Excerpts from MCSO Sheriff Arpaio's Apr. 23, 2015 Testimony during the Melendres Contempt Evidentiary Hearings regarding Dennis Montgomery and the MCSO's Seattle Operation, with selected notes.*
See also, Arpaio's Sept. 30, Oct. 1, Oct. 2, and Testimony.
[640] [The Court] …Captain Bailey, for a time, had been over the Human Smuggling Unit, because he was the head of the SID Special Investigations Division which is over the Human Smuggling Unit, correct?
A. Yes. I don't know the time span.
Q. All right. But the Human Smuggling Unit was part of the focus of the investigation in terms of, you may remember issues like lots of ID's and there were lots of concerns about deputies taking property that may or may not belong to them, just keeping it and not reporting it in property.
Do you remember that?
A. After the fact, yes.
Q. Do you remember that after I got word that you'd appointed Captain Bailey, I expressed concern about his conflict of interest. Do you remember that?
A. I don't remember that, but it could have happened.
Q. Nobody ever told you that? I'm not sure whether you were here at the hearing, but I did express concern about his conflict of interest.
You don't recall that anybody ever raised that to you?
A. Not really.
Q. Human Human Smuggling Unit was pretty important to you. We’ve heard that. Is that true?
A. Yes.
Q. So you'd have -- you'd want to have a lot of confidence in [641] the director that you appointed to be over the -- or the captain that you put in charge of SID in part because that was over the Human Smuggling Unit?
A. Yes.
Q. And so when you transferred him to PSB, that's because you have a lot of personal confidence in him, I suppose?
A. And also my chief deputy.
Q. How long was Bailey with SID, do you remember?
A. No.
* * *
Q. Let me ask, does SID -- we've had some reference to some of the more atypical investigations you've done as sheriff, like you investigated the -- some of the county supervisors, correct?
A. Yes.
Q. And you investigated some sitting judges in the Maricopa County Superior Court?
A. The county attorney and my office together worked that.
Q. All right. And your office participated in that investigation?
A. Yes.
Q. And that may have been called the anticorruption unit at the time, is that right?
A. Yes. [642]
Q. Was that under the SID, Special Investigations Division?
A. I'm not sure.
Q. Does the Special Investigations Division do investigations with confidential informants? Are they -- do they handle confidential informants?
A. Yes.
Q. And does the captain of SID have to approve investigations involving confidential informants in terms of payments to them?
A. Your Honor, I don't know how far down it goes for that authority, whether it's a lieutenant or the captain or deputy chief.
Q. Okay. But somebody in the SID has to approve payments that are made to confidential informants?
A. Yes.
Q. Are there any exceptions to that policy?
A. I'm not sure.
Q. Well, do you remember that right at the time -- and it was, as I recollect, in June of 2014 -- that you named Captain Bailey to become captain over the Professional Standards Bureau instead of the Special Investigations Division, that there was a newspaper article, maybe a blog, that was published by somebody named Stephen Lemons?
A. I know who he is.
Q. Do you usually read the articles that he writes about you?
A. Once in a while, yes. [643]
Q. Do you remember him writing about investigations that he had sources were telling him your office was doing out of Seattle involving confidential informants?
A. He may-- I may remember that, yes.
Q. Let me just give you -- I've copied the article. Let me give it to you and see if it helps to refresh your recollection that you've read it.
Note. The article referenced is Stephen Lemons, “Joe Arpaio's Investigating Federal Judge G. Murray Snow, DOJ, Sources Say, and Using a Seattle Scammer To Do It," Phoenix New Times, June 4, 2014. See also WYE Timeline - June 4, 2014 for additional information
Do you want to distribute that?
(Off-the-record discussion between the Court and the clerk.)
THE COURT: Hand it to the attorneys.
THE WITNESS: It's a long article.
BY THE COURT:
Q. It is a long article, and if you need to take the time to read it, you can do that. But I'm just asking if you have any recollection, now having me give it to you, if you ever read it.
I will tell you that in the article he says he talked to you about some of the materials in the article, and that's kind of on the last page, if that will help you.
(Pause in proceedings.)
