Melendres v. Arpaio #1498 Oct 28 2015 TRANSCRIPT - DAY 16 Evidentiary Hearing

8/20/2019 Melendres v. Arpaio #1498 Oct 28 2015 TRANSCRIPT - DAY 16 Evidentiary Hearing

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3698

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 28, 20159:03 a.m.

REPORTER'S TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE G. MURRAY SNOW

(Evidentiary Hearing Day 16, Pages 3698-3970)

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, 10/28/15 Evidentiary Hearing 3699

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

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

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


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A P P E A R A N C E S

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

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 Division

By: Cynthia Coe, 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

For Brian Mackiewicz:Sitton Nash

By: Alexandra Mijares Nash, Esq.301 W. Warner Road, Suite 133Tempe, Arizona 85284

Also present:Sheriff Joseph M. ArpaioExecutive Chief Brian SandsLieutenant Joseph Sousa


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I N D E X

Witness: Page

BRIAN MACKIEWICZ

Direct Examination Continued by Ms. Morin 3713Cross-Examination by Mr. Popolizio 3749Redirect Examination by Ms. Morin 3784Examination by the Court 3786

STEVE BAILEY

Direct Examination Continued by Ms. Wang 3798Cross-Examination by Mr. Masterson 3915

E X H I B I T S

No. Description Admitted

1000 Memorandum from Detective Frei to Steve Bailey 3855dated 5/23/14 and attached incident report

2050 MCSO Memorandum from Deputy Cosme to Captain 3897Bailey re Video/Audio re Melendres Court Orderdated 5/21/2014 (MELC098062-MELC098110)

2051 MCSO Memorandum from Lt. Seagraves (on behalf 3898of Captain Bailey) to Chief Lopez re Video/Audiore Melendres Court Order dated 5/21/2014(MELC004088)

2068 Documents from IA 14-0564 3841(MELC160986-MELC161056)

2085 Document created to keep track of various 3720expenditures (MELC199632-33)

2104 Findings of MCSO IA 2014-0547 (MELC160761-985) 3841

2263 E-mail from Brian Mackiewicz to Larry Klayman 3741copying Michael Zullo, David Webb, and DinaJames Re: DC dated 11/7/2014 (MELC202173-75)


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E X H I B I T S


2266 E-mail from Brian Mackiewicz to Michael Zullo 3742FW: Response dated 11/14/2014 (MELC198226)

2757 Memorandum to Steve Bailey from Stephen Fax 3909Re: Documenting all personnel in HSU by yearand identifying the chain of command dated6/21/2014 (MELC010882-MELC010883)

2772 MCSO Professional Standards Bureau IA 3825# 2014-0546 dated 11/12/2014(MELC158578-MELC158624)

2775 Memorandum to Clint Doyle from Brian Mackiewicz 3887

re: Investigative Trip dated 10/25/2013(MELC187301)

2776 Memorandum to Steven Bailey from Travis Anglin 3888re: Investigative Trip dated 1/16/2014(MELC198476-MELC198477)

2799 Memorandum to S. Bailey from K. Seagraves Re: 3894Action Plan - Reference to allegation ofAnabolic Steroids purchase(s) made by DeputiesBrian Mackiewicz and James Kempher dated3/26/2015 (MELC186297-MELC186300)

2820 Revised Call Signs dated 11/22/2013 3910(MELC112957)

2860 Video Arpaio Thomas Hearing 3839

2901 E-mail from Brian Mackiewicz to Mike Re: 3734Updated Rev 3A dated 9/21/2014 (MELC202277)

2904 E-mail from Brian Mackiewicz to Jenise Moreno 3729Re: Confidential dated 1/9/2014 (MELC1386579)

2906 MCSO Memo from Travis Anglin to Brian 3723Mackiewicz re: Confidential Informant Paymentdated 8/12/2014 (MELC198465-MELC198466)


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E X H I B I T S





2910 MCSO Memo from Travis Anglin to Brian 3723

Mackiewicz re: Confidential Informant Paymentdated 6/25/2014 (MELC198457-MELC198458)



2913 MCSO Memo from Travis Anglin to Brian 3723

Mackiewicz re: Confidential Informant Paymentdated 5/16/2014 (MELC198451-MELC198452)


2915 MCSO Memo from Travis Anglin to Brian 3723Mackiewicz re: Confidential Informant Paymentdated 3/29/2014 (MELC198448)

2917 Excerpt of PX 2082 - Document 1: "Joe Arpaio 3727Brief" Timeline dated 1/1/2014

2918 Excerpt of PX 2082 - Document 2: "Arpaio 3728Brief" Schematic dated 1/1/2014

2919 Excerpt of PX 2082 - Document 3: 3732"Whisleblower Chronicles" (CIA Chronicles)


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E X H I B I T S


2920 Excerpt of PX 2082 - Document 4: "Names of 3717People Involved" dated 2/17/2014

2921 Excerpt of PX 2082 - Document 5: "Check List 3726for Elmer" (Check List for Dennis) dated3/27/2014

2922 Excerpt of PX 2082 - Document 6: "List 2" 3727Dated 3/27/2014

2923 Excerpt of PX 2082 - Document 7: "DOJ / Arpaio 3733Timeline" dated 12/4/2013

2927 MCSO Internal Affairs Division IA #13-0000, 3716Interview Confidential Informant dated12/14/2013 (MELC185036 - MELC185144)

2930 E-mail from Steve Bailey to Benjamin Armer re 3915Briefing dated 4/23/2014 (MELC677919-MELC677920)

2935 E-mail from Mike Zullo to Brian Mackiewicz re 3743Arpaio dated 12/16/2014(ZULLO_001131-ZULLO_001135)

2937 E-mail from Brian Mackiewicz to Larry Klayman 3738and Mike Zullo re Sheriff dated 11/5/2014(ZULLO_001479-ZULLO_001480)

2938 E-mail from Brian Mackiewicz to Larry Klayman 3736et al., re DC dated 11/3/2014(ZULLO_002656-ZULLO_002663)

2940 E-mail from David Webb to Mike Zullo cc Brian 3740Mackiewicz re Work dated 11/6/2014(ZULLO_003232-ZULLO_003233)

2943 Spreadsheet summarizing the status of 3802Armendariz spin-off investigations as of9/30/2015


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P R O C E E D I N G S

THE COURT: Please be seated.

