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Judge rules: Melendres exhibits may be released to the public

Stephen Lemons at the Phoenix New Times reports:

The records have been entered as exhibits in the ongoing federal contempt trial of Arpaio and four of his current and former underlings. Recently they were made public by the plaintiffs in the underlying civil rights case, Melendres v. Arpaio, after federal Judge G. Murray Snow told the parties in open court that the documents could be released to the press.

Documents in Lemons’ article confirm the summer 2012 meeting between Tim Blixseth, Mike Zullo and “and other officials within the Maricopa County Sheriff’s Office.” We also have confirmation that Zullo previously knew Blixseth through Jerome Corsi. According to “elmers case summary”1 (“elmer” was a Dennis Montgomery code name) in an email from Brian Mackiewicz to Zullo, there had been  a meeting between Zullo, Blixseth, Blixseth’s attorney Michael Flynn and Mackiewicz in April, 2012. The meeting did not cover the birth certificate investigation, but the summary adds:

From April 2012 through October 2013 Timothy Blixseth would contact Zullo on occasion to ask of there had been progress in regards to the “Birth Certificate” investigation.

According to the summary, it was in October 2013 when Zullo was first advised of the Montgomery CIA plot allegations and it was at this time that Blixseth informed Zullo that his “Whistleblower” also had information “pertaining to Zullo’s investigation regarding the Obama PDF birth certificate.” It was also at this time that Montgomery alleged that the CIA had breached MCSO servers and was listening in on attorney-client communications.

image

Montgomery to Zullo, December 16, 2014: “MCSO pursued sensitive information against Judge Snow and we both know it. In fact you produced some of it to the DC judge in August. … Remember I know MCSO’s long history of altering digital data before it is put into evidence. I suspect that is why you never put my drives into evidence.”


1According to the testimony of Brian Mackiewicz, he and Zullo wrote wrote “elmers summary” together.

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32 Responses to Judge rules: Melendres exhibits may be released to the public

  1. avatar
    Rickey November 10, 2015 at 12:28 pm #

    Montgomery to Zullo, 12/16/14:

    “MCSO pursued sensitive information against Judge Snow and we both know it.”

  2. avatar
    RanTalbott November 10, 2015 at 2:19 pm #

    Does anyone else find the contrast between Zullo’s Dec 16 “we know you conned us” email and the ones from early this year where’s he’s practically begging Monty the Python to deliver the Universe Shattering Evidence™ a little weird?

    In light of this “mountain of evidence”, should the anti-birthers start sending a new kind of “Shurf’s Kit” to Congress, and demand that they investigate Arpaio? 😈

  3. avatar
    Pete November 10, 2015 at 2:26 pm #

    Rickey: “MCSO pursued sensitive information against Judge Snow and we both know it.”

    That’s pretty close to a smoking gun.

  4. avatar
    Dr. Conspiracy November 10, 2015 at 4:46 pm #

    Zullo deposition from yesterday entered into evidence.

    https://www.scribd.com/doc/289272567/Melendres-1532-P-Motion-to-Admit-Zullo-Exhibits

    Q: Are you currently employed?
    A: Sir, I am going to put forth my Fifth Amendment privilege against self-incrimination.

  5. avatar
    Arthur B. November 10, 2015 at 5:13 pm #

    A question for our lawyers:

    We know that Zullo cannot request blanket 5A protection. Does that mean that his per-question invocations are truly independent — for example, if he decided to make a relevant comment, or answer a particular question, would that implicate any rights that he may have?

  6. avatar
    bob November 10, 2015 at 5:41 pm #

    Arthur B.:
    Does that mean that his per-question invocations are truly independent — for example, if he decided to make a relevant comment, or answer a particular question, would that implicate any rights that he may have?

    The plaintiffs’ lawyers at the end of the deposition explained to Zullo that he did, in fact, answer several questions. So they may argue that his answers do constitute a waiver.