BY THE COURT:
Q. Do you remember reading this article?
A. I believe I read it.
Q. And I just want to ask you some questions about the article [644] and some of the things that it states.
I recognize, and I believe Mr. Lemons does in the article, too, that he can't personally vouch for everything that the article says, it's just what he's had some sources tell him.
So I don't mean to suggest one way or another that the article is accurate. I just want to ask about some of the things that it says so I understand them. And I trust that you'll tell me the truth, and you understand you're under oath, correct?
Did you detail some of your personnel to conduct investigations that resulted in their frequent trips and stays in the Washington state area beginning in 2013 or 2014?
A. We had a couple investigations -- investigators go up there, yes.
Q. And who were those investigators?
A. I think it was Zullo and Brian Mackiewicz.
Q. And Mackiewicz is --
A. A detective.
Q. Is he in your -- is he assigned to you personally, your risk detail?
A. Well, we had a lot of threats on me and --
Q. I understand that. Is that generally his assignment, to protect you and assess risks that come against you?
A. Yes. [645]
Q. And so you were aware when he was gone to the Seattle area?
A. Yes.
Q. And what about -- I think there's a Mr. Anglin mentioned in the article. Was he also an officer that was assigned to go to Seattle as well?
A. I think for a short period of time he did.
Q. And is zoo -- did you say Zulu? Zullo. Is he a posse member?
A. Yes.
Q. And did you pay funds from Maricopa County for Mr. Zullo to go to the Washington area?
A. Yes.
Q. And then I assume you paid Anglin and Mackiewicz their travel costs?
A. We don't pay for Zullo, but --
Q. But you paid Mackiewicz and Anglin.
A. Yes.
Q. And did you also hire a consultant in the Washington state area to help you with this investigation or investigations that Mackiewicz and Zullo were working with?
A. Not that I know of. May have.
Q. Did you have a confidential informant in the Washington area that they were working with?
A. Yes.
Q. And does the article accurately identify who that [646] confidential informant was?
It says the name is Dennis Montgomery. Is that the confidential informant?
A. Yes.
Q. And so when Mr. Montgomery was a confidential informant, he was some sort of a computer consultant?
A. Yes.
Q. And as a confidential informant, his fees would have to be paid, or approved, if in fact it was before the transfer of Captain Bailey, his fees would have had to have been approved by Captain Bailey, or any payments to him would have had to have been approved by Captain Bailey?
A. I'm not sure at the time period, Your Honor.
Q. Now, the article says that you were personally conducting these investigations and personally aware of them.
Were you?
A. Well, on a certain issue I was.
Q. And what issue was that?
A. It was the president's birth certificate.
Q. Okay. So you were -- Mr. Montgomery was doing research into the president's birth certificate. Did Mr. Montgomery ever tell you -- or, well, did you ever use Mr. Montgomery to investigate anything about the Department of Justice?
A. I don't believe that Montgomery was involved in the birth certificate. It was other violations that he was looking into. [647]
Q. And what were those?
A. Had to do with computer tampering and also bank fraud, that type of thing.
Q. Did you ever -- you see that the article says that what Montgomery was actually doing was investigating me.
You see that that's what the article says?
A. It's not true.
Q. All right. Are you aware that I've ever been investigated by anyone?
A. You investigated?
Q. Yes.
A. No. No.
Q. Any of my activities?
A. No.
Q. Any of my family members?
A. That have been investigated?
Q. Yes.
A. Not by our office.
Q. Are you aware of anybody who's investigated any of my family members by any -- any office. Or anybody.
A. I believe there was an issue, but once again, it wasn't my office.
Q. Well, whose office was it?
A. It was an outside investigator not hired by us.
Q. Who hired the outside investigator? [648]
A. Could have been counsel.
Q. "Counsel" meaning your counsel?
A. Yes.
Q. And would that have been Mr. Casey or Ms. Iafrate?
A. I believe it would have been Mr. Casey.
Q. And who did he hire?
A. It was the counsel.
Q. I'm sorry?
A. Mr. Casey.
Q. Mr. Casey. Who did Mr. Casey hire?
A. Pardon?
Q. Who did Mr. Casey hire? To investigate me or a member of my family, or members of my family.
A. We weren't investigating you, Your Honor.
Q. Well, who were you investigating?
A. We were investigating some comments that came to our attention.
Q. Okay. And how did they come to your attention?
A. Through e-mail.
Q. And do you know who the author of the e-mail was?
A. I don't have the name right now.
Q. Okay. Let me ask, in his article Mr. Lemons indicates -- well, let me get -- let me get this clear. Your testimony is that Mr. Mackiewicz, Mr. Anglin, Mr. Zullo, never were involved in any investigation of the Department of Justice or of me, is [649] that correct?
