“TRYING TO PAINT ME A CRIMINAL”
by Sharon Rondeau
The section begins on page 4298 and ends at page 4502, after which Court Reporter Gary Moll’s credentials and certification of the transcript are provided.
Arpaio, Maricopa County, and four of Arpaio’s deputies are defendants in Melendres, et al v. Arpaio, et al, a civil case filed eight years ago by Latino plaintiffs who claimed that they were racially-profiled during traffic stops and immigration sweeps within the county.
Civil contempt charges arose early this year after Arpaio and his chief deputy admitted to having failed to carry out U.S. District Court Judge G. Murray Snow’s order to cease the immigration patrols which specifically sought to identify illegal aliens. Arpaio offered to pay the plaintiffs $100,000 out of his personal funds as a remedy, but Snow refused and commenced a bench trial in April.
On November 12, Snow declared himself the “finder-of-fact” in the case and will be deciding whether or not to refer the defendants for criminal prosecution by the Arizona U.S. attorney.
Through a reported leak in the Maricopa County Sheriff’s Office (MCSO), the Phoenix New Times (PNT), which opposes Arpaio’s policies and believes he is a criminal, reported on June 4, 2014 that Arpaio was attempting to prove a “conspiracy” between Snow, the U.S. Department of Justice, and possibly other parties designed to produce a negative outcome for Arpaio in Melendres. Further, the article claimed that former CIA contractor Dennis Montgomery, described by writer Stephen Lemons as a “Seattle scammer,” was seeking to prove the theory by combing through multiple hard drives for personal information on Snow.
During Arpaio’s testimony on April 23, Snow held up a copy of Lemons’ article and asked if the MCSO were investigating him, to which Arpaio responded that Montgomery had claimed that bank and email accounts of Maricopa County residents, some of whom held positions in public service and included Snow, had been breached.
One of the lead attorneys for the plaintiffs, the ACLU’s Cecillia Wang, is Lemons’ main source of information and documents in Melendres.
On April 24, Chief Deputy Jerry Sheridan testified that Snow was never the object of investigation, but that “Sheriff Arpaio and I were concerned about the CIA tapping our phones.”
Snow’s impartiality was questioned after negative comments he allegedly made about Arpaio in 2011 became public during Arpaio and Sheridan’s April testimony. The comments were reportedly relayed by Snow’s wife to a restaurant patron and indicated that he opposed Arpaio politically and wished to see him defeated in the 2012 election.
The media erroneously reported that Arpaio had launched an investigation into Snow’s wife when in fact, his attorney had hired a private investigator to determine the credibility of the source reporting the comments, who was a constituent.
In November 2012, Arpaio was re-elected to a sixth consecutive term as Maricopa County sheriff and is seeking a seventh next year.
Neither Snow nor his wife was placed under oath to determine if Snow made the comments, although Snow did not deny making them. In early May, Arpaio’s attorneys filed a motion for recusal which Snow denied.
Snow additionally ordered the collection of all data produced by Montgomery for the MCSO, including hard drives, emails, phone recordings and documents. During Zullo’s testimony on November 12, several audio-recordings were played, although not in their entirety; a number of them were not played at all.
Zullo was subpoenaed to testify as a “key witness” after having served as an uncompensated supervisor of Montgomery’s work for the MCSO for approximately a year. During a November 6, 2015 court conference, Zullo told Snow that “My testimony will not support the Court’s hypothesis” and requested more time to find an attorney, which Snow denied.
In previous motions, Zullo claimed that his Fourth, Fifth, Sixth Amendment and due process rights were at issue should he be compelled to testify without representation. During that session, Snow told Zullo, “The U.S. government may choose to prosecute you” without elaborating.
At depositions on October 23 and November 9, Zullo invoked his Fifth Amendment right not to testify given that he did not have counsel. He made the same decision on November 10 during court and again on the morning of November 12.
Beginning in September 2011, Zullo has served as lead investigator of the Maricopa County Cold Case Posse in a probe of the authenticity of the long-form birth certificate image posted on the White House website in April of that year. On March 1, 2012, Zullo and Arpaio gave a joint press conference during which they announced that the posse concluded that not only was the long-form birth certificate image a “computer-generated forgery,” but also Obama’s purported Selective Service registration form.
A second press conference on July 17, 2012 reported that the standard of probable cause in the forgery of the birth certificate was surpassed. However, neither Congress nor the media investigated the findings.
Court was closed on Wednesday, November 11 for Veterans’ Day.