  7. avatar
    justlw November 10, 2015 at 5:43 pm #

    Here’s a fun exchange, one of the few places where Zullo broke from just saying “I’m taking the Fifth”. (Most of his other breaks in form are along the lines of “Oh, I so want to answer that one, but I won’t.” and one instance of declaring an email string to be “bullshit”, presumably referring to what Montgomery was saying in the emails.)

    Starting at the bottom of page 120:

    ====

    Q. Mr. Zullo, you asked Mr. Montgomery a question about what could you do if you wanted to destroy the life of someone — someone with the information that Mr. Montgomery had. Did you have anyone in particular in mind —

     A. Oh, God.

     Q. — when you asked that question?

     A. Not — I’m taking the Fifth.

     Q. Well, the same question about your question to Mr. Montgomery about financially destroying someone. Did you have anyone in particular in mind when you asked that question?

     A. Taking the Fifth. Mr. Young, that recording should scare the hell out of you, because it scared the hell out of me.

     Q. And what was it that scared the hell —

     A. I’m not going to —

     Q. — out of you?

     A. You’re a smart guy. People with that capability. You’re — you’re a smart guy.

     Q. Well, you thought that you might be able to employ that capability against Judge Snow; correct?

    MR. MASTERSON: Form. Foundation.

    THE WITNESS: I’m taking the Fifth.

  8. avatar
    Arthur B. November 10, 2015 at 5:55 pm #

    bob: The plaintiffs’ lawyers at the end of the deposition explained to Zullo that he did, in fact, answer several questions.So they may argue that his answers do constitute a waiver.

    If taken to be a waiver, does that preclude any right to take the Fifth in the future, or does it open him up only to further grilling about the subject of the question?

  9. avatar
    Pete November 10, 2015 at 6:14 pm #

    MR. JIRAUCH: Mr. Zullo, could I make a request, and I think I speak for all of the attorneys here today, is that if a lawyer’s making an objection, you wait until the lawyer’s finished and then plead —

    THE WITNESS: Sure.

    MR. JIRAUCH: — the Fifth. It will not affect your —

    THE WITNESS: Yeah, absolutely.

    MR. JIRAUCH: And I —

    THE WITNESS: I apologize.

    MR. JIRAUCH: Just as —

    THE WITNESS: Yes.

    MR. JIRAUCH: — a courtesy.

    Not really the sharpest tool in the shed, is he?

  10. avatar
    Pete November 10, 2015 at 6:47 pm #

    There’s at least a little bit of interesting stuff in there, although it’s kind of like hunting for gold coins in a bucket of Fifth.

    Q. I’m going to ask you now to listen to a portion that starts about eight minutes and 50 seconds into the recording. (Audio played.)

    BY MR. YOUNG:

    Q. Mr. Zullo, you asked Mr. Montgomery a question about what could you do if you wanted to destroy the life of someone — someone with the information that Mr. Montgomery had. Did you have anyone in particular in mind —

    A. Oh, God.

    Q. — when you asked that question?

    A. Not — I’m taking the Fifth.

    Q. Well, the same question about your question to Mr. Montgomery about financially destroying someone. Did you have anyone in particular in mind when you asked that question?

    A. Taking the Fifth. Mr. Young, that recording should scare the hell out of you, because it scared the hell out of me.

    Q. And what was it that scared the hell —

    A. I’m not going to —

    Q. — out of you?

    A. You’re a smart guy. People with that capability. You’re — you’re a smart guy.

    Q. Well, you thought that you might be able to employ that capability against Judge Snow; correct?

    MR. MASTERSON: Form. Foundation.

    THE WITNESS: I’m taking the Fifth.

    and later ===

    Q. Okay. Well, as I listen to that, it’s — it sounds, Mr. Zullo, to me that you were interested in getting information from Mr. Montgomery that would implicate somebody, perhaps the federal government or federal officials, in some wrongful act which could then be used on behalf of the sheriff; is that right?

