Excerpts from (former Arpaio/MCSO counsel) Timothy Casey's Sept. 29, 2015 Testimony during the Melendres Contempt Evidentiary Hearings (Transcript) regarding Dennis Montgomery and the MCSO's Seattle Operation, with selected notes.*
DIRECT EXAMINATION
PLAINTIFFS’ ATTORNEY CECILLIA WANG
[1718] * * *
Q. All right. Mr. Casey, I'm going to move on to a different topic. You're familiar with the MCSO's investigation involving the confidential informant Dennis Montgomery, correct? [1719]
A. I remember attending a meeting.
Q. Okay. And what was discussed during that meeting?
Well, let me back up. Who was present at the meeting?
A. I'm going to start off with the lawyers: It was myself; my co-counsel, Tom Liddy; at this meeting I do not believe my partner, James Williams, was present; John Masterson was present; Joe Popolizio was present; I believe Steve Bailey was present. I believe that Jerry Sheridan was present, but as I said at my deposition, I can't be certain about Jerry Sheridan. And I believe that Jack MacIntyre was present, but I cannot be certain about his presence. I believe that Lisa Allen was present, but I'm not certain.
Q. Did you attend more than one meeting where the Dennis Montgomery investigation was discussed?
A. I only remember one meeting.
Q. All right. And was anyone else present other than the people you named?
A. Well, the sheriff was there.
Q. Anyone else?
A. Did I mention Bailey?
Q. Yes.
A. And there were two guys that were on a speakerphone.
Q. Did you have an understanding about who those people were on the speakerphone?
A. My understanding is they were both employees of MCSO. [1720]
Q. And you don't know who they were?
A. No. You mentioned in the deposition the names, but I don't re -- I don't remember.
Q. Okay. Was it your impression that they were calling in from the same location?
A. Yes.
Q. And do you know whether that was in the Seattle, Washington area?
A. That's my memory.
Q. Okay. Tell me everything you remember about this meeting.
MS. CLARK: Objection, confidentiality; ER 1.6; work product; as applicable, attorney-client privilege.
THE COURT: I've already ruled that there is a waiver as to this meeting, and so the attorney-client privilege objection is overruled; the 1.6 objection is overruled; and the confidentiality objection is overruled without prejudice to its renewal, or any of the above, depending upon the question.
MR. MASTERSON: Your Honor, I make a hearsay objection to statements made by the two guys on the speakerphone.
THE COURT: Well, he testified that the two guys on the speakerphone were MCSO employees in Seattle, right?
MR. MASTERSON: He did.
THE COURT: Overruled.
MR. MASTERSON: Is the Court's basis for this that it's an admission? [1721]
THE COURT: It's a statement, not an admission. It's a statement. To the extent that it involves the Montgomery investigation and they were sent up to work with Montgomery, I believe it is a statement under -- well, it's called admission in the title, but it says statement is offered against a party. It's 801(d)(2).
THE WITNESS: Am I ordered to answer?
MR. MASTERSON: Just a brief record that I don't think these two people have the -- or had the status in MCSO to make an admission on behalf of the organization.
THE COURT: And I will -- I accept that, but I don't read the rule to require an admission; it merely refers to statements.
MR. MASTERSON: Thank you.
MS. WANG: And Your Honor, in response to Mr. Masterson's argument, under Rule 801(d)(2)(D), a statement offered against an opposing party that is made by the party's agent or employee on a matter within the scope of that relationship and while it existed is not hearsay.
THE COURT: I believe I've already ruled in your favor, Ms. Wang.
MS. WANG: Thank you, Judge.
THE WITNESS: Am I ordered to answer, Your Honor?
MS. WANG: Sorry.
THE COURT: You are. [1722]
THE WITNESS: My memory of this is there was an offer of proof, if you will, that the MCSO folks on the phone were explaining what this CI, the confidential informant, could offer MCSO if MCSO continued to seek his services, his consultation, his informant status, whatever.
And I do remember there was a discussion about him -- the CI wanting to have some type of immunity. I don't remember the details of that or what that's about. I'm not a criminal lawyer; I don't practice in that area.
I remember that there were discussions about him having access to a duplicate set of NSA or CIA data that he could mine, m-i-n-e. And that his preliminary research indicated from that data that he could mine that there was either telephone or e-mail surveillance on, I think it was Joe Popolizio at Jones, Skelton. Could be other people. There also was discussion about a connection between the Court, DOJ, and people in the federal administration.
