some discussion of the contempt

proceeding in this case, correct? At 6:21 p.m., you wrote an

e-mail to Mr. Montgomery in which you refer to the contempt

charge that was then possibly pending in this case, correct?

A. I have to see it. I don't remember.

Q. Okay. Well, let's look at page 223.

MR. YOUNG: And actually, Your Honor, this exhibit has

been published. May we -- has been admitted.

May we publish it?


37/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

09:5

09:5

09:5

09:5

09:5


THE COURT: You may.

BY MR. YOUNG:

Q. So let me start over again, just to make sure we're all

together, since I think I may have not been coordinated with

the screen.

A. Okay.

Q. So if we go to the end of the exhibit -- and we'll have

Mr. Klein go to the end of the exhibit -- you see there a

reference to an article to which Mr. Montgomery sent you a link

relating to -- well, I'll just read the title: Quote, "Lawyers

for Arizona Sheriff Joe Arpaio hope to dodge contempt charges

in" -- and then -- and I think it refers to racial profiling

case, but you see that reference there, that page?

A. Yes, I do.

Q. So that was an article that Mr. Montgomery sent to you,

correct?

A. Yes, sir.

Q. Okay. And then he asked you, quote, "Why keep processing

the data, then?" end quote.

You see that?

A. Yes, sir.

Q. And then he says to you that it would seem that it would

upset the judge more if the work was ever disclosed.

Do you see that?

A. Yes, sir.


38/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

10:0

10:0

10:0

10:0

10:0


Q. Okay. And then at the beginning of that e-mail -- so we

can go to the second page of the exhibit, 2090 --

Mr. Montgomery says to you: It looks like Arpaio is trying to

solve his differences with Judge Snow.

Do you see that?

A. Yes, sir.

Q. Okay. And then up above, at 5:46 p.m. on February 2, you

responded to Mr. Montgomery, "I'm sure he is," is that right?

A. Yes, sir.

Q. Then his response to you is a question about whether

Sheriff Arpaio was solving his differences with Judge Snow.

You see that?

A. Yes, sir.

Q. At 7:13 p.m.?

A. Yes, sir.

Q. And then at 6:21 p.m. -- and there's probably a time zone

difference here that accounts for the dates, the time stamp,

but you respond to that, and basically you tell -- and I'm

paraphrasing broadly here -- you tell Mr. Montgomery that you

don't think that the contempt charge is going to be resolved.

A. Yes, sir.

Q. Okay. Then at 7:29 p.m., up at the top of the second page

of the exhibit, Mr. Montgomery says: All right. He now

understands. And then he asks you a question, which is whether

you wanted him to continue processing the data, or should he


39/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

10:0

10:0

10:0

10:0

10:0


just assume -- or assume just the BC.

Do you see that?

A. Yes, sir.

Q. "The BC" is the birth certificate, correct?

A. Yes, sir.

Q. So he was helping you with that?

A. Yes, sir.

Q. That was one of the things he was helping you with?

A. Yes, sir.

Q. The other thing he was helping you with was something

relating to data, is that right?

A. Yes, sir.

Q. And that data related to the investigation of the banking

information that we discussed earlier, is that correct?

A. No, sir.

Q. Okay. What did it relate to?

A. I think this goes back to the data mining. Data mining was

where he told us or represented to us that he could have voice

of anything that was wiretapped. So I believe that that's what

he was referring to.

Also, if you look at this e-mail chain, which there

are, I'm sure, out of the 700 and some odd that were provided,

Mr. Montgomery would try to use any opportunity he could to

stop doing something that we were pressing him for. And when

he would represent something, we started to hold his feet to


40/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

10:0

10:0

10:0

10:0

10:0


the fire, and whatever excuse he could, he tried to get out of

doing it, or change course, or change direction. And I think a

lot of that is what you see here.

Q. Then at the bottom of the first page having the Bates

number 222, you respond to Mr. Montgomery by saying that

Mr. Montgomery should first work on the birth certificate,

right?

A. Yes, sir.

Q. Okay. And then work on the data, is that right?

A. Yes, sir.

Q. You said, quote, "BC to get sheriff back," end quote.

What did you mean by that?

A. Mr. Montgomery had been promising us the software that he

was developing for us, and he never produced that, either. Not

in its entirety. There was portions of it that he was

constructing, and they did look valid.

Q. That was software to help you in the birth certificate --

A. Yes.

Q. -- investigation?

A. And I believe in this point, in February, we were not

paying him at all since October; he was trying to get back into

the game with us; and what I wanted from him is I wanted him to

build me something that I could say worked and that he created

it. We had nothing verifiable from him. So that was the whole

push to get him to build that software.