THE CLERK: This is civil case 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

and Andre Segura of the ACLU for plaintiffs.

THE COURT: Good morning.

MS. MORIN: Good morning, Your Honor. Michelle Morin

and Stan Young of Covington & Burling for plaintiffs.


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

of Arizona for plaintiffs.


MR. KILLEBREW: Good morning, Your Honor. Paul

Killebrew and Cynthia Coe for the United States.


MR. POPOLIZIO: Good morning, Your Honor. Joe

Popolizio and John Masterson on behalf of Sheriff Arpaio, and

with us is Holly McGee.


MR. POPOLIZIO: Good morning.

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


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on behalf of Maricopa County.


MR. WOODS: Good morning, Your Honor. Terry Woods on

behalf of nonparties Stutz and Liddy.

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

making a special appearance for Sheriff Arpaio.

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

behalf of retired Chief Brian Sands.

MS. MIJARES NASH: And good morning, Your Honor.

Alexandra Mijares Nash specially appearing for Brian

Mackiewicz.

MS. IAFRATE: Good morning, Your Honor. Michele

Iafrate on behalf of Sheriff Arpaio and the alleged nonparty

contemnors.


Do I take it by your presence at the podium,

Mr. Walker, you have something you want to raise?

MR. WALKER: Yes, Your Honor. Very briefly, a

housekeeping matter.

We received your order yesterday approving the

monitor's most recent invoice for payment, and as I discussed

with Chief Warshaw on Friday, this invoice takes us

approximately $15,000 over the annual contract amount.

Payment will be issued up to the full contract amount

today, but we need to get the board approval for the additional


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15,000.

I've reached out to the attorney for Chief Warshaw,

and I told Chief Warshaw I was going to do this. My hope is

that we can go to the board not just with a request for

approval for the additional 15,000, but for a supplemental

amount to cover the rest of the contract year.

And I expect, assuming we have that to present, we

should be able to get the approval for at least the 15,000, if

not for an amount to cover the rest of the contract year by

next week.

THE COURT: All right. Mr. Walker, was there -- as

I've told you before, I don't have any objection if you enter

into a contract with the monitor that I've appointed, to the

extent that he doesn't have any objection.

But I don't view this as a matter of contract; it's a

matter of court order. And so I wish you would convey that to

the Maricopa County Board of Supervisors, that I am ordering

that the monitor be paid.

MR. WALKER: Your Honor, I will certainly make that

clear. The hoop that we have to jump through is by state law,

we cannot make a payment unless the board has approved the

contract amount.

THE COURT: All right.

MR. WALKER: It's just a -- sort of a technical issue

we have to deal with.


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THE COURT: I get it. And I know you're aware of the

supremacy clause and everything like that.

MR. WALKER: I am, Your Honor.

THE COURT: The only other point I would make is I

understand and appreciate both your desire and your client's

desire to be as fiscally responsible with county funds as you

can be. I share that desire, consistent with the need to

protect the constitutional rights of the members of the

plaintiff class in this case.

Towards that end, several months ago I offered you the

opportunity to monitor -- held out several opportunities for

you by which you could continue to monitor the detailed

billing, and you haven't taken me up on any of those. I would

renew that invitation, but to the extent that you don't take me

up on it, I'm not going to review what I've already approved.

I will, however, allow you to consider those options,

and I'm willing to consider them, and we can raise them with

all parties so that all the parties can consider what we come

up with, so that you can feel and your clients can feel like

they're doing their best to safeguard the county fisc.

MR. WALKER: Thank you. And I'll be sure to convey

that offer to my client.

THE COURT: All right. Thank you.

Mr. Popolizio, do you have something?

MR. POPOLIZIO: I do, Your Honor. Before we start,


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could we have a sidebar?

THE COURT: Sure.

(Bench conference on the record.)

THE COURT: We have more folks here today.

MR. POPOLIZIO: It's getting real tight in here.

THE COURT: Is this a health update?

MR. POPOLIZIO: No. I could give you one.

THE COURT: That would be good.

MR. POPOLIZIO: It isn't a good one. He's laid up,

the chief deputy, this week, and he may, I don't know, have to

have an additional procedure when he goes back on Monday, but

he'll -- he might have a procedure on Tuesday, but he doesn't

know that. It's a possibility.

THE COURT: This is another injection, maybe, on

Tuesday?

MR. POPOLIZIO: I don't -- I didn't ask --


MR. POPOLIZIO: -- what the procedure was. That's all

I know.

THE COURT: Okay.

MR. POPOLIZIO: With regard to the issue of the

sidebar that I was thinking of when I asked for it, it's with

respect to a potential exhibit that might be used with

Detective Mackiewicz right now. And I talked to Attorney Nash,

and she may have a concern that she wants to address.


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MS. MIJARES NASH: There was one exhibit, Your Honor.

It was the transcript of the telephonic interview or

conversation with Sergeant Tennyson and Detective Mackiewicz on

August 5th of 2015. We did cover that in the deposition. It

was admitted under seal during Lieutenant Seagraves' testimony

and we sealed that portion of the deposition as well.

And since that is still remaining under seal, and I

don't know that they intend to get into questions about that,

then I don't know if we need to take it under seal at that

point, or what the best course of action would be.

THE COURT: Why? Is there any reason it should remain

under seal?

MS. MIJARES NASH: I'm not aware of what the attorney

general had submitted to Your Honor and what the conversation

was between Your Honor and counsel for the parties addressing

the testimony that was under seal and is still under seal, so I

don't know that I have, necessarily, any idea what that

conversation was about.

