Melendres v. Arpaio #1457 Oct 2 2015 TRANSCRIPT - DAY 10 Evidentiary Hearing

8/20/2019 Melendres v. Arpaio #1457 Oct 2 2015 TRANSCRIPT - DAY 10 Evidentiary Hearing

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2248

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, ArizonaOctober 2, 20159:09 a.m.

REPORTER'S TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE G. MURRAY SNOW

(Evidentiary Hearing Day 10, Pages 2248-2470)

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


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Melendres v. Arpaio, 10/2/15 Evidentiary Hearing 2249

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 FoundationImmigrants' Rights ProjectBy: Andre Segura, Esq.125 Broad Street, 18th FloorNew York, New York 10004

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

Covington & Burling, LLPBy: Tammy Albarran, Esq.1 Front Street, 35th FloorSan Francisco, California 94111

Covington & Burling, LLPBy: 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.By: Charles W. Jirauch, Esq.SGA Corporate Center16100 N. 7th Street, Suite 140Phoenix, Arizona 85254

For the Movants Christine Stutz and Thomas P. Liddy:Broening, Oberg, Woods & Wilson, PCBy: Terrence P. Woods, Esq.P.O. Box 20527Phoenix, Arizona 85036


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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

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.601 D. Street NW, #5011Washington, D.C. 20004

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

For Brian Mackiewicz:Sitton NashBy: Alexandra Mijares Nash, Esq.301 W. Warner Road, Suite 133Tempe, Arizona 85284

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


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I N D E X

Witness: Page

JOSEPH M. ARPAIO

Direct Examination Continued by Mr. Young 2258

E X H I B I T S

No. Description Admitted

79 MCSO Shift Summary [Redacted] Incident: 2261Forgery/ID theft Search Warrant - DR 12-130994dated 9/20/2012 (US_0663020-US_0063021;US_0663023-US_0663024

80 MCSO Supplemental Report (United Construction 2261Group) DR 2012-130847 dated 9/27/2012

81 MCSO Shift Summary (United Construction Group) 2261DR 12-130847 dated 9/27/2012

83 Incident Report, IR 12-182625 dated 10/8/2012 2261

86 MCSO Shift Summary (Sportex Apparel) 261DR 12-222316 dated 2/8/2013(US_0663126-US_0663128)

89 MCSO Criminal Employment Squat Stat Breakdown, 2261DOJ Ex. 332 (MCS00960477 - MCS00960479)

2074B DOJ/Arpaio 2007-2013, chronology and 2289handwritten notes (MELC199550)

2281 MCSO Memo from Joseph Arpaio to Captain Russ 2420Skinner re: Response to Document Requestregarding ITR 3 (Follow-up) dated 8/18/2015(MELC730566-88)

2837A Video Clip "The Joe Show" 2396(Joseph Arpaio, Lisa Allen, and Chad Williams)

2838C Video Clip 3 Press Conference with Zullo, Cold 2392Posse Birth Certificate dated 3/1/2012

2839D Video Clip 4 Sheriff Arpaio's Oregon State 2459Capitol Speech, June 28, 2015 dated 6/28/2015


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P R O C E E D I N G S

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

Young, Tammy Albarran, and Michelle Morin, Covington & Burling,

for plaintiffs.

THE COURT: Good morning.

MR. YOUNG: Good morning, Your Honor. Cecillia Wang

and Andre Segura of the ACLU for plaintiffs.

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

of Arizona for plaintiffs.

MR. KILLEBREW: Good morning. Paul Killebrew and

Cynthia Coe for the United States.

THE COURT: Please be seated. I'm sorry.

THE CLERK: Counsel, if I could just call the case

before you --

MR. YOUNG: Oh. Apologies.

THE CLERK: -- announce your appearances.

This is Civil Case No. 07-2513 Melendres, et al.,

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

Thank you.

MR. YOUNG: Should we appear again, Your Honor?

THE COURT: No.

MR. YOUNG: Thank you.

THE COURT: Good morning to everyone.

MR. MASTERSON: Are we to meet?


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THE COURT: Good morning to everybody who's already

appeared here.

MR. MASTERSON: Good morning, Judge Snow. John

Masterson, Joe Popolizio for Sheriff Arpaio, and with us is

Holly McGee.

THE COURT: Good morning.

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

and Charles Jirauch on behalf of Maricopa County.

MS. MIJARES-NASH: Good morning, Your Honor. Special

Appearance, Alexandra Mijares-Nash for Detective Brian

Mackiewicz.

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

making a special appearance for Sheriff Joe Arpaio.

MR. COMO: Good morning, Your Honor. Greg Como

representing Chief Brian Sands.

MR. WOODS: Terry Woods, Your Honor, representing

Stutz and Liddy, non-parties.

MS. IAFRATE: Good morning, Your Honor. Michele

Iafrate on behalf of Sheriff Arpaio and the alleged unnamed

contemnors.

THE COURT: Is that everyone?

I am informed that you wanted to have a sidebar,

Ms. Iafrate, to handle some matters we discussed last evening?

MS. IAFRATE: Yes, Your Honor.

THE COURT: All right. I will have everybody at


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sidebar who was present at the closed part of the hearing. If

you weren't present at the closed part of the hearing, I'll ask

that you move away from the sidebar conversation, but for the

moment the sidebar conversation will be under seal.

(Bench conference on the record.)

(Page 2254, line 6, through page 2257, line 18, sealed

by order of the Court.)


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(Bench conference concluded.)

THE COURT: Sheriff, good morning.

SHERIFF ARPAIO: Good morning.

THE COURT: Of course, even though we're a new day

you're still under oath.

Mr. Young.

MR. YOUNG: Thank you, Your Honor.


