Excerpts from MCSO Cold Case Posse volunteer Michael Zullo's Nov. 12, 2015 Testimony during the Melendres Contempt Evidentiary Hearings regarding Dennis Montgomery and the MCSO's Seattle Operation, with selected notes.*
Direct Examination (cont) | Cross Examination | Re-Direct Examination
See also Zullo's Nov. 10 and Nov. 13 Testimony.
DIRECT EXAMINATION, cont.
PLAINTIFFS' COUNSEL STANLEY YOUNG
[4311] Q. Good morning, Mr. Zullo.
A. Good morning, sir.
THE COURT: Mr. Zullo, I understand you asked if you're still under oath and I thank you for clarifying. You are still under oath, sir.
THE WITNESS: Thank you, sir.
THE COURT: Thank you for seeking the clarification.
BY MR. YOUNG:
Q. Mr. Zullo, in May 2015 you gave some materials relating to the Seattle investigation to Chief Bill Knight of the Bureau of Internal Oversight, correct? [4312]
A. Sir, I assert my Fifth Amendment.
Q. Let's take a look at Exhibit 2985, which is not in evidence, but I'm going to ask you some questions based on it.
On the page that ends in nine three zero, toward the top there's a statement there, feel free to look at it if you want, but my question is: Is it correct that on May 7, 2015, at 1330 hours, you delivered two portable thumb drives to the office of Chief Knight?
A. Assert my Fifth, sir.
Q. Did you tell Chief Knight that files on the thumb drives were responsive to certain requests made by the monitor regarding the Seattle investigation?
A. Assert my Fifth, sir.
Q. Let's look at Exhibit 2256 now.
THE COURT: Let me ask, I've forgotten: Is 2985 in evidence?
MR. YOUNG: It is not, Your Honor. Two nine -- yes, it is not.
BY MR. YOUNG:
Q. You have Exhibit 2256 on the screen in front of you. That's a June 29, 2014 e-mail that Mr. Montgomery sent to you, correct?
A. Assert my Fifth, sir.
Q. There's an e-mail address on it, [email protected] That's your e-mail address, correct? [4313]
A. Assert my Fifth, sir.
Q. Mr. Montgomery forwarded you an e-mail that he had drafted to himself, correct?
A. Assert my Fifth, sir.
Q. In that e-mail, Mr. Montgomery told you that Sergeant Anglin and others had been trying to shut the project down, is that right?
A. Assert my Fifth, sir.
Q. And that project is the one that was supposed to produce information on Judge Snow, correct?
A. Assert my Fifth, sir.
Q. You were told by Mr. Montgomery that Anglin had told Mr. Montgomery not to produce information on Judge Snow, is that right?
A. Assert my Fifth, sir.
Q. And that there were other people who were criticizing Mr. Montgomery for not producing information on Judge Snow, is that right?
A. I assert my Fifth, sir.
Q. Mr. Montgomery told you -- well, let me actually ask it this way: You understood that Chief Sheridan had said that he did not want to go in front of Judge Snow and be accused of retaliating against him, is that correct?
A. I assert my Fifth.
MR. MASTERSON: Objection, foundation. [4314]
THE COURT: Sustained.
BY MR. YOUNG:
Q. Did you understand from any source that Chief Sheridan did not want to go in front of Judge Snow and be accused of retaliating against him?
A. I assert my Fifth, sir.
Q. You had a disagreement with Sergeant Anglin about whether Mr. Montgomery should be working to find information on Judge Snow, correct?
A. I assert my Fifth, sir.
Q. Sergeant Anglin actually tried to take you off the case, is that right?
A. I assert my Fifth, sir.
Q. You spoke to Sheriff Arpaio about that, is that correct?
A. I assert my Fifth, sir.
Q. And then Sheriff Arpaio and Chief Sheridan took Sergeant Anglin off the case and put you back on, correct?
A. I assert my Fifth, sir.
Q. Did you request that Sergeant Anglin be removed from the case so that Mr. Montgomery would be allowed to continue searching for information about Judge Snow?
A. I assert my Fifth, sir.
MR. YOUNG: Your Honor, we said this in our written motion. I am going to move for the admission of Exhibit 2256 based on the adverse inferences that we believe should be drawn [4315] from Mr. Zullo's refusal to testify, and also based on the earlier testimony from Detective Mackiewicz and Sergeant Anglin about the [email protected] e-mail and the David Webb e-mail, which is Dennis Montgomery.
THE COURT: You're going to move for the admission of 2256, you said?
MR. YOUNG: I do, Your Honor.
THE COURT: All right. I think as I indicated yesterday, and maybe we need to be more precise about time limits, but you did file the motion. I appreciate it.
Mr. Masterson, I indicated I was going to give to Mr. Masterson and any other parties who wished to a chance to respond to your written motion, and it seemed to me that part of that, as it relates to the admission -- I guess I want to clarify.
There are two parts to that motion. One is, to the extent that you are going to move exhibits, I appreciate you clarifying that in Mr. Zullo's testimony. I'm going to require rather speedy written responses, and we can talk about what amount of time you need if you want to respond, in light of the questions to the admission of the exhibits.
I would like to consider -- I guess I would like to consider that separately from any adverse inferences that you might want to assert should be drawn from Mr. Zullo's testimony, if any, apart from the admission of exhibits. That, I think, we can handle in oral argument, or your final oral [4316] presentations to the Court after testimony is through.
But as it pertains to whether or not I'm going to admit certain exhibits, I would like to rule on that prior to the final oral argument so you know what it is you're arguing about.
Does everybody understand what I just said? Because it may not have been the clearest.
MR. YOUNG: Yes, Your Honor.
MR. MASTERSON: I don't.
THE COURT: Okay.
MR. MASTERSON: And the part I don't understand is, do you -- are you going to determine all objections to the particular exhibit after written memoranda from the parties?
THE COURT: I am. That's my intent.
MR. MASTERSON: So you don't want me -- I mean, obviously, I would have a foundational objection here, but I may have a hearsay objection, relevance objection, a 403 objection.
Do you want to have all those in writing --
THE COURT: Well, why don't you make those now. I'll rule on those now.
MR. MASTERSON: Okay.
THE COURT: Just the adverse inference part. In other words, to the extent -- I'll rule on all your other objections to the extent I can. [4317]
MR. MASTERSON: Except for foundation.
THE COURT: Except for the foundation, and on which -- yeah. To the extent that the foundation objection may be influenced by an adverse inference to be drawn by the invocation of the Fifth Amendment.
MR. MASTERSON: Okay. Got you.
THE COURT: Okay.
MR. MASTERSON: Then with respect to this one, I have an objection on relevance, hearsay, 403.
THE COURT: That is 2256?
MR. MASTERSON: No, wait. Isn't this 2985? Sorry, Judge. You're right.
THE COURT: Okay. Those objections are overruled. Relevance, hearsay, and 403 are overruled.
MR. MASTERSON: And foundation, separate and apart from what will be decided later.
THE COURT: Foundation, separate and apart from what will be decided later, is overruled, and based on the testimony that we've had about what Mr. Zullo's e-mail address was.
Mr. Walker.
MR. WALKER: Yes, Your Honor. Thank you. I just want a little bit of clarification to be sure I understand correctly. So what you're looking for in the near term is briefing on adverse inferences going to the admissibility of [4318] the document.
THE COURT: Yes. Let me just restate it and see if that helps you. And we need to set a deadline.
Mr. Young, during his testimony today, is going to move certain exhibits. You're going to make all the objections you have to those exhibits.
With respect to any foundational objections, or with respect to any argument that Mr. Young might make, the foundation is provided by an adverse inference coming from the invocation of the Fifth Amendment. I want that issue briefed. And I'm going to hold in abeyance my final admission of any documents allowing any party who wants to brief that question to brief it in response to Mr. Young's motion already on file.
But I don't intend to give you a very long -- a super long time to file it. I want to rule on whether or not I'm going to admit exhibits prior to having you make your final oral presentations so you know what exhibits have been introduced and what exhibits I'm going to consider.
That does not prevent you at that time from arguing that I should or should not draw any other adverse inferences, assuming that I've drawn any up to that point relating from his testimony.
Does that help clarify it for you?
MR. WALKER: Yes. Thank you, Your Honor.
THE COURT: All right. [4319] Are you all right and understand what's going on here, Mr. Murdy?
MR. MURDY: I do, Your Honor.
THE COURT: How about the Department of Justice?
MR. KILLEBREW: Yes, Your Honor.
THE COURT: All right. How much time do you want to get this -- I realize that you're going to have to have the questions, the specific questions, to be able to argue about adverse inferences as it pertains to the admission -- admissibility of even evidentiary exhibits, so you can't have that till you get the transcript. I understand everybody's got dailies, so you'll get the transcript tomorrow.
How much time do the parties want to file their response to Mr. Young's motion?
MR. MASTERSON: A week, Judge?
THE COURT: Well, let me ask this. I see -- and I'm glad to see that Chief Deputy Sheridan is able to be with us. I assume we're going to have his testimony after we're through with Mr. Zullo's?
MR. MASTERSON: Not necessarily.
MR. YOUNG: Actually, Your Honor, we do plan to recall Sheriff Arpaio to the stand, as I mentioned much earlier in the hearing. Based on subsequent discovery which was delivered late from Mr. Zullo, we do now believe that we need to call Sheriff Arpaio back to the stand. [4320]
THE COURT: All right.
MR. YOUNG: So we'll have him after Mr. Zullo.
THE COURT: All right. And then we'll have, maybe, Chief Deputy Sheridan, maybe not Chief Deputy Sheridan?
MR. MASTERSON: That is correct.
THE COURT: Okay.
MR. MASTERSON: And I brought Ms. Wang up to date on the status of that.
THE COURT: All right. Do we have any other witnesses other than possibly Chief Deputy Sheridan?
MR. MASTERSON: We do not.
THE COURT: How about the County?
MR. WALKER: Yes, Your Honor. Cynthia Goelz will be called.
THE COURT: All right. Do we think we can accomplish that today and tomorrow?
MR. YOUNG: Yes, from the plaintiffs' standpoint.
MR. MASTERSON: Well, I -- I don't know how long the plaintiffs are going to take --
THE COURT: Okay.
MR. MASTERSON: -- with their examinations.
THE COURT: How long do you anticipate your testimony taking?
MR. MASTERSON: With Sheriff Arpaio?
THE COURT: No, with Chief Deputy Sheridan. [4321]
MR. MASTERSON: Right now, I do not anticipate calling Chief Deputy Sheridan.
THE COURT: Okay. Well, I'll just say I don't intend to allow plaintiffs to ask any questions of Sheriff Arpaio except those that relate to newly discovered evidence since the time he last testified, which hasn't been that long ago. So I -- I mean, I don't know the extent to which there is such evidence.
How long do you anticipate having Sheriff Arpaio on the stand?
MR. YOUNG: Well, part of that depends on what happens with Mr. Zullo. We do have some audio that would probably take perhaps an hour and a half.
THE COURT: All right. Well, I guess --
MR. YOUNG: And there are some other questions, so maybe two hours. Two hours.
THE COURT: All right. I guess we'll just have to see where we're going. The reason why I asked is, I have next Friday open, and I kind of thought we could schedule the oral -- final oral presentations next Friday if we don't need that for testimony.
So I would like to have you know what exhibits I'm going to admit and what exhibits I'm not going to admit before next Friday, so I'm thinking more like Wednesday.
MR. MASTERSON: Here's the problem I have, Judge. And [4322] if I understood you correctly -- well, is the only briefing we're going to be doing with respect to inferences, whether it's next Wednesday or a week, is that going to be with respect to the admission of documents based on the inference?
THE COURT: Yes.
MR. MASTERSON: So then I assume then they will -- my assumption is plaintiffs will also be moving the Court for inferences related to testimony, or questions asked of Mr. Zullo for which he invokes his Fifth Amendment privilege.
THE COURT: I presume they might.
I don't know whether you intend to do that or not, Mr. Young.
MR. YOUNG: We do. And we will do that in argument.
THE COURT: That would be my preference. Do you have a preference to do it in writing?
MR. MASTERSON: I do, yes.
THE COURT: Well, I'll tell you what. You can respond in writing, if you wish. And if you want to make the motion in writing, I'll let you do that, but I'm not going to require you to do that. If you just want to make the motions as part of your oral presentation, I'll let you respond in writing. I'm not going to give you a great deal of time to do that, but it is going to take me some time to do findings of fact and conclusions of law in this case.
Why don't we continue with the testimony of Mr. Zullo, [4323] and why don't we handle this scheduling stuff when we're not having him here sitting to us -- or listening to us do all this.
BY MR. YOUNG:
Q. Mr. Zullo, let's take a look at now at Exhibit 2960. That's dated about a week later on July 8, 2014, a little more than a week. That's an e-mail exchange that you had with Mr. Montgomery on July 8 at 8:55 a.m. is his e-mail to you, and 9:06 a.m. is your e-mail back to him, correct?
Note. Exhibit 2960 is Email chain, last from Mike Zullo to David Webb re Work dated 7/8/2014 (ZULLO_002995)
A. I assert the Fifth, sir.
Q. And that's part of the discussion that you were having with Mr. Montgomery about Sergeant Anglin telling Mr. Montgomery that Chief Sheridan didn't want Mr. Montgomery working to get information on Judge Snow, correct?
A. I assert the Fifth, sir.
Q. Okay. In fact, Mr. Montgomery told you that he had, in response what Sergeant Anglin told him, dumped the information he had accumulated about Judge Snow.
MR. MASTERSON: Objection, foundation, hearsay.
MR. YOUNG: Just asking about what he heard from Mr. Montgomery; it's not for the truth of the matter asserted.
MR. MASTERSON: What's it for, then?
THE COURT: Give me one second. (Pause in proceedings.)
THE COURT: Well, I'm not sure it matters if it is for [4324] the truth of the matter asserted. The objection's overruled.
THE WITNESS: Sir, could you repeat your question?
MR. YOUNG: Yeah. You -- actually, could we have the question read back?
THE WITNESS: I'm going to take the Fifth, anyway, so -- if it's too much trouble.
BY MR. YOUNG:
Q. Well, Mr. Zullo, you were concerned when you heard from Mr. Montgomery that he had dumped the information relating to Judge Snow, correct?
A. I assert the Fifth, sir.
Q. Now, you did understand that Mr. Montgomery was in the process of redoing the original work in order to obtain the information about Judge Snow that he had dumped in response to what Sergeant Anglin told him, correct?
MR. MASTERSON: Objection, foundation.
THE COURT: Gary, would you reread that question, please.
(The question was read by the court reporter.)
THE COURT: Overruled.
THE WITNESS: I assert the Fifth, sir.
BY MR. YOUNG:
Q. The same is true with respect to the information relating to the Department of Justice, Lanny Breuer, and Eric Holder, right? You were concerned that Sergeant Anglin had told [4325] Mr. Montgomery to stop pursuing that information, correct?
A. I assert the Fifth, sir.
Q. In response to hearing that information, you asked Mr. Montgomery when Sergeant Anglin told Mr. Montgomery to dump that information and stop pursuing that information, is that right?
A. I assert the Fifth, sir.
Q. You also asked whether Brian Mackiewicz was present when Sergeant Anglin told this to Mr. Montgomery, is that right?
A. I assert the Fifth, sir.
Q. At this time, July 8, 2014, your desire was to have Mr. Montgomery continue to search for information about Judge Snow, the Department of Justice, Lanny Breuer, and Eric Holder, correct?
A. I assert the Fifth, sir.
Q. You don't have any reason to doubt that this is an e-mail that you sent and received from Mr. Montgomery during the course of your work on the Seattle investigation, correct?
A. I assert the Fifth, sir.
MR. YOUNG: Okay. Your Honor, I can do this with each of the documents. I do move for the admission of Exhibit 2960.
MR. MASTERSON: Objection, foundation, hearsay, relevance, 403.
THE COURT: The latter three objections are overruled.
And I would like you to make a motion for each [4326] exhibit, even though I'm going to reserve on the foundational grounds, because that will give all parties a chance to make any other objections that they want to make and I can rule on those objections at this time, which will focus the remainder of the briefing.
MR. YOUNG: Understood, Your Honor.
Your Honor, I'm going to ask that a video -- an audio, rather, be played. It's Exhibit 2979.
Note. Exhibit 2979 is LA Drive 1.m4a | ZULLO_004643
I'm going to ask you to listen to it, Mr. Zullo. It's about 11 minutes long. And I'm going to ask you in particular about some references at about a minute 30 and at about 8 minutes and 30 seconds. And my question is going to be whether those are references to Judge Snow.
So Mr. Klein, could you play Exhibit 29 --
THE COURT: Let me just ask before it's played. Is there going to be any objection if I do not request the court reporter to try to transcribe the text of the -- the text of the recording? Or are you going to request that he do that?
If so, you may come to realize, you're the one that said you've already had difficulty getting an accurate transcript from whoever you hired to do the transcript. I'm not sure that you -- I'm not sure whether it makes any sense to ask my court reporter to do it on the fly just from listening.
Are you going to request that? If you're going to request that, you're going to have to take whatever he can give [4327] you.
MR. YOUNG: Well, I understand that, Your Honor, and it seems to me that it's better to have what he can provide, what he can do, than -- than not --
THE COURT: All right.
MR. YOUNG: -- have anything.
THE COURT: Let just consult with him for a second, please, before we play the exhibit.
MR. YOUNG: Sure.
(Off-the-record discussion between the Court and the court reporter.)
THE COURT: All right. Mr. Masterson, did you have anything you wanted to say? You were just reaching for the mike. I thought you were --
MR. MASTERSON: I was actually just reaching for the water.
THE COURT: Oh, sorry. All right. Mr. Walker?
MR. WALKER: Yes, Your Honor, just a question, and that is I presume the court reporter's not going to be in a position to draw conclusions in terms of attribution who the speakers are, is that --
THE COURT: I don't see how he can be. So he's just going to put "speaker," and I don't think he's going to indicate who the speaker is, or if it's a different speaker, or [4328] anybody else.
It seems to me that's one issue, and the other is, you're just going to get what you get. And I will consider the recordings as the evidence if they are admitted into evidence, and that will be based on who and what you may be able to identify based on this or other testimony.
MR. YOUNG: Well, given that, Your Honor, and if Your Honor will be, as I suspect Your Honor will, be able simply to listen to the recordings, then because if those do come in evidence then perhaps it will not be necessary to have the court reporter transcribe.
And there may be particular points when I will ask questions of the witness, and obviously those will be based in part on what at least I hear in the recordings, and those will be transcribed, so perhaps we can have Mr. Moll --
THE COURT: I'll say that if you interrupt the recording --
MR. YOUNG: Yes.
THE COURT: -- I'll have the court reporter write down whatever you say when you interrupt the recording and ask a question based upon it. All right?
MR. YOUNG: Thank you, Your Honor.
THE COURT: Then are we all right if the court reporter does not otherwise attempt to transcribe the -- whatever is on the recording? [4329]
MR. MASTERSON: I have no objection to that.
MR. WALKER: No objection, Your Honor.
MR. MURDY: No objection, Your Honor.
THE COURT: All right.
MR. YOUNG. All right. Let’s at least start the recording of -- and that's Exhibit 2979. I may stop it at a certain point in order to ask a question about who the voices are.
MR. KLEIN: 2980?
MR. YOUNG: 2979. No, I’m actually going to go with 2979 first.
(Audio clip played.)
MR. YOUNG: Stop it there. (Audio clip stopped.)
BY MR. YOUNG:
Q. Mr. Zullo, we just heard someone say, quote, They gave him cash to go to Lockheed, end quote.
That's you, correct?
A. Take the Fifth, sir.
MR. YOUNG: Let's resume.
(Audio clip played.) (Audio clip stopped.)
BY MR. YOUNG:
Q. Mr. Zullo, there was someone on the recording just now who asked: Why would they tell you to slow it down? [4330] That's you asking that question, correct?
A. Take the Fifth, sir.
Q. Then there was someone in response who said: Well, it's because the time that they were asking at that time, I'm doing Snow stuff. That is Mr. Montgomery, correct?
A. Take the Fifth, sir.
MR. MASTERSON: Objection. Your Honor, I object to Mr. Young guessing or identifying at the identity of persons on there with respect to his questions.
THE COURT: Overruled.
BY MR. YOUNG:
Q. And then we heard a response to that which is, quote, son of a bitch, end quote. That was you, correct?
A. Take the Fifth, sir.
MR. YOUNG: All right. Let's continue with the recording.
(Audio clip played.) (Audio clip stopped.)
BY MR. YOUNG:
Q. Now, you were talking to Mr. Montgomery in this recording about information, or stuff, related to Judge Snow, correct?
A. Take the Fifth, sir.
Q. Did you make this recording of a conversation between you and Mr. Montgomery during the course of your work on the [4331] Seattle investigation?
A. Take the Fifth, sir.
Q. This was a recording that you made on either a cell phone or some other recording device, correct?
A. Take the Fifth, sir.
MR. YOUNG: All right. Let's continue with the recording.
(Audio clip played.) (Audio clip stopped.)
BY MR. YOUNG:
Q. There was a reference there to the month being April. This recording was made by you in April 2014, correct?
A. Take the Fifth, sir.
Q. This was at a time where you were having some dispute over whether Mr. Montgomery ought to be allowed to continue searching for information about Judge Snow, correct?
A. Take the Fifth, sir.
MR. YOUNG: Let's continue.
(Audio clip played.) (Audio clip stopped.)
BY MR. YOUNG:
Q. So Mr. Zullo, you were talking to Mr. Montgomery about how you found out about Brian Mackiewicz and Travis Anglin telling Mr. Montgomery to stop investigating Judge Snow, and you found it out through Dennis Montgomery's daughter, is that right? [4332]
A. I'm taking the Fifth, sir.
Q. And you were expressing to Mr. Montgomery amazement that you had found out in that way, and Mr. Montgomery responded to you that Detective Mackiewicz talked a lot to your daughter --
A. I am taking the Fifth, sir.
Q. -- or his daughter, is that right?
MR. MASTERSON: Object. Objection, hearsay.
THE COURT: Overruled.
THE WITNESS: Taking the Fifth, sir.
MR. YOUNG: Let's continue.
(Audio clip played.) (Audio clip stopped.)
BY MR. YOUNG:
Q. Now, you just referred to talking to Joe on Wednesday in that recording. That was Sheriff Arpaio, correct?
A. Take the Fifth, sir.
Q. Okay. You were planning to talk to Sheriff Arpaio about this issue of whether Mr. Montgomery would be allowed to continue with his work, is that right?
A. Take the Fifth.
Q. You also referred in the conversation that we just heard right now to Klayman. That's Larry Klayman, correct?
A. Take the Fifth, sir.
(Audio clip played.) (Audio clip stopped.) [4333]
BY MR. YOUNG:
Q. The Tim that's referred to there, that's Tim Blixseth, is that correct?
A. Assert the Fifth, sir.
Q. He was having some litigation issues at that time, is that right?
A. Assert the Fifth, sir.
MR. YOUNG: Let's continue with the recording.
(Audio clip played.) (Audio clip stopped.)
BY MR. YOUNG:
Q. Now, you were talking to Mr. Montgomery at this point in the conversation about the kind of information, whether it be phone records, e-mails, financial data, as well as the quantity, you know, a thousand versus 20 million, is that right?
A. Taking the Fifth, sir.
Q. Mr. Montgomery was trying to explain to you why it couldn't be done quickly the way you wanted it, is that right?
MR. MASTERSON: Objection, foundation.
THE WITNESS: Taking the Fifth, sir.
THE COURT: Wait a minute. Let me rule on that. (Pause in proceedings.)
THE COURT: Sustained.