I don't know if other counsel can address that with me

not present, but my understanding is that it was still -- and

again, without the attorney general's position or knowledge of

that, they don't know the answer to your question.

THE COURT: Any reason why that transcript should

remain under seal?

MR. POPOLIZIO: Well, it's an ongoing -- I believe


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it's an ongoing Internal Affairs criminal investigation, and

just -- just for that, Your Honor, I think it should stay.

THE COURT: But again, I mean, this is an internal

criminal investigation that the public has complete and full

knowledge of, including this witness.

MS. MIJARES NASH: The topic of, perhaps, but not

necessarily the finer details, which I think some are included

in the transcript.

THE COURT: Well, I appreciate your raising this,

but -- do you want to be heard on this, Ms. Morin?

MS. MORIN: Your Honor, I understood your order --

sorry, this is Michelle Morin.

I understood your order to have unsealed things that

had already come into the record, and also I believe there was

testimony in open court by Sergeant Tennyson about the subject

matter that we're talking about. So I think it -- I don't see

a reason that it needs to go under seal.

Also, I do intend to question Detective Mackiewicz.

I'm not sure whether the questioning will require that the

transcript actually be used as well.

THE COURT: Well, all right. We'll see when we get

there. But if you're asserting that I admitted that exhibit

under seal or that I otherwise prohibited testimony from being

taken in open court regarding that transcript, I'd appreciate

it if you'd show me, Ms. Nash, because at this point, my memory


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is not perfect, but I do not remember restricting the testimony

taken concerning that transcript to be under seal. And if that

is the case, I'm certainly not inclined to do it now.

MS. MIJARES NASH: Now, and I can certainly, while

we -- we're doing this, perhaps I probably can take a look

through it, because I do distinctly remember it being admitted

under seal during Lieutenant Seagraves' testimony.

THE COURT: Well, you can take a look, but again,

after I -- even then, I was admitting things under seal out of

caution.

MS. MIJARES NASH: Understood.

THE COURT: And since then I've unsealed lots of

things, and unless you can give me a reason why I should

unseal -- or why I should keep that under seal, I'm not

inclined to do it.

MS. MIJARES NASH: Understood.


MS. MIJARES NASH: Thank you.

THE COURT: Thank you.

(Bench conference concluded.)

THE COURT: Whenever you're ready, Ms. Morin.

MS. MORIN: Thank you, Your Honor.


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Mackiewicz - DX Morin, 10/28/15 Evidentiary Hearing 3713

BRIAN MACKIEWICZ,

recalled as a witness herein, having been previously duly

sworn, was examined and testified further as follows:

DIRECT EXAMINATION CONTINUED

BY MS. MORIN:

Q. Good morning, Detective Mackiewicz.

A. Good morning, ma'am.

Q. Sir, yesterday you testified about a time in early November

2013 when you and Mr. Zullo and Mr. Montgomery were in

Mr. Montgomery's office and searched for some version of

Judge Snow's name in the database.

Do you recall that testimony?

A. Yes, I do.

Q. So I'd like to go back to that to clarify one point.

You testified at one point that you weren't sure, I

believe, whether it was Mr. Montgomery or Mr. Zullo that

actually typed the search into Google to find out what was the

name of the judge, is that correct?

A. Yes, it is.

Q. And we played a portion of your deposition where you had

said that it was Mike Zullo's idea to do that.

Is that -- do you recall that?

A. Yes, I do.

Q. And do you stand by that testimony today that it was

actually Mike Zullo's idea to look for the name of the judge?


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A. No.

Q. You don't stand by that testimony?

A. No, I don't.

Q. Do you recall testifying several times at your deposition

that it was Mr. Zullo's idea to find out what the name of the

judge was?

A. I do.

Q. And you didn't object to that; you told me at your

deposition that you didn't object to that search, correct?

A. I did not object to that search, no.

Q. But today you're telling me that you're changing your

testimony about whose idea it was to look for the judge's name?

A. No. What I'm saying is, is that it was Mike Zullo's idea,

but Dennis Montgomery is actually the one who Googled the name.

That's what I said in my deposition, and that's what I'm

standing by.

Q. Okay. And you did say also at your deposition that you

didn't recall whether Dennis Montgomery typed into his

computer, into a Google search engine or something of that

sort, versus Mike Zullo typing on his phone into a Google

search engine.

Do you recall that at your deposition?

A. Yes, I do. I originally thought that it was Mike. After I

further thought about it, it was actually Dennis Montgomery.

Q. Okay. Fair enough. Thank you, sir.


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A. Thank you.

Q. And then we had moved yesterday into December 2013, so I'd

like to continue that now, if you would.

A. No problem.

Q. If you could take a look, please, at Exhibit 2927.

A. Yes, ma'am.

Q. And this is the transcript of your December 11th, 2013

interview with Mr. Montgomery, correct?

A. Yes, it is.

Q. This is a transcript of the meeting that we've referred to

as the free talk, correct?

A. Correct.

Q. And you brought Mr. Montgomery from Seattle to Phoenix for

that meeting, correct?

A. Yes, I did.

Q. You drove down to Phoenix with him?

A. Yes, we did.

Q. And you kept this transcript in your files in the ordinary

course of your work on the Seattle investigation, right?

A. Yes, I did.

MS. MORIN: Your Honor, we move for the admission of

Exhibit 2927.

MR. POPOLIZIO: Objection, hearsay, foundation.

MS. MORIN: Your Honor, this is not offered for the

truth of -- truth of anything that Mr. Montgomery said, but


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just to show what he said.

THE COURT: All right. I'll admit it on that basis.

(Exhibit No. 2927 is admitted into evidence.)


BY MS. MORIN:

Q. Turn to Exhibit 2920, please, sir. And behind the cover

sheet that says document number 4, names of people involved, do

you recognize this is a document that you created?

A. Sorry, wait one second. I have to catch up here.

Q. Oh, I apologize.

A. Yes, it is.

Q. And you created this document after that free talk with the

Attorney General's Office, correct?

