SUGGESTS “GOVERNMENT PROSECUTION,” BUT FOR WHAT?
by Sharon Rondeau
(Dec. 8, 2015) — In an official transcript dated November 6, 2015 responsive to a Motion for Protective Order filed by Mike Zullo, Zullo told presiding U.S. District Court Judge G. Murray Snow that “My testimony will not support the Court’s hypothesis” were he compelled to provide it.
At issue was whether or not documentation which Zullo had received resulting from his oversight of work performed by a confidential informant to the Maricopa County Sheriff’s Office (MCSO) over the course of a year had to be turned over to the court in the case of Melendres, et al v. Arpaio, et al.
The informant was Dennis Montgomery, who reportedly had contacted the MCSO in November 2013 alleging that he possessed evidence that telephone lines, email accounts, and bank account information had been breached by a government agency.
Montgomery is a former NSA and CIA contractor who was termed in a 2010 feature article in Playboy, “The Man Who Conned the Pentagon.”
Melendres is now completing its eighth year on the federal docket, with Snow presiding since July 2009. The plaintiffs claimed that Arpaio had employed racial profiling against them during traffic stops and immigration patrols, thereby violating their civil and constitutional rights. Plaintiffs are represented by attorneys from the American Civil Liberties Union (ACLU) and the firm Covington & Burling.
Over the years, Snow has largely ruled against defendants Maricopa County Sheriff Joseph M. Arpaio, four of his deputies, and Maricopa County, claiming that the immigration sweeps conducted by Arpaio violated the Fourth Amendment rights of the plaintiffs.
The costs of the lawsuit to Maricopa County taxpayers have measured in the millions and were expanded in February 2014 to include monthly invoices in the five- and six-figure range from the monitoring team Snow appointed to ensure that his orders against racial profiling by the MCSO were carried out.
As of last month, the monitor’s invoices totaled more than $4 million. On December 1, Snow approved the November 2015 invoice for payment, which is slightly over $115,000.
Zullo is not a party to Melendres but was called to testify as a witness in court, following two private depositions, about his interactions with Montgomery and whether or not Snow was “investigated” during the course of Montgomery’s work, which took place in Seattle, WA.
Early this year, after confronted with accusations that his deputies continued to carry out patrols specifically seeking illegal aliens against Snow’s orders, Sheriff Arpaio admitted to inadvertent civil contempt and offered to make restitution out of his own funds to the plaintiffs. Snow refused Arpaio’s offer and ordered civil contempt hearings which commenced in late April.
During hearings beginning on April 20, Snow unexpectedly raised questions to Arpaio and his chief deputy about Montgomery’s work fueled by a June 4, 2014 article in the Phoenix New Times titled “Joe Arpaio’s Investigating Federal Judge G. Murray Snow, DOJ, Sources Say, and Using a Seattle Scammer To Do It.”
Snow demanded to know more about the “Seattle operation” and ordered the collection of Montgomery’s work product provided to Arpaio and Zullo in an effort to discover whether or not he was a subject of an “investigation” at Arpaio’s direction.
Montgomery’s protestations in the form of a request to intervene in order to protect his work product from release were denied by Snow and remanded back to Snow on a technicality by the Ninth Circuit Court of Appeals.
Arpaio and Chief Deputy Gerard Sheridan denied in testimony that Montgomery’s work was related to any aspect of Melendres or the civil contempt charge.
During the motion hearing on November 6, Zullo told the court that he had “some serious, legitimate Fifth Amendment and due-process concerns” about testifying in the case pursuant to two subpoenas issued by the plaintiffs. In a prepared statement, Zullo recounted that Snow and the U.S. Department of Justice, to which Snow granted intervenor status in May while denying Montgomery’s request for same, had refused to grant him immunity were he to testify.
Citing “the ACLU’s threatening claims,” Zullo referenced a paragraph appearing as a footnote in an exhibit to a motion filed by the plaintiffs which strongly suggested that Montgomery and anyone associated with his MCSO project had violated federal law and could be prosecuted criminally.
During the hearing, Snow volunteered that although he would not be seeking criminal charges against Zullo, “the U.S. government may choose to prosecute you.”
Zullo further said that “The Court has invited Raphael Gomez into this courtroom, someone intimately familiar with Mr. Montgomery.” Gomez is “Senior Trial Counsel” for the U.S. Department of Justice. His name appears on a letter stemming from a civil lawsuit filed by Montgomery against New York Times columnist James Risen and his publisher over a chapter in Risen’s book which Montgomery claimed made defamatory statements relating to his former work as a CIA contractor.
According to The Post & Email’s source, Gomez attended all of the hearings in which Zullo testified.
The letter stated that as of October 16, 2015, Risen’s attorney’s request for “discovery from the [CIA], its components, and its current and former employees” was “under consideration” with several objections noted, of which paragraph #8 of the objections is redacted in its entirety.
An observer who has been documenting the daily activity in Melendres, including publishing documents, also tracks cases involving Montgomery. “Tes” reports that her significant other or spouse accepted “temporary assignment” in Shanghai, China which was renewed in May of this year.