MR. YOUNG: Let's continue with the -- actually, if we [4334] could back up a few seconds and then continue.
(Audio clip played.) (Audio clip stopped.)
BY MR. YOUNG:
Q. So you would hear from Mr. Montgomery that his work was going slowly in part because of his health problems, correct?
A. Taking the Fifth, sir.
Q. And Mr. Montgomery threatened to go to Sheriff Arpaio and to cut off Carl Cameron, is that right?
A. Taking the Fifth, sir.
Q. Carl Cameron was a Fox News network journalist who had been talking to Mr. Montgomery and who, at least at one point, was thinking about running a story about what Mr. Montgomery was doing, correct?
MR. MASTERSON: Objection, relevance, foundation.
THE COURT: If you know the answer -- you know the answer to the question, you may answer it.
THE WITNESS: Could you state the question again, please?
I want to clarify, Judge. Are you telling me that I can answer this question and not --
THE COURT: No, I'm just -- I'm ruling on the objection.
THE WITNESS: Oh, I'm sorry.
THE COURT: I'm not directing you -- [4335]
THE WITNESS: You're not directing? Okay. Don't even worry about it. Taking the Fifth.
MR. YOUNG: We're going to continue with the recording now, and I'm going to ask you whether the references about for getting someone and hammering someone are references to Judge Snow. So please listen to this, Mr. Zullo.
(Audio clip played.) [Apparently, this clip] (Audio clip stopped.)
BY MR. YOUNG:
Q. Mr. Zullo, you were talking to Mr. Montgomery about someone telling Mr. Montgomery that he should forget about Judge Snow, correct?
A. Taking the Fifth, sir.
Q. And the reference to "hammer," when Mr. Montgomery says, "He's the one guy you can hammer with," and I'm not saying everything that he said, you understood that to be a reference to Judge Snow, correct?
A. Taking the Fifth, sir.
MR. YOUNG: Let's continue.
(Audio clip played.) (Audio clip stopped.)
BY MR. YOUNG:
Q. So you told Mr. Montgomery that contrary to what Detective Mackiewicz had said, Sheriff Arpaio, Joe, had not thrown you out over this issue, is that correct? [4336]
A. Taking the Fifth, sir.
Q. And then Mr. Montgomery went on to discuss a phone conversation that he had with Sheriff Arpaio when he took the phone away from Detective Mackiewicz during a call that Detective Mackiewicz was having with Sheriff Arpaio, is that right?
A. Taking the Fifth, sir.
(Audio clip played.) (Audio clip stopped.)
MR. YOUNG: Your Honor, I move for the admission of Exhibit 2979.
MR. MASTERSON: Objection, foundation, relevance, hearsay, 805, 403.
THE COURT: Relevance is overruled. Hearsay is overruled. 403 is overruled. 805 I am taking under advisement. There may well be hearsay within hearsay. I can't really tell that until I can identify who the speakers are.
So I'm taking that under advisement, along with the foundation objection.
MR. YOUNG: Your Honor, will we have a chance to argue that point?
THE COURT: You will.
MR. YOUNG: Well, let me simply say Rule 801(d)(2).
THE COURT: 801(d)(2)?
MR. YOUNG: As to both participants -- [4337]
THE COURT: Right.
MR. YOUNG: -- in that conversation.
THE COURT: Except for I have to know who the participants are. And that was the basis for my statement to Mr. Masterson. Unless I know that the participants were involved in the Seattle operation, I can't determine whether or not they're agents of the defendant.
MR. MASTERSON: I also don't -- I don't want to testify and try to identify anyone, so I'm not going to, but it also sounded to me like there were more than two people recorded.
THE COURT: Yeah. And that's going to pose an interesting question, which I will address with the parties at a later date.
BY MR. YOUNG:
Q. There's a location in that tape where you said, "My God, Dennis," in response to something he said, is that right?
A. Taking the Fifth, sir.
Q. Wasn't that Dennis Montgomery?
A. Taking the Fifth, sir.
Q. You refer to Sheriff Arpaio occasionally as "the boss," correct?
A. Taking the Fifth, sir.
Q. That's who you're talking about when you use that term in your discussion with Mr. Montgomery, correct? [4338]
A. Taking the Fifth, sir.
Q. Let's go on now to Exhibit 2258.
Actually, before we do that, I have another audio to play. Apologies to Mr. Klein for skipping around.
It's Exhibit 2980. This is about 10 and a half minutes long, but we'll just play the first couple of minutes of it.
Note. Exhibit 2980 is LA Drive 2.MP3 | ZULLO_004644
And Mr. Zullo, I'm going to ask you whether you can identify that as the transcription of a telephone call that you made to Mr. Montgomery. So let's start with 2980.
(Audio clip played.) (Audio clip stopped.)
BY MR. YOUNG:
Q. So that's you talking to Mr. Montgomery, correct, Mr. Zullo?
A. Taking the Fifth, sir.
Q. Okay. Mr. Montgomery was on a telephone, on the telephone, and you were recording from wherever you were sitting at the time, is that right?
A. Taking the Fifth, sir.
Q. And then you and Mr. Montgomery were talking about something to the effect that's -- that "Sheridan said to go do it, but they can't be involved in it," is that correct?
A. Taking the Fifth, sir.
Q. There was something that you were working on with [4339] Mr. Montgomery that Sheridan -- that is, Chief Deputy Sheridan -- said you should do, but that he, and maybe others, can't be involved in it, is that right?
A. Taking the Fifth.
MR. MASTERSON: Objection, foundation.
THE COURT: Overruled. Except to the extent that you've otherwise preserved.
MR. YOUNG: Your Honor, I'm not going to play all the rest of it, but I will move for the admission of Exhibit 2980.
MR. MASTERSON: Well, I'm going to object to foundation, relevance, hearsay, 805, and 403 on the portion that I heard, and reserve any other objections to the portion I did not hear. And 805.
THE COURT: Well, the 805, my ruling's going to be the same as before. The other rulings are the same as before.
So I'm going to overrule -- I'm going to overrule foundation, except to the extent you've preserved it. Overrule relevancy, and overrule 403. Did you make that one?
MR. MASTERSON: Yes.
THE COURT: Okay.
BY MR. YOUNG:
Q. Now let's go to Exhibit 2258, which is an October 30, 2014 e-mail.
Note. Exhibit 2258 is Email from David Webb to "Mike" RE: Work dated 10/30/2014 (MELC202283).
MR. YOUNG: Well, yeah, we don't need to publish it, but I would like to have it on the screen so that the witness [4340] can look at it.
BY MR. YOUNG:
Q. Exhibit 2958 is an e-mail exchange that you had with Mr. Montgomery on October 30, 2014, correct?
A. Taking the Fifth, sir.
Q. You have no questions about the genuineness of this e-mail, correct?
A. Taking the Fifth, sir.
Q. In that e-mail string, at 11:35 a.m. Mr. Montgomery refers to some work that he regrets that you will be unable to finish, to work together to finish, correct?
A. Taking the Fifth, sir.
Q. Okay. And then you disagreed with him, is that right?
A. Taking the Fifth, sir.
Q. And then Mr. Montgomery told you that he could see that the sheriff was being pounded by the Court. You understood that to be this Court and Judge Snow, correct?
A. Taking the Fifth, sir.
Q. And then Mr. Montgomery told you that someone should have let him help finish the work, is that right?
A. Taking the Fifth, sir.
Q. That work related to Judge Snow, correct?
A. Taking the Fifth, sir.
MR. YOUNG: Your Honor, I move for the admission of Exhibit 2258. [4341]
MR. MASTERSON: Objection, foundation, hearsay, relevance, 403.
THE COURT: Overruled. Except with respect to the preserved objection.
BY MR. YOUNG:
Q. Let's now go to Exhibit 2964. The next exhibit is at 2964. It's a November 4, 2014 e-mail. This is an e-mail string you had that date with Mr. Montgomery, correct, Mr. Zullo?
Note. Exhibit 2964 is Email chain, last from David Webb to Mike Zullo re Creditors scrutinize exbillionarie's assets dated 11/4/2014 (ZULLO_002647 - ZULLO_002648).
A. Taking the Fifth, sir.
Q. In your e-mail to Mr. Montgomery, with the time stamp 3:41 p.m., you refer to some software that you want Mr. Zullo -- Mr. Montgomery to get you, correct?
A. Taking the Fifth, sir.
Q. You said -- actually, you had on that day, November 4, 2014, a two-hour meeting with Sheriff Arpaio as to which the topic was the work that you were doing with Mr. Montgomery, correct?
A. Taking the Fifth, sir.
Q. Sheriff Arpaio told you on that day, November 4, 2014, to get -- to have Mr. Montgomery get him -- get you -- the software, and that Mr. Montgomery will keep being paid, is that right? You received that instruction from Sheriff Arpaio on that date, correct?
A. Taking the Fifth, sir.
Q. Do you have any reason to doubt the authenticity of the [4342]
exhibit, 2964?
A. Taking the Fifth, sir.
MR. YOUNG: Your Honor, I move for the admission of that exhibit.
MR. MASTERSON: Objection, foundation, relevance, hearsay, 805, 403.
THE COURT: The objections are overruled.
MR. YOUNG: Let's go to Exhibit 2965.
And Your Honor, my understanding, you've overruled the objections that were just stated on the record here, but as with all these exhibits that Mr. Zullo's refusing to testify as to, the motion to admit them remains pending, pending the --
THE COURT: Yes, I just don't want to keep saying it every time, but you have a continuing -- I'm not going to admit any exhibits at this point pending my determination as to the adverse invocation for foundation. I am ruling on the other objections.
BY MR. YOUNG:
Q. Looking at Exhibit 2965, that's an e-mail the next day that you had with Mr. Montgomery, correct, Mr. Zullo?
Note. Exhibit 2965 is Email chain, last from David Webb to Mike Zullo re Judge dated 11/5/2014 (ZULLO_002742 - ZULLO_002743)
A. Taking the Fifth, sir.
Q. Okay. You have no reason to doubt the authenticity of this November 5, 2014 e-mail exchange that you had with Mr. Montgomery, correct?
A. Taking the Fifth, sir. [4343]
Q. On the second page of that exhibit, in the middle there's a 12:28 November 5, 2014 e-mail in which you indicate that you're going to speak to the Sheriff Arpaio at 4 p.m. that day.
You did speak with the sheriff that afternoon, correct?
A. Taking the Fifth, sir.
Q. And that was about the software that you were discussing with Mr. Montgomery that you wanted him to supply, is that correct?
A. Taking the Fifth, sir.
Q. Then up above at the top of that page in your 1:02 p.m. e-mail, you told Mr. Montgomery that you needed verification of what he was doing, is that right?
A. Taking the Fifth, sir.
Q. Then going back to the first page at 2:40 p.m., about in the middle of the page, you told Mr. Montgomery that you're not going to discuss money with him without a verification, is that right?
A. Taking the Fifth, sir.
Q. In early November 2014 you wanted Mr. Montgomery to provide something to allow you to conclude that the information that he'd previously provided was accurate, is that correct, sir?
A. Taking the Fifth, sir.
MR. YOUNG: Your Honor, I move for the admission of 2965. [4344]
MR. MASTERSON: Objection, foundation, relevance, hearsay, 403.
THE COURT: Overruled.
BY MR. YOUNG:
Q. Let's go to Exhibit 2966. 2966, Mr. Zullo, is a December 9, 2014 e-mail exchange that you had with Mr. Montgomery, correct?
Note. Exhibit 2966 is Email chain, last from Mike Zullo to David Webb re Sheriff dated 12/9/2014 (ZULLO_002875 - ZULLO_002876).
A. Taking the Fifth, sir.
Q. This e-mail string is authentic, correct?
A. Taking the Fifth, sir.
MR. YOUNG: Your Honor, I move for the admission of Exhibit 2966.
MR. MASTERSON: Just one second, Judge.
THE COURT: Sure.
MR. MASTERSON: No objection.
MR. WALKER: No objection.
THE COURT: Is there no objection even as to the Fifth Amendment?
MR. MASTERSON: Even as to the Fifth Amendment.
THE COURT: All right. So this is 2966? 2966 is admitted.
(Exhibit No. 2966 is admitted into evidence.)
MR. YOUNG: Well, maybe we can publish that exhibit.
THE COURT: Is that 2966?
MR. YOUNG: Yes, Your Honor. [4345]
THE COURT: 2966 is admitted.
BY MR. YOUNG:
Q. So going to the bottom of the page --
MR. YOUNG: And I suppose we can publish this exhibit now, Your Honor.
THE COURT: You may.
BY MR. YOUNG:
Q. Going down to the bottom of the first page and the top of the second, you told Mr. Montgomery that he had an extremely short window of opportunity to work in, and that the choice was his. And all that he had to do was to produce what he said he was going to produce in exchange for the dollars that he had received, is that right?
A. Taking the Fifth, sir.
MR. YOUNG: Why don't we put up the top of the next page as well.
BY MR. YOUNG:
Q. You told Mr. Montgomery, you stressed to him, that time was of the essence, is that right?
A. I'm sorry, sir. Was that --
Q. You told -- on December 9, 2014, you told Mr. Montgomery that time was of the essence.
A. Taking the Fifth, sir.
Q. You also told him that you'd been instructed to write up a final report to be ready to hand over to a different agency [4346] regarding the work that he was doing, is that right?
A. Taking the Fifth, sir.
Q. Was that true?
A. Taking the Fifth, sir.
Q. You wanted Mr. Montgomery to accelerate his efforts, correct?
A. Taking the Fifth, sir.
Q. Let's move to Exhibit 2967.
Note. Exhibit 2967 is Email chain, last from David Webb to Mike Zullo re Arpaio dated 12/16/2014 (ZULLO_000090 - ZULLO_000094). Based on the testimony below, at least some portion of this string is also contained in Exhibit 2935.
This is an e-mail string that you had with Mr. Montgomery on December 16, 2014, correct?
MR. YOUNG: Your Honor, I think we need the screen activated for the witness and counsel.
BY MR. YOUNG:
Q. Exhibit 2967 is an e-mail exchange that you had with Mr. Montgomery on December 16, 2014, correct?
A. Taking the Fifth, sir.
Q. It's an authentic e-mail, isn't it?
A. Taking the Fifth, sir.
Q. The e-mail accurately summarizes what you were feeling at that time as far as Mr. Montgomery was concerned, correct?
A. Taking the Fifth, sir.
Q. Mr. Zullo, I'm going to play a portion of the deposition that you gave earlier this week, and it's going to be page 63, line 8, to page 64, line 19.
MR. YOUNG: And Your Honor, just to let you and [4347] counsel know, I'm going to ask for admission of the deposition testimony, in view of Mr. Zullo's refusal to testify and his resulting unavailability. And I believe that the testimony is therefore admissible as prior testimony, given that unavailability. So I'm going to play the testimony and ask for that admission. Mr. Klein.
(Video deposition clip played as follows)
"Question: Now, in a later e-mail on December 16, and the time stamp on that is 1:54, it's at the bottom of page Zullo 000090, you tell Mr. Montgomery, quote, LOL, exclamation points, you mean the phony information you handed MCSO about Snow... LOL. Dennis, you don't fool me. You think you do... making up e-mails as you went along, please, exclamation points, end quote, and it goes on.
"Was it your belief at that point that Mr. Montgomery was and had been giving you false information about Judge Snow?
"Answer: Taking the Fifth.
"Question: Then Mr. Montgomery tells you, quote, Go coerce someone else. I'm tired of your threats and innuendos. Go back to spying on Judge Snow and the court monitor. Seems like you have no regard for the law, end quote.
"Was Mr. Montgomery accurate when he said that you had been spying on the court monitor as well as Judge Snow?
"MR. MASTERSON: Form, foundation. [4348]
"THE WITNESS: I'm taking the Fifth.
"Excuse me. I'm sorry. It's just a joke. I'm sorry.
"Question: Well, I understand you're taking the Fifth, but these are important questions --
"Answer: I'm not talking about your question. It's just this whole e-mail chain is just bullshit.
"Question: Well, then you responded to Mr. Montgomery at 2:17 p.m., quote, LOL whatever. You made it all up, Dennis. We know it... Nite, end quote.
"Did that accurately reflect your view as to what Mr. Montgomery had been giving you?
"Answer: It is so hard for me to keep taking the Fifth.
"I don't know where I put myself, Mr. Young, if I answer anything on this. I think that document pretty much tells you where I was as far as he was concerned."
(Video deposition clip concluded.)
MR. YOUNG: Your Honor, I'm going to move for admission into evidence the deposition testimony we just heard.
THE COURT: Any objection?
MR. MASTERSON: No objection.
MR. WALKER: No objection, Your Honor.
MR. MURDY: No objection, Your Honor.
THE COURT: The deposition testimony is admitted.
Are you going to mark it as an exhibit? [4349]
MR. YOUNG: Did the court reporter take it down as it was being played?
THE COURT: I'm sure he did.
MR. YOUNG: If Your Honor would like, we could put it in as an exhibit.
Well, the deposition testimony, I was thinking of just relying on the transcript.
THE COURT: That's fine.
MR. YOUNG: I am now going to move as to Exhibit 2967, which is what Mr. Zullo was talking about in his deposition, to admit into evidence.
THE COURT: All right. Well, I'm going to accept into evidence, then, the substantive nature of the deposition that's just been transposed -- or just been transcribed by the court reporter.
MR. YOUNG: Thank you.
Based on that testimony, we move the admission of Exhibit 2967.
MR. MASTERSON: Objection, foundation, relevance, hearsay, 403.
THE COURT: Overruled.
MR. YOUNG: Your Honor, I know that's part of our motion and Your Honor has not ruled on that motion. At this point, without prejudice to that motion, which we'll still have pending if you deny my current motion, I do move for the [4350] admission of 2967, not based on any adverse inference, but on the testimony that Mr. Zullo gave during his deposition that this document accurately summarized what he was feeling at that time as far as Mr. Montgomery was concerned --
THE COURT: I am going to admit the exhibit. I will hear from you, Mr. Masterson, before finally ruling. But it seems to me after admitting the deposition exhibit there is foundation, there is authentication, and so I'm going to admit the exhibit unless you can tell me why I shouldn't.
MR. MASTERSON: Withdrawn.
THE COURT: Exhibit 2967 is admitted.
(Exhibit No. 2967 is admitted into evidence.)
MR. YOUNG: May we publish the exhibit, Your Honor?
THE COURT: You may do so.
BY MR. YOUNG:
Q. Now, Mr. Zullo, on the second page of that exhibit, Mr. Montgomery, at 2:41 p.m., stated to you, quote: "MCSO pursued sensitive information against Judge Snow, and we both know it."
That's a true statement, correct?
A. Taking the Fifth.
Q. And then he says: "In fact, you" -- that is you, Mr. Zullo -- "produced some of that information to the D.C. judge in August."
That's also a true statement, correct? [4351]
A. Taking the Fifth.
Q. You did meet with Judge Lamberth in Washington, D.C., in connection with your work with Mr. Montgomery, correct?
A. Taking the Fifth.
Q. And you gave Judge Lamberth information about Judge Snow that you had obtained from Mr. Montgomery, correct?
A. Taking the Fifth, sir.
Q. That information related to an alleged wiretap that Mr. Montgomery had told you about that Judge Snow had ordered with respect to Sheriff Arpaio and Chief Sheridan, is that correct?
A. Taking the Fifth, sir.
Q. Now, you responded to Mr. Montgomery by telling him that you thought that the information that you had been giving -- and I'm going to actually look at the bottom of the first page of the exhibit now --
This is your e-mail with the time stamp 1:54 p.m. You said some things about Mr. Montgomery in your first paragraph, and then in your second paragraph you refer to, quote, the phony information, end quote, that Mr. Montgomery had given to you and MCSO about Judge Snow.
You felt that the information you'd gotten from Mr. Montgomery, at least so far, was phony with respect to Judge Snow, is that right?
A. Taking the Fifth, sir. [4352]
Q. You told him and you believed as of December 16, 2014, that Mr. Montgomery had been making up e-mails as he went along, is that right?
A. Taking the Fifth, sir.
Q. You thought that -- and I'm referring, again, to that e-mail at the bottom of the page, and the e-mail continues on the top of the next page of Exhibit 2967.
Let's put that up on the screen.
In your e-mail to Mr. Montgomery of 1:54 p.m. on December 16, you told him that he had given you a cut-and-paste crap -- or cut-and-paste crap on some worthless drives, is that right?
A. Taking the Fifth, sir.
Q. You told Mr. Montgomery that he had just given you smoke and mirrors, which sucked when all the smoke cleared, is that right?
A. Taking the Fifth, sir.
Q. You also referred to some ex-NSA people, and those were Mr. Drake and Mr. Wiebe, who exposed Mr. Montgomery's deception in about 17 minutes, is that right?
A. Taking the Fifth, sir.
Q. Then on December 16 at 3:05 p.m., going back to the first page, Mr. Montgomery, the e-mail at 2:17 p.m. -- no, actually 3:05 p.m. We do both of those -- let's look at both of those on the screen: 3:05 p.m. and 2:17 p.m. [4353]
And there may be a time zone difference here that accounts for the time stamp sequence, but Mr. Montgomery told you that he was tired of your threats and innuendos, and then he said to you, quote: Go back to spying on Judge Snow and the court monitor. Seems like you have no regard for the law, end quote.
Mr. Montgomery told you that, right?
A. Taking the Fifth, sir.
Q. In fact, you and Detective Mackiewicz had talked to Mr. Montgomery about having him obtain information about the court monitors, correct?
A. Taking the Fifth, sir.
Q. And then you told Mr. Montgomery in response: LOL, whatever. That stands for "lots of laughs," is that right?
A. Taking the Fifth, sir.
Q. You're not going to answer that question?
A. I'm not answering any questions.
Q. And then you told Mr. Montgomery that he had made it all up, and that you and others knew that, is that right?
A. Taking the Fifth, sir.
MR. MASTERSON: Your Honor, could we have a sidebar, please?
THE COURT: Yeah.
(Bench conference on the record.)
MR. MASTERSON: First off, Mr. Young just asked a [4354] question along the lines of "You had conversations about with the monitor" -- or, excuse me. "You had conversations with Mr. Montgomery about spying on the monitor."
Now, I know what that sentence says in that record, but he's got to have a good faith basis to ask a question. And the question he asked was something about a conversation that this witness or Mr. Montgomery had about spying on the monitors.
There's nothing in the record about anybody, there's no allegation about anybody spying, investigating anything with the monitors. He just made that up. He has to have a good faith basis to ask even a question of this witness, who he knows is going to invoke the Fifth Amendment, about activities such as spying on the monitors.
THE COURT: I don't have a copy of the exhibit. Do you have a hard copy --
MR. YOUNG: It's not in that exhibit. There will be a subsequent exhibit. I do have foundation for that question, and I'll be happy to point that out once that other exhibit is discussed.
THE COURT: All right. I think you're going to need to do that, because you do have to have a good faith basis to be asking questions, particularly in a setting where you know that the witness is likely to invoke the Fifth.
MR. YOUNG: Understood, Your Honor. [4355]
THE COURT: I'll ask you to do that. Do you want to do it now?
MR. YOUNG: Sure, if the Court would like.
THE COURT: Go ahead.
MR. McDONALD: Can we take a recess now? It's 10:30.
THE COURT: Yeah. Why don't we take a break, 15 minutes. And if you guys want to talk about it, we can do it now or we can do it later, depending on whether you come to an understanding and wish to withdraw whatever you have to say, or --
MR. MASTERSON: Right.
THE COURT: -- your objection or --
MR. MASTERSON: Sounds good.
THE COURT: -- whatever. Okay.
MR. MASTERSON: Thank you, Judge.