According to Lemons, who attended court on November 12, “After lunch, before Zullo’s testimony continued, reporters joked about how long it would take for Zullo to get to 300 times taking the Fifth. After all, he’d taken the Fifth 40 times in 15 minutes on Tuesday, right before the court broke for the Veterans Day holiday…In any case, Zullo’s afternoon testimony began, and he took the Fifth a few more times under Young’s questioning. Then, Arpaio’s attorney, John Masterson, got a crack at Zullo, and, interestingly, Zullo began answering Masterson’s questions.”
On the morning of November 12, 2015, Young asked Zullo about Montgomery’s work on the “birth certificate” project without mentioning Obama’s name (pp. 4376-4377), ultimately eliciting the response of “Oh, Dear God” from Zullo.
On the afternoon of November 12, Zullo dropped his Fifth Amendment invocation and began responding to questions from Atty. John Masterson, who represents Arpaio. Zullo then answered a plethora of questions, some of which were repetitive, from plaintiffs’ attorney Stanley Young of Covington & Burling.
The section begins on page 4393.
During his testimony, Zullo detailed the “Seattle operation” as responsive to Montgomery’s reports of government data breaches affecting residents of Maricopa County. Zullo testified that Snow’s name arose after Montgomery alleged that the personal information belonging to a number of federal judges in Arizona had been breached. Zullo said that while he was vaguely aware of the Melendres litigation, he did not know who the presiding judge was and that Montgomery then initiated an internet search, locating the name “Gordon Murray Snow.”
When Young asked him (p. 4397), “In that investigation you were hoping that Mr. Montgomery would find further verifiable information about Judge Snow, is that correct?” Zullo responded, “Hell, no.”
Zullo said that in order to verify Montgomery’s claims, the MCSO was “looking for high-profile people in Phoenix, Arizona.”
Again, on page 4399, Young asked, “So you were hoping that Mr. Montgomery would provide information about Judge Snow, is that right?” to which Zullo replied, “No, sir.”
On page 4401, Zullo told Young that Snow was “a victim” of the data-breaching, along with Arpaio’s attorney Michele Iafrate, Donald Trump, Arpaio and himself. Zullo testified that Snow’s name “was in a database from 2009.” Later, Zullo stated that Snow’s rights were violated by the government intrusion.
On page 4409, Young asked for the third time how Snow’s name came up in the course of Montgomery’s work.
Zullo accused Young of “trying to paint me a criminal.”
He testified that the substance of a flow chart provided by Montgomery to the MCSO alleging communication among various parties connected to Melendres was not investigated, which agreed with the testimony of Arpaio, Sheridan, and the four accused deputies in earlier hearings.
On page 4448, Zullo said that a “calculated deicsion” was made to enlist the representation of Atty. Larry Klayman in order to convince Montgomery to turn over the documentation he possessed to a federal judge. Having had his home raided in 2006 by the FBI, Montgomery was loathe to interact with the agency again.
In August, Montgomery was granted production immunity by the FBI under Klayman’s guidance. During his testimony, Zullo said that the Montgomery matter “was always going to the FBI.”
Young changed the subject after Zullo described how Montgomery provided to the FBI “over 600 million records under the very same scenario that he told us how he acquired them.”
On page 4462, Young asked Zullo about the last time he had spoken with Arpaio “about any potential IRS or banking information pertaining to Judge Snow.”
Over Masterson’s objections, Young entered into evidence a variety of recordings and photographs during the course of the day. Exhibit 2873B was a YouTube audio in which Zullo was speaking with “Freedom Friday” host Carl Gallups, who has been following the birth certificate investigation closely and will be giving an update on both the Melendres case and the birth certificate this evening.
Reporters had attempted to elicit information from Zullo following his invoking of the Fifth Amendment, but no one interviewed him after testimony concluded on November 13. Reporters flocked to Young to obtain his comments when court adjourned that day.
No further witnesses were called, and closing arguments were heard on November 20. As of this writing, no ruling has been issued.
While Lemons reported that Zullo “seemed to be digging himself deeper” as he testified on November 12, Snow reportedly summarized the diversion to the “Seattle operation” as a “waste of a bunch of time,” suggesting that Arpaio and Sheridan “were not forthcoming” with certain information Snow and the plaintiffs wished to obtain.
Wang has accused Arpaio and Sheridan of “lying.” In late June, Klayman filed suit against the ACLU for having failed to disclose that Montgomery had approached the organization several years ago, reportedly sharing the same information as he did with the MCSO.
Although the November 12 transcript is now available, neither Lemons nor any other Arizona media outlet appears to have disseminated it.
Prior to testifying, Zullo appealed to the Ninth Circuit Court of Appeals on a pro se basis alleging constitutional violations. Earlier this month, Klayman filed a brief on Zullo’s behalf requesting an expedited hearing, claiming that “criminal prosecution” could be imminent.