BY MS. WANG:
Q. On the latter point, Mr. Casey, did you hear anyone purport that the confidential informant had evidence of a conspiracy among those parties: this Court, the Department of Justice, and the law firm of Covington & Burling against Sheriff Arpaio?
A. That's what was being reported.
Q. Was that report -- who was that reported by?
A. One or both of the fellows on the phone were reporting that [1723] there was this collusion involving the Court that had an adverse effect on Joe Arpaio, and that it could be proven if MCSO would go forward with using the CI's services.
Q. Did you hear any mention of a purported telephone call between the Department of Justice and Judge Snow's chambers?
A. Yes.
Q. And was it purported that that information came out of data that Dennis Montgomery had mined from the NSA or the CIA?
A. Yes.
Q. Did you hear any mention that former U.S. Attorney Dennis Burke was involved in that same conspiracy?
A. Yes.
Q. Did you hear any mention of the then-Attorney General of the United States, Eric Holder?
A. Yes.
Q. Was it alleged that he was involved in that purported conspiracy?
A. Yes.
Q. Did you hear any mention of then-Deputy Attorney General Lanny Breuer being involved in that purported conspiracy?
A. I believe he was included in that, but I'm not certain.
Q. I'm going to have you turn to Exhibit 2072.
Note. Ex. 2072 is listed as: Arpaio timeline/charts re Montgomery 1724 investigation (Ex. F to Dkt 1166) (MELC199917-MELC199935).
Take a look at Exhibit 2072 and let me know if you saw a copy of those documents during this meeting.
A. I have it, and I did see it. [1724]
Q. All right. There's something that is labeled a timeline, and then there's also something labeled "Arpaio brief." Did you see both of those documents during this meeting?
A. As I told you in my depo, I remember seeing a timeline, and I do remember seeing a graphic that looked like this Arpaio brief.
Q. All right. And do you recall that Judge Snow's name appeared on those documents?
A. Yes.
Q. Was that discussed during the meeting?
A. I don't remember the judge specifically being addressed, but he had either a law clerk or a former law clerk that was supposedly a conduit for communications.
Q. In connection with this purported conspiracy against the sheriff?
A. That was my impression.
MS. WANG: Your Honor, I'd move the admission of Exhibit 2072 at this time.
MR. MASTERSON: No objection.
MR. WALKER: No objection, Your Honor. MR. COMO: No objection.
THE COURT: Exhibit 2072 is admitted.
(Exhibit No. 2072 is admitted into evidence.)
MS. WANG: Thank you.
BY MS. WANG: [1725]
Q. You mentioned that the MCSO personnel on the phone said that the source of this information was data that the CI had mined from the CIA or the NSA, is that right?
A. That's my memory.
Q. Did anyone express a concern that that use of that data might be illegal?
A. Yes.
Q. Who expressed that concern?
A. I did, and I know that -- I believe that a couple of the other lawyers also did.
Q. Did anyone in the room react to that?
A. It was not said during the meeting; it was said as we're breaking up.
Q. Okay. As you were leaving that meeting?
A. Yes.
Q. All right. And who did you express that concern to?
A. I don't remem- -- I know I should remember it because it was just -- I thought this was November of '13, by the way, but I don't remember who it was, but it would have been one of the executives. It would not have been the sheriff himself.
Q. All right. And did that, whoever you expressed it to -- One of the chiefs?
A. Yes.
Q. Okay. Did that chief respond to your expression of concern about the use -- [1726]
MR. MASTERSON: Objection, Your Honor. I think we're beyond the scope of the Court's ruling on the waiver in that meeting. We're at some post meeting activity now.
THE COURT: Was your testimony that it was while the meeting was breaking up?
THE WITNESS: Yes, sir.
THE COURT: I'm going to allow it.
THE WITNESS: I honestly don't remember, but whoever it was I think had that concern and was going to -- my expression -- run it to ground.
BY MS. WANG:
Q. I didn't hear you.
A. Run it to ground.
Q. Okay.
A. Make sure that the MCSO had looked into that.
Q. All right.
MS. CLARK: Your Honor, if I could just get a clarification that by allowing the testimony you were ordering it from the witness?