    MR. MASTERSON: Form.

    THE WITNESS: Taking the Fifth.

    Also of interest:

    The Court having reviewed Plaintiffs’ Motion to Admit Certain Exhibits based on Mr. Zullo’s invocation of his Fifth Amendment right not to testify, and good cause appearing, IT IS ORDERED that Plaintiffs’ Motion is granted. An inference as to the authenticity of the exhibits cited in Exhibit A to Plaintiffs’ Motion is appropriate under all the circumstances, and in light of Mr. Zullo’s deposition testimony, and the exhibits are admitted into evidence.

  11. avatar
    Nancy R Owens November 10, 2015 at 7:48 pm #

    Quote: A. “Taking the Fifth. Mr. Young, that recording should scare the hell out of you, because it scared the hell out of me.”

    I agree.

    bob: The plaintiffs’ lawyers at the end of the deposition explained to Zullo that he did, in fact, answer several questions.So they may argue that his answers do constitute a waiver.

  12. avatar
    gorefan November 10, 2015 at 7:54 pm #

    Dr. Conspiracy: Zullo deposition from yesterday entered into evidence.

    Q. Now, you told Mr. Montgomery that first you would want him to deal with the birth certificate in order to get the sheriff back and then you would go for the data that related to the contempt proceeding with Judge Snow; is that correct?

    A. Taking the Fifth.

    Q. Well, then Mr. Montgomery at 8:46 p.m. says, quote, “Okay. That will take time. Need to deconstruct 3 different versions of Adobe (9, 10, and 11) using 2 different formats each. Just complicated. Just hold on to your plan for now, I guess,” end quote.

  13. avatar
    alg November 10, 2015 at 11:02 pm #

    I love the smell of obstruction of justice in the morning.

  14. avatar
    RanTalbott November 11, 2015 at 1:25 am #

    Interesting tidbit from an 8JAN2014 email. Monty had requested 400-some dollars to get his broadband reconnected, but MCSO was refusing to pony up without some results. Zullo tells Anglin

    I can pay it from the Posse funds if I can get reimbursed. I need every cent for travel coming up.

    So, either Zullo had spent foolishly, or the CCP wasn’t raking in Mondo Big Bux from the suckers.

  15. avatar
    John Reilly November 11, 2015 at 3:59 am #

    So, was the Reed Hayes report produced?

  16. avatar
    The Magic M (not logged in) November 11, 2015 at 4:18 am #

    it was at this time that Blixseth informed Zullo that his “Whistleblower” also had information “pertaining to Zullo’s investigation regarding the Obama PDF birth certificate.”

    It appears the “universe-shattering evidence” was simply them trying to make an inference by interference – “if we really had nothing, they wouldn’t try to spy on us, so this proves we are correct”.

  17. avatar
    The Magic M (not logged in) November 11, 2015 at 4:20 am #

    gorefan: Well, then Mr. Montgomery at 8:46 p.m. says, quote, “Okay. That will take time. Need to deconstruct 3 different versions of Adobe (9, 10, and 11)

    He sounds like Orly’s “expert” Papa Chito – anyone really involved with this kind of software would never refer to it simply by the company name but say either “Acrobat” or “Photoshop” or “InDesign” or whatever product he was using.

    Q: What is your expert qualification?

    A: I’ve been using Adobe on Microsoft and the Browser on Smartphone, and also control some of the steering thingy on Car often.

  18. avatar
    The Magic M (not logged in) November 11, 2015 at 4:31 am #

    Q. Does Sheriff Arpaio have a recording system in his office?
    MR. MASTERSON: Foundation.
    THE WITNESS: Taking the Fifth.

    Srsly, isn’t that obstruction of justice? How would answering that question incriminate Zullo criminally?