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Arpaio - DX Young, 10/2/15 Evidentiary Hearing 2258

JOSEPH M. ARPAIO,

recalled as a witness herein, having been previously duly

sworn, was examined and testified further as follows:

DIRECT EXAMINATION CONTINUED

BY MR. YOUNG:

Q. Good morning, Sheriff.

A. Good morning.

Q. I'm going to show you some exhibits, and hopefully we can

do this efficiently. And I don't know whether they're on the

top of your pile, but we're going to be looking at exhibits

between the ranges of 79 and 89. And let's just take them in

numerical order and I'll ask Mr. Klein to put them on the

screen for you.

Exhibit 79 is a shift summary from your Human

Smuggling Division, correct?

A. Yes.

Q. Going now to Exhibit 80, Exhibit 80 is a supplemental

report relating to an identity theft/forgery operation at

United Construction, correct?

A. Yes.

Q. Exhibit 81 is a shift summary, again relating to United

Construction Group, this time dated September 27, 2012,

correct?

A. Yes.

Q. Exhibit 83 has a cover sheet dated October 8, 2012, but


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then is -- after that you can see it's an incident report where

the reporting deputy is R. Armendariz, dated, as to the

incident, on October 8, 2012, is that correct?

A. Yes.

Q. Exhibit 86 is another Human Smuggling Division shift

summary dated February 8, 2013, relating to Sportex Apparel,

correct?

A. Relating to who?

Q. Sportex Apparel; that's the location.

A. Yes.

Q. Now, I'll note that a lot of names and identifiers are

redacted from both Exhibit 86 and Exhibit 79. That's the way

they were provided in the Department of Justice case.

And finally, Sheriff, take a look at Exhibit 89. 89

is a criminal employment squad statistical breakdown as of July

22, 2013, is that correct?

A. Yes.

Q. And prepared by your Human Smuggling Division?

A. I believe so.

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

Exhibits 79, 80, 81, 83, 86, and 89.

MR. MASTERSON: Objection on foundation as to the

information contained in each of the exhibits, and relevance as

to those exhibits unrelated to the plaintiffs' class.

THE COURT: Foundation as to the what?


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MR. MASTERSON: Well, I think we can all agree that

they're Maricopa County Sheriff's Office records, but I haven't

heard any testimony that the sheriff has any personal knowledge

as to any of the information contained in each of those

records.

THE COURT: Mr. Young.

MR. YOUNG: Well, under Rule 803(6), I believe the

sheriff --

THE COURT: Well, we're not -- the objection wasn't

hearsay; the objection was foundation.

MR. YOUNG: I think the sheriff has established

prior -- in his prior testimony that he has knowledge about

these operations and about what his people do. I can ask a few

more questions if Your Honor would prefer, but I think the

foundation already exists.

THE COURT: Well, I think the foundation has been laid

to admit the exhibits under -- because they're not -- you know,

they fall under a hearsay exception, so I'm going to admit the

exhibits as being Maricopa County documents.

It does seem to me that based on their description and

identification by the sheriff, they are relevant, so I'm going

to overrule it. And we've already dealt with the criminal

employment squad objection and I'm going to overrule that as

well, so --

MR. MASTERSON: I still have a continuing objection to


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that, though, correct, Judge?

THE COURT: Yes, you do.

MR. MASTERSON: Thank you.

THE COURT: So I'm going to admit Exhibits 79, 80, 81,

83, 86, and 89.

(Exhibits Nos. 79, 80, 81, 83, 86, and 89 are admitted

in evidence.)

MR. WALKER: Excuse me, Your Honor. I object to the

Court's characterization of these documents as Maricopa County

documents.

THE COURT: What are they, then?

MR. WALKER: They're, as far as I can tell, documents

of the Maricopa County Sheriff's Office.

THE COURT: All right. And again, with all due

respect, you are here because that is how the Maricopa County

Sheriff's Office has to be sued. And that is the legal ruling

that has been made in this case, and so I note your objection

and I overrule it.

MR. WALKER: Thank you.

THE COURT: Mr. Young.

MR. YOUNG: Thank you, Your Honor.

BY MR. YOUNG:

Q. Sheriff, we're going to turn back to the exhibit we were

looking at when we ended your testimony yesterday. It's 2074A.

And I'm going to ask that the top part and the bottom part be


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displayed on the screen and published.

You have the full piece of paper there if you want to

take a look at it. And the part that we're omitting is the

parts with the DOJ wiretap references that are about in the

middle of the page.

Do you see that on the screen?

And maybe we'll need to pull the top -- so we can see

the top of the top part, Mr. Klein. So we can see the top of

the page. We'll start with that.

Now, did you give your fax number to Mr. Montgomery so

that he could fax this page to you?

A. I don't believe I did.

Q. Did you have someone else do that?

A. It probably could have been my secretary.

Q. Who was your secretary at that time?

A. Amy Lake.

Q. Is the fax machine to which this document was faxed located

near your office in your -- near your desk?

A. I believe it's in her office.

Q. So was this faxed to your fax number and then Ms. Lake

brought it to you?

A. I would imagine she did, yes.

Q. Did you have her go wait at the fax machine, or did you go

to the fax machine yourself to wait to get this document?

A. No.


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Q. How many fax machines are associated with that number?

A. I don't know if that's the only one or not.

Q. Now, you'll note at the top of the page that it says page 1

of 2 in the upper-right-hand corner?

A. Yes.

Q. Do you recall getting two pages from Mr. Montgomery on

November 5th, 2013?

A. No.

Q. Do you know what the second page is?

A. No.

Q. After you got the fax, what did you do with it? Aside from

writing it -- writing the word "crim question mark" on it.

A. I'm not sure what I did with it. I may have shown it to

the chief deputy, because his name was also on it as a wiretap.

Q. You mean his number?

A. Yes.

Q. Did you show it to Chief Deputy Sheridan the same day that

you received it?

A. I don't recall.

Q. Approximately how long after you received the fax did you

show it to Chief Deputy Sheridan?

A. I'm sure it was not a long time span.

Q. Did you show it to anyone else?

A. I don't recall.

Q. Did you make copies of it?


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A. I may have made copies.