THE COURT: Thank you.
(Bench conference concluded.)
THE COURT: We'll take the morning break for 15 minutes. Thank you.
(Recess taken.)
THE COURT: Please be seated. Mr. Young.
MR. YOUNG: Thank you, Your Honor.
BY MR. YOUNG:
Q. So 2967, the e-mail exchange that you had with [4356] Mr. Montgomery, Mr. Zullo, in that string Mr. Montgomery mentioned something about spying on the court monitor. And I'll ask you again: Did you in fact, along with Detective Mackiewicz, have a discussion with Mr. Montgomery in which the topic of Mr. Montgomery's collecting information on the court monitors was at least mentioned?
A. Taking the Fifth, sir.
MR. YOUNG: Your Honor, I'm going to ask that an audio clip be played. It is 2981B. It is a portion of Exhibit 2981, which is a subject of our written motion. It appears at these approximate time stamps: 56 minutes and 30 seconds to 57 minutes 55 seconds.
Mr. Zullo, I'm going to ask you to listen to the recording and tell me whether that's a conversation among you, Detective Mackiewicz, and Mr. Montgomery.
(Audio clip played.) MR. YOUNG: Stop there. (Audio clip stopped.)
BY MR. YOUNG:
Q. Mr. Zullo, you said to Mr. Montgomery in the clip that we just heard "details on Arpaio's own would be interesting," correct?
A. Taking the Fifth, sir.
Q. Then Detective Mackiewicz said, quote, "monitors, Arpaio's, whatever," end quote, correct? [4357]
Note. After careful review of Exhibit 2981B, this blogger believes that Mackiewicz does not say "monitors" here but, rather, says, "mine, yours, Arpaios, whatever."
A. Taking the Fifth, sir.
Q. Well, you didn't raise any objection when Detective Mackiewicz raised the issue of having Mr. Montgomery help obtain information about the monitors, is that right?
A. Taking the Fifth, sir.
Q. That recording is one that you made. It’s a portion of a recording that you made involving a conversation between -- or among -- you, Mr. Montgomery, and Detective Mackiewicz, is that right?
A. Taking the Fifth, sir.
Q. You did that while you were meeting with Mr. Montgomery during the course of the Seattle investigation?
A. Taking the Fifth, sir.
MR. YOUNG: Your Honor, I move for the admission of Exhibit 2981B.
MR. MASTERSON: Objection, foundation, relevance, hearsay, 805, 403.
THE COURT: Foundation except as reserved is overruled. Relevance is overruled. 403 is overruled. 805 I will take under advisement.
MR. MASTERSON: Also, I just want to note that my objections are to what I heard. What else might be on the audio, I'll reserve objection.
THE COURT: We're just talking about 2981B, just to make it clear. [4358]
MR. MASTERSON: I just don't know if that was all of 2981B.
THE COURT: Is that all of 2981B?
MR. YOUNG: No. Actually, perhaps I better have Mr. Klein play the whole thing again. I did cut it off to ask some questions about the reference to monitors. I'm going to now ask that the whole thing be played --
THE COURT: All right.
MR. YOUNG: -- for 2981B.
MR. KLEIN: From the beginning?
MR. YOUNG: From the beginning.
(Audio clip played.) (Audio clip stopped.)
BY MR. YOUNG:
Q. Mr. Zullo, you, in your conversation with Mr. Montgomery and Detective Mackiewicz, said that the thought process behind the whole thing, the whole project with Mr. Montgomery, was to demonstrate to somebody else that you had information through Mr. Montgomery that would show that the sheriff's rights had been violated, and that would be a useful tool for the sheriff to have. That was what you were thinking, correct?
A. I take the Fifth, sir.
Q. Well, what did you mean when you said the thought process -- that was the thought process behind the whole thing?
A. I take the Fifth, sir. [4359]
Q. Detective Mackiewicz, in that conversation that we just heard a portion of, said that, quote, "Obviously, Mike and I and the sheriff aren't terrorists."
That's a reference to you and Detective Mackiewicz and Sheriff Arpaio, correct?
A. Take the Fifth, sir.
MR. YOUNG: Your Honor, I'm going to renew again or restate my motion, which is also in the written document to admit 2981B. And I think Your Honor has already ruled on the objections previously made, so we'll await the Court's ruling.
THE COURT: Yes, unless you have any new ones to make, Mr. -- based on hearing the entire tape, Mr. Masterson.
MR. MASTERSON: No, they would be the same objections.
THE COURT: All right.
BY MR. YOUNG:
Q. Sir, we were looking at a December 16, 2014 e-mail, Exhibit 2967, in which you and Mr. Montgomery were having a bit of a dispute and in which you asserted that Mr. Montgomery had been providing made-up, false, cut-and-paste crap, is that right?
A. Taking the Fifth, sir.
Q. Let's go to Exhibit 2968. And since this is not in evidence, we can just have it on the screen but not for the gallery.
Note. Exhibit 2968 is Email chain, last from Mike Zullo to David Webb re Good Call dated 1/6/2015 (ZULLO_002711)
Mr. Zullo, this is a January 6, 2015 e-mail exchange [4360] that you had with Mr. Montgomery, correct?
A. Taking the Fifth, sir.
Q. That's your e-mail address on that and that's Mr. Montgomery's e-mail address, correct?
A. Taking the Fifth, sir.
Q. You had this e-mail exchange in connection with your work with Mr. Montgomery on the Seattle investigation, correct?
A. Taking the Fifth, sir.
MR. YOUNG: I move for the admission of 2968.
MR. MASTERSON: No objection.
MR. WALKER: No objection, Your Honor.
MR. MURDY: No objection, Your Honor.
THE COURT: Exhibit 2968 is admitted.
(Exhibit No. 2968 is admitted into evidence.)
BY MR. YOUNG:
Q. So on January 6, as indicated in this e-mail, you had a phone call with Mr. Montgomery, correct?
A. Taking the Fifth, sir.
Q. Okay. And then you told him that you were glad the fighting is over, correct?
A. Taking the Fifth, sir.
Q. And then Mr. Montgomery agreed that the fighting was over, and you said, Great, is that right?
A. Taking the Fifth, sir.
Q. So something happened in between your December 16 e-mail in [4361] which you were telling him that he had been giving you crap and your January 6 e-mail in which you said it was great that the fighting was over, is that right?
A. Taking the Fifth, sir.
Q. Are you going to tell us what that was that happened that caused that to happen?
A. Why don't you? You've been telling me everything you think is going on.
Q. Well, I'm asking you, Mr. Zullo. What happened --
A. I'm taking the Fifth, sir.
Q. Let's look at Exhibit 2969.
Note. Exhibit 2969 is Email chain, last from David Webb to Mike Zullo re Mike Flynn dated 1/7/2015 (ZULLO_001764 - ZULLO_001765)
Now, at the bottom of the first page of that exhibit you wrote an e-mail to Michael Flynn, correct?
A. Taking the Fifth, sir.
Q. Mr. Flynn had been a lawyer for Mr. Montgomery, correct?
A. Taking the Fifth, sir.
MR. YOUNG: Your Honor, I'm going to read a portion of Mr. Zullo's deposition. It's page 67, lines 17 through 20. And based on Mr. Zullo's invocation of the Fifth, I'm going to ask for the admission of this testimony from his deposition, which was on November 9, 2015. Again, page 67, lines 17 through 20.
"Question: Now, in your January 7, 2015, 3:06 p.m. Mountain Time e-mail to Mr. Flynn, actually Mr. Flynn had previously been a lawyer for Mr. Montgomery, correct? [4362]
"Answer: Yes."
MR. YOUNG: I move for the admission of that testimony, Your Honor.
THE COURT: Any objection?
MR. MASTERSON: Objection, foundation, hearsay, relevance, 403.
THE COURT: Do you have any foundation?
MR. YOUNG: Well, Your Honor, at least according to this exhibit, which I recognize is not in evidence, Mr. Zullo was e-mailing Mr. Flynn and would know who he was.
THE COURT: Well, I'm going to defer any objection -- or any ruling on admitting this deposition testimony until I determine whether there's an adequate basis for foundation.
BY MR. YOUNG:
Q. So looking at that e-mail that you wrote to Mr. Flynn, Mr. Zullo, you told him that Mr. Montgomery was continuing to work with the Sheriff's Office at this time, and "this time" being January 7, is that right?
A. Taking the Fifth, sir.
Q. Mr. Montgomery was continuing to work with the Sheriff's Office and you at that time, correct?
A. Taking the Fifth, sir.
Q. Now, you forwarded that e-mail string to Larry Klayman and Mr. Montgomery at 2:07 p.m., correct?
A. Taking the Fifth, sir. [4363]
Q. And then you had some discussion about Mr. Flynn with Mr. Montgomery, correct, as shown in the rest of the e-mail string?
A. Taking the Fifth, sir.
MR. YOUNG: Your Honor, I move for the admission of 2969.
MR. MASTERSON: Objection, foundation, relevance, hearsay, 403, and 805.
THE COURT: I'm sorry, I just want to make sure that I'm correct. Is 2969 the exhibit that's still up on the screen?
MR. YOUNG: Yes. It's a January 7, 2015 e-mail exchange.
THE COURT: All right. 805 is admitted. Relevance is admitted. 403 -- I'm sorry. 805 is overruled. 403 is overruled. Relevance is overruled.
MR. MASTERSON: Judge, just so -- and I'm not questioning the ruling, just does -- did the Court see page 2 of the exhibit that's not on the screen?
THE COURT: I didn't see page 2. I didn't know there was a page 2. I'll take a look at it.
(Pause in proceedings.)
THE COURT: All right. Do you want -- you've got page 2 up on the screen, so you can see it, Mr. Young?
MR. YOUNG: Yes. [4364]
THE COURT: Do you see the part where it talks about what Tim told?
MR. YOUNG: Yes. And my motion for admission of Exhibit 2969 can omit that initial e-mail, which is on the second page of that exhibit.
THE COURT: So we're not going to consider the second page of the exhibit?
MR. YOUNG: Well, we should consider the part that says "Mike" at the top of the second page, because that's the end of the e-mail that's on the first page. But the e-mail that's below the line and the indication "sent from my iPhone January 7, 2015, 2:54 p.m., e-mail from Michael Flynn" need not be part of the motion.
THE COURT: Well, then do you want to redact that from the exhibit?
MR. YOUNG: We can do that.
THE COURT: And admit a separate exhibit that's had it been redacted?
MR. MASTERSON: Judge, and I believe the e-mail is not from this witness; it's from a different Mike.
MR. YOUNG: I agree with that. That's the e-mail on the second page.
THE COURT: The e-mail on the second page --
MR. YOUNG: Correct.
THE COURT: -- is the one that I'm not going to [4365] consider.
MR. MASTERSON: Oh, okay. I thought he was trying to say we were going to consider part of it and not part of it.
THE COURT: No. I think all he was saying was that the top line on the second page belonged to the first page of the e-mail.
MR. MASTERSON: Understood.
MR. YOUNG: Your Honor --
THE COURT: So I am not going to admit 2969, I'm going to require you to provide a redacted 2969A, and then I will overrule the objections, except for as it pertains to page 2 that Mr. -- I'm sorry, that have been made, but those will be redacted, and then you can reserve, as you have with the others, foundation.
MR. YOUNG: Your Honor, you've took under advisement the motion to admit the deposition answer that I read.
THE COURT: I did.
MR. YOUNG: I'm going to make a further argument, with your permission.
THE COURT: All right. But can we make it after -- I mean, can we get through the testimony with Mr. Zullo and can you make that -- or do you need that --
MR. YOUNG: Be very short, Your Honor.
THE COURT: All right.
MR. YOUNG: The foundation argument was the one that [4366] you reserved. That was not made during the deposition, and therefore has been waived.
THE COURT: Mr. Masterson.
MR. MASTERSON: Your Honor, could I have the page of the deposition again, please?
MR. YOUNG: Page 67, lines 17 through 20.
MR. MASTERSON: So is the only portion of the deposition testimony being offered is page 67, lines 17 through 20?
THE COURT: That was the only portion offered.
MR. MASTERSON: No objection.
THE COURT: All right. Then that portion of the deposition is admitted as substantive testimony. But I'm still going to require you to resubmit a 2969A. And then that will be in the same status as every other exhibit, except for those that have been admitted without objection.
MR. YOUNG: Thank you, Your Honor.
BY MR. YOUNG:
Q. Let's look at Exhibit 2970. Exhibit 2970 is a January 19, 2015 e-mail exchange between you and Mr. Montgomery, correct?
Exhibit 2970 is Email chain, last from Mike Zullo to David Webb re Updates dated 1/19/2015 (ZULLO_002947 - ZULLO_002950).
A. Taking the Fifth, sir.
Q. Okay.
THE COURT: I'm sorry. I didn't get the number on this one.
MR. YOUNG: 2970. [4367]
THE COURT: Thank you.
BY MR. YOUNG:
Q. In the first e-mail at the top of the first page, you told Mr. Montgomery that you were trying to protect him and get him to the judge. That judge was Judge Lamberth, correct?
A. Taking the Fifth, sir.
Q. Mr. Zullo, I'm going to play for you another portion of your deposition. It's page 68, line 21, through page 69, line 1.
MR. YOUNG: And, Judge, I'm going to ask for the admission of this deposition testimony that we're about to hear, based on Mr. Zullo's invocation of the Fifth.
(Videotaped deposition played as follows:)
"Question: At the top of the first page in the e-mail that you wrote to Mr. Montgomery on January 19, 2015, at 12:57 p.m., you told Mr. Montgomery, quote, 'It was me who tried to protect you and get you to the judge,' end quote.
"That's Judge Lamberth, correct?
"Answer: Yes, sir."
MR. YOUNG: Your Honor, I move for the admission of that testimony.
MR. MASTERSON: No objection.
MR. WALKER: No objection.
MR. MURDY: No objection, Your Honor.
THE COURT: That deposition testimony is admitted. [4368]
MR. YOUNG: Based on that testimony, I'd move for the admission of Exhibit 2970.
MR. MASTERSON: Objection, foundation, relevance, hearsay, 403.
THE COURT: I'm going to overrule the objections and admit 2970. I think the witness indicating that he did mean a particular judge in reference to the e-mail provides both authentication and foundation, and so the exhibit is admitted.
(Exhibit No. 2970 is admitted into evidence.)
MR. YOUNG: Your Honor, may we publish that exhibit?
THE COURT: You may.
BY MR. YOUNG:
Q. We could look at the e-mail that you wrote. It's at the top of the first page. Mr. Zullo, you were trying to protect Mr. Montgomery, correct?
A. Taking the Fifth, sir.
Q. And you stopped somebody from going to the feds because it would hurt Mr. Montgomery, is that right?
A. Taking the Fifth, sir.
Q. Who did you stop from going to the feds?
A. Taking the Fifth, sir.
Q. How did you stop them from going to the feds?
A. Taking the Fifth, sir.
Q. Now, you also told Mr. Montgomery that you wanted to get [4369] this back on track. That's the work that you were doing with Mr. Montgomery, correct?
A. Taking the Fifth, sir.
Q. You wanted to protect Mr. Montgomery and stop others from going to the feds about him, that is, federal law enforcement, because you wanted to keep getting Mr. Montgomery's help, is that right?
A. Taking the Fifth, sir.
Q. Let's move to Exhibit 2269. This should not be published.
Note. Exhibit 2269 is Email from David Webb to Mike Re: Lawsuit dated 1/22/2015 (MELC200001-03).
If we could show the bottom of the first page of Exhibit -- well, let's actually ask about whole thing first. Exhibit 2269 is an e-mail exchange you had with Mr. Montgomery just a few days later on January 22, 2015, correct?
A. Taking the Fifth, sir.
Q. You don't have any reason to doubt the authenticity of this e-mail?
A. Taking the Fifth, sir.
MR. YOUNG: I move for the admission of the e-mail, Your Honor, 2269.
MR. MASTERSON: Objection, foundation, relevance, hearsay, 403.
THE COURT: Relevance and 403 are overruled.
BY MR. YOUNG: [4370]
Q. Mr. Zullo, down at the bottom of the first page, in the 1:12 p.m. e-mail that you wrote to Mr. Montgomery, you said that you met with the sheriff yesterday, that is, January 21, 2015. You did meet with the sheriff on that day, correct?
A. Taking the Fifth, sir.
Q. You met with him about the work that Mr. Montgomery was doing, correct?
A. Taking the Fifth, sir.
Q. And you indicated to Mr. Montgomery that the sheriff was hoping that you could get Mr. Montgomery where he needed to go, correct?
A. Taking the Fifth, sir.
Q. That's a reference to the work that you were doing with Mr. Montgomery, correct?
A. Taking the Fifth, sir.
Q. Let's go to Exhibit 2971. This is a January 26 e-mail that you wrote -- actually, Mr. Montgomery wrote to you in response to an e-mail that you had written to him, is that right?
Note. Exhibit 2971 is Email chain, last from David Webb to Mike Zullo re James Risen dated 1/26/2015 (ZULLO_001520 - ZULLO_001523)
A. Taking the Fifth, sir.
Q. There's no question as to your authenticity of this document, is that right?
A. Taking the Fifth, sir.
Q. Now, on January 26 at 10:28 a.m. -- this is the e-mail on the second page of the exhibit -- you wrote that you were waiting for a meeting with the sheriff to discuss some idea [4371] relating to Mr. Montgomery, correct?
A. Taking the Fifth, sir.
Q. You in fact -- did you have such a meeting with the sheriff on January 26?
MR. MASTERSON: Your Honor, I'm going to object to counsel testifying. I'm looking at page 2 of the e-mail, and he said the phrase "other idea," but then he adds words to it.
So if he can just read the e-mail, that's fine; if he adds words, that's testifying.
THE COURT: I'm going to overrule the objection to the extent that it involved that particular question.
BY MR. YOUNG:
Q. Did you have such a meeting, Mr. Zullo?
A. Taking the Fifth, sir.
Q. Now, going back to the first page of the e-mail, at 11:01 a.m. you told Mr. Montgomery that without the sheriff, any hope of immunity -- that's immunity for Mr. Montgomery -- is dashed. That was your view at the time, right?
A. Taking the Fifth, sir.
Q. You were dangling the hope of immunity for Mr. Montgomery in order to entice him or incentivize him to continue to work with you, is that right?
A. Taking the Fifth, sir.
MR. YOUNG: Your Honor, I move for the admission of Exhibit 2971. [4372]
THE COURT: How many pages is the exhibit?
MR. YOUNG: It is three pages long.
MR. MASTERSON: Objection, foundation, relevance, hearsay, 403.
THE COURT: Relevance and hearsay are overruled. And the rest of 2971 is taken under advisement as the others have been, unless otherwise specifically admitted.
BY MR. YOUNG:
Q. Let's go to Exhibit 2271 now.
Note. Exhibit 2271 is Email from David Webb to Mike re: Work dated 2/2/2015 (MELC202285-89).
Exhibit 2271 is a set of e-mails that you exchanged with Mr. Montgomery on February 2, 2015, correct?
A. Taking the Fifth, sir.
Q. These are e-mails that you exchanged with Mr. Montgomery during the course of your work on the Seattle investigation?
A. Taking the Fifth, sir.
Q. There's no question as to authenticity, correct?
A. Taking the Fifth, sir.
MR. YOUNG: Your Honor, I move for the admission of Exhibit 2271.
THE COURT: How many pages?
MR. YOUNG: The exhibit is five pages long.
MR. MASTERSON: Objection -- I'm sorry.
MR. YOUNG: We can flip through the rest of them on the screen, Your Honor, if you'd like.
THE COURT: Well, depending upon Mr. Masterson's [4373] objection, I may have you do that.
MR. MASTERSON: Foundation, relevance, hearsay, 403.
THE COURT: Overruled. Foundation is reserved.
BY MR. YOUNG:
Q. Let's go to the fourth page of the exhibit, which is page MELC202288. And Mr. Montgomery wrote you an e-mail at 11:02 a.m. on February 2nd, 2015. I want to focus on that.
Mr. Montgomery was doing two things for you as of early February 2015, and one of those was the BC, or birth certificate, is that correct?
A. Taking the Fifth, sir.
Q. Okay. The other project, aside from the birth certificate, that you were working on with Mr. Montgomery, was some data mining project. In fact, Mr. Montgomery says it's, quote, "data mining data for Arpaio," end quote, is that correct?
A. Taking the Fifth, sir.
Q. That data related, at least in part, to the banking investigation that you had tried to get help from Mr. Montgomery, is that right?
A. Taking the Fifth, sir.
Q. Let's go to Exhibit 2090. Exhibit 2090 is another e-mail string that consists of e-mails that you exchanged with Mr. Montgomery on February 2, 2015, correct?
Note. Exhibit 2090 is Email chain between Dennis Montgomery to Mike Zullo with a subject line "Judge Snow" dated 2/2/2015 (MELC202222-24).
A. Taking the Fifth, sir.
Q. This is a genuine copy of that e-mail exchange, is that [4374] right?
A. Taking the Fifth, sir.
Q. Done in the pursuit of your Seattle investigation work, correct?
A. Taking the Fifth, sir.
Q. Let's go to the back of that e-mail string.And actually, if we could focus on the first -- the bottom of the page that ends in 223 and the top of the page that ends 224.
On February 2, 2015, at 6:41 p.m., Mr. Montgomery sent you an e-mail attaching -- or linking to a story about the contempt proceeding in this case, correct?
A. Taking the Fifth, sir.
Q. And he told you that it looked like perhaps Sheriff Arpaio was trying to solve his differences with Judge Snow, is that correct?
A. Taking the Fifth, sir.
Q. And then Mr. Montgomery asked you whether he should keep processing the data, is that correct?
A. Taking the Fifth, sir.
Q. And he asked you whether it would just upset the judge more if the work that he was doing with you was ever disclosed, is that correct?
A. Taking the Fifth, sir.
Q. There was some data that you were having Mr. Montgomery [4375] process that would become less useful if the contempt proceeding were to disappear, is that correct?
A. Taking the Fifth.
MR. MASTERSON: Objection, foundation.
THE COURT: Overruled.
THE WITNESS: I answered you: Take the Fifth.
BY MR. YOUNG:
Q. All right. And then let's look at the top two-thirds of that page ending in 223. In response to Mr. Montgomery's question about whether Sheriff Arpaio was trying to solve his differences with Judge Snow, you responded to him that you were sure he was, is that right?
A. Taking the Fifth, sir.
Q. And then he asked you for clarification whether you meant he was solving his differences with Snow, is that correct?
A. Taking the Fifth, sir.
Q. And then at 6:21 p.m. on February 2, you said, and I'm not going to repeat all of your language, but you said basically: No, he's not solving it. You said that they were looking to get rid of the contempt charge, is that right? You told Mr. Montgomery that?
A. Taking the Fifth, sir.
Q. And then you told Mr. Montgomery that "this guy" is never going to leave him alone. You're referring to Judge Snow there, correct? [4376]
A. Taking the Fifth, sir.
Q. All right. Well, let's go up to the next e-mail, which is 7:29 p.m. on February 2. Mr. Montgomery then said that he understood, and he asked you whether it was your desire for him to keep processing the data, or should he just work on the birth certificate, is that right?
A. Taking the Fifth, sir.
Q. Then going to the bottom of the first page of the exhibit, you sent an e-mail back to Mr. Montgomery at 7:32 p.m. on February 2nd, 2015, that he should work on the -- Mr. Montgomery should work on the birth certificate first to get the sheriff back, and then we will go for the data.
And then you told him that you would share your plan with him, Mr. Montgomery, once you got the sheriff back in the game, is that right?
A. Taking the Fifth, sir.
Q. Then at 8:14 p.m., in the middle of the first page, you told Mr. Montgomery that your plan was going to kill two birds with one stone, is that right?