  19. avatar
    Dr. Conspiracy November 11, 2015 at 7:55 am #

    Just speculating here, but

    IF Sheriff Joe DID have a recording system in his office, and
    IF Zullo believed that he had been recorded making an incriminating statement
    THEN answering the question might lead investigators to that incriminating recording, which would be (as I understand it) self-incrimination.

    The Magic M (not logged in): Srsly, isn’t that obstruction of justice? How would answering that question incriminate Zullo criminally?

  20. avatar
    Dr. Conspiracy November 11, 2015 at 8:18 am #

    Judge Snow did not allow Zullo’s taking the 5th to obstruct entering documents he produced in response to the subpoena. In a civil trial, the Court may draw inferences from someone taking the 5th on the stand, and the inference that Judge Snow made was that the documents where authentic. There were other arguments for their authenticity, including their form and source. Additionally, none of the parties claimed they weren’t authentic.

  21. avatar
    Dr. Conspiracy November 11, 2015 at 8:20 am #

    A: I have viewed literally thousands of documents in Acrobat.

    The Magic M (not logged in): Q: What is your expert qualification?

  22. avatar
    Dr. Conspiracy November 11, 2015 at 8:25 am #

    Sharon Rondeau has an article about Zullo taking the 5th. It’s a pretty straight-up report.

    http://www.thepostemail.com/2015/11/10/plaintiffs-attorneys-in-arpaio-case-petition-court-to-admit-certain-exhibits/

  23. avatar
    Dr. Conspiracy November 11, 2015 at 8:29 am #

    Not that I know of. It would only have been subject to the subpoena if it had been sent by email to someone after September 1, 2013.

    John Reilly:
    So, was the Reed Hayes report produced?

  24. avatar
    Dr. Conspiracy November 11, 2015 at 8:34 am #

    Montgomery: “Remember I know MCSO’s long history of altering digital data before it is put into evidence.”

    This could refer to a video tape of the death of a prisoner in the county jail. It is alleged that the recording was recorded over and over again so as to reduce the quality to a point where the persons present could not be identified.

    See also:

    http://www.abc15.com/news/local-news/investigations/video-haunting-parallels-in-mcso-jail-deaths

    “In the Braillard case, the court determined that in at least four instances evidence, records and video were either altered, went missing or destroyed by the county.”

  25. avatar
    tes November 11, 2015 at 8:50 am #

    Dr. Conspiracy:
    … In a civil trial, the Court may draw inferences from someone taking the 5th on the stand, and the inference that Judge Snow made was that the documents where authentic. There were other arguments for their authenticity, including their form and source. Additionally, none of the parties claimed they weren’t authentic.

    You are correct that Judge Snow ordered the documents produced to plaintiffs. However, Judge Snow has not yet ruled on whether they are admissible (at least as I understand per reports from attendees).

    Plaintiffs just filed their motion (ECF 1532) yesterday (Nov. 10) seeking to admit a bunch of docs (and a few audio files). However, defendants haven’t yet had a chance to respond (and I understand that they intend to do so); nor has Judge Snow ruled on that issue (as I understand).

    FWIW, as I noted over at Fogbow, Plaintiffs seek to introduce only one single document from the Zullo 5th Amendment Privilege Log (subject line – “image” – which may be email attaching what is sure to become an infamous Arpaio-Montgomery photo).

  26. avatar
    Dr. Conspiracy November 11, 2015 at 8:55 am #

    According to the testimony of Brian Mackiewicz, he and Zullo wrote wrote “elmers summary” together.

  27. avatar
    justlw November 11, 2015 at 11:52 am #

    Dr. Conspiracy: Montgomery: “Remember I know MCSO’s long history of altering digital data before it is put into evidence.”

    Doesn’t it sound like Montgomery is intentionally pre-emptively putting incriminating statements about MCSO into the email chain, for just this circumstance? The questioning about this exchange is one of the places where Zullo can’t help but comment instead of sticking to pleading the Fifth. Montgomery’s in his head.