Q. What did you do with the copies?

A. It's in my file.

Q. Are you aware, aside from Chief Deputy Sheridan, of anyone

else in your office who saw Exhibit 2074A?

A. I don't recall.

Q. Now, the third line of the exhibit mentions this lawsuit.

Do you see that?

A. Yes.

Q. Did you ever discuss this lawsuit with Timothy Blixseth?

A. With who?

Q. Timothy Blixseth, the person that you met in October 2013

when you first heard about Dennis Montgomery.

A. I don't believe so.

Q. Did you ever talk about the Melendres lawsuit with Dennis

Montgomery?

A. With him?

Q. Yes.

A. I don't recall; I don't believe I did.

Q. Now, you said that you met Mr. Montgomery at some point at

the -- way back at the beginning at a hotel in Phoenix, is that

correct?

A. I'm not sure it was Phoenix or Scottsdale, but it was some

hotel.

Q. Did you meet Mr. Montgomery in person before or after you


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received this November 5, 2013 fax from him?

A. You know, I'm not sure if it was before or after. It had

to be around that time, I believe.

Q. Do you know how Mr. Montgomery got the information about

the Melendres lawsuit that's listed on the time line?

A. I have no idea.

Q. Did Detective Mackiewicz or Mr. Zullo give him that

information?

MR. MASTERSON: Objection, foundation.

BY MR. YOUNG:

Q. That you know of.

A. I don't know.

Q. The item for March 15, 2009, refers to a Joel Fox search

warrant issued at Arizona Attorney General.

Do you see that?

A. Yes.

Q. Did you ever have any discussion with Mr. Montgomery,

Mr. Blixseth, Mr. Zullo, or Detective Mackiewicz about that?

A. No.

Q. Do you know why that's on this time line?

A. Well, a lot of things I don't know why it's on the -- the

time line. It gives me an impression they have been reading a

lot of newspapers or so on.

Q. What was your understanding at the time you received this

fax of Mr. Montgomery's purpose in sending it to you?


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A. I don't know.

Q. Did you talk to anyone after receiving it? Aside from

Chief Deputy Sheridan.

A. Well, I may have talked to Zullo, and probably Brian

Mackiewicz, being concern about the wiretap.

Q. You talked to Mr. Zullo and Detective Mackiewicz about

Exhibit 2074A at around the time or very shortly after you

received it, correct?

A. I may have.

Q. Did you discuss all the items on the time line with

Mr. Zullo and Detective Mackiewicz after you received the time

line?

A. My main concern was the -- the wiretap allegations with the

number next to it. That was my concern.

Q. Did you talk to them about any of the other items on the

time line?

A. I don't believe I did.

Q. How about Chief Sheridan?

A. No, I gave him the copy had to do with the wiretap.

Q. Please tell me everything you can remember about your

discussion with Chief Sheridan when you showed him this time

line, Exhibit 274A -- 2074A.

A. The main discussion was his name and phone number and my

name and phone number.

Q. You don't remember anything else --


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A. No.

Q. -- about your discussion with him?

I'm going to ask you about the two lines with the

wiretap information that have your and Chief Sheridan's phone

numbers. It's not on the screen; you can feel free to look at

the piece of paper if you would like.

THE COURT: Wait a minute. It is on the screen.

MR. YOUNG: Well, actually, at the moment --

THE COURT: Oh, then phone numbers --

MR. YOUNG: Phone numbers are not on the screen.

And actually, I'll ask that this top part, which does

not have the phone numbers, be published, Your Honor,

since this --

THE COURT: Well, it has been published. It was just

taken off. Are you going to show those phone numbers?

MR. YOUNG: No.

THE COURT: All right.

Then you can return back to the screen, Kathleen.

MR. MASTERSON: Your Honor, I had a discussion with

Mr. Young this morning, and he does not object, if the Court

agrees, that we could redact those numbers from the --

THE COURT: Yeah, I think that makes sense --

MR. MASTERSON: Thank you.

THE COURT: -- redact those numbers.

I don't think it makes sense to redact -- to redact


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the wiretap identification number, but the personal numbers of

Chief Sheridan and Chief Arpaio -- or Sheriff Arpaio I think

should be redacted. I have no problem with that.

MR. MASTERSON: Thank you, Judge.

BY MR. YOUNG:

Q. So you recall there are some phone numbers there with DOJ

wiretap references on the time line, correct, Sheriff? That's

what you were focusing on at the time?

A. Can you repeat that?

Q. Yes. I'm referring to the references to the alleged DOJ

wiretap numbers that had your number and Chief Sheridan's

number, the ones that you discussed with Chief Sheridan.

Do you have those in mind?

A. Yes.

Q. Do you know how Dennis Montgomery got your phone number and

Chief Sheridan's phone number?

A. That's a good question. I don't have an answer.

Q. Did Mr. Zullo or Detective Mackiewicz have your phone

number?

A. I believe -- I believe they did, yes.

Q. Did you ever hear from them that they had given your phone

number to Mr. Montgomery to see whether he could find a

reference to a wiretap on it?

A. No.

Q. In order for someone to search for a wiretap and determine


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whether a wiretap had been done on your number, they would need

to know your number, correct?

MR. MASTERSON: Objection, foundation.

THE WITNESS: How they got it, I don't know. But

you're right, they would have to know my number.

BY MR. YOUNG:

Q. Well, at the time that you got Exhibit 2074A from --

THE COURT: You know, Sheriff, I'm just going to

remind you, when your attorney makes an objection --

THE WITNESS: Sorry.

THE COURT: -- you have a right to have me rule on

that objection.

THE WITNESS: I'm sorry.

THE COURT: You waive that right when you answer

without letting me rule on the objection.

THE WITNESS: Sorry.

THE COURT: All right?

MR. YOUNG: And I apologize to Your Honor.