A. Not -- no, not of you.
Q. Well, were they involved in an investigation of the Department of Justice?
A. I'm not sure.
Q. Were they trying to determine whether the Department of Justice had contacted me in any way?
A. I'm not sure about that.
Q. You're not sure about that?
A. No.
Q. And would Mr. Montgomery have been involved in assisting them to determine whether the Department of Justice had contacted me in any way?
A. No. I believe there was information about many judges being infiltrated or wiretaps and that type of thing. That's what the informer said that right now we don't have much confidence in.
Q. Well, who was the informer and what did the informer say?
A. We're speaking about Montgomery.
Q. All right. Montgomery said that judges had been infiltrated?
A. That many judges -- if I recall, that they're wire -- their phones were tapped, e-mails, that type of thing.
Q. By the Department of Justice?
A. By someone. [650]
Q. And so Mr. Montgomery proposed to -- who did he propose to at the MCSO that the DOJ was inappropriately --
I assume it was of interest to you if they were wiretapping my phone, among others?
A. Yes. And mine, too.
Q. And yours, too.
And so were you conducting this investigation?
A. No.
Q. Who was in your department?
A. This is Zullo and I think Mackiewicz.
Q. What rank does Mackiewicz have?
A. He's a detective.
Q. Who did he report to about this investigation?
A. I think he and Zullo worked together.
Q. And who did they report to?
A. And Jerry Sheridan.
Q. They reported to Deputy Chief Sheridan?
A. At one time, but let me just say that the information we're -- we've been getting is the informer's not very viable.
Q. Well, I understand that, I think the article itself says, that you became aware after a considerable amount of time that the reporter was giving you junk. Is that fair to say?
A. Yes.
Q. Or the informer was giving you junk?
A. Yes. [651]
Q. How much money did you spend on the informant?
A. I don't recall.
Q. How much money did you spend on the investigation?
A. I don't have the figures.
Q. Do you -- does the -- I guess I want to straighten some things out to make sure that I understand them.
It's typical that confidential informants get control numbers?
A. I believe so.
Q. And that they are maintained in a confidential informant log and monitored by the Special Investigations Division commander or his designee?
A. I believe so.
Q. And that for the time that this matter was going to be investigated, or was being investigated, that would have been Captain Bailey, correct?
A. I'm still not sure on the time -- time frame, or whether he knew about it.
Q. Well, I will tell you that the article suggests that the investigation began in October of 2013. And Mr. Lemons, in the article, says that as of January 2015 he kept making document requests to the MCSO, and the MCSO continued to say this is an ongoing investigation, we're not going to give you anything.
So is this investigation still ongoing, or have you determined pretty much that the informant was unreliable and [652] it's not worth proceeding?
A. Well, it's almost finished.
Q. I'm sorry?
A. It's almost finished on -- especially on his reliability.
Q. All right. Are you investigating him now?
A. I'm not sure.
Q. Well, I want to understand exactly what it is that Mr. Mont -- your understanding of what it is that Mr. Montgomery told you DOJ was doing that you were investigating.
A. Once again, he seemed to indicate that someone was penetrating in the e-mails of our local attorneys and others, judges, that type of thing, which we can't prove.
Q. All right. And was I one of those judges?
A. I think you were one of the judges.
Q. And were you concerned then that that might be affecting my judgment or neutrality in this lawsuit?
A. No.
Q. Who else was named by Mr. Montgomery as being targets of this DOJ investigation?
A. I believe the -- our local law firm, the attorneys working for us on the Department of Justice lawsuit.
Q. Who else?
A. You mean other judges around -- I don't remember.
Q. Anybody that Mr. Montgomery said that -- that the DOJ was [653] bugging their phones, or otherwise intruding into their private communications.