A. Taking the Fifth, sir.
Q. One of those stones was the birth certificate, correct?
A. Taking the Fifth, sir.
Q. The other stone -- well, the other bird, actually, forgive me -- the other bird that you were going to kill with the stone was Judge Snow, correct? [4377]
A. Oh, Dear God. Taking the Fifth, sir.
Q. Well, are you willing to tell us what the birds were?
A. Taking the Fifth, sir.
MR. YOUNG: Your Honor, if I failed to do so before, I'll do it now. I move for the admission of Exhibit 2090.
MR. MASTERSON: Objection, foundation, relevance, hearsay, 805, 403.
THE COURT: Where's the 805 material?
MR. MASTERSON: Did you ask me where?
THE COURT: Yeah.
MR. MASTERSON: There's the reference, I don't know what to call this, but www.rawstory, joe-arpaio-hope-to-dodge, et cetera. [Note: Apparently this article.]
THE COURT: Yeah. I'm going to overrule that because I don't think it's being admitted for the truth of the matter asserted. So everything's overruled, and you maintain your foundation objection.
BY MR. YOUNG:
Q. I'm now going to ask you to listen, Mr. Zullo, to Exhibit 2981A. And I'm going to ask you whether that's a discussion that you had with Mr. Montgomery.
Note. Exhibit 2981A is from WB- ID Software SAP.m4a | ZULLO_004656.
It's again part of a larger exhibit, 2981. I'm going to focus on a portion of that, which I'll say, for the benefit of everyone, is starting at 8 minutes and 55 seconds, and it goes to 10 minutes and 50 seconds of Exhibit 2981. [4378]
(Audio clip played.) (Audio clip stopped.)
BY MR. YOUNG:
Q. Mr. Zullo, that was you talking to Mr. Montgomery, correct?
A. Taking the Fifth.
Q. Okay. You asked Mr. Montgomery with respect to the information you were hoping that he would give you how you could destroy someone with that information, correct?
A. Taking the Fifth.
Q. One of the things that Mr. Montgomery told you was that you could destroy someone using the information that he was promising you by uploading links to pornography that would get them accused of child pornography, right?
A. Taking the Fifth.
Q. "Pedophile" actually is the word that Mr. Montgomery used, right?
A. Taking the Fifth.
Q. You discussed that with Mr. Montgomery?
A. You heard it.
Q. And he said that in response to a question that you asked him, correct?
A. Taking the Fifth, sir.
Q. You also asked Mr. Montgomery how you could financially destroy someone with the information that you were asking Mr. Montgomery to give you, correct? [4379]
A. Taking the Fifth, sir.
Q. And he responded that he could get someone in trouble with the IRS for tax evasion if he could get access to their bank accounts, which is what you were hoping he would do, correct?
A. Taking the Fifth, sir.
MR. MASTERSON: Your Honor, I object to that last question. That's argumentative. There's no basis in fact for it.
THE COURT: It is. It's argumentative, and I won't consider it.
BY MR. YOUNG:
Q. Now, Sheriff Arpaio testified that in early February 2015, you were talking to him and he was talking to you about what Mr. Montgomery was doing.
Do you have any basis for disagreeing with that?
A. Taking the Fifth, sir.
Q. In fact, Sheriff Arpaio admitted that in February 2015 he was talking to you, or may have been talking to you, about Judge Snow in connection with the banking investigation, and that you were trying to track down information about that matter.
Do you have any basis to disagree with Sheriff Arpaio on that issue?
A. Taking the Fifth, sir.
Q. Let's look at Exhibit 2273. [4380]
MR. YOUNG: Oh, actually, before we do that, Your Honor, I move for the admission of Exhibit 2981A, based on Mr. Zullo's testimony just now that we heard it.
THE COURT: The question was: You discussed that with Mr. Montgomery? And the answer was: You heard it.
Mr. Masterson?
MR. MASTERSON: Objection, foundation, relevance, hearsay, 403.
THE COURT: I'm going to take it under advisement as to foundation. I'm not -- I'm not sure whether, in isolation, it's sufficient foundation.
I'm overruling the other objection.
BY MR. YOUNG:
Q. Let's look at Exhibit 2273. That's an e-mail a little more -- about a week and a half later, February 11, 2015. That's an e-mail exchange you had with Mr. Montgomery in connection with your work on the Seattle investigation, correct?
Note. Exhibit 2273 is Email from David Webb to Mike Re: No Work dated 2/11/2015 (MELC201828).
A. Taking the Fifth, sir.
Q. It's an authentic e-mail?
A. Taking the Fifth, sir.
Q. You were talking about what Mr. Montgomery should do, and he asked you whether you were talking about the birth certificate stuff and not Judge Snow info, is that right?
A. Taking the Fifth, sir. [4381]
Q. You knew what the Judge Snow info was when you got that e-mail, correct?
A. Taking the Fifth, sir.
MR. YOUNG: Your Honor, I move for the admission of Exhibit 2273.
MR. MASTERSON: Objection, foundation, relevance, hearsay, 403.
THE COURT: Overruled, with the maintained reservation as to foundation.
BY MR. YOUNG:
Q. Let's go to Exhibit 2274. Exhibit 2274 is also an e-mail exchange that you had with Mr. Montgomery, this time on February 27, 2015, correct?
Note. Exhibit 2274 is Email from David Webb to Mike Re: Arpaio dated 2/27/2015 (MELC202148).
A. Taking the Fifth, sir.
Q. No question as to authenticity, correct?
A. Taking the Fifth, sir.
Q. You're continuing at that time to talk about whether the contempt proceeding in this case could somehow be worked out, is that right?
A. Taking the Fifth, sir.
Q. Okay.
MR. YOUNG: I move for the admission of Exhibit 2274.
MR. MASTERSON: Objection, foundation, relevance, hearsay, 805, 403.
THE COURT: Is the 805 material referring to the news [4382] article that's attached?
MR. MASTERSON: Yes, sir.
THE COURT: I'm going to -- I don't believe that's being admitted for the truth of the matter, so I'm overruling all objections except for the foundation one.
BY MR. YOUNG:
Q. Now turn to Exhibit 2278. That's an e-mail exchange you had with Mr. Montgomery on March 31, 2015, correct?
Note. Exhibit 2278 is Email from David Webb to Mike Re: Place yet dated 3/31/2015 (MELC202249-50).
A. Taking the Fifth, sir.
Q. There's no question as to the authenticity or the fact that you wrote that e-mail, or those e-mails, and Mr. Montgomery wrote those e-mails to you during the Seattle investigation, correct?
A. Taking the Fifth, sir.
MR. YOUNG: I move to admit Exhibit 2278.
MR. MASTERSON: Just one second, please, Judge. (Pause in proceedings.)
MR. MASTERSON: Objection, foundation, relevance, hearsay, 403.
THE COURT: Overruled, with a reservation as to foundation.
BY MR. YOUNG:
Q. Let's go to Exhibit 2279.
Note. Exhibit 2279 is Email from Larry Klayman to Mike Zullo copying David Webb and Dennis Re: 2nd Request dated 4/20/2015 (MELC202142-45).
Exhibit 2279 is an April 20 -- at least at the top is an April 20, 2015 e-mail that you sent to Larry Klayman and [4383] Mr. Montgomery in response to an e-mail that he wrote to you that same day -- well, actually -- yeah. It's an e-mail exchange that you had, at least on the first page, with Larry Klayman, who was the lawyer for Mr. Montgomery, correct?
A. Taking the Fifth.
Q. And then it attaches some other e-mails that date back to April 9, is that right?
A. Taking the Fifth, sir.
Q. Also among you and Mr. Klayman and Mr. Zullo, and also Brian Mackiewicz, is that right?
A. Taking the Fifth, sir.
Q. You were asking in your e-mail to Mr. Klayman for Mr. Montgomery to finish his work, and you asked for a response by close of business on Wednesday, April 22, 2015, correct?
A. Taking the Fifth, sir.
Q. You don't have any basis on which to question the authenticity of this e-mail, is that right?
A. Taking the Fifth, sir.
MR. YOUNG: Your Honor, I move for the admission of Exhibit 2279.
MR. MASTERSON: Objection, foundation, relevance, hearsay, 403.
THE COURT: Same ruling. Those objections are overruled.
BY MR. YOUNG: [4384]
Q. Let's look at Exhibit 2972. Now, this is also an e-mail exchange, this time May 22, 2015, that you had with Mr. Montgomery, correct?
A. Taking the Fifth, sir.
Q. In that e-mail you discussed with Mr. Montgomery the testimony that Sheriff Arpaio and Chief Sheridan had given in this case about Mr. Montgomery's work, is that right?
A. Taking the Fifth, sir.
Q. Did Dennis Montgomery tell you he was upset that Sheriff Arpaio and Chief Sheridan had called his information junk?
A. Taking the Fifth, sir.
Q. Did you tell Mr. Montgomery that you had talked to Sheriff Arpaio and Chief Sheridan on May 21, 2015, and told them that you would not be testifying to the same thing that they had testified to with respect to that subject?
A. Taking the Fifth, sir.
Q. Now, you were actually just saying that in order to keep Mr. Montgomery working for you on the birth certificate, correct?
A. Taking the Fifth, sir.
Q. You did not actually believe that as to Judge Snow -- well, actually, let me ask you: Did you actually believe as to Judge Snow that Mr. Montgomery's information was not junk?
A. I want to answer you so bad, Mr. Young. I am taking the Fifth. [4385]
Q. Did you actually have a discussion with Sheriff Arpaio and Chief Sheridan on that subject?
A. I'm taking the Fifth.
MR. YOUNG: Your Honor, I move for the admission of Exhibit 2972.
MR. MASTERSON: Objection, foundation, relevance, hearsay, 805, 403.
THE COURT: Can you point me out -- point out the 805 material?
MR. MASTERSON: I'm looking on page 1, Judge, down toward the bottom about a statement made by Arpaio and Sheridan. And then an implication, I guess, also from those same two persons.
THE COURT: Well, that wouldn't be hearsay, right? So I'm going to overrule the objection. And you can reserve the foundation.
MR. MASTERSON: Thank you.
BY MR. YOUNG:
Q. Mr. Zullo, you've talked with a radio personality named Carl Gallups about the birth certificate investigation that you have been working on, is that right?
A. Taking the Fifth, sir.
Q. I'm going to show you Exhibit 2823. That is taken from a YouTube website, and it discusses a live Q and A that you did with Carl Gallups on July 14, 2015. [4386]
Did you have such a discussion with Carl Gallups on July 14, 2015?
A. Taking the Fifth, sir.
Q. And your interest, at least in Mr. Montgomery's work, was in part to preserve the credibility of the work you were doing with Mr. Montgomery on the birth certificate, correct?
A. Taking the Fifth, sir.
Q. It would be important for you not to allow critics of the birth certificate investigation to undermine the credibility of that investigation by attacks on Mr. Montgomery, correct?
A. Taking the Fifth, sir.
Q. I'm going to play Exhibit 2873B. It's a sound file. I'll represent to you it's taken from YouTube. And I'm going to ask you whether that is part of your discussion on July 14, 2015, with Mr. Gallups.
Note. Exhibit 2873 is apparently an excerpt from this show.
(Audio clip played.) (Audio clip stopped.)
BY MR. YOUNG:
Q. That's you talking to Carl Gallups, correct, Mr. Zullo?
A. Taking the Fifth.
MR. YOUNG: Your Honor, based on an adverse inference, I'm going to move for the admission of Exhibit 2873B. It is not part of our written motion, so I'm going to make that motion here.
THE COURT: I'm going to still let Mr. Masterson [4387] respond as part of -- in response to your written motion, to the extent we're talking about adverse inferences for foundation.
Do you have other objections, Mr. Masterson.
MR. MASTERSON: Yes, Judge. Foundation, relevance -- relevance, hearsay, 403.
THE COURT: The others are overruled, but I'll let you reserve as to foundation.
BY MR. YOUNG:
Q. I'm going to go back now in time, back toward the beginning of the work with Mr. Montgomery.
You were present during at least part of the meeting that Sheriff Arpaio had with Mr. Montgomery at a hotel in Phoenix on December 9, 2013, correct?
A. Taking the Fifth, sir.
Q. You took a photograph of the two of them during that meeting, correct?
A. Taking the Fifth, sir.
Q. Okay. I'm going to show you Exhibit 2982. And we'll blow it up so that we focus on two people. That's Sheriff Arpaio and Mr. Montgomery, correct?
Note. Exhibit 2982 is this photo (published by Stephen Lemons, Phoenix New Times).
A. Taking the Fifth, sir.
Q. You took that photo, correct?
A. Taking the Fifth, sir.
Q. In fact, you took it at 1:19 p.m. on December 9, 2013, [4388] based on the metadata of the photograph that you handed over to the Jones, Skelton law firm, correct?
A. Taking the Fifth, sir.
Q. Now, you also recorded some meetings in -- actually, a meeting in October 2013 involving yourself,
Detective Mackiewicz, Sheriff Arpaio, and Timothy Blixseth, is that right?
A. Taking the Fifth, sir.
Q. That was the meeting where Timothy Blixseth introduced to Sheriff Arpaio Dennis Montgomery, and what Mr. Blixseth said he could do, is that right?
A. Taking the Fifth, sir.
Q. There are a couple of audio recordings, and those were among the items you recently gave to the Jones, Skelton law firm, correct?
A. Taking the Fifth, sir.
MR. YOUNG: I'm going to ask that Exhibit 2978 be played. And it's about 20 minutes long, so I'm just going to ask for it to be played. And I'll ask you, Mr. Zullo, whether that is a meeting in which you participated and as to which you or someone else made a recording.
Note. Exhibit 2978 is F[ir]st Meeting 1.m4a | ZULLO_003716 -- apparently this recording (published by Stephen Lemons, Phoenix New Times).
THE COURT: That is exhibit what, again?
MR. YOUNG: 2978
THE COURT: All right. That will take us through the lunch break, and so is that a good point to break for lunch? [4389]
MR. YOUNG: Yes, we can -- after we finish with that audio, we can break for lunch, Your Honor.
THE COURT: All right.
(Audio clip played.) (Audio clip stopped.)
BY MR. YOUNG:
Q. Mr. Zullo, we just listened to just a bit of that at the beginning. The first person to speak on Exhibit 2978, that's Timothy Blixseth, correct?
A. Taking the Fifth.
Q. Then the second person to speak was Sheriff Arpaio, correct?
A. Taking the Fifth, sir.
Q. And then the third person to speak was Brian Mackiewicz, is that right?
A. Taking the Fifth, sir.
MR. YOUNG: Let's keep playing the audio.
(Audio clip played.) (Audio clip stopped.)
BY MR. YOUNG:
Q. Mr. Zullo, that's an audio you made of part of the meeting in which you participated with Sheriff Arpaio, Detective Mackiewicz, and Timothy Blixseth, correct?
A. Taking the Fifth, sir.
Q. At the very end, that's Sheriff Arpaio who says, quote, [4390] "We're experts at this shit," end quote, correct?
A. Taking the Fifth, sir.
MR. YOUNG: Your Honor, this would be a fine time for a lunch break.
THE COURT: All right. Take a lunch break. We'll be back at 1:30.
(Lunch recess taken.)
THE COURT: Please be seated. Mr. Young, you ready to proceed?
MR. YOUNG: Yes, Your Honor.
THE COURT: Please do so.
MR. YOUNG: Thank you.
BY MR. YOUNG:
Q. Mr. Zullo, the audio recording we were listening to, 2978, that was a meeting that occurred, that you were part of, that Sheriff Arpaio and Detective Mackiewicz and Timothy Blixseth were also in, that occurred in October 2013, correct?
A. Taking the Fifth, sir.
Q. I'll tell you that Sheriff Arpaio testified earlier that he met once with Timothy Blixseth. Do you have any reason to contradict that?
A. Taking the Fifth.
MR. MASTERSON: Objection, foundation.
THE COURT: Overruled.
THE WITNESS: Taking the Fifth, sir. [4391]
BY MR. YOUNG:
Q. Based on some calendar -- well, one calendar entry, Sheriff Arpaio testified that that meeting likely was on October 18, 2013.
Does that sound right to you?
A. Taking the Fifth, sir.
MR. YOUNG: Your Honor, I move to admit Exhibit 2978.
MR. MASTERSON: Objection, foundation, relevance, hearsay, 403.
THE COURT: Okay. Foundation objection's preserved; all the others are overruled.
BY MR. YOUNG:
Q. I want to go back to the photograph we looked at earlier, which is Exhibit 2982. I did ask you some questions about it earlier, Mr. Zullo.
MR. YOUNG: And Your Honor, I would move to admit that photograph.
MR. MASTERSON: Objection, foundation.
THE COURT: I'm going to -- I'm going to reserve the foundational objection, as I did -- I don't know, was that part of your motion?
MR. YOUNG: I don't think it was part of our motion, Your Honor.
THE COURT: If it is, I'm going to just treat it with the rest of the motion. [4392]
MR. YOUNG: Yes. Thank you, Your Honor.
Your Honor, I have another audio that I want to play that's about an hour long. I'm only going to play the first portion of it for Mr. Zullo, and I'm going to ask him some questions about it. It is 2977.
Note. Exhibit 2977 is First Meeting 2.m4a | ZULLO_003715 - apparently this recording (published by Stephen Lemons, Phoenix New Times).
(Audio clip played.) (Audio clip stopped.)
BY MR. YOUNG:
Q. Mr. Zullo, this is the beginning of another sound recording of the meeting that you were in along with Sheriff Arpaio, Timothy Blixseth, and Detective Mackiewicz in October 2013, correct?
A. Taking the Fifth, sir.
Q. The voice we just heard talking about possible indictment of Mr. Montgomery, that was Timothy Blixseth, correct?
A. Taking the Fifth, sir.
MR. YOUNG: Okay. Let's keep going with the recording.
(Audio clip played.) (Audio clip stopped.)
BY MR. YOUNG:
Q. So the voice we just heard starting to ask some questions of Mr. Blixseth, that was Detective Mackiewicz, correct?
A. Taking the Fifth, sir.
Q. And there was someone who said: Don't count on Arizona. [4393] There ain't no attorney general that would have the balls. That was Sheriff Arpaio, correct?
A. Taking the Fifth, sir.
Q. That meeting was in Sheriff Arpaio's office, correct?
A. Taking the Fifth, sir.
MR. YOUNG: Your Honor, I move for the admission of Exhibit 2977.
MR. MASTERSON: Well, to the part I heard, objection, foundation, relevance, hearsay, 403.
THE COURT: The relevancy objection's preserved. If you have other objections to the remainder of the recording, would you please put them in the written motion?
MR. MASTERSON: Yes, sir.
THE COURT: Thank you.
MR. YOUNG: Your Honor, at this time I have no further questions of Mr. Zullo.
Mr. Zullo, thank you very much for your time.
CROSS-EXAMINATION
DEFENSE COUNSEL JOHN MASTERSON
[4393] Q. Good afternoon, Mr. Zullo.
A. Good afternoon.
Q. You have invoked your constitutional rights under the Fifth Amendment several times, both yesterday and today.
Would you please tell us why you are doing that? [4394]
A. As I put forth in a few motions, I just don't have adequate time to secure competent counsel that understands the complexity of this matter. It was never my intention to take the Fifth. I have to now to protect myself. I have no representation.
Q. Why do you feel at risk?
A. In an earlier pleading, the ACLU and Covington put a footnote in paying special attention to Judge Snow's mindset that we may have violated certain espionage statutes, statutes involving trying to disrupt a federal proceeding. I mean, just hellacious, hellacious accusation. And that was my concern. That was never the intention of what we were doing.
Q. So are you invoking your constitutional rights under the Fifth Amendment because of that document filed by the ACLU?
A. Yes, sir.
Q. Do you still have your deposition up there, sir?
A. I don't know, sir.
Q. Could you take a look, please? Dated November 9, 2015. I have one if you don't.
A. I don't believe I have it. I have a whole bunch of folders here. I don't know if --
MR. MASTERSON: Judge, may I give the witness a copy of his depo, please?
THE COURT: You may.
(Pause in proceedings.) [4395]
MR. MASTERSON: Here you go, sir. (Handing).
THE WITNESS: Thank you.
BY MR. MASTERSON:
Q. Could you please turn to page 71, sir. Are you there?
A. Yes, sir, I'm sorry.
Q. I'm looking at page -- or, excuse me, page 71, line 11, Mr. Young asked you the question: "In that investigation you were hoping that Mr. Montgomery would find further verifiable information about Judge Snow, is that correct?"
MR. YOUNG: Your Honor, objection.
THE COURT: What's the basis?
MR. YOUNG: Hearsay.
THE COURT: Do you have a response, Mr. Masterson?
MR. MASTERSON: Well, the response is Rule 32. I can use -- use this question. Mr. Young asked the question.
Certainly, Mr. Young didn't give any objection to the question. I objected. I'm withdrawing the objection.
It is also asking for the witness's present sense impression or mental impression at the time the question was asked.
THE COURT: Show me in Rule 32 where --
MR. MASTERSON: Well, it says I can use deposition testimony for any purpose.
THE COURT: I believe that's in the state rules. Is [4396] it in the federal rules?
MR. MASTERSON: That's a good question.
THE COURT: I'm looking for that now. It says: At a hearing or a trial. It says all or part of the deposition may be used against a party on these conditions, and it lists three conditions. It doesn't say may be used for any purpose.
Now, I'm not saying it doesn't say that. It might say that somewhere in the rule. But your citation to Rule 32 doesn't overcome, at least unless you can show me, the hearsay exception.
MR. MASTERSON: Well, I think I have a hearsay exception on 803(1) and (3).
THE COURT: Eight oh --
MR. MASTERSON: 801 -- no, 803(1) and (3).
THE COURT: Are you asking for a present sense impression?
MR. MASTERSON: At the time the question was asked.
THE COURT: I'll hear the question.
MR. MASTERSON: Excuse me?
THE COURT: I didn't hear the whole question.
MR. MASTERSON: Oh, the question is: "In that investigation you were hoping that Mr. Montgomery would find further verifiable information about Judge Snow, is that correct?"
THE COURT: That's no present sense impression or [4397] existing mental condition. Overrule -- or sustained.
BY MR. MASTERSON:
Q. Mr. Zullo, let me ask you this way: Do you remember your deposition on November 9, 2015?
A. Yes.
Q. Do you remember Mr. Young asking you the question: "In that investigation you were hoping that Mr. Montgomery would find further verifiable information about Judge Snow, is that correct?"
Do you recall that question?
A. Yes.
Q. Did you answer that question at your deposition?
A. Yes.
Q. What was your answer?
A. "Hell, no."
Q. Did you say "no, no," twice more in response to that question?
A. I don't recall. I may have.
Q. Can you take a look at the deposition transcript, please, line 16 --
A. I guess I did, yeah.
MR. YOUNG: Your Honor, I'm going to renew the objection. Mr. Masterson has just had Mr. Zullo report what Mr. Zullo supposedly said in the deposition. That's just having him repeat the hearsay, and I'll move for it to be [4398] stricken.
MR. MASTERSON: Your Honor, it refreshed his recollection of his testimony at his deposition. He testified what he said at his deposition.
THE COURT: It's stricken. Objection sustained.
BY MR. MASTERSON:
Q. Mr. Zullo, as you're sitting there right there, right now today, in the investigation, the Seattle investigation, were you hoping to find verifiable information about Judge Snow?
A. No, sir.
But, Your Honor, I need to ask -- I don't understand.
I've invoked my Fifth Amendment. I don't understand what's going on here at this point.
