by Sharon Rondeau

Flow chart provided by former MCSO confidential informant Dennis Montgomery filed in Melendres, et al v. Arpaio, et al

(Nov. 28, 2015) — During April civil contempt hearings in the case of Melendres, et al v. Arpaio, et al, U.S. District Court Judge G. Murray Snow unexpectedly raised questions about a “bogus conspiracy theory” alleged by Stephen Lemons of the Phoenix New Times nearly ten months earlier.

Maricopa County Sheriff Joseph M. Arpaio is a defendant in the 2007 case and was providing testimony on April 23, 2015 when Snow held up a hard copy of Lemons’ June 4, 2014 article and questioned whether or not a confidential informant working for Arpaio was investigating him.  The article alleged that Arpaio was seeking proof that Snow was in communication with the U.S. Department of Justice to purportedly secure a ruling against him.  “According to my sources, Mackiewicz, Anglin, and the informant are focused on U.S. District Court Judge G. Murray Snow, the Justice Department, and a bizarre conspiracy theory that the DOJ and Snow have conspired to somehow ‘get’ Joe Arpaio,” Lemons wrote in the article to which Snow referred.

“Mackiewicz” and “Anglin” are two Maricopa County Sheriff’s Office (MCSO) detectives who were assigned to oversee the work of the confidential informant, Dennis Montgomery, along with Maricopa County Cold Case Posse member Michael Zullo.

Arpaio has taken a strong stance against illegal aliens in the county, reporting that their apprehension, processing and incarceration in his jails costs taxpayers millions each year.  In 2007, the federal Immigration and Customs Enforcement (ICE) agency entered into an agreement with Maricopa County which deputized Arpaio and his staff to conduct immigration enforcement which was rescinded in 2009.  The Phoenix New Times outspokenly opposes Arpaio’s policies and practices.

Lemons has ridiculed Arpaio’s Cold Case Posse probe into Barack Hussein Obama’s long-form birth certificate undertaken in September 2011 with Zullo as lead investigator.

On March 1, 2012, Arpaio and Zullo held the first of two press conferences in which they declared that the image, posted on the White House website on April 27, 2011, is a “computer-generated forgery.”  The same conclusion was reached regarding Obama’s purported Selective Service registration form.

Although news media provided internet coverage of the posse’s findings, none launched its own investigation, choosing instead to attack the messengers in some instances.  Then-White House Communications Director Dan Pfeiffer, who has since left government employment, said when the image was released that questions about the existence of Obama’s original birth certificate amounted to a “fake issue.”

In January, Lemons referred to the alleged “plot” Montgomery was reportedly investigating involving Snow and the Department of Justice as a “paranoid fantasy” of which Arpaio “boasted,” according to Lemons’ “very credible sources.”

Plaintiffs in Melendres are represented by Covington & Burling, where former U.S. Attorney General Eric Holder and one of his deputies, Lanny Breuer, worked prior to their time in Obama’s Justice Department and are now re-employed as “partners,” The American Civil Liberties Union (ACLU) is plaintiffs’ co-counsel.  Lemons has referred to plaintiffs’ legal representation as a “dream team.

One of the ACLU’s lead attorneys in the case, Cecillia Wang, included Lemons’ June 4, 2014 article in one of her court filings following Snow’s questioning of Arpaio and his chief deputy, Gerard Sheridan, about its claims.  Wang is Lemons’ main source of information in Melendres.

Lemons’ unnamed “longtime sources” for the article provided information contradictory to Arpaio’s and his assistants’ testimony as to whether or not they were investigating Snow or the “bogus conspiracy theory” that Snow and the DOJ were “colluding,” a word first used by Snow.

In an addendum to a motion filed on November 2, 2015, plaintiffs’ attorneys suggested that federal laws were violated by Montgomery’s work, which reportedly involved information harvested from the CIA involving citizen surveillance and the breaching of bank accounts in Maricopa County and across the country.  The footnote in the exhibit, pictured below, was submitted to the court with the yellow highlighting shown.

The entire document is available here:  file0.950170599660975

Earlier this month, Snow indicated to Zullo that “the U.S. government may choose to prosecute you” outside of the civil proceedings over which Snow is presiding.  The media has speculated that the judge will refer his findings to the district’s U.S. attorney for criminal prosecution of Arpaio and perhaps his deputies.

Arpaio testified that Montgomery was hired to produce data to support Montgomery’s claim that more than 150,000 bank accounts of Maricopa County residents had been breached by a government entity.  The local press has not demonstrated curiosity about the alleged breaches, which reportedly included Snow.  Arpaio also reported that Montgomery alleged that email accounts and some telephone lines, including his own, had been breached.

The local press has not demonstrated curiosity about the alleged breaches and data-mining.

On November 12, Jacques Billeaud of the Associated Press reported that “Zullo was called to testify at contempt hearings on Arpaio’s disobedience of Snow’s orders,” which is incorrect.  Rather, Zullo was subpoenaed to testify about his knowledge of the work Montgomery performed for the sheriff’s office and whether or not Snow was “investigated.”

Accurate or not, the AP’s reportage is widely disseminated by outlets across the country.

On November 12, Zullo testified that Snow was “a victim” but not a subject of investigation by the MCSO.

On April 24, Arizona Central misinformed by stating of Arpaio that “America’s scariest sheriff admitted that he’d hired an investigator to investigate the Department of Justice, which at the time was investigating him and his top deputies for abuse of power. And he admitted that his attorney hired an investigator to investigate the wife of the federal judge who nailed the Maricopa County Sheriff’s Office for engaging in widespread racial profiling of Latino drivers.”