BY MR. YOUNG:

Q. When you received the fax from Mr. Montgomery, did you

wonder how he knew what your cell phone number was?

A. Yes.

Q. Did you ask anybody about that?

A. I'm sure that the investigators would be looking into that.

Q. Did you talk to them about how it is that Mr. Montgomery


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got your cell phone number?

A. I was concerned.

Q. Had you authorized them to give your cell phone number to

Mr. Montgomery?

A. No.

Q. Same questions for Chief Sheridan's phone number.

Do you know how Mr. Montgomery got that?

A. No.

Q. Did Mr. Zullo and Detective Mackiewicz have Chief

Sheridan's phone number?

A. I don't know.

Q. At the time that you got the fax from Mr. Montgomery, did

you believe there was a possibility that the DOJ had wiretapped

your number and Chief Sheridan's number?

A. I was concerned, but I also had some suspicion of that

information on a personal-type situation, having spent, what,

20 years as a top law enforcement official under the Department

of Justice that that would ever occur. I had some concern,

but, on the other hand, it was mind-boggling to me.

Q. At the time that you received the fax on November 5, 2013,

had you read the New York Times article that we looked at

earlier, or any other article describing allegations that

Mr. Montgomery had defrauded other government agencies?

A. I don't recall the time frame; if I read the articles on

him around that time, I'm not sure.


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Q. Well, the suspicions that you mentioned about the

information on the November 5, 2013 fax, did that come just

from the face of the fax, or did you have other information

about Mr. Montgomery that contributed to that suspicion?

A. No. My suspicion was whether the Department of Justice

would do that. That was my suspicion.

Q. Now, let's look at the bottom part of Exhibit 2 -- 2074A.

There's a line there on July 10, 2010: "Covington

takes over Melendres lawsuit against Arpaio."

Do you see that?

A. Yes.

Q. Did you ever discuss Covington with Mr. Blixseth?

A. Not that I recall. I don't think we had any discussions

other than the computer -- the bank fraud investigation.

Q. How about with Mr. Montgomery?

A. No.

Q. Well, let's go down to July 19, 2012. That's a reference

to "Melendres case hear by judge."

That's Judge Snow, right?

When you received this fax, you understood that the

Melendres case had been heard by Judge Snow, correct?

A. Yes.

Q. Did you read the entire time line when you received it?

A. What was that?

Q. When you received the time line from Mr. Montgomery did you


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read the whole thing?

A. I briefly went through it, yes.

Q. So you saw the references to the DOJ filing a complaint

against you, and also the Melendres case, and also the

Covington law firm, and all the other things on this sheet, you

saw those, is that right?

A. Yes.

Q. The last two items refer to the Melendres lawsuit, the

Covington law firm, and Judge Snow ruling against you in this

lawsuit. Do you see those lines?

A. Yes.

Q. At the time that you received this fax, did you, in your

own mind, connect those events in any way to the DOJ wiretap

information?

A. No. My main concern was the wiretap.

Q. You knew that this lawsuit was happening at the time you

received the fax, correct?

A. Yes.

Q. And you knew that Judge Snow had issued a ruling finding

that your office had violated the Constitution, correct?

A. Yes.

Q. And you knew that Judge Snow had issued a supplemental

injunction in October 2013 announcing that he would be

appointing a monitor over your office --

A. Yes.


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Q. -- correct?

So is it fair to say that on November 5, 2013, you

were well aware of the issues relating to this lawsuit and

Judge Snow's rulings?

A. Yes.

Q. Before you received the fax from Mr. Montgomery were you

expecting to receive some information on him?

A. No.

Q. Did you talk before you got the fax with either Mr. Zullo

or Detective Mackiewicz about information that Mr. Montgomery

might have relating to this time line?

A. I don't recall whether the wiretap came up before I

received the fax.

Q. Well, when you got the fax, did you know why you were

receiving it?

A. No.

Q. Did you ask anyone when you got the fax: Hey, I just got

this fax. What is it? Why am I getting it?

A. Well, I don't know why he sent it to me but he did, I

presume, and he had that information. It was all public

knowledge, anyway. But the two wiretaps never appeared

anywhere, so that made me somewhat concerned.

Q. When you got the fax on November 5, 2013, you knew it was

from Mr. Montgomery, correct?

A. Yes.


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Q. And since you had had a discussion, at least, and perhaps

had met with him prior to your receipt of the fax, it wasn't a

complete surprise that you received some information from him,

is that right?

A. I'm still trying to recall whether I met with him before.

I may have, and I don't have the dates. But the meeting had to

do with the bank investigation.

Q. Well, let me clarify my question.

When you received the fax from Mr. Montgomery, it

wasn't as if it was just some random person in the public who

sent a piece of paper to your fax number. You knew who the

person was and what the general subject matter and reason for

your getting the fax was when you received it, correct?

A. I was surprised in receiving a fax on that date. I didn't

ask for it, I didn't know about it, but it showed up.

Q. But you were intrigued about it when you got it, correct?

A. I was intrigued about the wiretaps of me and my chief

deputy, and that was my major concern.

Q. Chief Deputy Sheridan testified that he thought the reason

for Mr. Montgomery sending you this time line was in order to

keep the money flowing from your office to Mr. Montgomery.

I'll tell you it's my understanding from other

documents that the first payment that your office gave to

Mr. Montgomery was around Thanksgiving 2013.

Does that seem right to you?


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A. That may have been about the time that this information

came to us about the bank investigation.

Q. Let me just ask you, Sheriff: When you received the fax on

November 5, 2013, had your office yet paid anything to

Mr. Montgomery?

A. I don't recall. I wasn't involved in the payments.

Q. Well, if the documents that your office has given us show

that the first payment was made after this fax, would you

dispute that?

A. Would I refute that?

Q. Do you know of any reason to believe that any payments were

made to Mr. Montgomery before you received this fax?