THE COURT: Well, you are the one who chooses whether you will invoke the Fifth Amendment or whether you will not invoke the Fifth Amendment, so I can't give you legal advice on that.
THE WITNESS: I understand that, sir.
THE COURT: But I will say that you have the right to invoke the Fifth Amendment with respect to any question that any party asks you. And if you -- and there, you know, based on how you choose and do not choose to invoke the Fifth Amendment, there may be consequences to that as well.
THE WITNESS: Um-hum.
THE COURT: But I can't advise you on that, either. [4399]
Those have to be your choices.
THE WITNESS: Okay.
MR. MASTERSON: Judge, I'm not certain that I got an answer. Could I ask Mr. Moll to read back the question? I think I heard an answer before the witness's question to you.
THE COURT: You may do that.
(The court reporter read the record as follows:)
"Question: Mr. Zullo, as you're sitting there right there, right now today, in the investigation, the Seattle investigation, were you hoping to find verifiable information about Judge Snow.
"Answer. No, sir.
"But, Your Honor, I need to ask -- I don't understand."
MR. MASTERSON: Thank you, Mr. Zullo. No further questions.
* * *
REDIRECT EXAMINATION
PLAINTIFFS' COUNSEL STANLEY YOUNG
Q. Mr. Zullo, in response to Mr. Masterson's questions, you [4400] referred to some hellacious accusations that you perceived to have been leveled against yourself, is that right?
A. Yes, sir, that's right.
Q. Okay. And those accusations were that you had been investigating Judge Snow, among other things, correct?
A. It's contained in that footnote, sir.
Q. And then you said it was never your intention, or never the intention of what you were doing, is that right?
A. Correct.
Q. Okay. Let's go back to Exhibit 2079, which has been admitted into evidence, so I'm going to ask that it be shown to the gallery as well.
And at the first page, in your text message to Sergeant Anglin on New Year's Day 2014, you referred to Mr. Montgomery's mapping out of cell phone calls and line calls back to 2009 involving Judge Snow, correct?
A. Correct.
Q. So you were hoping that Mr. Montgomery would provide information about Judge Snow, is that right?
A. No, sir.
Q. Well, you knew that Mr. Montgomery was mapping out cell phone calls and in line calls involving Judge Snow, is that right? At least that's what he told you.
A. Yes.
Q. Is that what you thought -- [4401]
A. That's what he told us, yes.
Q. And you were talking to the sheriff almost every day because he was calling you wanting updates, right?
A. Yes, sir.
Q. Now, let's go back to Exhibit 2256, which is a June 29, 2014 e-mail between you and Mr. Montgomery. And there you talk about -- actually, Mr. Montgomery tells you: On the one hand, Anglin tells him -- and I'm paraphrasing here -- not to produce information on Judge Snow.
You see that?
A. Yes, sir.
Q. And then he tells you that he's being attacked for not producing information on Judge Snow, correct?
MR. MASTERSON: Objection, beyond the scope of the cross-examination.
THE COURT: Overruled.
THE WITNESS: That is what he is saying, sir.
BY MR. YOUNG:
Q. Okay. At least -- well, you were talking to Mr. Montgomery about producing information on Judge Snow, correct?
A. Mr. Young, Judge Snow was a victim. In that database, like I'm a victim, like Donald Trump is a victim, like Sheriff Arpaio is a victim, like Michele Iafrate is a victim. Judge Snow was in a database from 2009. Had nothing to do with this Melendres thing that I didn't know anything [4402] about. He was a victim, and he was one victim that Mr. Montgomery identified as having sensitive information believed to be obtained. The judge's IRS information and the judge's banking information.
Now, maybe you'll understand the crux of my question to him that you tried to lambast me with and say I was trying to destroy this man. I have nothing against this man. He was a victim. Like 151,000 other people in this county. That's what we were looking for. All this CIA nonsense had no interest for us.
My job was to befriend this guy. Make him think we cared. All we cared about were 151,000 people in Maricopa County, and quite honestly, if Sheriff Arpaio's phones were tapped. That was it.
Sir, you were a victim. I never did anything to hurt this man.
Q. And the way you found out that he was a victim was that you asked Mr. Montgomery to search his data to see whether Judge Snow was there, is that right?
A. Mr. Young, we were looking for high-profile people in Phoenix, Arizona. Mr. Montgomery represented to us that he had judges, federal judges. I asked him: Federal judges in Maricopa County? He said: Yes.
I don't know any federal judges. As a matter of fact, Judge Snow now is the only federal judge I know in Maricopa [4403] County.
I asked Detective Mackiewicz a question: Hey, who is the federal judge with this Melendres thing? Brian didn't know. I didn't know. I attempted to look at it on my phone.
Unfortunately, I was a little stubborn. I refused to believe I needed these. I couldn't really see.
Q. You're talking about your glasses?
A. Glasses, yes. On an iPhone, the smaller one. Believe me, it was a bad day.
Montgomery found I believe originally Judge Silver. I didn't know. Brian said: No, that's not it. We're looking some more. Montgomery finds Snow, Murray Snow. I go: Brian, is that it? He goes: I don't know.
I'm looking around, looking around. Finally I find an article that says Murray Snow. I go: Yeah, I guess that's it. He puts it into the machine and it doesn't really come back.
And he's still on the Internet looking around and he goes: No, it's not Murray, it's Gordon. I had no idea.
He puts in Gordon Murray Snow, and within four minutes -- and it took a while, it was longer than any other one, it comes up four minutes, Gordon Murray Snow, a Phoenix address unknown to me, a phone number unknown to me.
And I'm, like: Okay, so you've got this Judge Snow in your database. He says: Yeah, but there's more. And he showed me symbols on the side of this, and he says: You're [4404] going to see these. When it says this, I don't remember what they are. Let's use "I" for IRS. IRS. And he said: This is for banking.
I asked him, I go: Are you telling me that in your database, these 425 hard drives, you have Judge Snow, a federal judge's private, private information? And he goes: Yeah, harvested by the government. That's what the man told me.
That's what we were pursuing for over a year.
Q. And did you tell Sheriff Arpaio that you'd found some information in Mr. Montgomery's possession relating to Judge Snow?
A. Oh, it's even better that than. I met with Sheriff Arpaio and Chief Sheridan and we sat down. And the plan was and the decision was, not even talking about the flow chart -- which, by the way, I got a direct stand-down order from the sheriff twice, and Chief Sheridan, never to pursue this judge like you so wrongly accuse me of.
The plan going forward was to get Montgomery to give us this IRS information, this banking information on this judge, walk across the street, go to his chambers, knock on his door, and see if he could verify it. Because if he could, it opened up one hell of a door for us to go to the federal government having Montgomery in possession of stuff that nobody on this planet should have. It would prove a breach of banks; it would prove a breach of a government facility. [4405]
That's the nefarious stuff that you don't understand. It wasn't happening the way you laid out here for four hours. Nobody was trying to hurt this judge, including the sheriff.
So much to everyone's astonishment, he didn't do that.
Q. So did you discuss with Sheriff Arpaio and Chief Deputy Sheridan the plan to try to get Montgomery to give you the IRS and banking information for Judge Snow so that you could accomplish what you just described?
A. Absolutely.
Q. When did you first discuss this plan with Sheriff Arpaio and Chief Sheridan?
A. It had to be in the beginning, sir. You know, I wasn't involved the whole time.
Q. Well, let me -- let me ask you this. I'll show you an exhibit we looked at yesterday briefly. It's [Exhibit 2074]. And actually, I want to focus a little bit on the date at the top as well. It's at --
Have you seen this document, by the way? It's on the screen. It's a list of information relating to the DOJ and Arpaio and various people in the DOJ.
Have you seen that document before?
A. Yes, I believe I did, I believe I do.
Q. I'll tell you that Sheriff Arpaio testified that Dennis Montgomery faxed this to him on November 5th, 2013.
A. Okay. [4406]
Q. Taking that date as the -- sort of a milestone or milepost, did the plan to get the IRS and banking information relating to Judge Snow in order to protect him arise before or after that date?
A. I can't be certain, sir, because this would have been about four or five days into us originally meeting this guy. I know that the judge's information didn't come forth right away.
Neither did Sheriff Arpaio's out of that database, nor did mine. So I can't tell you. I really -- I just -- I don't know. I don't know.
Q. Well, how did the idea of finding the name of the judge who was working on the Melendres case originally come up?
A. I don't think it was so much an idea. Like I said, it was high-profile people. This was a database that was in 2008. I think anything from 2007 to 2009. There would be no interaction between Arpaio or Judge Snow at that time. It was merely looking for a federal judge by name, which I didn't know any.
I mean, this man represented a lot of things to us.
He represented that he had the information on Ruth Bader Ginsburg. He represented he had --
Q. Wait. When you say "he represented" --
A. Mr. Montgomery represented.
Q. Yes. Thank you.
A. That he had information on the chief justice of the Supreme [4407] Court. I mean, there was just a lot. And, you know, he was -- he was telling us all these high-profile people that didn't matter to us.
We were worried that this guy has identities -- actually, it's almost a half a million people in just the state of Arizona. And when I'm talking identities, I'm not talking about little blips of pieces of information; full identities and birth dates and Social Security numbers.
Which goes back to the question that you nefariously pointed to me as if I was some kind of deviant, is what could you do with that information?
He was in possession of that as far as I was concerned. That was very concerning to me, that he had this kind of information. So asking for the judge was nothing more than an attempt to get high-profile people. He had John McCain's information. And I don't remember if John McCain had banking information attached to it or not.
But that was the only -- Judge Snow, for all intents and purposes, with all due respect, Your Honor, you were a blip on this radar screen of a year. It was three weeks Montgomery kept telling us: Judge Snow, Judge Snow, Judge Snow. We had hands off, hands off, hands off.
And to your other point, why I said son of a bitch when I learned of this thing that I hadn't been there, is because I was so taken back by what Montgomery said, because we [4408] had a stand-down, hands off on Judge Snow. I didn't know what was going on, I wasn't part of that investigation then, but I wasn't going to blow up what they were doing, either. I didn't know what was happening. I had to play the game.
But I was startled when he said Judge Snow. Because I knew we weren't supposed to do anything with Judge Snow.
You've got this so backwards.
Q. Well, did the investigation into Judge Snow as a victim of the banking breach ever come to an end?
A. Sir, I don't believe we had information about Judge Snow as a victim of the bank -- you know, as a matter of fact, sir, it never dawned on me to even ask to look for Judge Snow and what banking stuff MCSO had, because we weren't doing anything with Judge Snow.
These were specific records that Montgomery asserted to us that he had. And in my mind, that would have taken care of multitude of problems. Having a sitting federal judge that all of a sudden we have a guy in Seattle has his most sensitive information. I could -- especially now knowing this judge? I think the FBI probably would have walked in the door before we would have left, once we went and verified if this is his information.
The other thing I want you to understand is this was always going to the FBI. Always going to go to the FBI. We had a problem with Montgomery. We needed Montgomery to go in a [4409] cooperative state, because he holds the key to unlocking these hard drives. Without him, you can't uncrypt them. Our goal was to get Montgomery to the federal government in a cooperative manner so the people that have the authority to deal with this could.
It's not our fault the FBI falsely raided his house and he doesn't want to work with them. That wasn't our fault. Hence is why we went to Judge Lamberth. We didn't know what to do with this man, knowing he may have this kind of information.
And there's things that I'm not going to talk about, because I'm sure you've kept them out of this courtroom. There are some things this man said, I don't know if they're true; I pray to God they're not true. But we needed to get him someplace where he would cooperate. If that guy thinks he could get immunity, have at it, 'cause somebody else is going to have to do that, not us.
This was a brain damage dance for me to dance with this guy for a year. I don't get paid. I don't make any money doing this. I did it because this is my community. And you're sitting here trying to paint me a criminal. I need -- I need to stop, sir. I need to stop.
Q. Well, this is not a criminal proceeding --
A. You know what? What is this, sir? Come on. What is it, a star chamber? What is it? It's nothing. Every time it's something pertaining to my rights, it becomes nothing. Don't [4410] my rights matter? Don't the rights of every person in this room matter? This judge's rights matter. He was a victim as far as we were concerned.
Q. Okay. Well, in your discussion with Mr. Montgomery I'm a little bit confused, and maybe you can help me with it.
Who was it, as between you and Mr. Montgomery, who first raised Judge Snow's name?
A. I was asking the name of the judge. Montgomery came up with the name. I couldn't see my phone. I didn't know Judge Snow. It had nothing to do with this. I mean, I even saw -- I think, you know, whatever the New Times writes, you're making some allegation that we were pressing this guy right up until two weeks before your contempt hearing.
Sir, I have to tell you, I didn't know when your contempt hearing was. I don't know who the monitors were. I know the names of the monitors now as a result of this. And Mackiewicz didn't say "monitors." I think he meant "monitored," monitoring the sheriff's phones. 'Cause that's what Montgomery was talking to us about.
All these e-mails that you've taken out of context, there were probably -- if you've got 735 e-mails, there were probably 2,000 telephone calls. I lived with this guy in my head day in, day out. Telephone calls at 7:00 in the morning, 11:00 o'clock in the morning, 2 o'clock in the morning, 8 o'clock at night, 9 o'clock at night. That's all I had to [4411] hear was this guy and his CIA tale of woe.
And my job was to do some research so I could converse with him. Because at any given time Detective Mackiewicz may have to turn on this guy. And I was the guy to befriend him.
I had to learn stuff I didn't want to know about, read stuff I didn't care to know about and do it. And that's what I did.
Nobody in this agency has used this database to hurt anyone. We don't even use the database. Investigating it the first four, five days we were up there, that's all we did. We didn't use it. We didn't take it and go: Ooh, look what could we get? We didn't use it at all. It's just the information he's giving us.
And what this is tantamount to, quite honestly, sir, is like the sheriff is the bank teller who gets handed the stickup note. Because he gets handed the stickup note, all of a sudden you're charging with facilitation and conspiracy to commit bank robbery. He's just a guy who got information.
You heard the first tape. That's how this stuff came in to us. There's another tape that you didn't play where he's telling us about -- and I didn't know who Lanny Breuer was or Covington; I didn't know any further this. He calls us in the hotel. And you could hear Detective Mackiewicz say: We don't know what he's talking about. We had nothing to do with any of this. This was this guy's agenda.
So we had to take his agenda and try to utilize it to [4412] get what we needed to protect our residents. And that's all this was. This whole CIA stuff is this guy. So if that meant we had to get him someplace to some judge to further that cause, I was willing to do it; the sheriff was willing to do it; the chief deputy was willing to do it.
The one thing the chief deputy said right away when he saw that flowchart is he said: No way. We are not going down this road. And when the chief deputy gives you a direct order, there's no doubting you got a direct order. We were not going down that road.
We didn't know what to make of that stuff with Montgomery. We didn't know what to do with the phone calls. That e-mail that you showed me, he was mapping out phone numbers trying to find the breaches that he alleged took place of the Maricopa County Sheriff's Office servers, the Attorney General's Office servers, the county attorney general -- the county attorney's servers. I mean, he was telling us all kinds of breaches. And during the course of this he found breaches of Phoenix, Arizona, the mayor's office.
Now, sir, I don't know if that's real. Because we didn't investigate it. We were collecting and relieving him of information. The full intention was to bring it to the FBI.
As a matter of fact, those NSA guys, when we cracked open those drives, the direct order from Chief Sheridan in Sheriff Arpaio's office was: You go over there. If there is anything [4413] that they remotely think is classified privilege, mark the drive, seal the box, and go right to the FBI office and drop it off, and don't leave there till you tell them exactly what is going on. That was the direct order we were under.
Those drives didn't contain anything. And some other day I'll tell you the story how I knew they were going to be a bunch of bullshit before we went.
Q. So going back to my earlier question, Mr. Zullo --
A. You'll have to tell me what the question is, sir, 'cause --
Q. Well, I'll just ask another question.
So you were the one who first came up with the idea of finding information about the judge in the Melendres case, you talked about that to Mr. Montgomery, and then he's the one who actually came up with the name through some search of the Internet. Is that what happened?
A. Sir, the way you're portraying it isn't the way it happened.
Q. Well, tell me how it happened.
A. I just told you. It wasn't looking for this particular man. I don't know any federal judges. It's the one that came to mind. That was it. I knew we had a federal judge with -- with Arpaio's problem. I didn't know who it was. I -- when he told me the name Snow, I didn't even think that was the real name. I didn't know who it was. It wasn't that we targeted Judge Snow to target Judge Snow. Judge Snow is not a target. [4414]
I didn't think his information was even going to be in there, to be honest with you.
Q. Well, you targeted the judge in the Melendres case, right? I mean, that's --
A. It is a judge for the reason why I'm telling you. There was no nefarious reason to ask about this judge. I didn't know enough to ask about him particularly. It could have been some other judge. I didn't know who he is. I don't know who he is.
Q. All right. Well, you found that Mr. Montgomery had information about the judge in the Melendres case whose name you realized was Judge Snow, is that right?
A. Yes, sir.
Q. Did you then tell that fact to Sheriff Arpaio and Chief Sheridan?
A. I believe the information was relayed originally by phone saying: You're not going to believe this. Judge Snow is a victim.
Q. Okay. And how -- can you tell me, in relation to November 5, 2013, when that would have been?
A. Sir, I don't have a time line. All I can tell you, it had to be -- there was holidays involved here. I don't know if it was in November, December; I just don't remember.
Q. Was it before a meeting, which is the one mentioned in your text messages to Sergeant Anglin, where you were on the phone with Detective Mackiewicz and Mr. Montgomery, and there were a [4415] number of other people on the line including lawyers in Phoenix? Were you part of that call?
A. I was. I don't know if that information surfaced then. I don't -- I don't know.
We went out there originally for three days and stayed something like 17, so I don't know exactly when that call went.
Judge Snow was not a big factor in everything we were hearing. He was just another victim like 151,000 other people in this county.
Q. Well, going back to Exhibit 2056, that is an e-mail that you received from Mr. Montgomery, correct?
Let's give Mr. Klein a chance to pull it up. 2256.
A. Yeah, Counselor, this is out of the mind of Mr. Montgomery. I don't know what's reality and what isn't in a lot of these things. I have no idea. And in June 29th, I don't believe I was back in this, or just getting back into this, and this is what he sends me. I can't tell you if this happened or not.
Q. Well, he did send it to you, right?
A. Yes.
MR. YOUNG: Okay. Your Honor, I move for the admission of Exhibit 2256.
THE COURT: The exhibit is admitted.
(Exhibit No. 2256 is admitted into evidence.)
THE COURT: Do you have an objection you want to make, Mr. Masterson? [4416]
MR. MASTERSON: I do not.
THE COURT: The exhibit's admitted.
BY MR. YOUNG:
Q. Then Exhibit 2960, that's another e-mail string that you had with Mr. Montgomery on July 8, 2014, correct?
A. Yes, it is, sir.
MR. YOUNG: I move for the admission of Exhibit 2960.
THE COURT: Exhibit 2960 is admitted.
(Exhibit No. 2960 is admitted into evidence.)
BY MR. YOUNG:
Q. The next exhibit I'd like you to look at again, Mr. Zullo, is Exhibit 2258. Is that an e-mail exchange that you had with Mr. Montgomery on October 30, 2014?
A. It's an e-mail sent to me by Mr. Montgomery.
Q. Right, which responded to an e-mail that you had sent to him, correct?
A. I don't think so, sir. I don't know where that is.
Q. Well, if you look at the middle e-mail of that string, there's something --
A. Well, I'm responding, sir -- excuse me. 11:35 a.m. he sends me this bottom e-mail. I don't see it till 12:14 unless -- yeah, it has to be 12:14 p.m., and then I just responded "not true." And then he sends me this other, this other one up top there. I don't know what this means.
Q. Okay. Well, that's a set of three e-mails that you [4417] exchanged with Mr. Montgomery, correct?
A. Yeah. So what you'll find out, sir, and you'll see in this, is the majority of e-mails are Mr. Montgomery e-mailing me.
MR. YOUNG: Your Honor, I move for the admission of 2258.
THE COURT: Is that 2258?
MR. YOUNG: Yes. And I hope I'm not duplicating an earlier admission.
THE COURT: I thought it was -- I thought you said 2960, but if it's --
MR. YOUNG: Oh, I apologize if I got the number wrong.
The one we're looking at on the screen is 2258.
THE COURT: All right. Thank you. 2258 --
MR. MASTERSON: No objection.
THE COURT: -- is admitted.
(Exhibit No. 2258 is admitted into evidence.)
BY MR. YOUNG:
Q. Now, earlier we listened to an audio, we can play it again if you'd like, that perhaps you'll remember it. It's Exhibit 2979, where there's a reference to Mr. Montgomery. He says he's doing Snow stuff.
Do you recall that audio?
A. Yes. [4418]
Q. That's a recording that you made of a discussion that you had with Mr. Montgomery, correct?
A. Yes.
Q. Do you remember approximately when that was?
A. Is that the April one?
Q. Well, yeah. Actually, there is a reference to April in that.
A. That's the one I'm referring to, if that's what you're asking me.
MR. YOUNG: Okay. Your Honor, I move for the admission of Exhibit 2979.
THE WITNESS: But sir, for clarification, Snow stuff is the same information I told you about. There was nothing else -- nobody was targeting this judge. Nobody was -- we didn't target anybody. We didn't look into anybody's personal life. It was that information that was critical to us, and especially the fact that he is a sitting judge, a federal judge. That had a lot of weight with us.
BY MR. YOUNG:
Q. Okay. Just to clarify, you referred to what you discussed earlier. The Snow stuff was the IRS --
A. IRS, and he alleged that he had his banking information.
MR. YOUNG: Your Honor, I move for the admission of Exhibit 2979.
MR. MASTERSON: I object to certain of the information [4419] in that exhibit on the basis of hearsay. And I believe I already made a relevance objection to that which was overruled, so I'm not going to remake that one.
THE COURT: Yeah, the relevance objection's overruled. The exhibit is going to be admitted to the extent that Mr. Zullo has indicated he made it and what it was.
I don't know whether or not there are other participants in that conversation and who they were, but I'm going to admit the exhibit to the extent that I can understand and have a basis for understanding -- well, I'm going to admit the exhibit. I'm not going to admit it all for the truth of the matter asserted if I can't ascertain who's speaking.
MR. YOUNG: Well, Your Honor, perhaps we should play it again so that Mr. Zullo --
THE WITNESS: Your Honor, I have to ask you, at some point in time I really want to stop answering questions. It's like I'm going over stuff now that I don't -- I don't know what I'm doing.
THE COURT: Well, I appreciate the difficulty you're in, Mr. Zullo, but you cannot invoke the Fifth and not invoke the Fifth. And once you begin discussing something, you've discussed it. And so --
THE WITNESS: I thought it was a question-per-question basis. I thought that's what you just said to me.
THE COURT: Well, sir, I'm not your legal counsel. [4420]
THE WITNESS: Oh, I see. Okay. Well, I don't have counsel.
THE COURT: I know you don't. And it is on a question-by-question basis. But you have to be consistent in your invocation. All right?
So do you want to play that again?
MR. YOUNG: Yes, Your Honor.
And Mr. Zullo, I'm going to ask you to listen to Exhibit 2979, and I'm going to ask you about who the participants in that discussion were.
So, Mr. Klein, if we could start from the beginning.
(Audio clip played.) (Audio clip stopped.)
BY MR. YOUNG:
Q. There was someone, Mr. Zullo, who asked: When you went to L.A. to do the -- do you want me to say where? Who was that?
A. That would have been Mr. Montgomery's son-in-law.
Q. And what was his name?
A. Ish something. I don't remember his last name.
Q. And what was his purpose in asking that, if you know?
MR. MASTERSON: Objection, foundation.