A. Yes, I did.

Q. And it's your list of the names that were brought up during

your first interview with Dennis Montgomery, as well as during

the free talk with the Attorney General's Office, correct?

A. Yes, it is.

Q. You created this document in the ordinary course of your

work on the investigation, correct?

A. Yes, I did.


Exhibit 2920.

MR. POPOLIZIO: No objection.

MR. WALKER: No objection.


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THE COURT: Exhibit 2920 is admitted.


THE WITNESS: Ma'am, I'd like to add one thing. Some

of the names were also derived from some of the e-mails of

information Dennis Montgomery gave us. So some of the names on

this list were actually names within the e-mails he provided

that came from multiple sources.

MS. MORIN: Fair enough. Thank you for that

clarification.

THE WITNESS: Thank you.

BY MS. MORIN:

Q. And if you turn to the second page of your list, Judge

Murray Snow appeared on that second page.

You see that?

A. Yes, I do.

Q. And you put Judge Snow's name on this list because Dennis

Montgomery mentioned Judge Snow's name frequently, is that

correct?

A. Yes, he did.

Q. Now, during the time you were in Seattle in late 2013, you

communicated with Chief Deputy Sheridan regularly, correct?

A. Yes, I did.

Q. Approximately once a week?

A. It was probably a little bit more than that, but yeah, at

least once a week.


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Q. And you communicated with Sheriff Arpaio as well, correct?

A. Yes, I did.

Q. About twice a month with Sheriff Arpaio?

A. I communicated with Sheriff Arpaio less than I did with

Chief Sheridan.

Q. Was it --

A. I couldn't -- I couldn't put a figure on it. It was less

than Chief Deputy Sheridan.

Q. So less than once a week?

A. Yes.

Q. And do you recall testifying at your deposition that you

probably talked with Sheriff Arpaio about twice a month?

A. That would probably be about accurate.

Q. Okay. And you continued to talk with and keep Chief Deputy

Sheridan updated in 2014 as well, correct?

A. Yes, I did.

Q. Same with Sheriff Arpaio?

A. Not so much Sheriff Arpaio. I mostly talked to

Chief Deputy Sheridan until about middle of February, and

then -- or, I'm sorry, before the second week of January, and

then everything went through Travis Anglin.

Q. And you kept Sergeant Anglin updated as well, correct?

A. Yes, I did.

Q. And in late 2013 or early 2014, you participated in a

meeting about the Seattle investigation by speakerphone with


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several people in Phoenix, correct?

A. Yes, I did.

Q. And that meeting was called to discuss the information that

Dennis Montgomery was providing you in that investigation,

right?

A. Yes, it was.

Q. Mike Zullo was on the call as well?

A. Yes, he was.

Q. Was the sheriff on the line?

A. I can't be certain who was on the line; I was actually in

Seattle at the time. And I knew that there was a bunch of

people on the phone in Phoenix. I couldn't tell you exactly

who was on the phone or who wasn't on the phone.

Q. Could you tell us if Chief Deputy Sheridan was online?

A. I believe he was, but I can't say for certain.

Q. And Mr. Montgomery did not participate, correct?

A. No, he did not.

Q. And you gave your update about what was going on in Seattle

and about Mr. Montgomery's information, correct?

A. Yes, ma'am.

Q. Turn to Exhibit 2085, please, sir.

Do you recognize this as a document that you created?

A. Yes, I do.

Q. And you wrote this to try to keep an accounting of how much

money you were spending, or the Sheriff's Office was spending


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on Mr. Montgomery, correct?

A. Yes, I do.

Q. And you created this in the ordinary course of your work on

the investigation?

A. Yes, I did.

Q. You had firsthand knowledge of the payments that you

recorded here, correct?

A. Yes, I did.

Q. And these payments that are listed in Exhibit 2085 all

occurred, correct?

A. Yes, they did.


Exhibit 2085.

MR. POPOLIZIO: Objection, Your Honor, relevance, 403.

MR. WALKER: Join.

THE COURT: Overruled. Exhibit 205 is admitted.

Is it 2085?

MS. MORIN: Correct, 2085. Thank you, Your Honor.


BY MS. MORIN:

Q. And on the first page of the --

MS. MORIN: Your Honor, could this be published?

THE COURT: Yes, it may.

MS. MORIN: Thank you.

BY MS. MORIN:


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Q. So on the first page of the list of expenditures, do you

see where it says December 6th, 2014, $2100 for video

processing card?

A. Yes, I do.

Q. Sir, should that be December 6, 2013? Is that a typo?

A. Yes, it is. I'm sorry about that.

Q. Thank you, sir.

And that $2100 was spent on a video processing card

for Mr. Montgomery's computer, correct?

A. Yes, it was.

Q. And that came from Posse funds, correct?

A. Yes, it did.

Q. And on the second page you listed a total of approximately

$6700 in equipment at the bottom of the page.

Do you see that?

A. Yes, I do.

Q. That's also equipment for Mr. Montgomery?

A. Yes, it is.

Q. And this equipment represents a portion of -- or at least

some of this equipment, it represents a portion of the cost of

the 50 hard drives that were purchased for Mr. Montgomery, is

that correct?

A. I can't tell you exactly how many hard drives were bought,

but several hard drives were bought in the course of the

investigation.


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Q. And this is a part of that money, correct?

A. Correct.

Q. Thank you, sir.

And Mr. Montgomery was paid as a confidential

informant by the Sheriff's Office about twice a month, correct?

A. Thereabout.

Q. And that continued through September-October of 2014, is

that right?

A. I believe end of September was the last payment.

Q. Sir, if you could look at Exhibit 2906, please. And you

might want to pull out also 2907 through 29015. We'll be

looking at some of those.

THE COURT: Was that 2906?

MS. MORIN: Yes, Your Honor, I apologize. 2906 is the

one that we will look at for the time being.

THE WITNESS: I have 2906.