41/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

10:0

10:0

10:0

10:0

10:0


Q. Then at 8:46 p.m., Mr. Montgomery tells you about some

PDF-related software, is that right?

A. Yes.

Q. And that's on the birth certificate issue?

A. Yes, sir.

Q. And then you write back to him about the plan which you say

is going to, quote, "kill two birds with one stone," end quote?

A. Yes, sir.

Q. Okay. Did either of those birds have anything to do with

Judge Snow?

A. No, sir.

Q. Okay. Why didn't you say that to Mr. Montgomery?

A. I probably was thinking of something to do to try to help

him along, to put him back on track to get him to produce

something; I don't even remember what that was.

Q. Well, the strong implication of this e-mail string is that

at least Mr. Montgomery thought that the data he was working on

wouldn't be useful if the contempt charge was resolved.

MR. MASTERSON: Objection, foundation, and counsel's

testifying as to Mr. Montgomery's thoughts.

MR. YOUNG: I haven't asked my question yet, Your

Honor.

THE COURT: There hasn't been a question. There's no

question pending.

BY MR. YOUNG:


42/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

10:0

10:0

10:0

10:0

10:0


Q. Did you ever discuss that issue with Mr. Montgomery?

A. Could you repeat that?

Q. Yeah. I'll ask another slightly different question.

Did you ever discuss with Mr. Montgomery any thought

that any of the data work he was doing might not be useful any

more if the contempt charge was resolved?

A. No, sir. Again, it's what Mr. Montgomery does to try to

avoid having to do something. You have to keep in mind he was

not being compensated for anything at this point. So anything

he could do to get away with it, any garbage he could throw in

the -- in the cogs, he would do.

That made no sense to me. I don't know what he was

talking about. But he would take any opportunity to conflate

things and put them together so he didn't have to produce.

Q. So you were just trying to get him to keep working for you,

is that right?

A. Yeah. He was on his own at this point, and as long as I

was monitoring him and his activities, I was going to keep

pressing him to produce something for us.

Q. Was Mr. Montgomery, in February 2015, still -- or were you

trying to get him still to provide information relevant to the

investigation of the banking identity theft issue?

A. I'm not so sure that's what it was. The data mining and

producing those voice packets; that would have been pretty

compelling if he had it. I think that's what we were more


43/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

10:0

10:0

10:0

10:0

10:0


focused on.

Q. Did you ever tell Mr. Montgomery to stop working on the

banking identity theft issues?

A. There may be -- there may have been -- come a point in time

where I said: Don't even worry about this any more. I don't

remember.

Q. Going back to your 6:21 p.m. e-mail on February 2nd, which

is the top part of the second page of Exhibit 2096, you told

Mr. Montgomery, quote, "I think they're looking to get rid of

this bullshit contempt charge."

Do you see that?

A. Yes, sir.

Q. You thought that the contempt charge would not be going

away at that point, is that right?

A. No, sir.

Q. What do you mean by "No, sir"?

A. No, sir, I didn't think it was going to go away.

Q. And the guy that you're referring to in that e-mail who is

never going to leave the sheriff alone, that's Judge Snow?

A. Yes, sir.

Q. Okay. In February 2015, at the time that you wrote this

set of e-mails to Mr. Montgomery, did you still think of

Judge Snow as potentially a victim of identity theft and

invasion of banking information?

A. I believe till today he's still a victim of identity theft.


44/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

10:0

10:0

10:0

10:0

10:1


Q. Did you ever stop your efforts to investigate that

potential crime?

A. Identity theft?

Q. As to Judge Snow, yes. And anyone else.

A. Well, we were told not to investigate anything on

Judge Snow, so we didn't pursue it.

Q. How about the banking investigation as a general matter, is

that still going on?

A. Not to my knowledge.

Q. Is that because you realize that you couldn't verify any of

the information that Mr. Montgomery had provided?

A. No, it's not my call.

Q. Okay. Whose call was it?

A. It would have to be at this point in time it's either

Detective Sergeant Anglin or Brian Mackiewicz.

Q. Well, I'll tell you that both of them have testified that

they're not working on at least any investigation involving

Mr. Montgomery. To your knowledge, are they still working on

some other aspect of the banking investigation?

A. No, sir. I don't have any knowledge of that.

Q. How about yourself?

A. No, sir. No.

Q. Let's now look at Exhibit 2273. At the bottom of that

e-mail, which you wrote on February 11 at 11:45 a.m., you asked

for some information from Mr. Montgomery, which was whether he


45/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

10:1

10:1

10:1

10:1

10:1


was going to follow through and finish the work that he had

told you he was going to do back in January.

Do you see that?

A. Yes, sir.

Q. What was the work that he had told you he was going to do

back in January?

A. It has to be the data mining packages for the sheriff's

voice. Because according to him, that was going to prove his

alleged wiretaps.