BY MR. YOUNG:
Q. What was going on in this conversation?
THE COURT: Well, I'm going to overrule the objection because he said "if you know." [4421]
Do you know?
THE WITNESS: I don't even understand the question.
BY MR. YOUNG:
Q. There's a reference to Lockheed in the discussion. What was that about? What was the role of Lockheed in this discussion?
A. My understanding was Mr. Montgomery had access to a facility at Lockheed that had a supercomputer, that he could take these drives that he was trying to decipher for us and do it exponentially quicker, just because of the sheer horsepower of this computer. That's my understanding.
Q. And there's a reference to the L.A. thing in that discussion. What was that?
A. Well, I think that is the same thing. I just categorized it like that.
Q. And the purpose for having Mr. Montgomery have access to this computing capacity was to facilitate the investigation into the banking identity theft issue, is that right?
A. No, sir. You have to understand that the way Mr. Montgomery was doing this, it was -- it's called packet reconstruction. And I don't know, I'm no computer science guy, but my understanding is this information, once it's harvested, it's harvested in packet form. And those packets have to be compiled back together. And those packets could be on various drives. So my understanding is this computer would have [4422] allowed him to do that a lot faster.
MR. YOUNG: Your Honor, may I have a moment?
THE COURT: You may.
(Pause in proceedings.)
MR. YOUNG: Your Honor, may we have a sidebar?
THE COURT: Yes.
(Bench conference on the record.)
MR. YOUNG: Your Honor, obviously this is going to take longer because there's been a change during the lunch hour. Mr. Zullo's now answering questions.
I would note that it's my understanding that Mr. Zullo was doing -- is answering questions voluntarily. Now, it is our understanding that he does have the right to invoke the Fifth Amendment as to any particular question, even if he's answered previous questions on the same subject. And I think it would be our understanding that with each successive question, he does have the right to invoke the Fifth, and if he chooses not to, he's waived it as to that particular question.
THE COURT: Well, that's what I -- did I not say that?
MR. YOUNG: That's my understanding of the argument on that, and I just want to make sure --
THE COURT: Do you have a different view, Mr. Masterson?
MR. MASTERSON: Well, I have a different view on the law as to -- [4423]
THE COURT: That's what I mean.
MR. MASTERSON: Let me explain. As to what it does when he answers a question. I do not disagree that he waives as to that specific question. I have no disagreement with that.
THE COURT: Okay.
MR. MASTERSON: I think -- I mean, in candor to the Court, my opinion is that it's a broader waiver than even that.
THE COURT: Yeah. And it seems to me that in his response, that was very lengthy, he did raise a number of the tape recordings and exhibits that -- and he did refer to them in that answer that he previously had invoked the Fifth with respect to.
Do you disagree with that?
MR. MASTERSON: No, Judge. I'll just tell you what my understanding of the law is and then you guys can disagree, or certainly you can disagree with me.
My understanding of the law is that he is free to invoke the Fifth Amendment as to any question he chooses. If, however, he answers a question, an incriminating question, then it's my understanding -- or my opinion, anyway -- that he is compelled to answer questions concerning the details of that particular answer for which he waived his Fifth Amendment right.
THE COURT: Well, I think maybe what we ought to do is [4424] take a break. I'm going to go take a look at what the Fifth Amendment waiver amounts to --
MR. MASTERSON: You know what? I have a -- I have a trial memo I can get to you that might be of some assistance.
THE COURT: Anybody object?
MR. MASTERSON: And I've got copies for everybody.
MR. YOUNG: No. And we do have a case which might be illuminating which is United States versus Seifert, 648 F.2d 557 Ninth Circuit (1980).
THE COURT: Is that in your trial memo?
MR. MASTERSON: I don't know.
THE COURT: Well, go get your trial memo. Let's take a look at it.
(Bench conference concluded.)
THE COURT: Mr. Zullo, I'm going to take a break, and I'm going to tell you why I'm going to take the break. You do have a right to invoke Fifth Amendment. I'm not trying to prevent you from invoking the Fifth Amendment any time you wish.
But there is an effect, if you begin to answer questions, on how much and what then you need to answer. And in light of your voluntary answers to the last number of questions you've received, I think that that -- that I have a question about how far I can go in compelling you to answer if you get asked a follow-up question, and I want to just be sure [4425] that I am comfortable with the contours of that, so I'm --
THE WITNESS: Could I note, Your Honor, just for the record, make sure I -- I probably misunderstood the prior direction when I was advised by you that it was question upon question.
THE COURT: Well, that means you can take the Fifth with respect to every question that you're asked.
THE WITNESS: I understand. I don't think I understood it.
THE COURT: Well, now I'm going to tell you that because you have voluntarily answered some of the questions, then you may receive follow-up questions. And I just want to be comfortable that I'm correct in the law, or as correct as I can be, in determining whether or not you're going to have to answer those questions.
THE WITNESS: Okay, sir.
THE COURT: So I'm going to take about a -- I think I'm going to take a half an hour break and we're going to reconvene here at 3 o'clock. All right? Thank you.
THE WITNESS: Thank you.
THE COURT: Is this the authority, Mr. Masterson, that you wanted to provide me?
MR. MASTERSON: I did, yes.
THE COURT: All right. Mr. Young, you had a case you wanted to provide me? [4426]
MR. YOUNG: Yes, Your Honor. And I haven't, I have to say, done extensive research on this myself, so I don't know whether this is complete or even -- well, I don't know whether it's complete. But the case I would cite is United States versus Seifert, 648 F.2d 557, Ninth Circuit (1980).
THE COURT: 648 F.2d?
MR. YOUNG: 648 F.2d 557.
THE COURT: All right. Thank you.
(Pause in proceedings.)
THE COURT: Did you want to file this memorandum?
MR. MASTERSON: We can do it two ways, Judge. I did provide two copies, so we could file one of those, or we could give a call back to the office and have them e-file it.
THE COURT: I'll let you file this one.
MR. MASTERSON: Thank you.
(Recess taken.)
THE COURT: Please be seated.
All right. Here's how we're going to proceed, Mr. Zullo.
You're correct when you said --
MS. IAFRATE: May I have a moment?
THE COURT: Oh, I'm sorry. I didn't realize everybody wasn't here. I apologize.
(Pause in proceedings.)
THE COURT: I'm going to try to, in fairness, explain [4427] some things to you without being your lawyer.
THE WITNESS: Okay, sir.
THE COURT: So if any of the attorneys object and think I'm starting to cross the line, please stop me, or let me know your objection.
You're correct that when you invoke the Fifth Amendment, you invoke it on a question-by-question basis. That's a basic rule.
THE WITNESS: Um-hum.
THE COURT: When you answer a question voluntarily that is put to you, that may result in a waiver, to some extent or to a larger extent, depending upon the question. But that does not prevent you from seeking to invoke the Fifth Amendment on any further questions that you're asked. Just the burden falls to me to determine whether or not testimony that you've already given allows the parties to ask -- to make further inquiry about something that you've already said.
A second problem -- and so a second problem that has arisen because of your testimony is this. Normally, the party who calls you gets to call you first. Then the other parties have a chance to cross-examine. And then the party who called you is given a chance to ask you questions on redirect just by way of rebuttal.
What happened in this case, as far as I recollect, is that it was actually on redirect -- you answered a few of [4428] Mr. Masterson's questions, there weren't very many, but there were a few on cross-examination. No other party had any questions for you.
Then on redirect -- as I recall, at least -- when Mr. Young was asking you some questions in follow-up of what Mr. Masterson was asking you, you volunteered a great deal of information.
That information that you volunteered might have some general implications for the investigation as a whole; it might not. And it also might have some specific implications for some of the exhibits that you took the Fifth Amendment as to this morning.
But I went -- I tried to, didn't have much time -- I tried to go back briefly and look at everything that you said in your answers to Mr. Young, and I can't really ascertain, I have no degree of comfort that I could ascertain necessarily in a general sense that I can tell you now: You've waived this; you haven't waived that. So how we're going to proceed, I believe, is this way.
I'm going to allow Mr. Young to ask you questions. I'm going to remind you that you have a right to invoke the Fifth Amendment as to any question he asked.
Then what I propose to do is when you've exhausted your questions, Mr. Young, we'll see if any of other parties have any follow-up questions they want to ask. Again, [4429] Mr. Zullo, you're entitled to invoke the Fifth Amendment as to any question they ask.
Rather than try to decide on the fly whether or not there has been a waiver -- either large or small, based on the testimony that Mr. Zullo has given -- all parties are receiving dailies, right?
All right. So you can -- you can make application to the Court that we recall Mr. Zullo, if he continues to invoke the Fifth Amendment, based on the waiver on what he has already testified to.
Now, that poses a few additional questions, or problems, Mr. Young, because normally, he's answering now your questions on redirect, and he's answered a great deal of them. I'm not sure that I wouldn't entertain a motion by defendants, in light of the fact that he's now coming forward with this on redirect, to have -- it's one of those unusual circumstances where I might give them recross, and then allow you final redirect.
Unfortunately for you, Mr. Zullo, that may require you to come back another day.
THE WITNESS: I was almost out, Judge.
THE COURT: Yeah, you almost were, but it's the decision -- you understand --
THE WITNESS: I do, sir.
THE COURT: -- that I'm proceeding the way I'm [4430] proceeding in order to protect, to the maximum extent possible, your Fifth Amendment rights.
THE WITNESS: I appreciate that, sir. I understand.
THE COURT: Do you have any questions about what I've just said, or any objections, Mr. Young?
MR. YOUNG: None, Your Honor. We agree with that, the procedure.
THE COURT: Mr. Masterson?
MR. MASTERSON: I do have a question, Judge, but I -- I think we should do it at sidebar rather than discuss it in front of the witness.
THE COURT: That's all right. Do you want to do it now? Would it be helpful to do it now?
MR. MASTERSON: I think it would be.
THE COURT: All right. Let's do it, then.
(Off-the-record discussion between the Court and the court reporter.)
(Bench conference on the record.)
THE COURT: The court reporter just wanted me to tell you a matter of business: You don't have a daily order form in. If you want one, you'll need to put one in.
MR. MASTERSON: Oh, okay.
THE COURT: Okay.
MR. MASTERSON: We'll do that.
THE COURT: All right. [4431]
MR. MASTERSON: I thought we did, but something must have changed. Anyway, I took a look at the case that Mr. Young gave
you --
THE COURT: Yeah.
MR. MASTERSON: -- at our break. I'm a little concerned about the lawyers asking questions, and I know the Court said you're going to make the ruling on each question, but I looked at the case and the paragraph I'm talking about, and I'm sure you just read it, is our rule is that whatever the standard of waiver for defendants who voluntarily testify, an ordinary witness may pick the point beyond which he will not go --
THE COURT: Right.
MR. MASTERSON: -- and refuse to answer any questions about a matter already discussed, even if the facts revealed are incriminating, as long as the answer sought may tend to further incriminate him.
THE COURT: Right.
MR. MASTERSON: I'm a little concerned about me asking questions of him if he chooses -- if he invokes. But it is my understanding you're going to make the ruling, though?
THE COURT: No. Maybe I didn't explain it very well, it's good to explain it. What I'm going to do is I'm going to allow him to [4432] invoke.
MR. MASTERSON: Okay.
THE COURT: In large part, based on the paragraph you just read.
MR. MASTERSON: Okay.
THE COURT: It seems to me he can still invoke.
MR. MASTERSON: Okay.
THE COURT: And if his answer in fact has any tendency to further incriminate him, then that invocation is appropriate.
My concern is he already sort of went off on the free-form answers, which everybody let him go off on earlier in the redirect, and I am not going to be able to try to reconstruct whether there's some sort of a waiver without looking at what you're going to point to and say: This question is appropriate because he waives -- or he's going -- I mean, this answer allows further inquiry.
So I'm actually, I'm sorry, going to ask you to brief -- I'm going to ask you to state the -- I'm going to ask Mr. Young first to state the questions he has now. I'm going to allow Mr. Zullo to invoke. If Mr. Young -- and I'm going to probably sustain his invocation today.
MR. MASTERSON: Okay.
THE COURT: Then if Mr. Young believes that he has waived as to any particular question that I sustained, for, you [4433] know, temporary purposes today, then I'm going to let Mr. Young file a brief -- a pleading saying: This is the question and this, his answer here from the transcript, indicates that he has waived and I should be allowed to ask this specific question.
MR. MASTERSON: Okay. I understand now.
THE COURT: Okay.
MR. YOUNG: Your Honor, I see an issue, which is that I had a lot of questions this morning --
THE COURT: Um-hum.
MR. YOUNG: -- and I'm not sure that what I need to do now is ask every one of those questions again.
THE COURT: I don't think you need to ask every one. I think we can shortcut this by if you start asking questions, Mr. Zullo does not voluntarily answer, I think you can just say: Are you going to reinvoke as you did this morning?
Will that be acceptable to you?
MR. MASTERSON: Yeah, that's fine with me, Judge.
THE COURT: All right. Is that fine with everybody else here?
THE COURT REPORTER: I didn't hear that.
THE COURT: All parties agreed that it's acceptable, if Mr. Zullo indicates he's going to reinvoke to the same extent he did this morning, that we won't -- Mr. Young won't be required to re-ask every single question that he asked this [4434] morning.
However, Mr. Young, just so you're aware, if you're going to say that he waived based on what he said in redirect, you're going to have to point to the specific question that you did ask this morning, is that clear?
MR. YOUNG: Yes.
THE COURT: All right.
MR. MASTERSON: And just so everyone knows, I think the case law does say that you can't blanket invoke the Fifth.
THE COURT: It does say that.
MR. MASTERSON: So we're all understanding that we're going to move past that rule.
THE COURT: Yes.
MR. MASTERSON: Okay.
THE COURT: And I think that it's common sense that --
MR. MASTERSON: I understand.
THE COURT: -- we do that.
Now, I don't know -- I'm not going to require -- as I said, I think it's only fairness to allow the defendants to re-question based, to some extent, potentially, at least, on the answer given, but I may allow re-redirect, too. But if you --
MR. YOUNG: Did you mean plaintiffs, Your Honor? I mean, I can --
THE COURT: Yes. Yes. That's what I meant. Thank [4435] you. I'm sorry. But if you have questions that you know you're going to want to ask based on what Mr. Young has already asked him, then I expect you to ask those today. And if he invokes the Fifth, the same procedure will go for you, which is you will have to specify what he already said in his redirect, Mr. Young, that allows you to ask the question you're asking.
MR. MASTERSON: I've got that. And then my understanding would also be that if Mr. Young then -- well, Mr. Young, I assume, will be filing a brief if he desires to ask additional questions.
THE COURT: Right.
MR. MASTERSON: And the Court will rule whether there's been a waiver on that question. I assume that I could then follow up on -- where are we?
THE COURT: The answer.
MR. MASTERSON: -- recross.
THE COURT: Yeah. I think so. But again, that's going to be still a somewhat sensitive inquiry.
MR. MASTERSON: Understood, yeah.
THE COURT: I think it will be more focused then, so I think I'll probably be able to have more confidence doing it from the bench at that time. But the briefing will allow me to focus on the question, focus on the answer, and the extent to which I'm going to call allow you to cross-examine and [4436] determine whether or not it has any tendency to further incriminate Mr. Zullo.
MR. MASTERSON: Okay.
THE COURT: Okay?
MR. YOUNG: Thank you, Your Honor.
(Bench conference concluded.)
THE COURT: All right, Mr. Zullo. I'm just going to repeat what I said to you earlier, make sure you understand.
You have the right to voluntarily answer the questions if you want, but you also have the right to invoke the Fifth Amendment if you wish to do so. If you do choose to invoke the Fifth Amendment, I've just discussed with the parties what I tried to discuss clearly in open court, which I'm going to repeat again.
If you do invoke the Fifth, my tendency is going to be to let that stand for today. And then if the parties are going to assert that they have a right to an answer to their specific question in light of testimony that you've already voluntarily given, they're going to file a brief with me, I'm going to make a determination whether they can answer that question, and then we'll have to have you back.
THE WITNESS: Okay, sir.
THE COURT: Do you understand that?
THE WITNESS: I do, yes.
THE COURT: All right. Thank you. [4437]
MR. YOUNG: Thank you, Your Honor.
BY MR. YOUNG:
Q. Let's take a look, Mr. Zullo, at Exhibit 2090, two zero nine zero. That's a February 2, 2015 e-mail string between you and Mr. Montgomery, correct?
A. Yes, sir.
Q. That e-mail was written -- that e-mail string was written by you and also Mr. Montgomery in the course of the Seattle investigation, correct?
A. Yes, sir.
MR. YOUNG: Your Honor, I move for the admission of Exhibit 2090.
MR. MASTERSON: Objection, founda- -- well, objection, relevance, 403.
THE COURT: Overruled. The Exhibit 2090 will be admitted.
(Exhibit No. 2090 is admitted into evidence.)
BY MR. YOUNG:
Q. Let's turn now to Exhibit 2273.
Mr. Zullo, that's an e-mail string between you and Mr. Montgomery dated February 11, 2015, correct?
A. Yes, sir.
Q. And that was written during the course of your work on the Seattle investigation, correct?
A. Yes, sir.
[4438]
MR. YOUNG: I move for the admission of Exhibit 2273.
MR. MASTERSON: Objection, relevance, 403.
THE COURT: Overruled. The exhibit is admitted.
(Exhibit No. 2273 is admitted into evidence.)
BY MR. YOUNG:
Q. Let's go now to Exhibit 2964.
Mr. Zullo, Exhibit 2964 is an e-mail string dated November 4, 2014, between you and Mr. Montgomery, correct?
A. Yes, sir.
Q. And that was done during the course of your work on the Seattle investigation?
A. Yes, sir.
MR. YOUNG: I move for the admission of Exhibit 2964.
MR. MASTERSON: Objection, relevance, 805, 403. One second, Judge, please.
(Pause in proceedings.)
MR. MASTERSON: Withdraw the 805, so just relevancy and 403.
THE COURT: Overruled. The exhibit is admitted. Exhibit 2964 is admitted.
(Exhibit 2964 is admitted into evidence.)
BY MR. YOUNG:
Q. Let's go to Exhibit 2965. Exhibit 2965 is a November 5, 2014, e-mail string between you and Mr. Montgomery written during the course of the Seattle investigation, correct? [4439]
A. Yes, sir.
MR. YOUNG: Your Honor, I move for the admission of 2965.
MR. MASTERSON: Objection, relevance, 403.
THE COURT: Overruled. Exhibit 2965 is admitted.
(Exhibit No. 2965 is admitted into evidence.)
BY MR. YOUNG:
Q. Let's go to Exhibit 2967. Actually, I believe that one's admitted already.
Let's go to 2968. That's a January 6, 2015 e-mail exchange between you and Mr. Montgomery, correct?
A. I don't know if that's the complete e-mail exchange, but that portion does look correct.
Q. Well, I'm actually told that 2968 has been admitted already, so we'll go on to the next one.
[Exhibit 2969]. That is a January 7, 2015 e-mail string between you and Mr. Zullo at the top, and then there's an e-mail at the bottom of the first page from you to Mr. Flynn.
And we're going to exclude the very last e-mail in the string, which is a January 7, 2015 2:54 p.m. e-mail written by Mike -- Michael Flynn. But all the rest are e-mails that you either wrote or received during the course of the Seattle investigation, correct?
A. Yes, sir.
MR. YOUNG: I move for the admission of 2969. [4440]
MR. MASTERSON: My understanding is that, as we discussed last time, the second -- I don't know if it's the whole page, but that bottom paragraph is being removed, so my sole objection is relevance and 403.
MR. YOUNG: I move, just to clarify, for admission of the redacted version of that exhibit that we will submit.
THE COURT: You move for the admission of 2969A, which is going to be the redacted version, as Mr. Masterson just explained.
MR. YOUNG: I so move, Your Honor.
THE COURT: All right. And you state your objections.
MR. MASTERSON: Relevance, 403.
THE COURT: Overruled. Exhibit 2969A, as it has been described to you, which is removing the last paragraph, is admitted.
(Exhibit No. 2969A is admitted into evidence.)
BY MR. YOUNG:
Q. Let's go to Exhibit 2269. Exhibit 2269 is a January 22 e-mail exchange between you and Mr. Montgomery, correct?
A. Yes, sir.
Q. That was done during the Seattle investigation?
A. You know, sir, you categorize it as the Seattle investigation. For all intents and purposes, the Seattle investigation I believe ended almost a year to the day, I think in October of '14. What was going on with Mr. Montgomery at [4441] that point in time was monitoring him based on some discussions we had with Judge Lamberth and trying to propel Mr. Montgomery forward.
This was really monitoring him and trying to get him to ever produce what he had promised us. There was really no investigation going on at that time.
Q. All right. Well, let's -- it is an e-mail string between you --
A. Yeah, I just want to clarify that for you.
Q. Understood.
MR. YOUNG: Your Honor, I move for the admission of Exhibit 2269.
THE COURT: 2269?
MR. YOUNG: Yes.
THE COURT: I thought 2269 was just the exhibit we decided that you were going to admit 2269A but not 2269. Maybe I -- oh, I'm sorry. That was 2969. I apologize. 2269?
MR. MASTERSON: Objection, relevance, 403.
THE COURT: Overruled. Exhibit 2269 is admitted.
(Exhibit No. 2269 is admitted into evidence.)
BY MR. YOUNG:
Q. So Mr. Zullo, you were just mentioning a monitoring project relating to Judge Lamberth. What was that? [4442]
A. I didn't mention a monitoring project; we were monitoring Mr. Montgomery --
Q. Right. Right. What --
A. -- trying to propel him forward.
Q. That's what I was asking about. What were you monitoring Mr. Montgomery for, and how did that relate to Judge Lamberth?
A. Mr. Montgomery -- this portion of what we were doing here was basically starving out Mr. Montgomery. Mr. Montgomery obviously had no income, and we knew at some point in time he was going to have to choose which way he was going to go: working with the federal government or not.
Ultimately, we were hoping he was going to choose to work with the FBI, which ultimately he did. He got production immunity on 600 million records. That was just part of that strategy of starving him out. I was in contact with Larry Klayman at that time, so I had some indication of where Montgomery was headed, what he was thinking.
The whole purpose of this was to get him to the federal government on some cooperative level. It was a long way around the mountain, but ultimately it worked.
Q. What do you mean by starving him out?
A. He has no income, and he wasn't going to get any other revenue from the Maricopa County Sheriff's Office after October. So you'll see in some of these e-mails where he's kind of begging and telling me that he's got no food, no [4443] Internet or whatnot. None of that was going to matter. Nobody was going to come to his aid. Nobody was going to get back on the bandwagon with him. He was going to have to fend for yourself.
And I don't care who you are. After -- without ample savings, after a while you have to make some touch decisions, and I guess he made his.
Q. What was the subject matter of the discussion with Judge Lamberth and the cooperation with the FBI that you just mentioned, if I'm not mistaken?
THE WITNESS: If I -- if I could ask you, Your Honor, that conversation, that was in the judge's chambers. I don't know if that's privileged; I don't know what that is.
THE COURT: Well, sir, you don't have a basis as far as -- I mean, I think I'm going to -- you can choose whether or not you're going to answer, but --
THE WITNESS: Okay.
THE COURT: -- if you're not going to answer, it has to be on the basis of a privilege that belongs to you.
THE WITNESS: I understand.
I don't think I have that basis. I don't think there's anything the Fifth Amendment protects in that conversation.
So I'm sorry, sir. Could you ask me again?
BY MR. YOUNG: [4444]
Q. Yes. You mentioned some discussion involving Mr. Montgomery with Judge Lamberth, and some work that you wanted to get Mr. Montgomery to do with the FBI.