A. Well, I know I was.
Q. You were one. Your law firm was one.
A. Jerry Sheridan, I believe. And there's other local officials.
Q. And I was?
A. You -- yes.
Q. Did you keep any of the materials that Mr. Montgomery has provided you?
A. I don't have them.
Q. Who does?
A. I believe Zullo does.
Q. And is he subject to your control --
A. Yes.
Q. -- as a member of your posse?
A. Yes.
Q. I'm going to direct you that you tell Mr. Zullo that he keep all those documents. All right?
A. He what?
Q. He keep and maintain all of those documents.
A. Yes.
Note. On Oct. 8, 2015, Arpaio conceded that he didn't talk to Zullo - or anyone else other than, possibly, Iafrate (attorney) - about this order. See Arpaio Oct. 8, 2015 testimony at 2559-2264.
Q. I'm going to direct you that nothing pertaining to any of this investigation be destroyed, including confidential informant numbers. [654]
Do you understand that direction?
A. Yes.
Q. Who else was aware of these investigations within the MCSO?
A. I'm not sure. Because of the sensitivity, we were trying to keep it quiet.
Q. Now, I think in addition to the investigation that may have involved me and my phone or any contact or tapping by the Department of Justice, you indicated that there were investigations made into members of my family.
Did you indicate that?
A. That had nothing to do with Montgomery.
Q. What did it have to do with?
A. I believe there was a, as I say, e-mail that came to me.
Q. And do you still have that e-mail?
A. We may have it, yes.
Q. I'm going to direct you to keep that e-mail.
What did the e-mail say, to the best of your recollection?
A. I think it mentioned that Judge Snow wanted to do everything to make sure I'm not elected.
Q. Do you recall who the author of that e-mail was?
A. I believe it was someone named Grissom.
Q. Grissom?
A. Grissom.
Q. Okay. And how did this person purport to know that? [655]
A. The person met your wife in a restaurant, and she's the one that made those comments.
Q. According to whatever Mr. Grissom said.
A. There was other witnesses, yes.
Q. Okay. And so you turned that over to your counsel and counsel hired a private investigator, and what did the investigator do?
A. He investigated it.
Q. And what was the result of the investigation?
A. Results were that he confirmed that your wife was in that restaurant and con -- I guess talked to the witnesses, three or four, that confirm that remark was made.
Q. All right. And do you have any materials pertaining to that investigation?
A. We should have.
Q. Okay. Will you save those as well?
A. Yes.
Q. All right. Thank you.
Who has told you that the information that Mr. Montgomery provide -- or how is it that you've come to conclude that the information you were getting from Mr. Montgomery is not reliable?
A. I think the investigators, as time progressed, figured that he may not be reliable.
Q. Did the MCSO also purchase computer equipment for [656] Mr. Montgomery or for the investigation?
A. That's possible.
Q. Well, I'm going to direct you, to the extent that any of this material is in your control, that it be maintained.
Do you understand that direction?
A. Yes.
Q. Would Captain Bailey have been involved in any of these investigations?
A. I don't believe so.
Note. Bailey was in fact involved to the extent that he approved payments - up until he (apparently) asserted that he could no longer approve such payments in good conscience. See, e.g., Seagraves' Oct 1, 2015 testimony at xxx; Anglin's Oct. 9, 2015 testimony at xxx.
Q. But if he was the commander of Special Investigations Division, he would have been aware of the investigations?
A. I'm not sure.
Q. The commander of the Special Investigations Division would have to sign off on payments made to confidential informants?
A. Yes, normally.
Q. And would they have to sign off on payments made for investigations in which confidential informants were involved?
A. I'm not sure if he would do it, or a lieutenant, or who would do that.
Q. Who is currently the director of the Special Investigations Division? Or the commander or the captain.
A. I can't re -- I can't remember his name. It's an Italian name, but -- I know that Trombi is the top guy in charge of all these elements.
Q. Will you make sure that everybody in your division that has [657] anything to do with any of this maintains all these records?
A. Yes.
Note. Again, on Oct. 8, 2015, Arpaio conceded that he didn't talk to Zullo - or anyone else other than, possibly, Iafrate (attorney) - about this order. See Arpaio Oct. 8, 2015 testimony at 2559-2264.