A. I don't know.

Q. Did you believe when you got this fax, Exhibit 2074A, that

it was related to the banking investigation that you had

discussed during October?

A. I don't know what it was related to when you -- you're

talking about the wiretap information?

Q. Yes, that or anything else on this time line.

Did you believe that it related to the banking

investigation that Mr. Zullo and Detective Mackiewicz were

doing with Mr. Montgomery?

A. The only concern I had about his harvesting into computers

regarding the bank -- all the people that were victims, and

where my phone number came from, whether it came through


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harvesting or whatever.

Q. Did you believe that Mr. Montgomery had obtained the

information about the wiretap, potential wiretaps, in the same

way that he obtained information about the banking records that

you had discussed?

A. I have no idea. As I mentioned before, I'm not a computer

expert, and I let that -- the two detectives to work on the

computer aspects.

Q. Those two things, though -- the wiretap and the banking

investigation -- at least had the commonality in your mind that

the information was coming from Mr. Montgomery, is that

correct?

A. You're talking about the wiretapping information coming

from him?

Q. Yes.

A. I'm rather sure it did come from him.

Q. And the banking information that you had heard about, that

information also came from Mr. Montgomery in your

understanding, correct?

A. Yes.

Q. Now, as I recall, Mr. Montgomery claimed, as you understood

it, that he knew that someone had obtained the banking

information of about 151,000 people in Maricopa County, is that

right?

A. I think it was 150,000.


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Q. What was your understanding at the time you heard about it

about what the banking information was; that is, in detail,

what kind of information? Was it names? Account numbers?

Payments? Deposits? Account balances? What did you

understand the banking information to consist of?

A. Well, what I in general terms had a concern was going into

people's bank accounts, stealing their identities, their --

amount of money in their account, banking accounts. I could go

on and on. That was my concern.

Q. But did you have an understanding at the time that this

banking information would allow someone to obtain the bank

statements of the people who were potentially involved?

A. In general terms is all aspects of the identity of the

victims --

Q. Okay.

A. -- whether it's bank accounts, statements, money, home

address, I can go on and on.

Q. And that's what you sent Mr. Zullo and Detective Mackiewicz

to Seattle for, to work with Mr. Montgomery to investigate, is

that right?

A. Yes.

Q. Did you know throughout the time of the Seattle

investigation that they were investigating the banking

information?

A. Yes.


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Q. Okay. Did that ever stop? That is, did the banking

information aspect of the Seattle investigation ever stop?

A. Oh, I think the -- it continued, and the chief deputy

assigned several detectives to follow up on it to investigate

it.

Q. So as of the time you received the fax in November 2013,

you knew that they were working on an investigation of at least

the banking information, is that right?

A. I believe so.

Q. Okay. How about in January 2014? Was it still your

understanding at that time that they were working on the

investigation relating to the banking information?

A. Yes.

Q. How about in April 2015? Did you know if they were still

working on the banking investigation?

A. I don't know, but I would believe that they still were. It

wasn't something that you stop working.

Q. Now, Judge Snow's name came up in connection with the

banking investigation, correct? I think you've testified to

that before.

A. What I was told, yes.

Q. Judge Snow, you believed, was one of the 150,000 Maricopa

County residents whose banking information had potentially been

penetrated, is that right?

A. Yes.


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Q. How did you find that out?

A. I believe the investigators mentioned that to me.

Q. They mentioned that to you? Who mentioned it to you?

A. I don't know if it was Detective Mackiewicz or Zullo, but

they did mention that there was several names Snow in there,

and they believe that one of them was the judge.

Q. So it was one of the two of them, right, either Zullo or

Mackiewicz?

A. Yeah.

Q. What was said to you at the time you first learned about

Judge Snow being on that list of 150,000 names?

A. Well, it was rather a surprise. I believe they mention

that there were other judges on that list, which also concerned

me. If I recall, they mention even a Supreme Court of the

United States judge, so I had a little concern about all the

victims, including the judges.

Q. At least when your deposition was taken the only local

judge whose name you could remember being on that list was

Judge G. Murray Snow, is that right?

A. That name was on a list? Was that the question? Can you

repeat that?

Q. Judge Snow's name was the only name of a judge that you

could remember being on that list, is that right?

A. No. There were other names that I heard that I'm not

absolutely sure who they were. I didn't want to reveal any


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names unless I knew for sure, but there was other names that

were mentioned on that list when you're talking about federal

judges.

Q. Well, isn't it true, Sheriff, that even though you may have

heard that there were other judges involved in the banking

investigation, that Judge Snow was the only one that you

specifically heard about?

A. I heard about others that I'm not a hundred percent

accurate that I got the names right. I remember I think Chief

Justice Roberts' name came up. So I don't have a list of all

the judges.

My concern was any victim, the 150,000, and I believe

when you total it up, be almost a half a million citizens in

this state regardless of their occupation.

Q. Sheriff, I'm going to play for you from page 448 of your

deposition on September 17. It will be lines 1 through 10.

And it's clip 15 for Mr. Klein.

(Deposition video clip played as follows:)

"Question: When is the first time that you and

Mr. Zullo discussed anything relating to Judge Snow?

"Answer: I think it was during the banking

investigation that his name was in there, along with many other

judges. In fact, I think my name was in there, allegedly in

there.

"Question: Was Judge Snow the only judge who you


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heard about in connection with the banking investigation?

"Answer: It's the only one I heard about, but they

the tell me there was others, too."

(Deposition video clip concluded.)

BY MR. YOUNG:

Q. Do you recall giving that testimony, Sheriff?

A. Yes.

Q. Was it accurate? Is it accurate?

A. Same thing I said here.

Q. Can you tell me now, Sheriff, the names of any other local

judges that you recall hearing about in connection with the

banking investigation other than Judge Snow?

A. No.

Q. Now, you knew that you and your wife were also on that

list, allegedly, of the 150,000 people, correct?