A. Okay.
Q. Okay. What was the subject of that--
A. Yeah, let me -- let me back up for you.
The Sheriff's Office was in a little bit of a quandary as far as Montgomery was concerned. Our intent was to corroborate private parties' information to kind of validate all this other I Spy stuff he was talking about, because we don't have the ability to do that.
In that quandary, we didn't know where to turn with him. He would not cooperate. He told us right up he would not cooperate with the FBI because of what they did to him, he would not cooperate with the Department of Justice because of what they did to him, and he was always crying for this immunity thing. Well, we don't have the ability to guaranty him -- or anyone -- any kind of immunity.
It was at that point in time, I think it was around August, I was there unrelated. It was on the birth certificate issue.
Q. August of 2014?
A. Yes, I believe so, yeah. These years blend in for me.
I was there, and basically the Sheriff's Office was cutting him off and he was pretty much finished. I had concern [4445] with that, and my concern was based on a lot of representations that Mr. Montgomery made, the information, such as the judge, judge's information and many others being a victim in there, I didn't know if it was a prudent idea for us just to kind of put this thing in a box and just throw it to the FBI to get it off our plate.
I went to see the sheriff and chief deputy, and I knew that I had the ability to get Mr. Montgomery where he wanted to go and that was before a federal judge. And in my thought process, if this guy is willing to sit in front of a federal judge and throw this stuff up, let's see him do it. That's how Mr. Klayman got involved is I knew Mr. Klayman would have a connection for us to take this guy there.
And please excuse me for using the term "this guy." I'm from New Jersey; that's what we do.
We made arrangements. I believe we -- myself, Detective Mackiewicz, and Mr. Klayman -- it took a prior initial meeting with Judge Lamberth, explained to him what we thought we had but we weren't sure. There was a subsequent meeting where we did bring Mr. Montgomery, who was recently out of the hospital. It was on recommendation from the Maricopa County Sheriff's Office that he does not travel.
We were reluctant to put him in a plane. He has a brain aneurysm. We didn't pay for it. He found his own way there. We are basically carrying him through the metal [4446] detectors out of his wheelchair. I mean, he made a pretty big endeavor to get there.
Once we get him there, he produces documents. He took documents. We did not -- he alleges we gave stuff to the judge; we didn't give anything to the judge. He threw out his story. He threw out his documents. I do believe that flowchart was part of that. And he, you know, said what he said to say.
The understanding there was, with Judge Lamberth, that Detective Mackiewicz and I and Mr. Klayman were going to come back the following week and discuss what our options were. We went back that third time and we did tell Judge Lamberth that we cannot vouch for Mr. Montgomery. That we were at this point in time unable to corroborate anything substantial outside of some limited banking information, some limited passport information, and complete identities. And when I say that, I'm talking about Social Security numbers and individuals all coinciding with each other.
And we were not comfortable, quite honestly, at that point. We wanted time to go back and see what we could get from Mr. Montgomery that might shore this up a little bit.
In the discussions, the judge basically told us: Look, you've got three -- three places you could go: FBI, DOJ, or a -- some kind of congressional committee, or something to that effect. [4447]
Mr. Montgomery opted for the congressional committee, which wasn't something that we actually believed was ever going to happen, but it's something that he was looking for. So if he thought he had the potential for that, maybe he would cooperate with us and finally give us something that we would have enough credibility with to go to the FBI and go: Whoa. Take a look at this. How do you guys, you know, want to play this? We never got that from Mr. Montgomery.
Subsequently, we were waiting for Mr. Montgomery to basically come to the place where he had no roof over his head. Mr. Flynn owned the house that Montgomery was in. It is such a convoluted story. It was Montgomery's -- he lost it in a bankruptcy. Flynn buys the assets. And then he buys this $3 million house in Yarrow Point for $20,000 in back taxes, and he's got Montgomery is in there. Flynn has been trying to throw Montgomery out. I had to, for three months, jockey these players apart from each other and keep Montgomery in that house so he can keep those machines going, and keep reducing the stuff that the Sheriff's Office was looking for. And I was successful in keeping him in that house for about a year.
Eventually, we closed our end of this thing down after discovering those 50 hard drives -- or whatever they were, whatever number -- had actually no valuable information on them whatsoever. We closed our end down. He was now with Larry Klayman. And let me -- let me back up a little. I know it's a [4448] little scattered. I'm a little tired.
It was a calculated decision by the Maricopa County Sheriff's Office that once we introduced Mr. Klayman, we would lose control of this CI, because Mr. Klayman would take the position as his attorney, and eventually we were going to come -- become, you know, adversarial.
But it was a risk that we believed was worth it.
Because the big concern here was if this guy has the ability to do what he is saying, if he is truly the individual that created the hacking software -- not the harvesting, the hacking software -- he truly would have ability to hack into any place at will. And we needed to get him, again, cooperatively to the federal government.
We didn't have enough at that time to go to the FBI and say: Hey, guys, we got this. What can we do? There was nothing. There was nothing here. It was so limited.
So that was the play was to try to get Mr. Montgomery to cooperate, willingly turn over information. He had originally wanted to turn over I think it was 425 hard drives to the Maricopa County Sheriff's Office. I read in newspaper articles where it was alleged we were buying information from Montgomery. That's not true. Montgomery wanted to surrender that information to us. The information wasn't even usable in the form it was; it's in this packet configuration and had to be processed. [4449]
So we weren't buying or utilizing Montgomery, quote, for information that he was already giving us; we were utilizing him for the processing of that information so it could be in a readable form. Much like on some of the small amount of records on the little thumb drive I think you guys have where you see the calls, the telephones, to, from, name, address. That's the way that we wanted to get this information. E-mails, from our understanding, could be reconstructed to basically contain almost the complete e-mail.
Just to jump ahead for you so you understand the mindset that was here, I located the NSA people that actually built the harvesting software. And what had happened was I was out of this --
Q. And who were they?
A. That's Kurt Wiebe, Thomas Drake. Thomas Drake I think was prosecuted. William Binney. I was out of this from February -- I want to say February 12th, I don't remember, to just about the end of June, with one little spurt -- excuse me. I think the end of July, with one little spurt --
Q. That’s 2014.
A. Yeah, this is all ’14. So I was just monitoring Montgomery, feeding information to the detectives and whatever he was crying to me about during that time.
When I got back in, we did have a meeting with the sheriff and the chief deputy, and I thought we needed to do [4450] everything we could to try to corroborate the information that Montgomery was giving us. And part of that did include those hard drives.
I sat down on a Sunday, I want to say it was September 20th or 21st, a Sunday afternoon. I had a thumb drive that had Mr. Montgomery's free talk on it with the AG's office. I had time lines that he had created. We requested him to create time lines of his CIA activity and his employment stuff, because it was just so much. There's no way for us to really do it.
I was looking at those, and I was looking at especially his work flow, and it was starting to become apparent to me that this guy was taking credit for building the computer that did all the harvesting, but there was nothing in there indicating he was the one that actually built the harvesting program. He does show that he built this program that's -- that's apparently called the Medusa that I believe is the breaching component to what's being -- or was utilized when he was working for the government.
So in doing that, I just started to try to research, you know -- well, let me back up. I was listening to his free talk, and he made one passing comment. It said that there were other whistle-blowers in 2002 but nothing came of it. When he said that, and I'm looking at the time line, something didn't sit right with what he was doing and another whistle-blower. [4451]
He never told us about any other whistle-blower.
Subsequently, I do all these Google searches and I end up finding Mr. Binney, I believe, was first one, Kurt Wiebe was the second, and then Thomas Drake ultimately from there.
Q. What is Mr. Binney's first name?
A. William. These gentlemen, I believe, are all three ex-NSA employees. They actually did build the software that collected bulk data. I believe it was called Thin Thread. It had a Fourth Amendment protection in it. In other words, the bulk collection was all encrypted, and it would require then a FISA court order to unencrypt it, and then they could access as much information as they wanted to.
So I believe -- I believe that very evening I called Detective Mackiewicz and I talked to Chief Sheridan on the phone and I was trying to explain this to them. I said: We need to get together and decide if we're going to do something with this. I believe the next morning we're -- myself, Detective Mackiewicz, chief deputy, and the sheriff are in his office, and I'm explaining to him what I found and what I think we can do here.
I did tell the sheriff that -- I wanted to brace him, and I said: Sheriff, I just want you to understand that this could really blow up and this stuff could be nothing but garbage, and we've wasted a lot of time if that's the case.
And the sheriff said: You gotta do what you gotta do. That's [4452] when we got the order from the chief deputy that if there was anything on these drives, that we needed to go right to the FBI if we did locate them.
Q. And when was that meeting that you just referenced?
A. That had to be September, September 20 something.
Q. Of 2014?
A. Of '14. Yeah, 'cause if this thing ended in October it had to -- it was right around -- couple weeks right before that ended. Flew back out to Seattle -- no, excuse me, flew back out to Washington, D.C., with Detective Mackiewicz. We had contacted I believe it was Kurt Binney, and they did agree to meet with us.
Detective Mackiewicz and I met with them. We told them what we had, what we were working on, and we asked them, said: We don't want you to do anything that you don't want to do, but we have this guy representing A, B, C, D, E. We don't know if we have anything on these drives. We don't know if there is really anything worth anything on these drives. We've just gotten through a year of basically him producing information that had no variable origin whatsoever. They agreed to take a look at it.
My mind's a little fuzzy. I don't know if we went then or we flew back; I don't remember exactly how that transpired. But ultimately, detec- -- well, we had to come back, because ultimately Detective Mackiewicz and I had to [4453] transport 50 hard drives, and not have them leave our sight because they were evidence, from the Sheriff's Office to Seattle -- excuse me, to Washington. I think we went back to Seattle and then back to the Sheriff's Office. I think that's how we did it.
We took those hard drives. The following morning after our arrival we met with Mr. Binney, Mr. Drake, at the airport coffee shop. I think it was in Maryland. And ultimately we ended up at Mr. Wiebe's home and we started plugging in the hard drives.
Detective Mackiewicz, the night before, ate something and had food poisoning. He was really, really ill. So he was pretty much curled up on the couch kind of one-eyeing everything that was going on.
And I opened up the box. We took the drive. I stood there as we plugged every drive in, so these drives are never out of our control. And it didn't take them long to start saying: This is nonsense. There's no origin. There's no nothing here. You don't know what any of this is. None of this is worth anything. And ultimately, that's how every drive, it was determined there wasn't anything of any value on the drive.
Q. Are you finished with your answer?
A. Well, I might as well just tell you the whole story so you could just slay me later with it. [4454]
Q. I'm interested in the facts, Mr. Zullo.
A. Well, it's the -- it's facts. My memory's just kind of getting a little clearer right here.
Prior we did -- we did go to Seattle first to see Mr. Montgomery. We had a meeting scheduled to go see Mr. Binney. Detective Mackiewicz and I used to take Mr. Montgomery to a Mexican restaurant. And we took him that day, and he was, you know, in pretty bad shape. He was paralyzed almost on one side. And we were sitting there, and I was diagonally across from Mr. Montgomery, and he didn't know anything about us locating the former NSA employees.
So as we were eating, I had told Brian before we went in: I want to spring this on him and see his reaction and see what he does. So as we're having lunch, again, Detective Mackiewicz is directly across him but I'm diagonal, and I tell him, I said: Dennis, I think I have a great idea.
I think we could enlist the help of William Binney, yada, yada. I told him who all these people were. They've agreed to help us. I said: I think what we could do is we can take you with us to Maryland and we can open up these drives. And once these drives, anything on these drives point to what you're saying, we're going to have a golden ticket in getting a judge to put us in the right direction of where we have to go.
He nods yes, but I can see from the bottom of his neck, the top of his ears to his temples, it goes cherry red. [4455] And I know this guy is dying now that I did this. I know he was nervous about this. As we were leaving the restaurant, we dropped him off.
Once we dropped him off in the car, I said to Detective Mackiewicz, I go: Did you see that? He goes: I couldn't see anything. I just saw his face. I described to him what I saw, and I said: Brian, he's going to pull a diversion. He's going to do anything he can to get out of going with us to open up those drives. Like clockwork, all of a sudden: My doctor won't let me go. Or I'm too sick. I can't go.
Jumping ahead, once we open up the drives and realized they were nothing -- there was nothing there, I got on the phone with Mr. Montgomery and I made one statement to him. I said: Dennis, today is a very, very bad day for you. And his reply to me was: Can we work this out?
Now I knew that he had intentionally given the Sheriff's Office 60 worthless drives. There was just nothing of value on those things. Made it very difficult for us to do anything with this guy. Even though he's maintaining he has all this information and he can prove it and he can prove it, there was no real -- nowhere else for us to really go, except the fact that he's got people's identities, and he's got a lot of them.
You have to understand, sir, when we walked into this, [4456] we don't know what we're dealing with, we don't know who he is.
Q. How did you know that he had any identification information at all if the information he had given you was worthless?
A. I'm glad you ask. When I was out of this, there were three phone conversations I had with Detective Mackiewicz. He had called me up and he said: Hey, I want to let you know, I did a sampling of the identity information with the Social Security numbers, and they're 100 percent accurate. Now, I don't know how large the sampling was.
I had another telephone call from Detective Mackiewicz, and he was working with some -- I think it was banking or investment information that Montgomery had given him. And he called me up, he said: Hey, you're not going to believe this. He goes: I'm going through some of these banking things, and these things are -- they're older. So it's very difficult to go back with people and ask: Is this your account, or whatnot? He said: I ran across three people in Seattle that invested in a movie production. The movie was called Lord of the Protector, or something like that. And he said: And there's a couple people in Arizona that had made the same investment. And this is in Dennis's database.
And I'm like: Well, Brian, what does -- you know, what does it really mean? Aside from, okay, he's got some things, but he doesn't have it the way he represented it to us.
And then there was another real interesting call. [4457]
Apparently, Detective Mackiewicz had information given to him by Montgomery, and I -- I've never seen it. I understand that he went to see an executive at Microsoft, that Montgomery had -- I'm assuming it's in a list of other things -- provided him this individual's banking information. And Detective Mackiewicz made an appointment, went to see this executive.
Again, the information was older, but I believe the way it -- it ran was the executive told him it's quite possible that was his account. It was a business account. He said it was quite possible he had that money, and I believe it was over a million dollars.
But then Brian showed him his own password, and that executive got extremely, extremely agitated and told Brian: How did you get this? Nobody could get this. This thing is so encrypted, nobody can get this. How did you get this?
And that was something else that came back that Montgomery said he had, people's passwords, and here was a very encrypted password where somebody that obviously knows computer stuff working for Microsoft truly believed that that password was impenetrable. And that was in some of the information.
Q. Well, can you bring us to the end of the story as far as Mr. Montgomery's concerned? You mentioned that he had been working or ended up working with the FBI?
A. Yes.
Q. How did he get there? [4458]
A. My understanding is in August of this year, Mr. Montgomery, through the assistance of his now-attorney, Mr. Klayman, had a meeting with the FBI, and the FBI and DOJ have given Mr. Montgomery, I don't know what it is, production immunity, I don't know what that is, and he has turned over over 600 million records under the very same scenario that he told us how he acquired them. That's my understanding.
Q. Okay. All right. Well, let's -- thank you very much, Mr. Zullo.
A. You take a lot of my time, so I'm going to take a little of yours.
Q. No, I appreciate it, but I realize it's probably going to be not as exciting, but I'm going to ask you to look at Exhibit 2971.
A. Yeah.
Q. That's an e-mail string that consists of e-mails between you and Mr. Montgomery dated January 25 and 26, 2015, correct?
A. Yes, sir.
MR. YOUNG: I move for the admission of 2971.
MR. MASTERSON: Objection, relevance, 403.
THE COURT: Overruled. Exhibit 2971 is admitted.
(Exhibit No. 2971 is admitted into evidence.)
BY MR. YOUNG:
Q. Next is Exhibit 2271. That's a February 2, 2015 e-mail exchange between you and Mr. Montgomery, correct? [4459]
A. Yes, sir.
MR. YOUNG: I move for the admission of Exhibit 2271.
MR. MASTERSON: Objection, relevance, hearsay. Oh, excuse me. Withdraw hearsay. Relevance, 403.
THE COURT: Overruled. The exhibit, Exhibit 2271, is admitted.
(Exhibit No. 2271 is admitted into evidence.)
BY MR. YOUNG:
Q. So if you look at the e-mail on 288, which is the second-to-last page of the exhibit, Mr. Montgomery refers to a data mining data for Arpaio.
Do you see that?
A. Yes, sir.
Q. What was that about?
A. Data mining is a term Mr. Montgomery uses. In the representations to us, Mr. Montgomery had indicated that he believed that Sheriff Arpaio's, and the Maricopa County Sheriff's Office bank of phones, were illegally wiretapped.
He also told us that he believed he had voice packets contained in that data. And data mining was him trying to go through the data to retrieve those voice packets. He had told the sheriff that he could hear his own voice if he recovered these. And that was something that was, I think, important to the sheriff, because it was something the sheriff could get his arms around. The technology of this thing is so advanced, I [4460] don't -- I don't understand it; I'm sure the sheriff doesn't. That's the data mining that he was referring to.
I did confirm with Mr. Wiebe that, in fact, packets do look and appear different if they are audio. So there was some -- some indication that Montgomery was being, you know, truthful with us about having different looking packets.
That's what he said.
Q. Now, I want to go back, actually, to the -- the discussion that you had with Judge Lamberth. You mentioned that the flowcharts were part of the meeting with Judge Lamberth.
Are those the flowcharts that mention Judge Snow and the Department of Justice and Covington & Burling and Jon Kyle?
A. Yes, sir. Those charts were created by Mr. Montgomery.
Q. Okay. Did you ever at any time learn of any information that there was any truth or value in those charts?
A. No, we never did anything with it. We were told, once we produced those and we sat in the office with the chief deputy, not to go near it. We didn't look at it again.
Q. Okay.
A. He would send it, he would try to update it, and he would send them, but they just, you know, were just another piece of information he was sending.
Q. Are you still of the view that those are things that Mr. Montgomery just made up?
A. Sir, to be honest with you, I can't say that, 'cause we [4461] never looked into it; we never investigated it.
Q. Well, we looked at an earlier e-mail where you told Mr. Montgomery that he just made those things up.
Has anything changed in that view on your part?
A. I don't have that e-mail in front of me, but what I think I was referring to was the personal information, the sensitive information that he told us he had on Judge Snow. That was the stuff. I didn't care about that flowchart or those telephone numbers. I mean, what can you do with them?
But when he represented to us that he had that information, I wasn't going to let that go. You want to tell us that you have this, you better be able to produce this.
Q. Okay. So you concluded at some point that the information Mr. Montgomery said he had about Judge Snow's IRS and banking information just was something that he'd made up, is that right?
A. I would at this point in time say that. He never, ever produced anything.
Q. Okay. When did you come to that conclusion?
A. That conclusion was probably early on. I didn't want to take that off the table again for fear that he may -- might have it. You know, we just didn't know.
I can't tell you exactly when I came to that conclusion. I was not a proponent of just accepting things from Mr. Montgomery. [4462]
Q. What did you tell Sheriff Arpaio and/or Chief Sheridan about your conclusion that the information that Mr. Montgomery said he had about Judge Snow's IRS and banking information was actually just made up?
A. I don't have a recollection of when I would have done that. I'm sure we had discussions about he doesn't have it. I don't know -- I don't know when that would have happened.
It had -- that had to have been -- you have to understand, I was out for five months, so it had to be August, September, October, I don't know.
Q. Did you ever tell Sheriff Arpaio and/or Chief Sheridan that, in fact, Mr. Montgomery was misleading you when he said he had banking and IRS information?
A. I wouldn't have used the word "misleading"; I would have said he's never made -- he never produced it. We don't think he's got it.
Q. Well, did you ever tell that to Sheriff Arpaio or Chief Sheridan?
A. I don't recall. I may have, I don't recall.
Q. When was the last time you spoke to either Sheriff Arpaio or Chief Sheridan about any potential IRS or banking information that Mr. Montgomery had pertaining to Judge Snow?
A. Would have to be, I would assume, 2[0]14.
Q. Approximately when?
A. You know what, sir? I don't -- I don't have an exact date, [4463] I don't know.
Q. What was their response, whenever it happened, to your informing them that, in fact, Mr. Montgomery really did not have any banking or IRS information relating to Judge Snow?
A. I don't recall a specific response, because that information or that topic would have come up just during general conversations about this. It wasn't that we ran there and said: Oh, my God, Sheriff. They don't have anything on Judge Snow. It wasn't like that. He's never produced it.
The sheriff was very conscious of, you know: He says he has this and he doesn't give it to us. He says he has this and he doesn't give it to us. The sheriff kind of would list it in his mind. But I don't recall any specific reaction to him not having something. It was kind of commonplace.
Q. Can you tell me everything you can remember about any discussion you had with Sheriff Arpaio or Chief Sheridan about banking or IRS information relating to Judge Snow?
A. That I told them that Mr. Montgomery had relayed to us that he had Judge Snow. Judge Snow was a victim in the database.
That he goes even beyond what normal victim, if you will, has in there. That he's one of many, but sporadic people, that it indicates that they have harvested his IRS tax returns and his banking information. That would have been early on. It had to be before February, obviously.
In the course of things, I'm sure there was [4464] discussions asking if he ever produced it, and I would just keep telling them no. You know, he's never produced it. I haven't stopped asking him for it but he's never produced it. Just doesn't have it.
Q. I think you said something to the effect that this was an -- not -- beyond a normal victim. Is that what you said?
A. Yes.
Q. What did you mean by that?
A. Mr. Montgomery said not every person in that database had IRS information taken. You have in your possession a video, short clips, that shows this machine running. If you look at the bottom, you'll see every -- and I don't know how many, 'cause it's happening so fast -- every once in a while you'll see a dollar amount as far as IRS information. And that's not every one of these. It could go for a little while and then bang, you'll see one.
And it's -- what that's indicating, according to Mr. Montgomery, is that's the information that was taken, that's the dollar amount on a tax return or something to that effect. So it's not every specific person.
Q. Do you recall anything else that you discussed with either Sheriff Arpaio or Chief Sheridan about any alleged banking or IRS information that Mr. Montgomery said he had about Judge Snow?
A. No, there was -- there wasn't anything else. [4465]
MR. YOUNG: Excuse me, Your Honor. (Pause in proceedings.)
BY MR. YOUNG:
Q. Let's turn to Exhibit 2274. That's an e-mail string between you and Mr. Montgomery, correct, Mr. Zullo?
A. Yes, Counsel. Mr. Montgomery would monitor the news from his residence in Seattle and send me the articles in these little blurbs. It's not me informing him; it's him informing me.
MR. YOUNG: I move for the admission of 2273 -- 74.
MR. MASTERSON: Objection, relevance, 403.
THE COURT: Overruled. Exhibit 2274 is admitted.
(Exhibit No. 2274 is admitted into evidence.)
BY MR. YOUNG:
Q. Let's look next to Exhibit 2278. That's a March 31, 2015 e-mail exchange between you and Mr. Montgomery, correct?
A. Yes, sir.
MR. YOUNG: I move for the admission of Exhibit 2278.
MR. MASTERSON: Objection, relevance, 403.
THE COURT: Overruled. Exhibit 2278 is admitted.
(Exhibit No. 2278 is admitted into evidence.)
BY MR. YOUNG:
Q. Let's go next to Exhibit 2279. That's an April 20, 2015 e-mail string involving you and Larry Klayman and Dennis Montgomery, correct? [4466]
A. Yes, sir.
Q. And actually Brian Mackiewicz, further on down in the string.
MR. YOUNG: I move the admission of 2279.