THE COURT: I think, Sheriff, for the time being, those are my questions. It's probably time for us to break for lunch, so could you be back in an hour? We'll have an hour lunch break.
THE WITNESS: Yes, sir.
THE COURT: I appreciate your answers.
THE WITNESS: Thank you.
(Lunch recess taken.)
THE CLERK: All rise. Court is now in session.
THE COURT: Thank you. Please be seated.
You ready to proceed?
MS. WANG: Yes, Your Honor.
THE COURT: Sheriff, I just wanted to -- Oh, I'm sorry.
MS. IAFRATE: Yes, Your Honor.
THE COURT: I just wanted to reiterate some of the things I said during my questioning of you to make sure everybody was clear. I was told over lunch that posse funds like Mr. Zullo -- Mr. Zullo's the head of one of your posses.
THE WITNESS: Yes.
THE COURT: Is it the Cold Case posse?
THE WITNESS: Yes.
THE COURT: I was told that you also have various [658] sources of funding within the MCSO, like the Cold Case posse has its own funds. Is that possible?
THE WITNESS: No.
THE COURT: Okay. Do you know what the possible funding sources were for the investigations that were related to the Seattle operation?
When I say "operation," I mean the one involving Mr. Montgomery and the investigations with Brian Mackiewicz and Mr. Anglin.
THE WITNESS: I'm not sure if it was our RICO, which is drugs seized -- I mean moneys seized from drug peddlers, or our general funds.
THE COURT: Were there other possible funds that might be involved that fund various like, for example, the Cold Case posse?
THE WITNESS: They're independent 501(c) –
THE COURT: 501(c)(3).
THE WITNESS: -- and they raise their own money.
THE COURT: All right. And you don't have any control over those funds?
THE WITNESS: No.
THE COURT: What about asset forfeiture funds, would any asset forfeiture funds have been involved in funding this operation?
THE WITNESS: I don't know where their funding came [659] from.
THE COURT: Well, the point is this, and I think I made it clear, but I just want to make sure that I've made it clear, to the extent that you have any control over any funding records, over any reports, over any communications, over any overtime records, travel documentation, any e-mails of any and all people involved in the threat assessment unit or anywhere else, any communications from and to Montgomery, any computers or phones, cell phones or other information that in any way is relevant or related to this investigation, I want you to direct your people to put a hold on it immediately and preserve it.
And that includes any documentation or numbers that would relate to Mr. Montgomery's confidential status.
You understand that?
THE WITNESS: Your Honor, are you referring to this investigation with the monitors and --
THE COURT: No, no. I'm referring to the investigation that Mr. Montgomery was undertaking with Mr. Mackiewicz, Mr. Anglin, Mr. Zullo, anybody else from your staff, anybody else from the MCSO, or anyone else from the posse. I want all records that in any way relate to it, all electronic data or anything else, or the financing, funding of that operation, all phone records, e-mails, reports, I want it all preserved.
And I think I will send the monitor to begin taking [660] possession of those records and we'll do it confidentially, imminently. But I don't want in the interim any of those records lost, inadvertently or otherwise.
You understand what I'm saying?
THE WITNESS: Yes.
THE COURT: And you'll so direct your people?
THE WITNESS: Yes.
Note. Again, on Oct. 8, 2015, Arpaio conceded that he didn't talk to Zullo - or anyone else other than, possibly, Iafrate (attorney) - about this order. See Arpaio Oct. 8, 2015 testimony at 2559-2264.
THE COURT: All right. Thank you, sir. Mr. Young?
MR. YOUNG: No further questions, Your Honor.
THE COURT: Ms. Iafrate?
MS. IAFRATE: Nothing, Your Honor.
MR. WALKER: Subject to my earlier reservation, nothing, Your Honor.
MR. COMO: I have no questions, Your Honor.
THE COURT: You may step down, Sheriff. Thank you. Next witness.
See also, Arpaio's Sept. 30, Oct. 1, and Oct. 8 Testimony.
*Source: Melendres v. Arpaio et al, No. CV 07-2513-PHX-GMS (D. Ariz.) Transcript of Proceedings - Evidentiary Hearing Day 3 (April 23, 2015) (pages 512-817).