BY MS. MORIN:

Q. And, sir, do you recognize this as one of the Maricopa

County Sheriff's Office memoranda that you wrote relating to

and recording a confidential informant payment to

Mr. Montgomery?

A. Yes, I do.

Q. And along with the first page memo, there's also a copy of

a handwritten receipt. And you wrote that receipt, right?

A. Yes, I did.


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Q. You signed it?

A. Yes, I did.

Q. And there's a -- is there a witness signature as well?

A. Yes, ma'am.

Q. Is that Mr. Zullo's signature?

A. I believe so.

Q. Okay. And I mentioned 2907 through 2915. If you could

take a look at those, please, sir, and just confirm that those

are also copies of spending memoranda that you wrote, similar

to 2906.

A. Yes.

I'd just like to add on 2915 there is no handwritten

receipt, and there would have had to have been a handwritten

receipt attached with that. I don't know where that went, but

there would have had to been one produced to turn in the memo

in the first place.

Q. Okay. Thank you, sir.

A. You're welcome.


Exhibit 2906 through 2915.

MR. POPOLIZIO: Objection, relevance, 403.

MR. WALKER: Join.

THE COURT: Overruled. Exhibit 2906 through 2915 are

admitted.

(Exhibits Nos. 2906 - 2915 are admitted in evidence.)


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Sir, you can put those aside.

THE WITNESS: Thank you.

BY MS. MORIN:

Q. If you could turn, please, to Exhibit 2921.

A. Yes, ma'am.

Q. And behind the cover sheet that says document number 5,

quote, checklist for Elmer, checklist for Dennis, do you see

that cover sheet?

A. Yes, I do.

Q. And "Elmer," it refers to Dennis Montgomery, correct?

A. Yes, it does.

Q. And do you recognize the document behind the cover sheet as

a document that you saw during the Seattle investigation?

A. Yes, I do.

Q. And this document was created by Mr. Zullo, correct?

A. Mike Zullo, correct.


Exhibit 2921.

MR. POPOLIZIO: Objection, foundation.

THE COURT: You want to lay some more foundation?

BY MS. MORIN:

Q. Did you receive this document from Mr. Zullo?

A. I don't remember actually receiving it. I recognize -- I

recognize the document. I know Mike Zullo authored it. I


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don't know anything more than that.

Q. But you had it in your files, correct, to produce to the

monitors in this case?

A. Everything reference the Seattle case was in the files.

Q. And that was then produced to the monitors in this case

from your files, correct?

A. I gave all the information to Chief Knight, and I'm not

really too sure what he did with those.

Q. And you're familiar with the contents of the checklist,

correct?

A. Some of the items.

Q. But generally what they are?

A. Yes.

Q. And this is a list of items that in this case Mr. Zullo

created, because they're items that Mr. Montgomery was

promising to provide, correct?


THE COURT: If you know, you may answer the question.

THE WITNESS: I'm sorry, can you repeat the question?

BY MS. MORIN:

Q. So to your knowledge, this is a list reflecting items that

Dennis Montgomery was promising to provide, and that in this

case Mr. Zullo was keeping track of, correct?


THE COURT: Overruled.


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THE WITNESS: Some of the items on this list are

things that Dennis Montgomery had mentioned. That's all I can

testify to; I can't tell you any more than that.

MS. MORIN: Fair enough. Thank you, sir.

Your Honor, we move for the admission of 2921.


THE COURT: I'll allow it.



BY MS. MORIN:

Q. Sir, you can turn to 2922, please.

And do you see there behind the cover sheet that says

document number 6, quote, list 2, a document that you authored?

A. Yes.

Q. And this is your checklist that you created in relation to

items that Mr. Montgomery was promising to provide, correct?

A. Yes, ma'am.

Q. Items that you wanted to potentially follow up with with

Mr. Montgomery, correct?

A. I believe these were the things that were mentioned in the

free talk agreement that he had to provide to us so we could

turn it over to the AG's office to satisfy the free talk

agreement that was on December 6th of 2013.

Q. And Mr. Montgomery never produced any of those items,

correct?


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A. No.


Exhibit 2922.

MR. POPOLIZIO: No objection, Your Honor.

MR. WALKER: No objection.

THE COURT: Exhibit 2922 is admitted.


BY MS. MORIN:

Q. Now, Mr. Montgomery did produce a number of documents in

the course of the investigation, correct?

A. Yes, he did.

Q. If you could turn to Exhibit 2917, please.

A. Yes, ma'am.

Q. And this is one of the documents provided to you by


A. Yes, it was.


2917.



MR. POPOLIZIO: Hearsay.

MS. MORIN: Your Honor, it's not offered for the truth

of the matters.




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BY MS. MORIN:

Q. And you discussed this document with Chief Deputy Sheridan,

correct?

A. Yes, I did.

Q. You can turn to Exhibit 2918, please.

A. Yes, ma'am.

Q. This is another document that came from Mr. Montgomery,

correct?

A. Yes, it is.

Q. And to your knowledge, Chief Deputy Sheridan and Sheriff

Arpaio were also aware of this document, right?

A. Yes, they were.

Q. You discussed this document with them, correct?

A. Yes, I did.

Q. Late 2013 or early 2014?

A. Around that time frame, correct.


2918.

MR. POPOLIZIO: Objection, foundation, 403,

cumulative.




BY MS. MORIN:

Q. You can put that aside, sir.


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If you could turn to Exhibit 2904, please.

A. Yes, ma'am.

Q. Do you see this is an e-mail from yourself to Jenise Moreno

dated January 9th, 2014?

A. Yes, I do.

Q. Did you send this e-mail?

A. Yes, I did.

Q. And you kept this e-mail in your files as part of your work

on the investigation?

A. I must have.

MS. MORIN: Your Honor, I move for the admission of

Exhibit 2904.

MR. POPOLIZIO: Objection, relevance.



BY MS. MORIN:

Q. And do you see in the attachments that are listed on

Exhibit 2904 it says there were two attachments there?