Tes also makes reference to the Maricopa County Cold Case Posse‘s investigation, delegated by Arpaio in 2011 and led by Zullo, of the long-form birth certificate image posted on the White House website in April of that year purportedly belonging to Barack Hussein Obama. In March 2012, Zullo and Arpaio held the first of two press conferences in which they reported that the investigation found that the image, along with Obama’s Selective Service registration form, was a “computer-generated forgery.”
Tes reported that Gomez was involved in the disposition of materials taken from Montgomery’s home in 2006 in a raid which a federal magistrate and federal judge later deemed was a violation of Montgomery’s Fourth Amendment rights. Gomez was noted in a Melendres transcript dated July 20, 2015 posted by “Jack Ryan” to have appeared on behalf of the United States of America in the case.
Snow denied Zullo’s Motion for a Protective Order and for an extension of time to secure legal counsel. In his written order issued later on November 6, Snow reasoned that because Zullo had already provided the documentation from Montgomery to Arpaio’s attorneys, Zullo was not compelled to produce anything self-incriminating. “The Fifth Amendment does not apply,” Snow contended.
As promised, Zullo filed a motion pro se with the Ninth Circuit Court of Appeals requesting an emergency stay on his compulsion to testify without an attorney, a hearing for which is scheduled for February.
As Snow ordered, Zullo testified on November 10, 12 and 13 following two depositions on October 23 and November 9, respectively, during which he invoked his Fifth Amendment right not to incriminate himself.
On November 10, Zullo appeared on the stand for approximately 15 minutes at the end of the day, during which he invoked the Fifth Amendment. Following court that day, reporters outside the courthouse were eager to obtain a statement from him, to which he responded, “I’m taking the Fifth.”
On the morning of November 12, Zullo responded to questions with “taking the Fifth,” but in the afternoon decided to answer questions posed by defendants’ and plaintiffs’ attorneys. His testimony was interspersed with the playing of parts of recordings Zullo had made concerning Mongtomery’s confidential informant work.
Zullo told The Post & Email afterward that only “snippets” of conversations were made public, while a number of recordings were not played at all.
Following the conclusion of Zullo’s testimony on November 13, no member of the local media attempted to interview him about what he had said under oath, which supported Sheridan and Arpaio’s testimonies that Montgomery had not been asked to investigate Snow or a “bogus conspiracy theory” that Snow and the Department of Justice were “colluding” to effect a negative outcome in Melendres for Arpaio. The media did, however, report that Zullo “erupted under oath” on the stand, that his testimony was “dramatic,” and that he “lashed out at Arpaio’s critics” in an “unhinged” manner.
Jamie Ross of Courthouse News, who Tes recommends on her blog for further reading, reported on November 13 that “Mike Zullo, a volunteer investigator in Arpaio’s Cold Case Posse, delivered an emotional description of his involvement in an investigation of U.S. District Court Judge G. Murray Snow, who is overseeing the civil contempt hearing in which Arpaio and four of his current and former aides are accused of violating a court order in a 2007 racial profiling case.”
Zullo testified that Snow was never “investigated,” but rather, was a “victim” whose “IRS tax returns and banking information” appeared in a database assembled by Montgomery and shown to Zullo and two MCSO detectives assigned to oversee Montgomery’s work.
Portions of Zullo’s depositions were played in court attesting to the presentation of some of Montgomery’s evidence to U.S. District Court Judge Royce C. Lamberth in Washington, DC on three separate occasions.
Although an attorney representing Arpaio objected to nearly all exhibits being admitted into evidence while Zullo testified on November 12 and 13, Snow overruled the objections each time.
On November 13, Zullo testified in response to questioning from plaintiffs’ attorney Stanley Young that Montgomery had “promised” to develop software to assist in the “birth certificate” probe.
As with the birth certificate investigation, the press expressed no curiosity over the bank breaches and wiretapping of Arpaio’s and others’ phones as alleged by Montgomery, according to Zullo and others’ testimonies.
While the official transcript has not yet been made publicly available as of this writing, Tes published what appears to be an unofficial transcript, divided in three parts, in which at Plaintiffs’ Redirect on November 12, Zullo began to answer questions instead of invoking the Fifth Amendment.
Zullo testified that his own information was found in Montgomery’s database along with references to U.S. senators, federal judges and other public servants.
Toward the end of the November 12 session, plaintiffs’ attorney Stanley Young began asking about Montgomery’s alleged work on the “birth certificate.”
On behalf of Zullo on December 3, Atty. Larry Klayman filed a motion to “expedite the briefing schedule for this appeal,” writing that “the Movant-Appellant Michael Zullo is not a party to the case, but was nevertheless threatened by the Plaintiffs-Appellees and by the presiding judge, the Honorable G. Murray Snow, with criminal prosecution while being called as a deposition witness and trial witness…”
On Monday, Zullo filed a transcript request for his testimony on November 10, 12, and 13 as well as the November 6 motion hearing.
Fields Moseley, public information officer for Maricopa County, told The Post & Email that a breakdown of costs associated with the “Seattle operation” is not available.
Update, 10:57 p.m.: An official transcript of Zullo’s November 12 testimony has just been released.