A. That's what I was told.

Q. So other than yourself, your wife, and Judge Snow, you

can't think of any other person in Maricopa County who you

understood to be among the list of 150,000 people in connection

with the banking investigation, is that right?

A. I'm going by what I was told by the investigators. And of

course, when they mention your wife, it kind of sticks out in

my memory and myself. But I'm sure that they would have other

names, my investigators, but they never really relayed it to me

other than the -- a Supreme Court Justice.


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Q. Well, sticking to Maricopa County residents, along with

yourself and your wife, Judge Snow also stuck out for you, is

that right?

A. Yes.

Q. How did you feel when you first heard that Judge Snow's

name had come up in the banking investigation?

A. Well, I don't like any -- anybody, no matter who they are,

but when you're dealing with the federal judiciary, when you're

dealing with my personal family, it does stick out in my mind.

Q. Did you have the same concern for Judge Snow that you had

for yourself and your wife?

A. Yes.

Q. Other than Mr. Zullo, Detective Mackiewicz -- well, other

than those two, did you talk to anyone else about the fact

Judge Snow's name came up in the banking investigation?

A. I don't recall.

Q. Did you hear about Judge Snow's name coming up at the

outset, when you first heard about the 150,000 names?

A. I'm not sure what the time frame was, because I know that

our investigators were reviewing all the names, so I don't

remember when the judge's name came up or when my name came up.

Q. So did you know that the investigators were going over and

searching the list of names?

A. Yes.

Q. Was that under your direction? You told them to search the


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list of names?

A. You say my direction. This is something that was being run

by our computer expert slash investigators. So I didn't give

them orders. They had the information, they would verbally

brief me, and I let them run with the investigation.

Q. Well, did you indicate to Mr. Zullo and

Detective Mackiewicz that you would be interested in knowing

about who was on that list?

A. I think that I didn't have to ask them; I'm sure that they

alerted me to certain people.

Q. Well, do you remember how long after you first heard about

the 150,000 names you first heard Judge Snow mentioned in that

connection? Was it within a day? A week? A month? Do you

have any idea?

A. I still don't remember the time frame.

Q. Was it pretty soon after you heard about the 150,000 names

that you heard that Judge Snow's name was on that list?

A. I don't remember the timing as to how long from the date

that they started the investigation to who was in the system.

Q. Did you ever see any documents with the names of any of the

people who were allegedly on that list?

A. No.

Q. How about any photos or videos relating to the banking

investigation? Did you ever see any screen shots, or anything

like that?


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A. No.

Q. When you first heard about Judge Snow in connection with

the banking investigation, what information did you understand

Mr. Montgomery to have had access to? Specifically, if you

recall.

A. I'm sure he had access to the information through the

computers, received in the information from the, you know, the

banking versus the victims.

Q. Would that include bank statements, for example?

A. I don't know what it included. I think I mentioned earlier

concern about statements, about money, names, addresses of the

victims.

Q. Well, you're aware -- well, do you know, Sheriff Arpaio,

that if you have the identifier and a password, that people can

get their bank statements online over a computer?

You know that, right?

A. Yes.

Q. Okay. And you knew that at the time that you heard Judge

Snow's name mentioned in connection with the banking

investigation, is that right?

A. I didn't get into the nuts and bolts of the banking

industry, the computer industry; I left that up to my

investigators.

Q. Well, one of the reasons you'd be concerned about 150,000

Maricopa County residents having their banking information


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penetrated is that someone with that kind of personal

information could get things like bank statements using a

computer, is that right?

A. Of course. It's part of the identity theft umbrella, too.

Q. After you heard about Judge Snow's name being on the list,

did you want Mr. Zullo and Detective Mackiewicz to continue

with the investigation into the banking issue?

A. I don't think it had anything to do with the judge being on

a list. It was he was one of the names. They were

investigating 150,000 victims. That wasn't going to stop.

Q. And you did not want it to stop, is that right?

A. No, I wanted to get to the bottom of this massive

penetration of the people's identification, banking accounts.

To me, that was a big issue.

Q. Okay. And it continued to be a big issue for you after you

heard about Judge Snow's name being on that list, is that

right?

A. Yes.

Q. Did you ever tell anyone to stop investigating the banking

issue?

A. No.

Q. In fact, you encouraged them to continue with that

investigation, is that right?

A. Well, I don't think I had to encourage the investigators;

they knew how important this was and they continued it. I


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didn't tell them not to or to do it but they continued the

investigation.

Q. Did you tell them that it was important to you?

A. Yes, they knew it was important, to me and all the victims.

Q. Now, you mentioned the other day that the updates that you

received from Mr. Zullo and Mr. Mackiewicz were only oral, or

verbal, and not written, is that right?

A. Yes.

Q. Why didn't you have them write anything to you so that

you'd have some record of what it was that they were doing?

A. Well, the investigation was in progress. They advised me

verbally. They continued it. It was somewhat of a sensitive

situation and I was comfortable with that. It was a

preliminary investigation.

Q. Well, when your office conducts investigations, aren't

there normally written memos or documents so that people can

look back and see what has happened and what work has already

been done in that investigation?

A. Well, when the chief deputy assigned several detectives to

follow up, I'm not sure whether reports were done or not.

Q. Well, before Sergeant Anglin was assigned to the Montgomery

Seattle investigation, you did not have Mr. Zullo and

Detective Mackiewicz do anything in the nature of writing that

they gave to you, is that right?

A. They were keeping me advised verbally of that


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investigation.

Q. Did you not want them to send you anything in writing on

that investigation?

A. I didn't tell them to do it or not to do it. They were

continuing giving me updates at times, and their main concern

was the computer aspect, going through the computers and trying

to find out all the names involved.

Q. Did you ever talk to either of them about not giving you

anything in writing on that investigation?

A. No.

Q. You never asked for anything in writing from them, is that

right?

A. I think eventually I wanted something done in writing, but

I think that was way later on.

Q. Did you ever get anything in writing on the investigation?

From them?