A. I see that, correct.

Q. The first one is entitled JoeWeb.rev.1.5.a.pdf?

A. Yes, I do.

Q. And the second one is JoeArpaio.rev1.5a.pdf.

Do you see that?

A. Yes, I do.

Q. If you could turn back to Exhibit 2918, please.


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Which is in evidence, so I'll ask that it be

published.

THE COURT: It may be published.


THE WITNESS: Yes, ma'am.

BY MS. MORIN:

Q. And do you see at the bottom of the page it has a diagram

on it entitled "Arpaio Brief." There is a line that says "This

Page is Still Under Construction rev(1.5a)"?

A. Yes, I do.

Q. Is this, to your recollection, the attachment that you --

one of the attachments to Exhibit 2904 that you e-mailed?

A. Yes, ma'am.

Q. Okay. And you can turn back to Exhibit 2904.

Do you see that it says to Ms. Moreno: "Can you

please print these in color. Please make sure NO ONE else sees

the information contained in them. Thanks."

A. Yes, I do.

Q. Sir, you didn't want everyone to know about this

investigation, right?

A. It was an investigation. We typically don't like people to

know about investigations.

Q. So you made sure to tell Ms. Moreno to make sure no one

else sees the attachment that you had -- you had e-mailed to

her, correct?


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A. Correct.

Q. And you're aware of who Ms. Moreno is, correct?

A. Secretary up on the fifth floor. I don't know exactly who

she works for.

Q. She's Chief MacIntyre's secretary, correct?

A. Could be.

Q. Sir, if you could turn, please, to Exhibit 2919.

MS. MORIN: Your Honor, I apologize. There is an

arrow on the monitor. I'd like to ask if that --

THE COURT: Have you been told how you can get rid of

that yourself?

MS. MORIN: I do not know how to get rid of that. I

apologize.

THE COURT: If you touch the monitor, the screen over

here, you can get rid of any --

THE CLERK: It's this one over here; that one doesn't

have one.

MR. MASTERSON: Hit the arrow part itself.

THE CLERK: There's an area that says "clear," so

touch the monitor in that area.

MS. MORIN: It's okay. It does not appear to be

working.

THE CLERK: I'll just clear it up here.

MS. MORIN: I apologize.

Thank you.


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THE CLERK: You're welcome.

BY MS. MORIN:

Q. Sir, are we looking at -- are you looking at Exhibit 2919?

A. Yes, I am.

Q. Thank you.

So behind the cover sheet of Exhibit 2919 that says

"Document #3, 'Whistleblower Chronicles' (CIA Chronicles)" --

A. Yes, ma'am.

Q. -- do you see a document that was also provided to you by

Mr. Montgomery?

A. Yes, ma'am.

Q. And you kept this document in your Seattle investigation

files as well, correct?

A. Yes, I did.


Exhibit 2919.

MR. POPOLIZIO: Relevance, foundation, 403.



BY MS. MORIN:

Q. And to your knowledge, Mr. Montgomery actually revised the

document in Exhibit 2919 several times, correct?

A. He could have.

Q. Well, that's a practice you actually observed him to follow

with a lot of his documents, right?


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A. Yes.

Q. And you've seen other versions of a document that looks

like this Whistleblower Chronicles document, correct?

A. I'm sorry?

Q. You've seen other versions of a document that resembles the

Whistleblower Chronicles from Mr. Montgomery, correct?

A. I could, correct.

Q. Okay. Let's turn to Exhibit 2923, please.

A. Yes, ma'am.

Q. So do you see behind the cover sheet that says

"Document #7, 'DOJ/Arpaio Timeline,'" another document that was

provided by Mr. Montgomery?

A. Yes, it was.

Q. And this is another document you kept in your files for the

Seattle investigation, correct?

A. Yes, ma'am.


Exhibit 2923.

MR. POPOLIZIO: Objection, relevance, foundation, 403.




MS. MORIN: Sir, you can put that aside.

BY MS. MORIN:

Q. Turn, please, to Exhibit 2901.


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Sir, this is an e-mail you sent to Mike Zullo on

September 21st, 2014, is that correct?

A. Yes, it is.

Q. And it says: "Can you please make sure all the --" I'm

sorry. I'm going to withdraw that.

And you see that there is an e-mail that you forwarded

in the body of your message that's from David Webb, which is


A. Yes, I do.


Exhibit 2901.

MR. POPOLIZIO: Relevance, Your Honor.



MS. MORIN: Your Honor, if that could be -- could that

be published, please?

THE COURT: It may.


BY MS. MORIN:

Q. Do you see that you wrote to Mr. Zullo: "Can you please

make sure all the info on this timelike --"

Is that supposed to be "timeline"?

A. Timeline, I'm sorry.

Q. Okay. "Can you please make sure all the info on this

timeline is true and accurate to Elmer knowledge."


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Do you see that?

A. Yes, I do.

Q. And you were talking about the time line that Dennis

Montgomery -- or a time line that Dennis Montgomery had

provided, correct?

A. Yes, I am.

Q. So moving now to September 2014, around the time of this

e-mail, by this time Mr. Montgomery had still not provided what

he was promising to provide, correct?

A. Correct.

Q. You couldn't corroborate what he had been telling you?

A. I could not.

Q. So by September 2014, you were at the point where you

wanted to be done with the Montgomery investigation, correct?

A. Yes, ma'am.

Q. But you had not written a final report on that

investigation at that time, right?

A. I did not.

Q. And to your knowledge, Mr. Zullo continued to stay in touch

with Mr. Montgomery after September 2014, correct?

A. Yes, he did.

Q. I'd like to move ahead a bit to November 2014. If you

could turn to Exhibit 2938, please.

A. Yes, ma'am.

Q. You see that this is an e-mail that you sent to Larry


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Klayman, cc'ing Michael Zullo, Dennis Montgomery using his

David Webb e-mail address, Dina James, as well as e-mail chains

that follow the first e-mail, those e-mail chains coming from

Larry Klayman and Dennis Montgomery?

