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3698
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Manuel de Jesus Ortega Melendres,et al.,
Plaintiffs,
vs.
Joseph M. Arpaio, et al.,
Defendants.
)))))))))))
No. CV 07-2513-PHX-GMS
Phoenix, ArizonaOctober 28, 20159:03 a.m.
REPORTER'S TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE G. MURRAY SNOW
(Evidentiary Hearing Day 16, Pages 3698-3970)
Court Reporter: Gary Moll401 W. Washington Street, SPC #38Phoenix, Arizona 85003(602) 322-7263
Proceedings taken by stenographic court reporterTranscript prepared by computer-aided transcription
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Melendres v. Arpaio, 10/28/15 Evidentiary Hearing 3699
A P P E A R A N C E S
For the Plaintiffs:American Civil Liberties Union FoundationImmigrants' Rights ProjectBy: Cecillia D. Wang, Esq.39 Drumm StreetSan Francisco, California 94111
American Civil Liberties Union FoundationImmigrants' Rights ProjectBy: Andre Segura, Esq.125 Broad Street, 18th FloorNew York, New York 10004
American Civil Liberties Union of ArizonaBy: Daniel J. Pochoda, Esq.P.O. Box 17148Phoenix, Arizona 85011
For the Defendant Maricopa County:Walker & Peskind, PLLCBy: Richard K. Walker, Esq.SGA Corporate Center16100 N. 7th Street, Suite 140Phoenix, Arizona 85254
For the Defendant Joseph M. Arpaio and Maricopa CountySheriff's Office:
Iafrate & AssociatesBy: Michele M. Iafrate, Esq.649 N. 2nd AvenuePhoenix, Arizona 85003
Jones, Skelton & Hochuli, PLCBy: A. Melvin McDonald, Jr., Esq.By: John T. Masterson, Esq.By: Joseph T. Popolizio, Esq.2901 N. Central Avenue, Suite 800Phoenix, Arizona 85012
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Melendres v. Arpaio, 10/28/15 Evidentiary Hearing 3700
A P P E A R A N C E S
For the Movants Christine Stutz and Thomas P. Liddy:Broening, Oberg, Woods & Wilson, PCBy: Terrence P. Woods, Esq.P.O. Box 20527Phoenix, Arizona 85036
For the Intervenor United States of America:U.S. Department of Justice - Civil Rights DivisionBy: Paul Killebrew, Esq.950 Pennsylvania Avenue NW, 5th FloorWashington, D.C. 20530
U.S. Department of Justice - Civil Rights Division
By: Cynthia Coe, Esq.601 D. Street NW, #5011Washington, D.C. 20004
For Executive Chief Brian Sands:Lewis, Brisbois, Bisgaard & Smith, LLPBy: M. Craig Murdy, Esq.2929 N. Central Avenue, Suite 1700Phoenix, Arizona 85012
For Brian Mackiewicz:Sitton Nash
By: Alexandra Mijares Nash, Esq.301 W. Warner Road, Suite 133Tempe, Arizona 85284
Also present:Sheriff Joseph M. ArpaioExecutive Chief Brian SandsLieutenant Joseph Sousa
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Melendres v. Arpaio, 10/28/15 Evidentiary Hearing 3701
I N D E X
Witness: Page
BRIAN MACKIEWICZ
Direct Examination Continued by Ms. Morin 3713Cross-Examination by Mr. Popolizio 3749Redirect Examination by Ms. Morin 3784Examination by the Court 3786
STEVE BAILEY
Direct Examination Continued by Ms. Wang 3798Cross-Examination by Mr. Masterson 3915
E X H I B I T S
No. Description Admitted
1000 Memorandum from Detective Frei to Steve Bailey 3855dated 5/23/14 and attached incident report
2050 MCSO Memorandum from Deputy Cosme to Captain 3897Bailey re Video/Audio re Melendres Court Orderdated 5/21/2014 (MELC098062-MELC098110)
2051 MCSO Memorandum from Lt. Seagraves (on behalf 3898of Captain Bailey) to Chief Lopez re Video/Audiore Melendres Court Order dated 5/21/2014(MELC004088)
2068 Documents from IA 14-0564 3841(MELC160986-MELC161056)
2085 Document created to keep track of various 3720expenditures (MELC199632-33)
2104 Findings of MCSO IA 2014-0547 (MELC160761-985) 3841
2263 E-mail from Brian Mackiewicz to Larry Klayman 3741copying Michael Zullo, David Webb, and DinaJames Re: DC dated 11/7/2014 (MELC202173-75)
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Melendres v. Arpaio, 10/28/15 Evidentiary Hearing 3702
E X H I B I T S
No. Description Admitted
2266 E-mail from Brian Mackiewicz to Michael Zullo 3742FW: Response dated 11/14/2014 (MELC198226)