Q. This is the wiretap that's referred to in the flowchart

that we looked at earlier?

A. I would assume, yeah.

Q. Did any of the work that you discussed with Mr. Montgomery

in January relate to the banking identity theft investigation?

A. I don't believe so.

Q. We listened to some recordings yesterday of the October

2013 involving Mr. Blixseth and Sheriff Arpaio, Exhibits 2977

and 2978. Do you recall that?

A. Yes, sir.

Q. Just to clarify, did you yourself use some machinery to

record that meeting?

A. Yeah, I think you actually told me I used my iPhone.

Q. Okay. And that is what happened?

A. Yes.

Q. Did you tell the other people in that meeting that you were


46/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

10:1

10:1

10:1

10:1

10:1


recording that meeting?

MR. MASTERSON: Objection, relevance.


THE WITNESS: I took my phone after I picked up

Mr. Blixseth from the airport as we walked in. As we were

driving, he was telling me this whole tale, this was going to

be very involved.

As we sat down I took my phone, I motioned it. I

think -- I think Brian, and I know the sheriff saw it, but the

sheriff, I didn't realize he wouldn't know what this meant. I

took the phone and I put it down. That was the extent of that.

BY MR. YOUNG:

Q. All right. So by your motion, you indicated to

Detective Mackiewicz that you were recording the meeting, is

that right?

A. Yeah, but I don't know if he actually picked up on that.

Q. All right. Well, aside from wiggling your phone --

A. That was it. And then after it was over, I let them know

that I had the recording.

Q. Okay. So not during the meeting, but only after the

meeting did you say to anyone that you were re -- had recorded

the meeting.

A. The meeting was going on, so I wasn't going to stand up and

go, Hey, I'm recording you.

Q. So the things that Detective Mackiewicz and Sheriff Arpaio


47/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

10:1

10:1

10:1

10:1

10:1


and Mr. Blixseth said during those recordings were things that,

to your knowledge, they said without knowing that you were

recording the meeting, is that right?

A. I don't think they would have picked up on it if they

didn't realize what that meant.

Q. Okay. Did you ever tell Mr. Blixseth that you had recorded

the meeting?

A. No, sir.

Q. Did Sheriff Arpaio respond or react to you in any way after

you told him that you recorded the meeting?

A. No. Actually, we kind of had a joke. He didn't know what

that was, so -- when I put the phone down, so -- I think

somebody said, The sheriff's phone doesn't work like that. I

don't remember how that went, but...

Q. How about the discussions -- and there were several of

them; you can differentiate if you want, or I can ask you

separately as to each of them -- with Mr. Montgomery?

Did you inform Mr. Montgomery you were recording your

conversations with him?



THE WITNESS: Mr. Montgomery was told when we went up

there that there would be intermittent times that we would be

recording some of the stuff that he was telling us or showing

us for our own edification, so we could go back and try to


48/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

10:1

10:1

10:1

10:1

10:1


digest it.

As to particular times if there's video there, you'd

see me with the camera, he knew I was videoing. Sometimes if I

was recording I'd actually take my phone and I would hook my

phone up on the desk that he was speaking from.

BY MR. YOUNG:

Q. How about the phone conversation that we listened to part

of for most of yesterday with Mr. Montgomery, did you tell him

that you were recording that phone conversation?

A. No, that's when I was back in Arizona.



THE WITNESS: That's when I was back in Arizona. I

didn't tell him.

BY MR. YOUNG:

Q. Over the lunch period yesterday, did you talk to anyone

about whether you should continue to invoke the Fifth

Amendment, to refuse to answer questions?

A. I don't recall that.

Q. Okay. Did you have any discussion with anyone at any point

yesterday, aside from Judge Snow, about whether you should or

should not invoke the Fifth Amendment?

A. Yeah, my wife.

Q. No one else?

A. I don't recall having any conversation. I think I ate


49/77

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

10:1

10:1

10:1

10:1

10:1


lunch by myself.

Q. Let's turn to Exhibit 2975. Do you recognize Exhibit 2975?

A. Oh, I most certainly do.

Q. I'm sorry?

A. I most certainly do.

Q. Okay. Exhibit 2975 is an e-mail exchange that you had with

Brian Mackiewicz on August 20, 2013, correct?

A. Yes.

MR. YOUNG: Your Honor, I move for the admission of

Exhibit 2975.

MR. MASTERSON: I'm looking at something else on the

screen. Are we talking about -- Oh, oh. I'm sorry.

No objection.

THE COURT: Exhibit 2975 is admitted.

(Exhibit No. 2975 is admitted into evidence.

Documents

Melendres v. Arpaio #1549 | Nov 13 2015 TRANSCRIPT - DAY 20 Evidentiary Hearing