The article, while editorial in nature, is not marked as “opinion.”

Although Arpaio testified on April 23 that Montgomery’s work did not focus on Snow, the mainstream media reported that “Arpaio admits to secretly investigating federal contempt judge’s family.” On April 24, Megan Cassidy of Arizona Central headlined an article with “PI hired to investigate judge’s wife.”

In 2011, Snow’s wife reportedly made disparaging comments to a fellow restaurant patron attributed to her husband which expressed his alleged desire to see Arpaio replaced as Maricopa County sheriff.  In court, Snow did not deny having made the comments but refused to recuse himself from the case.

The restaurant patron’s report to Arpaio of Snow’s wife’s comments was found to be credible by a private investigator hired by an Arpaio attorney, but Arpaio never stated that Snow’s wife was “investigated.”

The Arizona Republic characterized the investigator who probed the citizen’s report and that of Montgomery to be “fruitless but troubling.”

Also on April 23, Snow used the word “collusion” when questioning Arpaio’s chief deputy, Gerard Sheridan.  “If in fact the sheriff thought there might have been some improper collusion between me and the Department of Justice, can you blame him if he wanted to investigate that further?” Snow asked, speaking of Arpaio.

According to a law enforcement source of The Post & Email’s, an investigation of any individual is not illegal, which contradicts a statement made by plaintiffs’ attorney Stanley Young during closing arguments in the civil contempt trial on November 20.

Attorneys from the Justice Department have attended the hearings in Melendres after Snow allowed “United States of America” to intervene in the case in May.  Since 2010, the DOJ launched two civil lawsuits and a criminal probe against Arpaio, the latter of which was quietly abandoned in August 2012 for an apparent lack of a grand jury indictment.  The two civil suits were settled out of court.

Montgomery had reportedly sought production immunity from 18 different federal agencies before approaching Arpaio, which was initiated by then-billionaire businessman Tim Blixseth in 2012 as revealed on several audio-tapes played during court hearings two weeks ago.

Also in May, Snow denied Montgomery intervenor’s status in an attempt to protect his work product from disclosure.  Zullo and Arpaio were ordered to produce all documentation associated with Montgomery’s research for the sheriff’s office.

After turning over audio-tapes and other documentation to Arpaio’s attorneys, Zullo attempted to invoke privilege over 87 exhibits, which Snow also denied in addition to a motion filed by Zullo for a 30-day extension to allow him time to retain an attorney.

Ultimately, Zullo, termed a “key witness” in the “Seattle investigation” involving Montgomery, was not able to retain counsel and invoked his Fifth Amendment right through two depositions and two hearings on November 10 and 12, respectively.  However, during the afternoon session on November 12, Zullo reversed course and responded to questions from both Arpaio’s and plaintiffs’ attorneys, supporting the contention of four sheriff’s deputies and Arpaio that Snow had not been a subject of Montgomery’s investigation.  Following Zullo’s testimony, which was at times emotionally-charged, no local reporter interviewed him.  They have, however, interviewed plaintiffs’ attorneys.

According to Atty. Larry Klayman, who now represents Montgomery in a defamation lawsuit filed against New York Times writer and author James Risen and his publisher, Montgomery had approached the ACLU with the same information about data-harvesting he later revealed to Arpaio.  ACLU attorneys did not disclose in court that Montgomery had once been their client but have not denied the claim.

Consequently, Klayman filed a lawsuit against the ACLU alleging that “Montgomery sought legal assistance from the ACLU with regard to his whistleblowing of the unconstitutional and illegal acts by the NSA and CIA, much like the disclosures of Edward Snowden. Montgomery possesses information potentially more egregious than Snowden revealed. Unlike Snowden, Montgomery sought to come forward legally and before government authorities and this was the primary reason for him entering into an attorney client relationship with the ACLU and its attorneys.”

Klayman also reported that as a result of that case, the FBI granted production immunity to Montgomery.

A flow chart provided by Montgomery included in Melendres appears to show alleged communications among Snow, Holder, Breuer, Snow’s former law clerk, Covington & Burling, and former U.S. Attorney for Arizona Dennis Burke, who resigned after the Fast & Furious gunrunning program was made public in 2010.

According to a source, the plaintiffs’ attorneys chose the recordings to be played in court and made the decision to truncate them in some cases.

Zullo told The Post & Email that the recordings played in court as he was testifying were “snippets of information” from entire recordings and that some audio captures were not played at all.

Last Friday, Snow is reported to have said during closing arguments that he “believes…Arpaio was involved in his office’s investigation that erroneously tried to show the judge and federal authorities were conspiring against the lawman.”  While the November 20 date for closing arguments was widely reported, the actual hearing was not.

In June, The Post & Email raised the question as to whether or not Snow and the media had “jumped to conclusions” regarding the Montgomery investigation.

While on November 20 Snow decried the expending of “taxpayer dollars” on the exposure of Montgomery’s work for the MCSO, since May Snow has been approving monthly invoices, normally running in the six figures, for the monitoring team he appointed to oversee that the MCSO complied with his orders.  A public records request made to Maricopa County Public Information Officer Fields Moseley by The Post & Email for the amount spent in Melendres pertaining to the “Seattle investigation” has not yet yielded any documentation.

Some documents in Melendres concerning a criminal investigation remain sealed.  file0.616834808412147