2757 Memorandum to Steve Bailey from Stephen Fax 3909Re: Documenting all personnel in HSU by yearand identifying the chain of command dated6/21/2014 (MELC010882-MELC010883)
2772 MCSO Professional Standards Bureau IA 3825# 2014-0546 dated 11/12/2014(MELC158578-MELC158624)
2775 Memorandum to Clint Doyle from Brian Mackiewicz 3887
re: Investigative Trip dated 10/25/2013(MELC187301)
2776 Memorandum to Steven Bailey from Travis Anglin 3888re: Investigative Trip dated 1/16/2014(MELC198476-MELC198477)
2799 Memorandum to S. Bailey from K. Seagraves Re: 3894Action Plan - Reference to allegation ofAnabolic Steroids purchase(s) made by DeputiesBrian Mackiewicz and James Kempher dated3/26/2015 (MELC186297-MELC186300)
2820 Revised Call Signs dated 11/22/2013 3910(MELC112957)
2860 Video Arpaio Thomas Hearing 3839
2901 E-mail from Brian Mackiewicz to Mike Re: 3734Updated Rev 3A dated 9/21/2014 (MELC202277)
2904 E-mail from Brian Mackiewicz to Jenise Moreno 3729Re: Confidential dated 1/9/2014 (MELC1386579)
2906 MCSO Memo from Travis Anglin to Brian 3723Mackiewicz re: Confidential Informant Paymentdated 8/12/2014 (MELC198465-MELC198466)
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Melendres v. Arpaio, 10/28/15 Evidentiary Hearing 3703
E X H I B I T S
No. Description Admitted
2907 MCSO Memo from Travis Anglin to Brian 3723Mackiewicz re: Confidential Informant Paymentdated 8/27/2014 (MELC198467-MELC198468)
2908 MCSO Memo from Travis Anglin to Brian 3723Mackiewicz re: Confidential Informant Paymentdated 7/24/2014 (MELC198463-MELC198464)
2909 MCSO Memo from Travis Anglin to Brian 3723Mackiewicz re: Confidential Informant Paymentdated 7/24/2014 (MELC198461-MELC198462)
2910 MCSO Memo from Travis Anglin to Brian 3723
Mackiewicz re: Confidential Informant Paymentdated 6/25/2014 (MELC198457-MELC198458)
2911 MCSO Memo from Travis Anglin to Brian 3723Mackiewicz re: Confidential Informant Paymentdated 6/9/2014 (MELC198455-MELC198446)
2912 MCSO Memo from Travis Anglin to Brian 3723Mackiewicz re: Confidential Informant Paymentdated 5/19/2014 (MELC198453-MELC198454)
2913 MCSO Memo from Travis Anglin to Brian 3723
Mackiewicz re: Confidential Informant Paymentdated 5/16/2014 (MELC198451-MELC198452)
2914 MCSO Memo from Travis Anglin to Brian 3723Mackiewicz re: Confidential Informant Paymentdated 4/16/2014 (MELC198449-MELC198450)
2915 MCSO Memo from Travis Anglin to Brian 3723Mackiewicz re: Confidential Informant Paymentdated 3/29/2014 (MELC198448)
2917 Excerpt of PX 2082 - Document 1: "Joe Arpaio 3727Brief" Timeline dated 1/1/2014
2918 Excerpt of PX 2082 - Document 2: "Arpaio 3728Brief" Schematic dated 1/1/2014
2919 Excerpt of PX 2082 - Document 3: 3732"Whisleblower Chronicles" (CIA Chronicles)
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Melendres v. Arpaio, 10/28/15 Evidentiary Hearing 3704
E X H I B I T S
No. Description Admitted
2920 Excerpt of PX 2082 - Document 4: "Names of 3717People Involved" dated 2/17/2014
2921 Excerpt of PX 2082 - Document 5: "Check List 3726for Elmer" (Check List for Dennis) dated3/27/2014
2922 Excerpt of PX 2082 - Document 6: "List 2" 3727Dated 3/27/2014
2923 Excerpt of PX 2082 - Document 7: "DOJ / Arpaio 3733Timeline" dated 12/4/2013
2927 MCSO Internal Affairs Division IA #13-0000, 3716Interview Confidential Informant dated12/14/2013 (MELC185036 - MELC185144)
2930 E-mail from Steve Bailey to Benjamin Armer re 3915Briefing dated 4/23/2014 (MELC677919-MELC677920)
2935 E-mail from Mike Zullo to Brian Mackiewicz re 3743Arpaio dated 12/16/2014(ZULLO_001131-ZULLO_001135)
2937 E-mail from Brian Mackiewicz to Larry Klayman 3738and Mike Zullo re Sheriff dated 11/5/2014(ZULLO_001479-ZULLO_001480)
2938 E-mail from Brian Mackiewicz to Larry Klayman 3736et al., re DC dated 11/3/2014(ZULLO_002656-ZULLO_002663)
2940 E-mail from David Webb to Mike Zullo cc Brian 3740Mackiewicz re Work dated 11/6/2014(ZULLO_003232-ZULLO_003233)
2943 Spreadsheet summarizing the status of 3802Armendariz spin-off investigations as of9/30/2015
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Melendres v. Arpaio, 10/28/15 Evidentiary Hearing 3705
P R O C E E D I N G S
THE COURT: Please be seated.