A. I'm not sure. There may have been one report that was

submitted.

Q. When was that report submitted?

A. I don't recall.

Q. Do you know whether attorneys turned it over to the monitor

and to the plaintiffs?

A. I don't know.

Q. Sheriff, I'm now going to ask you to take a look at

Exhibit 2074B.


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And I'll ask Mr. Klein to throw it up on the screen

for you, not published yet, but just so you can take a look at

it.

You recognize that document, correct, Sheriff?

A. Yes.

Q. There's some handwriting on it that's yours, is that right?

A. Looks like it, yes.

Q. And there's a typewritten portion that is also written by

you, typed by you, is that correct?

A. My typing wasn't very good, but it was.

MR. YOUNG: Your Honor, I'll ask for the admission of

Exhibit 2074B.

I will note that we are using a version that has a

phone number that's been redacted in the middle of the page. I

don't think it's necessary to this proceeding to have that

there.

MR. MASTERSON: I guess my question is I've seen this

document, but it -- this isn't the whole document. Is counsel

submitting an altered -- I'm not saying it's -- he's doing it

unfairly or anything, but I've only seen this document in a

different form.

May I talk to Mr. Young, please?

THE COURT: Sure.

(Off-the-record discussion between Mr. Young and

Mr. Masterson. )


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MR. MASTERSON: I'm told that this was -- this

language is on another document, and I understand it's a large

document.

Could I ask that the Court -- I don't have an

objection to this particular exhibit, but could it be a

conditional admission if I look at the original document and

think we need to have that in with this document for some

reason?

THE COURT: I'll certainly take a look at any other

documents you want to admit and tell me that it's associated

with this and establish a foundation for it.

MR. MASTERSON: Thank you, Judge.

THE COURT: All right. So I am admitting this

document, and it is again document number --

MR. YOUNG: 2074B.

THE COURT: -- 2074B.

(Exhibit No. 2074B is admitted into evidence.)

MR. YOUNG: Your Honor, may we publish the document?

THE COURT: You may.

BY MR. YOUNG:

Q. Sheriff, the document has both, as I mentioned before, a

typewritten part and a handwritten part, correct?

A. Yes.

Q. I'm going to ask you first about the typewritten part.

Now, you described in your note here a November 6,


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2013 phone call that you receive from JC, is that right?

A. Yes.

Q. JC was a photographer that you had met in some prior

context, is that right, in San Diego?

A. Yes.

Q. And he called your wife, is that right?

A. Yes.

Q. And he told your wife that he needed to talk to you and

that she shouldn't use phones, is that right?

A. Yes.

Q. And then that same afternoon on November 6 you called him

back in the presence of a Sergeant Calderon of your office.

Is that what happened?

A. Yes.

Q. And then you heard from JC that your and your wife's phones

were being monitored by the feds, is that right?

A. Yes.

Q. At the time you had this discussion with JC, who did you

understand the feds to be?

A. I had no idea.

Q. Did you ask JC that question?

A. I don't recall.

Q. So the feds could have been, in your understanding, the

FBI? The DOJ? A federal judge? I mean, what was your

understanding, if any, about who the feds were? What was


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your -- going on in your mind?

A. It could have been the CIA; could have been anybody. I was

a little concerned because that message came to me the day

after I received that information from whoever on that fax that

my telephone number was tapped. And now I get the next day

another source that's alerting me to be careful.

Q. In your mind, were those two pieces of information that you

received on November 5 and November 6, 2013, related?

A. No idea.

Q. Did you know or do you know now of any relationship between

JC and Mr. Montgomery?

A. No.

Q. But those two things together combine to create a concern

in your mind. Is that what you're saying?

A. Yes.

Q. Why did you have Sergeant Calderon join you on the call?

A. Well, he was in charge of my security. I believe this is a

security issue also.

Q. Did you call him from your office, that is, JC? Did you

call JC from your office?

A. I don't recall.

Q. Have you had any -- well, let's go through the rest of the

note.

You say you -- that JC said you should change your

telephone number, is that right?


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A. Yes.

Q. And then you asked for more info. What info did you ask

for?

A. Well, I would like to know more information about the

allegation. I was somewhat concerned.

Q. Did you receive a response to your request for more

information?

A. I believe he received the information from another person.

Q. Who's that other person?

A. I believe she works for the newspapers and a TV station.

Q. You've got a couple of spellings there, but I'm going to

try to -- is it Kimberly that you're referring to?

A. Yes.

Q. So JC told you that Kimberly had told him that your phones

were being tapped by the feds. Is that what happened?

A. Yes.

Q. Did you know Kimberly as well before this phone call that

you received?

A. I think I met her once in San Diego.

Q. Did you know before this phone call that JC knew Kimberly?

A. I think they knew each other.

Q. So when JC told you that Kimberly had told him that your

phones were being tapped, it wasn't a surprise to you that they

were talking to each other because you knew that they knew each

other, is that right?


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A. Yes.

Q. How is it that you met them? Did you meet them in the same

context, or were there different events? How is it that you

knew who they were?

A. I was giving a speech a couple times in San Diego, and I

think they were there when I was accomplishing my speech. And

I believe it was the photographer, and the reporter I believe I

met once or twice.

Q. Okay. Did you meet JC and Kimberly together?

A. I'm not sure whether they were together.

Q. Did you have an understanding that they worked together at

all?

A. No, I didn't know their relation.

Q. Well, what understanding --

A. I knew they knew each other.

Q. You knew that they knew each other, but other than that,

did you have any understanding as to what kind of relationship

they had or how they were connected?

A. I don't recall whether he did work for the newspapers or

her, I don't recall that.

Q. So JC told you on November 6, 2013, that Kimberly had told

him that your phones were being monitored by the feds, and then

you told JC to have Kimberly call you, is that right?

A. Yes.

Q. Why did you tell him that?


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A. Because evidently she had the information.