THE COURT: I was ordering the witness to testify.
BY MS. WANG:
Q. Mr. Casey, during the course of this meeting, did anyone express a view on the reliability of the information about the purported conspiracy against Sheriff Arpaio?
A. Yes. [1727]
Q. Who expressed that view?
A. The lawyers.
Q. What was expressed?
MS. CLARK: Objection, client confidentiality, Judge.
THE COURT: Overruled.
The witness will answer.
THE WITNESS: I'll tell you my conclusion, what I mentioned in the deposition: It was hogwash. It was unbelievable. And I believe that the other lawyers shared that same sentiment, that same conclusion, and that was expressed.
This is someone to be avoided.
BY MS. WANG:
Q. Did anyone else in the room express a view as to the reliability of the information about the purported conspiracy?
A. I remember MCSO people, except for the sheriff, being silent during this.
Q. Did the sheriff speak?
A. He did.
Q. What did he say?
A. He said something that indicated that he was enthusiastic and it needed to be looked into.
Q. The purported conspiracy involving the Court?
A. That was my impression.
Q. Did you have any further involvement in the Dennis Montgomery investigation after this meeting? [1728]
A. None.
Q. Why not?
MS. CLARK: Objection, client confidentiality, Judge.
MR. MASTERSON: Join.
THE COURT: I'm going to sustain that objection.
MS. WANG: All right.
BY MS. WANG:
Q. Mr. Casey, did Sheriff Arpaio express to you any emotions about the evidence of the purported conspiracy?
MS. CLARK: Same objection, Judge.
THE COURT: Overruled.
MR. MASTERSON: I'm going to -- I'm not sure when where talking about. If we're talking post-meeting, we're out -- post-meeting, we're outside the Court's order.
THE COURT: I will agree. If it's post-meeting, you're not to answer; if it's during the meeting or while the meeting is breaking up, you are to answer.
THE WITNESS: It was not during the meeting, but it was while we were breaking up walking out of the meeting.
BY MS. WANG:
Q. And what did he convey to you?
MS. CLARK: Continuing objection, Judge.
THE COURT: Overruled. The witness will answer.
THE WITNESS: He added an additional fact.
BY MS. WANG: [1729]
Q. What's that?
A. He had his finger out and he says: You know that Jon Kyle is at Covington, and Kyle got the judge his job.
Q. During the meeting, or as it was breaking up, Mr. Casey, did you -- did you hear anything indicating why the sheriff was interested in following up on this information about a purported conspiracy?
THE WITNESS: Your Honor, I cannot answer that question without violating attorney-client privilege and client confidentiality, because the information I have is outside that meeting, outside the exiting of that meeting.
BY MS. WANG:
Q. When did you get that information?
A. I think it was a course of about 30 or 40 days. And I thought this is November of '13, not January '14, but it would have been in 30 to 40 days is when I gathered that.
Q. After the meeting or before?
A. It was after the meeting.
Q. During the meeting or as it was breaking up, did Sheriff Arpaio express any attitude towards Judge Snow?
A. He did not express any attitude during that meeting or while it was breaking up.
Q. Did he do so at some other time?
MS. CLARK: Same objection, Judge.
THE COURT: Sustained. [1730]
MS. WANG: Your Honor, may I have a moment?
THE COURT: You may.
MS. WANG: Thank you.
(Pause in proceedings.)
BY MS. WANG:
Q. Mr. Casey, based on what you heard and saw during this meeting, or as it was breaking up, did you have a sense that the sheriff was being vindictive?
MS. CLARK: Objection, mental impression, Judge.
THE COURT: Sustained.
MS. WANG: I'm not sure this is a different question, Judge, but I'll try.
BY MS. WANG:
Q. Did the sheriff say anything, or otherwise express verbally or otherwise during that meeting or as it was breaking up, a vindictive attitude?
MR. MASTERSON: Objection, foundation.
THE COURT: I'll allow it.
THE WITNESS: The only thing I remember him saying was that it needed to be followed up on.
MS. WANG: All right. Nothing further.
*Source: Melendres v. Arpaio et al, No. CV 07-2513-PHX-GMS (D. Ariz.) Transcript of Proceedings - Evidentiary Hearing Day 7 - Sept. 29, 2015 (pages 1488-1734).