  28. avatar
    Dr. Conspiracy November 11, 2015 at 12:48 pm #

    I see what I did. My bad.

    tes: You are correct that Judge Snow ordered the documents produced to plaintiffs. However, Judge Snow has not yet ruled on whether they are admissible (at least as I understand per reports from attendees).

  29. avatar
    Dr. Conspiracy November 11, 2015 at 1:57 pm #

    I’ve been looking over the Joe Arpaio Brief exhibit

    http://images.phoenixnewtimes.com/media/pdf/joearpaiobrief.pdf

    What I find curious is that the “breach” only has one IP address, and that address in the case of Maricopa County servers is the IP addresses assigned to Maricopa County. There’s nothing to suggest an IP address that the alleged breach came from. In another instance, the IP (216.119.127.142) goes to Crystaltech Web Hosting Inc. in Phoenix (stated to be http://www.jhsfirm.com and mail.jhsfirm.com). The IP address is correct for http://www.jhsfirm.com, but the mail is 66.194.15.10 (Tw Telecom Holdings Inc.). Of course, that could have been different in prior years. JHS is Johnson Hobbs Squires, a law firm in Texas.

    I have a problem grasping the concept of “the big lie.” When I see these data breach claims, I ask small questions like: “how do I know that this is a breach, and not legitimate traffic to this server?” The question I should be asking is: “how do I know that the breach information is not completely fabricated?” Anyone can take an email address and get the IP address of their mail exchange server and anyone can take a URL and get the address of a web server. It doesn’t take CIA packet intercepts to do that.

  30. avatar
    RanTalbott November 11, 2015 at 5:38 pm #

    tes: FWIW, as I noted over at Fogbow, Plaintiffs seek to introduce only one single document from the Zullo 5th Amendment Privilege Log

    Should we interpret that as meaning that 5th Amendment privilege actually applies to the others? Or just that that’s the only one they think has enough significance to the “Snow investigation” allegation that they’re willing to contest the claim? I’m guessing that they’ll avoid anything that might incriminate only the BC snipe hunt, using his per diem for hookers, or whatever, since it’s not relevant to the case at hand, and might interfere with a later prosecution.

  31. avatar
    Dr. Conspiracy November 11, 2015 at 8:45 pm #

    I had commented in error that Judge Snow had ruled that all the Zullo documents requested to be entered into evidence were admitted. No such ruling has come down and been filed on the docket as of now.

    Two briefs were filed today. One is a motion by Defendants to withdraw 2 exhibits previously put into evidence by Plaintiffs, based on a claim of privilege. The Defense agreed, but in addition Plaintiffs made the following statement:

    Plaintiffs note that there have been significant deficiencies in the production of documents relating to the “Seattle investigation,” e.g., the tardiness of the production of the many documents that were produced from Mr. Zullo’s files by Jones Skelton in October and November 2015. These deficiencies, which are violations of the Court’s prior orders, have caused Plaintiffs to incur costs in addition to those that they would otherwise have incurred. Plaintiffs reserve the right to request sanctions for those violations and believe that the granting of Sheriff Arpaio’s motion as to Exhibits 2947 and 2948 will preclude the later use of those documents in opposition to any motion for remedy for the deficient production…

    I THINK what this means is that Defendants had not turned over documents that they were required to turn over, and this was made evident by them appearing among the documents Zullo delivered.

  32. avatar
    Dr. Conspiracy November 11, 2015 at 8:52 pm #

    No. It’s not Plaintiff’s job to protect Zullo. It’s possible that at least some of these items are ones already admitted because they were obtained from MCSO, and I guess the rest weren’t useful for making Plaintiff’s case. For example, if AZ1 and AZ2 are the draft videos of the CCP’s next press conference, they wouldn’t be relevant.

    RanTalbott: Should we interpret that as meaning that 5th Amendment privilege actually applies to the others?