A. Yes, I do.

Q. And in the e-mail that you wrote to Mr. Klayman, you

expressed your unhappiness with Mr. Montgomery's failure to

complete his work, correct?

A. Yes, I do.


Exhibit 2938.

MR. POPOLIZIO: Objection, relevance, foundation, 805.



BY MS. MORIN:

Q. So in November you went into some detail in your e-mail to

Mr. Klayman about everything that -- or about things that the

Sheriff's Office had done for Mr. Montgomery, correct?

A. Yes, we did.

Q. Paid him a lot of money?

A. Yes.

Q. Opened the door to a federal judge?

A. There was a federal judge, correct.

Q. That's because you believed Mr. Montgomery's story, right?

A. I believed parts of Dennis Montgomery's story.


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Q. Okay. And if you look at the November 3rd, 10:25 e-mail --

sorry. The November 3rd, 8:16 a.m. e-mail from yourself to

"Gentlemen" that begins in the middle of the first page.

Do you see that?

A. Yes, I do.

Q. And in the third paragraph of that e-mail it begins: "From

day one."

Do you see that paragraph?

A. Yes, I do.

Q. And do you see where you say: "... we opened the door to a

Federal Judge to give you as much protection as possible. Mike

and I went to the Administration several times and asked for

extensions to continue this investigation because we believed

your 'STORY' and the information you provided."

Do you see that?

A. Yes, I do.

Q. You wrote those words, right?

A. Yes, I did.

Q. You can put that aside. Thank you.

Can you turn to Exhibit 2937, please.

A. Yes, ma'am.

Q. Do you see this is another e-mail that you wrote to

Mr. Klayman, this one you also sent to Mike Zullo, on November

5th, 2014?

A. Yes, it is.


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Q. And you forwarded an e-mail that you sent only to

Mr. Klayman below that, as well an e-mail from Mr. Klayman.

Do you see that?

A. Correct.

Q. And looking at the bottom of the first page going onto the

second page, that's another e-mail that you sent to Larry

Klayman, correct?

A. Yes, it is.


Exhibit 2937.

MR. POPOLIZIO: Objection, relevance, foundation,

hearsay, 805.




BY MS. MORIN:

Q. So looking at the e-mail that you sent on -- starting on

the bottom of the first page and primarily on the second page,

do you see that you refer to Mr. Klayman's having called

Sheriff Arpaio about the work with Mr. Montgomery?

A. Yes, I do.

Q. And you also informed Mr. Klayman that Mike Zullo was not

happy with the way Mr. Klayman threatened him, threatened Mike

Zullo, is that correct?

A. Yes.


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Q. And at the bottom of that e-mail you say that, "Oh bye the

way the Sheriff wants an update on Wednesday at 1600 hours."

Do you see that?

A. Correct.

Q. So in November of 2014 you were conferring with the sheriff

about the work Mr. Montgomery was doing, is that correct?

A. There was times that I conferred with the sheriff, correct.

Q. Thank you. You can put that aside.

If you could turn to Exhibit 2940, please.

A. Yes, ma'am.

Q. And do you see this is also an e-mail -- or this is an

e-mail dated November 6, 2014, this one from Mr. Montgomery to

Mike Zullo, copying yourself?

A. Yes, ma'am.

Q. Do you recognize this document as an e-mail that you

received?

A. Yes.


Exhibit 2940.

MR. POPOLIZIO: Objection, foundation, relevance, 403,

805.

THE COURT: Overruled. I'll let you reserve any 805

objections you want to make if they come up.

Can you identify them now?

MR. POPOLIZIO: I believe there's -- we have e-mails


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here from Dennis Montgomery coming in, so that's -- this would

be hearsay within hearsay, Your Honor.

THE COURT: Well, Dennis Montgomery was a confidential

informant for the MCSO, correct?

MR. POPOLIZIO: But it is still hearsay.

THE COURT: Is it being offered -- are those

statements being offered for the truth of the matter asserted,

Ms. Morin?

MS. MORIN: The statements by Mr. Montgomery are not

offered for the truth.




BY MS. MORIN:

Q. You know, let's move on. Can you put that aside, please,

and turn to Exhibit 2263.

A. That's 2263?

Q. Yes, sir.

A. Yes, ma'am.

Q. And do you see that this is an e-mail that you sent to

Mr. Klayman on November 7th, 2014, also copying Mike Zullo,

Dennis Montgomery, Dina James?

A. Yes, ma'am.

Q. And in this e-mail you again expressed to Mr. Klayman your

dissatisfaction with Mr. Montgomery's failure to provide what


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he promised, correct?

A. Correct.


Exhibit 2263.

MR. POPOLIZIO: Objection, relevance, hearsay.



BY MS. MORIN:

Q. And do you see, sir, that you refer to the 50 hard drives

Dennis Montgomery provided to the Montgomery -- or to the

Maricopa County Sheriff's Office at the beginning of your

e-mail?

A. Yes, I do.

Q. Moving forward, if you could turn to Exhibit 2266, please.

A. I'm sorry. Can you repeat that?

Q. Could you turn to Exhibit 2266, please.

A. Yes, ma'am.

Q. And this is an e-mail that you sent to Mr. Zullo on

November 14th, 2014, correct?

A. Yes, it is.

Q. And you wrote that --

MS. MORIN: Well, Your Honor, I move for the admission

of Exhibit 2266.

MR. POPOLIZIO: One moment, Your Honor.

Objection, relevance, hearsay.


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If this could be published, please.

THE COURT: It may be.


BY MS. MORIN:

Q. Detective Mackiewicz, you wrote to Mr. Zullo on November

14th, 2014: "This is going to burn Klayman and Elmer's house

down to the ground."

Do you see that?

A. Yes, I do.

Q. And you forwarded an e-mail along with that message, and

the e-mail was from Thomas Drake referring to a summary

provided by Thomas Drake and Kirk Wiebe, correct?