MR. MASTERSON: Objection, relevance, 403.
THE COURT: Overruled. Exhibit 2279 is admitted.
(Exhibit No. 2279 is admitted into evidence.)
BY MR. YOUNG:
Q. Next is Exhibit 2972. That's an e-mail exchange that you had with Mr. Montgomery on May 22, 2015, correct?
A. Yes, sir.
MR. YOUNG: I move for the admission of 2972.
MR. MASTERSON: Objection, relevance, 403.
THE COURT: There are multiple pages to this exhibit?
MR. YOUNG: Yes, Your Honor. There are four pages to it so far as I can tell.
THE COURT: Overruled. The exhibit is admitted.
(Exhibit No. 2972 is admitted into evidence.)
BY MR. YOUNG:
Q. Now, you listened earlier, Mr. Zullo, to 2873B, which was part of your discussion with Carl Gallups?
A. Yes.
Q. Do you recall that?
A. Yes, sir.
Q. That was you talking to Mr. Gallups? [4467]
A. Yes, sir, it was.
Q. That was around July 15, 2015?
A. I'll take your word for it; I don't know.
Q. Actually, July 14.
MR. YOUNG: Now, I move for the admission of 2873B.
MR. MASTERSON: Objection, relevance, hearsay, 403.
THE COURT: I'm not sure I remember the whole exhibit.
Hearsay involves what Mr. Gallup said?
MR. MASTERSON: Yes, Judge.
THE COURT: Okay. I'm going to admit the exhibit, but as it pertains to what Mr. Gallup said, I'm not going to admit it for truth of the matter asserted. I'm going to overrule the other objection.
(Exhibit No. 2873B is admitted into evidence.)
BY MR. YOUNG:
Q. And then back to the photograph, 2982, Exhibit 2982. Did you take that photograph, Mr. Zullo?
A. Yeah, you have the metadata, came out of my phone.
Q. And that was a photo with Sheriff Arpaio with Mr. Montgomery at a hotel in Phoenix on December 9, 2013, correct?
A. Yes, sir.
Q. Okay.
MR. YOUNG: I move for the admission of Exhibit 2982.
MR. MASTERSON: No objection. [4468]
THE COURT: 2982 is admitted.
(Exhibit No. 2982 is admitted into evidence.)
BY MR. YOUNG:
Q. Do you remember what hotel that was?
A. The Carefree Conference Center.
Q. Now, we listened to a recording, and I'm going to refer to Exhibit 2977. It was about a 20-minute recording.
You recall we heard that this morning, Mr. Zullo?
A. Yes, sir.
Q. Okay. That was a discussion involving mostly Mr. Blixseth. The sheriff was there, Detective Mackiewicz was there, and you were there, correct?
A. Yes, sir.
Q. Did you record that --
A. Yes, sir.
Q. -- meeting?
How did you record that meeting?
A. Voice notes on an iPhone.
Q. Did that meeting happen about October 18, 2013?
A. Yeah, most likely.
MR. YOUNG: Your Honor, I move for the admission of Exhibit 2978.
Well, I'm first moving as to 2978, which is the 20-minute recording we heard the entirety of this morning.
THE COURT: That's exhibit what? [4469]
MR. YOUNG: 2978.
THE COURT: All right.
MR. MASTERSON: That's the entire one we heard? Is that what you said?
MR. YOUNG: Yeah, it's the 20-minute one we heard just before the lunch break this morning.
MR. MASTERSON: No objection.
THE COURT: Exhibit 2978 is admitted.
(Exhibit No. 2978 is admitted into evidence.)
BY MR. YOUNG:
Q. Now, I'm going to ask you to listen to the next recording, which is Exhibit 2977. It -- actually, were you only in one meeting involving both Mr. Blixseth and Sheriff Arpaio?
A. Yes, sir.
Q. Okay. So if there were two recordings, and we're about to listen to the second one --
A. It's all the same. That would all be the same.
MR. YOUNG: All right. Now, this meeting, this recording actually goes on for about an hour, Your Honor, and what I propose to do is to play almost all of it. There are a couple of portions where it seems that they're fixing the computer machinery and we don't need to listen to those. And those are at about 13 minutes to 15 minutes and 40 seconds, and then again at 16 minutes and 33 seconds to about 18 minutes.
So I'm going to ask Mr. Klein to play the recording, [4470] except for those portions. Is that acceptable?
MR. MASTERSON: Sure.
THE COURT: Okay. That will probably take us to the end of the day.
MR. YOUNG: Yes, Your Honor.
THE COURT: Okay.
MR. YOUNG: Well, maybe what I'll do is I'll play a little bit and ask Mr. Zullo to identify it, have it admitted, and then there may be certain sections that I'll direct us to. Maybe that will have a better chance of getting us to the end of the day, because I do have some questions along the way.
So Mr. Klein, could you start playing 2977.
(Audio clip played.) (Audio clip stopped.)
BY MR. YOUNG:
Q. The first voice that we just heard, Mr. Zullo, is Timothy Blixseth, correct?
A. Yes, sir.
Q. He's talking about the fruit of the poisonous tree, and what happens if the feds indict Mr. Montgomery, right?
A. Yes, sir.
Q. And then the second voice we hear, "Don't count on Arizona," that's Sheriff Arpaio.
A. Yes, sir.
MR. YOUNG: Let's keep going. [4471]
(Audio clip played.) (Audio clip stopped.)
BY MR. YOUNG:
Q. Now we've got someone asking Mr. Blixseth what he does for a living to make all his money. That's Detective Mackiewicz, correct?
A. Yes, sir.
(Audio clip played.) (Audio clip stopped.)
BY MR. YOUNG:
Q. Is this the beginning of a recording that you made of a -- actually, another portion of the meeting on October 18, 2013, among Sheriff Arpaio, Timothy Blixseth, yourself, and Detective Mackiewicz?
A. I would assume it's all the same meeting, sir, yes.
MR. YOUNG: Your Honor, I move for the admission of Exhibit 2977.
MR. MASTERSON: Objection, relevance, 403, hearsay.
THE COURT: I'm going to overrule the objections with the understanding that as it pertains to anything said by Mr. Blixseth, it's not being admitted for the truth of the matter asserted.
MR. MASTERSON: I'd also like to reserve -- if we're going to listen to the whole thing, then, I may make additional objections as we go, but -- [4472]
THE COURT: That's perfectly fine.
MR. MASTERSON: If we don't listen to parts, then I'll reserve objections as to those parts.
THE COURT: All right.
MR. YOUNG: So in the interest of trying to pick the most interesting parts of this recording, I'm going to ask Mr. Klein to play Exhibit 2977 starting at about 6 minutes and 44 seconds.
MR. MASTERSON: I'm sorry, Counsel. I'm sorry to interrupt. Judge, a question, please.
THE COURT: Sure.
MR. MASTERSON: I just said I was going to object, but that would probably really slow things down if I start to object every time maybe some other person --
THE COURT: Can you make a notation?
MR. MASTERSON: Yeah, and then can I maybe just raise them tomorrow or whenever?
THE COURT: Yes, you can. And to the extent you want to stop it -- I mean to the extent you want a cognizable ruling on what is hearsay and what I'm going to consider for the truth of the matter asserted and what I'm not, Mr. Young, you might stop the recording and ask who's speaking so I can know.
MR. MASTERSON: And if there's something glaring I need to raise right then, I will do that, too. [4473]
THE COURT: All right. Thank you.
MR. YOUNG: So let's play a little bit starting at 6 minutes and 44 seconds.
(Audio clip played.) [Note: Clip starts here.] (Audio clip stopped.)
BY MR. YOUNG:
Q. Mr. Zullo, there was a link between these two things, what Mr. Blixseth was bringing to the MCSO with respect to Mr. Montgomery, and the birth certificate investigation the sheriff was just talking about on this recording, in the sense that the initial contact with Mr. Blixseth, at least in part, derived from the birth certificate investigation, is that correct?
A. Yeah, but it was also more than that, sir.
Q. And in what way?
A. I was contacted by Mr. Blixseth prior to this meeting that he had this type of information regarding residents of Maricopa County. And he had indicated, too, that this former contractor for the CIA may have some information, too, as far as the birth certificate was concerned.
Q. Okay. And you later did work with Mr. Montgomery on the birth certificate issue, correct?
A. Yes.
Q. Are you still working with him on that issue?
A. No, sir. [4474]
Q. Now, there's been a mention of Fox and Carl Cameron. That was someone, Carl Cameron, who was looking into the story involving Mr. Montgomery, correct?
A. Yes, sir.
Q. He never did run a piece on this issue, is that right?
A. No, sir.
Q. In fact, you heard from him that he actually did not believe Mr. Montgomery's story and, therefore, he was dropping the idea of running the story on this issue, is that right?
MR. MASTERSON: Objection, foundation, hearsay.
THE COURT: I'm going to overrule the foundation, but sustain the hearsay.
MR. YOUNG: All right. Let's start playing at about 15 minutes and 40 seconds.
(Audio clip played.) [Note: Clip starts here.] (Audio clip stopped.)
BY MR. YOUNG:
Q. So that's Mr. Blixseth telling Sheriff Arpaio that he's got a fraud case with this information involving these 900 million records, is that right?
MR. MASTERSON: Objection, hearsay.
MR. YOUNG: Not for the truth of the matter asserted.
THE COURT: All right. I'm going to overrule the objection and not consider it for the truth of the matter.
THE WITNESS: Yeah, pretty much appears that's what [4475] he's saying.
THE COURT: For what it's worth, I don't think I'm going to consider what Mr. Blixseth says for the truth of the matter unless there's some reason why -- Mr. Young establishes why I should, but merely to provide context or whatever else.
Are you going to try and establish some sort of agency relationship between the MCSO and Mr. Blixseth?
MR. YOUNG: No, Your Honor.
THE COURT: Okay.
MR. YOUNG: Let's start again at 2745, and we're going to let it run for a few minutes to about 30 minutes and 21 seconds. So 2745.
(Audio clip played.) [Note: Clip starts here.] (Audio clip stopped.)
BY MR. YOUNG:
Q. Okay. Mr. Zullo, that's you saying that Trump's name is all over this, is that correct?
A. Yes, sir.
MR. YOUNG: Actually, back up a little bit and keep going.
(Audio clip played.) (Audio clip stopped.)
BY MR. YOUNG:
Q. Okay. That's Sheriff Arpaio asking Timothy Blixseth about whether he's got any advice from lawyers about the propriety of [4476] what's being proposed, is that right?
MR. MASTERSON: Objection, foundation.
THE COURT: Overruled.
THE WITNESS: I don't know what that really was. A lot of times the sheriff kind of breaks out into some kind of levity. I don't know if he was serious. I don't know what that was about.
BY MR. YOUNG:
Q. Well, would you agree with me that it was Sheriff Arpaio's voice who said, quote: Are you getting advice from lawyers, end quote? That was Sheriff Arpaio.
A. That was Sheriff Arpaio, yes.
MR. YOUNG: Let's back up a little bit and keep going.
(Audio clip played.) [Note: Clip apparently starts around here.] (Audio clip stopped.)
MR. MASTERSON: Excuse me. Let me interrupt.
I'm not sure it matters, because I think the Court said it's not considering for the truth of the matter asserted, but I want to throw in a foundational objection to what sounds like legal opinions from a couple different folks.
THE COURT: Yeah, I'm not going to -- I like my own versions of the law. Sometimes I'll listen to yours as well, and sometimes to the plaintiffs', but I don't think there's any foundation for legal opinions, and I'm not going to give them any credence. [4477]
BY MR. YOUNG:
Q. Well, before we pick up, we've now heard twice someone say that the information from Mr. Montgomery apparently was obtained through illegal means.
Now, that was Detective Mackiewicz, correct?
MR. MASTERSON: Judge, that's one of the objections as well, to the foundation of whether there's anything illegal about --
THE COURT: All I really want to know is if he can identify who said it.
MR. YOUNG: That's the question.
THE WITNESS: Am I just answering, Judge, on who said it --
THE COURT: Yes.
THE WITNESS: -- 'cause --
THE COURT: Yes.
THE WITNESS: That was Detective Mackiewicz.
MR. YOUNG: Okay. Let's continue from where we stopped.
(Audio clip played.) [Note: Clip apparently starts around here.] (Audio clip stopped.)
BY MR. YOUNG:
Q. The sheriff just referred to the DOJ lawsuit, correct? In the segment that we just heard, relating to Carlotta Wells of the Civil Division of the Department of Justice? [4478]
A. I don't believe that had to do with anything here. I think that had to do with Mr. Montgomery's legal woes with the DOJ and Carlotta Wells. I don't believe that had any inference to what was going on.
Q. Well, why don't we listen again, because I think -- and it's my question to you -- it's the sheriff who says, quote: I think she was involved in our DOJ investigation. And then she divorced herself, and the other guy is now something, and I -- there's another question, I guess, we can listen to it again, but I think there's a mention of Thomas Perez, who was the head of the Civil Rights Division of the Justice Department.
So can we go back to 2934 and play that next minute or so again?
(Audio clip played.) [Note: Clip starts here.] (Audio clip stopped.)
BY MR. YOUNG:
Q. So did you hear the reference there to the DOJ investigation by Sheriff Arpaio?
A. I heard reference to a DOJ investigation. I don't know which one he's talking about.
Q. Okay. Well, did you hear Sheriff Arpaio say, "Well, Carlotta was my gal for a while," at the very end?
A. Yes, I did.
Q. Now let's go to 33 minutes, and we're going to go for about three minutes to about 36 minutes. [4479]
(Audio clip played.) [Note: Clip starts here.] (Audio clip stopped.)
BY MR. YOUNG:
Q. So during the discussion that Mr. Blixseth had with you and Detective Mackiewicz and Sheriff Arpaio, you heard Mr. Blixseth say that -- and again, this is not for the truth of the matter asserted -- but you heard him say that Dennis Montgomery had hacked into the e-mails of Lanny Breuer and Eric Holder at the Department of Justice, correct?
A. Yes, that's what he says on that audiotape.
MR. YOUNG: Now let's keep going from that same point.
(Audio clip played.) [Note: Clip apparently starts around here.] (Audio clip stopped.)
BY MR. YOUNG:
Q. So there's some discussion among Sheriff Arpaio, Mr. Blixseth, and Detective Mackiewicz about what to do with this information if the Sheriff's Office didn't want to handle it, right?
A. Yes.
Q. And there are several suggestions: the feds, the attorney general, Senator McCain, and those are shot down by the sheriff, correct?
A. I don't believe I agree with your characterization that they're shot down by the sheriff. As a matter of fact, the sheriff was one that was always saying: This has to go to the [4480] feds.
Q. And then at the end of the segment we just heard, Detective Mackiewicz is again saying that, "Well, they're going to say that Montgomery stole the information."
Did you hear that?
A. I heard that. I don't know the context that you're describing it to me, but I did hear him say that, yeah.
MR. YOUNG: Actually, I have another segment to play that's a little farther back. Starting at page -- actually, it's 19 minutes and 30 seconds. Could we go back to that?
(Pause in proceedings.)
MR. YOUNG: How about 19 minutes and 13 seconds.
(Audio clip played.) [Note: Clip starts here.] (Audio clip stopped.)
BY MR. YOUNG:
Q. Okay. Sheriff Arpaio said during that meeting to all of you who were at the MCSO that he wanted to keep this very quiet, is that right?
A. Yes, sir, but you have to understand the context of what that meant.
Q. Well, what did that -- what was the context of what that meant?
A. Well, it was no secret to Maricopa County Sheriff's higher-ups that we had a leak in our agency, and this kind of information I don't think it was something the sheriff wanted [4481] paraded around that we were working that way. Ultimately, that's how you found out about it.
MR. YOUNG: All right. So I want to go now to Exhibit 2980. And let's start off with the beginning of that.
(Audio clip played.) [Note: Clip begins here.] (Audio clip stopped.)
BY MR. YOUNG:
Q. Mr. Zullo, that's a recording of a call that you made to Mr. Montgomery, correct?
A. Correct.
Q. How did you make that recording?
A. I don't know if I remember how I made it. I don't -- I don't remember.
MR. YOUNG: Your Honor, I move to admit Exhibit 2980.
MR. MASTERSON: Objection, relevance, hearsay, 403.
THE COURT: What's the hearsay?
MR. MASTERSON: I'm not arguing, but I disagree with the Court's 801(d)(2), I think, decision --
THE COURT: You're just preserving the objection?
MR. MASTERSON: Correct.
THE COURT: Okay. Overruled. Exhibit 2980 is admitted.
(Exhibit No. 2980 is admitted into evidence.)
MR. YOUNG: Your Honor, I'm going to play the entirety of that exhibit. It's about 10 minutes long. And I'll ask [4482] Mr. Klein to start off from the point that we left off.
(Audio clip played.) (Audio clip stopped.)
BY MR. YOUNG:
Q. You're asking Mr. Montgomery about Sergeant Anglin, is that right? At this point was someone showing up late?
A. Yes, Counsel, but let me -- before you go on with this, it's not uncommon for Mr. Montgomery to spin up tales. It's not uncommon. So in order to understand the context of what he's saying later on, none of this bore any truth.
But it was getting to a place where you will see in e-mails where he makes outlandish accusations when he gets backed into a corner. Obviously, he was mad at these people. He was mad at these detectives. I don't know why, 'cause I wasn't there, but it's not unusual for him to take an element of truth and spin a lot of nonsense around it.
Q. Approximately when did this conversation that we're listening to take place?
A. I don't know. You'll have to look on whenever that recording was created, whatever date.
Q. Well, it was during the time that Sergeant Anglin was working on this matter, is that correct?
A. He would have to be, yeah.
Q. Okay. So sometime in the first five months of 2014?
A. It would have to be after February, 'cause I wasn't there. [4483]
Q. Okay. So assuming that Sergeant Anglin stopped working on it in May, sometime approximately in the February to May time frame 2014?
A. No, I'm sorry. No, I think it would actually have to be a little after that, 'cause I was up there in April. I don't know, March, April, May, I don't know.
MR. YOUNG: All right. Let's keep playing.
(Audio clip played.) (Audio clip stopped.)
MR. MASTERSON: Objection, foundation.
THE COURT: Well, I believe he said "I don't know." That's the last thing I heard, wasn't it?
MR. MASTERSON: You're right. I just was making my objection when he said that, but the question --
THE COURT: All right. Well, I --
MR. MASTERSON: -- was: Why did someone else do something?
THE COURT: Yeah. And he said, "I don't know," and that's the last thing I heard, and so I'm not sure that there's any foundational objection to be made to the answer if the witness answered -- or if Mr. Montgomery answered, I don't know.
MR. MASTERSON: I think you're right. I just started my objection before I heard the "I don't know" part.
THE COURT: All right. [4484]
MR. YOUNG: Can we back up a little bit and then start playing and perhaps play to the end?
THE COURT: Sure.
MR. YOUNG: Not too far, just a second or two, if you can do that, Mr. Klein.
(Audio clip played.) (Audio clip stopped.)
MR. MASTERSON: Judge, I think he says "I don't know," and then he says "I guess" and then gives some speculation.
THE COURT: And then he speculates.
MR. MASTERSON: Yes.
THE COURT: I'll treat it as speculation.
MR. YOUNG: Well, as long as we're paused on this point, may I ask the witness a question?
THE COURT: You may.
BY MR. YOUNG:
Q. There's some discussion there about Chief Sheridan, Mr. Zullo. Did you hear that?
A. Yes, I did.
Q. And then you were talking -- you were asking Mr. Montgomery about something that somebody told, perhaps told Mr. Montgomery that Sheridan said to do, and then you asked: That doesn't mean Sheridan knew.
What was that all about?
A. It wasn't uncommon when we were up there to make [4485] representations to Mr. Montgomery that the sheriff wanted something, or the chief deputy wanted something, or the chief deputy wasn't happy, and they would have no knowledge that we were doing that. We would do that as some type of leverage.
When Mr. Montgomery made the assertion to me that the chief deputy knew, I don't believe that for one second. But that's what he was told.
Q. Knew what?
A. Knew that he was doing something in L.A. with this drive. I didn't believe it for one -- that's why I went back at him, and I asked him again: Well, how do you know? How do you know? How do you know? He doesn't know. You don't know what he's telling you.
Q. Did you ever talk to Chief Sheridan --
A. I most certainly did, sir.
Q. All right. Well, let's play to the end.
(Audio clip played.) (Audio clip stopped.)
BY MR. YOUNG:
Q. Now, earlier in that audio, Mr. Zullo, there was a discussion in which you repeated something that Mr. Montgomery told you, which is: Sheridan said to go do it, but they can't be involved in it. What was that about?
A. I have no idea.
Q. Now, earlier today we listened to Exhibit 2981A in which [4486] you asked Mr. Montgomery how you could destroy someone using information he had access to?
A. Yes.
Q. That was a question and answer that you had with Mr. Montgomery, correct?
A. Correct.
MR. YOUNG: Okay. I move for the admission of Exhibit 2981A.
MR. MASTERSON: Just give us one second, please, Judge.
(Pause in proceedings.)
MR. MASTERSON: Objection, relevance, 403.
THE COURT: Overruled. Exhibit 2981A is admitted.
MR. MASTERSON: And I'm assuming, Judge, that hearsay, if -- the same rulings stand on hearsay statements made in their -- I'm preserving the --
THE COURT: Exactly. To the extent -- we're not going to have to listen to the whole exhibit for you to reserve any hearsay objections if you think there are people in that -- in that that are unidentified or that are not agents of the MCSO.
MR. MASTERSON: Correct. And then I have the -- my respectful disagreement on the 81(d)(3) rulings.
THE COURT: Yes, that you're preserving.
MR. MASTERSON: Correct.
MR. YOUNG: Now, let's play -- [4487]
THE COURT: Is that (d)(3) or (d)(2)? I think it's (d)(2), I'm not sure, but whatever.
Go ahead.
MR. YOUNG: Your Honor, I had moved for the admission of Exhibit 2981A.
THE COURT: And I believe I've admitted that.
MR. YOUNG: Thank you.
THE COURT: If I haven't, I admit it now. 2981A is admitted.
(Exhibit No. 2981A is admitted into evidence.)
BY MR. YOUNG:
Q. Now, you remember hearing another segment this morning as part of the discussion between you and Mr. Montgomery in which I thought I heard the word "monitors" and you disagreed.
Note. This references Exhibit 2981B. This blogger believes that Mackiewicz does not say "monitors" here but, rather, says, "mine, yours, Arpaios, whatever."
Do you remember that clip?
A. Yes, I do.
Q. That was part of a discussion between you and Mr. Montgomery, correct?
A. Yes.
Q. Okay.
MR. YOUNG: I move for the admission of [Exhibit 2981B].
MR. MASTERSON: Relevance, 403, hearsay.
THE COURT: 2981B is admitted with the previous caveats.
BY MR. YOUNG: [4488]
Q. Going back to your phone discussion that we listened to, which is 2980, Mr. Montgomery talked to you about something relating to $50,000 and renting the computers.
Do you recall that?
A. Yes, sir.
Q. What was that about?
A. When he was processing this information, it was a very laborious task, and he tried to convey to us that, you know, for about $50,000, I could build a computer system that could make this go a lot faster.
Q. And what happened with that suggestion?
A. Nothing, nobody -- we didn't buy him anything.
MR. YOUNG: Your Honor, I have no further questions of Mr. Zullo at this time.
* * * * *
See also, Zullo's Nov. 10 and Nov.13 Testimony.
*Source: Melendres v. Arpaio et al, No. CV 07-2513-PHX-GMS (D. Ariz.) Transcript of Proceedings - Evidentiary Hearing Day 19 - Nov. 12, 2015 (pages 4298-4503).