Q. And then JC told you that Kimberly was never wrong and then

she would call you back. Is that what happened?

A. Yes.

Q. Did you believe JC when he told you that?

A. Whether she was ever wrong, or call me back?

Q. Well, let me ask you -- back up a little bit.

You have this first paragraph where you're reporting

on this November 6, 2013 phone call that you got from JC. Did

you write this fairly soon after you had that phone call? This

first paragraph?

A. You know, I'm not sure whether I did it right away. I know

I did it very quickly, according to the errors I made on the

typewriter, which I'm pretty good at. So I don't recall when I

made this -- the documentation.

Q. It wasn't very long after November 6, 2013, correct?

A. I don't believe it was.

Q. Well, just focusing on that first paragraph that we've just

gone over, did you believe JC, did you believe what he told you

at the time that you heard that from him and wrote this note?

A. You know, the whole situation is very bizarre, but you

can't ignore any information, especially when it pertains to my

wife and myself and wiretappings. Federal government is rather

bizarre in a way, but you can't ignore it.

Q. Now, there's a line with JC's phone number, which is


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redacted. The next paragraph, or the next bit of text,

indicates that you called JC on November 12, six days later,

right?

A. Yes.

Q. So during those six days from November 6 to November 12 you

were waiting for Kimberly to call you about this supposed

wiretap, and when you didn't hear from her, you called JC back,

is that right?

A. Yes.

Q. Could you have called Kimberly back? Did you think about

doing that? Well, actually not call her back but call her,

contact her? Did you know her well enough to do that?

A. I don't know if I ever had her number. I was going through

the photographer.

Q. So you called JC. Did you reach him right when you called

him?

A. I'm not sure if he answered the phone, or a voicemail,

or -- but I did have communication with him.

Q. On November 12, 2013?

A. Yes.

Q. And then JC told you that Kimberly was afraid, and received

information that your and your wife's cell phones were tapped,

is that right?

A. Yes.

Q. All right. Did JC tell you what Kimberly was supposedly


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afraid of?

A. She mentioned something allegedly about the CIA, she had

information, and the White House credentials, and sensitive

documents.

Q. Well, just looking at your note there, you said that JC

told you that Kimberly's source was from the East Coast, is

that right?

A. Yes.

Q. Did you have any more specific information from JC about

who the source was, or where exactly on the East Coast, or

anything else?

A. No.

Q. And then JC told you that Kimberly -- well, you see the

reference to White House credentials there?

A. Yes.

Q. Okay. So as I understand it, JC told you that Kimberly's

source, who was a woman, had White House credentials, is that

right?

A. Yes.

Q. Did that have any significance to you at the time that you

heard it?

A. Just somewhat bizarre. But once again, being a federal guy

for 30 years, you get somewhat shocked by hearing this. I'm

not saying I discarded it, but still, you have to look into

this type of situation when it comes to your attention.


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Q. At any of the speeches in San Diego where you met with

either JC or Kimberly -- well, JC. Let's stick with JC.

You met JC several times in San Diego when you gave

speeches. Is that what you said?

A. Well, I may have said several; could have been two or three

times.

Q. Were any of those speeches related to the birth certificate

investigation?

A. I don't recall.

Q. Okay. Could they have?

A. Could have.

Q. Did you have a concern that someone in the White House was

connected to the tapping of your phones?

A. Once again, I mention it's bizarre, so I really -- I took

it serious, but on the other hand, just one of those things

that comes up. I didn't send out the Army or anybody to check

it out.

Q. In your next sentence you mention the CIA. Tell me

everything that JC told you about the CIA.

A. Well, as you can see, they mentioned -- he mentioned the

CIA and sensitive documents, credentials. That's what he was

telling me that she had. Or knew about.

Q. Well, I see the reference to the documents, but I want to

first focus on the CIA. You said that JC mentioned the CIA.

What did he tell you about the CIA?


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A. I don't know. Just what I typed there, picking out

documents and so on.

Q. So JC told you that Kimberly was going to pick up secret,

or sensitive documents, is that right?

A. Yes.

Q. Did he tell you what those sensitive documents were about?

A. No, no.

Q. Did you wonder what they were?

A. Yes, but he never told me.

Q. And then JC told you that Kimberly -- and I'm just going to

read your sentence there because I want to have you explain

what you meant -- was, quote, afraid to do so by crossing state

lines could be arrested, end quote.

Do you see that language?

A. Yes.

Q. What did it mean by that? What did that represent?

A. I have no idea.

Q. Well, JC told you that Kimberly was afraid. Was her fear

that he described to you connected with crossing state lines

and possibly being arrested?

A. Yes.

Q. And what was your understanding of why that would -- of why

that could happen?

A. I don't know.

Q. So you didn't send the Army after this issue, but you did


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tell JC that you would have Mike Zullo call him, is that right?

A. Yes.

Q. Why did you decide to have Mike Zullo -- well, did you ask

Mike Zullo to call him?

A. Yes.

Q. Why did you have -- why did you ask Mr. Zullo to call JC?

A. Because I believe at the time he -- we were working on a

banking situation. Also -- I'm not sure. He was tied up with

my threat squad, but he knew all the threats I was receiving

and decided to send him to look at it -- which is free, because

he wasn't being paid, member of the Posse -- and had him talk

to that person.

It wasn't something that I gave much credence to, but

he was sent down there to talk to -- I believe it was him. I'm

not sure whether another detective went there. And he came

back and didn't find much to it.

Q. What exactly did you tell Mr. Zullo when you had him call

JC?

A. I told him to see what the information was, whether it was

viable, and to talk to the photographer. I don't think he ever

located the reporter.

Q. Did you give Mr. Zullo JC's phone number, the same one that

you had called?

A. I may have.

Q. You believe that this information that you had gotten on


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Melendres v. Arpaio #1457 Oct 2 2015 TRANSCRIPT - DAY 10 Evidentiary Hearing