A. Yes.

Q. And that summary was a document that, according to Thomas

Drake, found that Mr. Montgomery is a complete and total fraud,

correct?

A. Correct.

Q. And when you wrote "This is going to burn Klayman and

Elmer's house down to the ground," you meant that that report

destroyed any credibility of Montgomery and Klayman regarding

the investigation, right?

A. Yes, ma'am.


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Q. Proved that that investigation was not going to be

fruitful, correct?

A. Correct.

Q. And had not been fruitful, in fact, correct?

A. Correct.

Q. If we could move forward to December 2014 at this point.

If you could please turn to Exhibit 2935.

A. Yes, ma'am.

Q. Do you see that this is an e-mail from Mr. Zullo to

yourself, dated December 16th, 2014, with the subject line,

"Forward Arpaio"?

A. Yes, ma'am.

Q. And this is an e-mail you did receive from Mr. Zullo,

correct?

A. Yes, ma'am.

Q. And among the e-mails that he forwards are an e-mail chain

from Dennis Montgomery, correct, using the David Webb e-mail

address?

A. Yes, it is.

MS. MORIN: Your Honor, I move for the admission of

Exhibit 2935.




BY MS. MORIN:


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Q. And in the top e-mail from Mr. Zullo to Mr. Montgomery, the

subject line is "Arpaio."

Do you see that?

A. Yes, ma'am.

MS. MORIN: Actually, could this be published, Your

Honor?

THE COURT: It may be.


BY MS. MORIN:

Q. Do you see in your -- or in Mr. Zullo's e-mail in the

second paragraph he refers to "the phony information you handed

MCSO about Snow."

Do you see that?

A. Yes, ma'am.

Q. He's speaking to Mr. Montgomery there, or writing an e-mail

to Mr. Montgomery?

A. Yes, he is.

Q. And that reference is to Judge Snow, correct?

A. I would imagine.

Q. You can put that aside. Thank you.

Sir, I'm going to shift gears to another line of

questioning for you at this moment. You're aware that Mary Ann

McKessy has made certain allegations against you, allegations

that gave rise to an MCSO investigation, correct?



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THE WITNESS: You know what, ma'am? I was read a

notice of investigation I received ordering me not to discuss

anything about the investigation. I've been informed that

failure to comply with this order will result in disciplinary

action. Therefore, at the instruction of my counsel, I

respectfully decline to answer any question.

MS. MORIN: Your Honor, I'd ask for an order that

Mr. -- or, sorry, that Detective Mackiewicz answer the

question, which I believe in this case was just a yes or no

question.

THE COURT: Ms. Nash, on what authority do you say

binds this Court from entering such an order?

MS. MIJARES NASH: Your Honor, I would --

THE COURT: You need to get a microphone.

Not that one. Thank you.

MS. MIJARES NASH: Your Honor, the policy of the

Sheriff's Office, specifically GH-2, does require anybody who

is under a notice of investigation not to discuss the subject

of that investigation or anything about the investigation, with

limited exception. And any violation of that order would

subject any subject, including Detective Mackiewicz, to any

kind of disciplinary action, including termination.


Detective Mackiewicz, I'm going to direct you to


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answer the question. And if the Sheriff's Office attempts to

discipline you because you've answered the question, you may

raise the matter with the Court.

THE WITNESS: Okay.

BY MS. MORIN:

Q. So the question that I asked was: You're aware that

Mary Ann McKessy has made certain allegations against you,

giving rise to an investigation?

A. Yes, I do.

Q. And at some point Sheriff Arpaio wanted to find out whether

Mary Ann McKessy was, quote-unquote, the snitch, is that right?

MR. POPOLIZIO: Objection, foundation, relevance.

THE COURT: Do you want to lay some foundation?

MS. MORIN: Sure.

BY MS. MORIN:

Q. Sir, you had an interview, or -- you're aware that there

was a telephone interview between yourself and Detective

Tennyson on August 5th, 2015, right?

A. Yes, I do.

Q. And you're familiar with the fact that there's a transcript

of that interview?

A. Yes, I do.

Q. And you've seen that transcript, right?

A. Yes, I have.

Q. And do you recall telling Mr. Tennyson about a comment that


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Sheriff Arpaio made regarding finding out who the snitch was?

A. Yes, I do.

Q. So did Sheriff Arpaio, in fact, want to find out who was

the snitch, and whether Mary Ann McKessy was the snitch?


THE COURT: I think you're going to have to lay

foundation as to how he knows that.

MS. MORIN: Sure, Your Honor.

BY MS. MORIN:

Q. Those were words that you told -- you relayed -- or that

was information that you relayed to Sergeant Tennyson, correct?

A. I can't tell you what the sheriff did want or didn't want;

I wasn't privy to that conversation in the first place.

Q. Right. But returning to your August -- August 5th, 2015

telephone call with Detective Tennyson, you did relay to

Detective Tennyson that the sheriff wanted to find out who the

snitch was, right? That's something you said?

A. Yes, ma'am.

Q. And you had a basis for saying that, right?

A. I don't understand your question.

Q. You had a basis for making that comment to Detective

Tennyson when you were speaking with Detective Tennyson, right?

A. Yes, ma'am.

Q. What was your basis?

A. The Sheriff's Office wondered who was leaking information


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to the media. That's what our -- that's -- that's what our

concern was. There was information being produced in the media

that shouldn't have been produced in the media because it was

affecting our investigation.

The whole reason why you keep a criminal investigation

secret is so it won't affect the criminal investigation in the

long run. That's exactly what was happening.

Q. And when you say information was leaking to the media, you

were -- you are referring to information relating to the

Seattle investigation involving Mr. Montgomery, right?

A. Just in general.

Q. What do you mean, "just in general"?

A. Just --

Q. Withdraw that.

When you said to Detective Tennyson the sheriff wanted

to find out who the snitch was, you were referring to who a

snitch was with respect to leaking information about the

Seattle investigation to the pre