THE CLERK: This is civil case CV-07-2513, Melendres,
et al., v. Arpaio, et al., on for continued evidentiary
hearing.
Counsel, please announce your appearances.
MS. WANG: Good morning, Your Honor. Cecillia Wang
and Andre Segura of the ACLU for plaintiffs.
THE COURT: Good morning.
MS. MORIN: Good morning, Your Honor. Michelle Morin
and Stan Young of Covington & Burling for plaintiffs.
THE COURT: Good morning.
MR. POCHODA: Good morning. Dan Pochoda from the ACLU
of Arizona for plaintiffs.
THE COURT: Good morning.
MR. KILLEBREW: Good morning, Your Honor. Paul
Killebrew and Cynthia Coe for the United States.
THE COURT: Good morning.
MR. POPOLIZIO: Good morning, Your Honor. Joe
Popolizio and John Masterson on behalf of Sheriff Arpaio, and
with us is Holly McGee.
THE COURT: Good morning.
MR. POPOLIZIO: Good morning.
MR. WALKER: Good morning, Your Honor. Richard Walker
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Melendres v. Arpaio, 10/28/15 Evidentiary Hearing 3706
on behalf of Maricopa County.
THE COURT: Good morning.
MR. WOODS: Good morning, Your Honor. Terry Woods on
behalf of nonparties Stutz and Liddy.
MR. McDONALD: Good morning, Your Honor. Mel McDonald
making a special appearance for Sheriff Arpaio.
MR. MURDY: Good morning, Your Honor. Craig Murdy on
behalf of retired Chief Brian Sands.
MS. MIJARES NASH: And good morning, Your Honor.
Alexandra Mijares Nash specially appearing for Brian
Mackiewicz.
MS. IAFRATE: Good morning, Your Honor. Michele
Iafrate on behalf of Sheriff Arpaio and the alleged nonparty
contemnors.
THE COURT: Good morning.
Do I take it by your presence at the podium,
Mr. Walker, you have something you want to raise?
MR. WALKER: Yes, Your Honor. Very briefly, a
housekeeping matter.
We received your order yesterday approving the
monitor's most recent invoice for payment, and as I discussed
with Chief Warshaw on Friday, this invoice takes us
approximately $15,000 over the annual contract amount.
Payment will be issued up to the full contract amount
today, but we need to get the board approval for the additional
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Melendres v. Arpaio, 10/28/15 Evidentiary Hearing 3707
15,000.
I've reached out to the attorney for Chief Warshaw,
and I told Chief Warshaw I was going to do this. My hope is
that we can go to the board not just with a request for
approval for the additional 15,000, but for a supplemental
amount to cover the rest of the contract year.
And I expect, assuming we have that to present, we
should be able to get the approval for at least the 15,000, if
not for an amount to cover the rest of the contract year by
next week.
THE COURT: All right. Mr. Walker, was there -- as
I've told you before, I don't have any objection if you enter
into a contract with the monitor that I've appointed, to the
extent that he doesn't have any objection.
But I don't view this as a matter of contract; it's a
matter of court order. And so I wish you would convey that to
the Maricopa County Board of Supervisors, that I am ordering
that the monitor be paid.
MR. WALKER: Your Honor, I will certainly make that
clear. The hoop that we have to jump through is by state law,
we cannot make a payment unless the board has approved the
contract amount.
THE COURT: All right.
MR. WALKER: It's just a -- sort of a technical issue
we have to deal with.
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Melendres v. Arpaio, 10/28/15 Evidentiary Hearing 3708
THE COURT: I get it. And I know you're aware of the
supremacy clause and everything like that.
MR. WALKER: I am, Your Honor.
THE COURT: The only other point I would make is I
understand and appreciate both your desire and your client's
desire to be as fiscally responsible with county funds as you
can be. I share that desire, consistent with the need to
protect the constitutional rights of the members of the
plaintiff class in this case.
Towards that end, several months ago I offered you the
opportunity to monitor -- held out several opportunities for
you by which you could continue to monitor the detailed
billing, and you haven't taken me up on any of those. I would
renew that invitation, but to the extent that you don't take me
up on it, I'm not going to review what I've already approved.
I will, however, allow you to consider those options,
and I'm willing to consider them, and we can raise them with
all parties so that all the parties can consider what we come
up with, so that you can feel and your clients can feel like
they're doing their best to safeguard the county fisc.
MR. WALKER: Thank you. And I'll be sure to convey
that offer to my client.
THE COURT: All right. Thank you.
Mr. Popolizio, do you have something?
MR. POPOLIZIO: I do, Your Honor. Before we start,
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Melendres v. Arpaio, 10/28/15 Evidentiary Hearing 3709
could we have a sidebar?
THE COURT: Sure.
(Bench conference on the record.)
THE COURT: We have more folks here today.
MR. POPOLIZIO: It's getting real tight in here.
THE COURT: Is this a health update?
MR. POPOLIZIO: No. I could give you one.
THE COURT: That would be good.
MR. POPOLIZIO: It isn't a good one. He's laid up,
the chief deputy, this week, and he may, I don't know, have to
have an additional procedure when he goes back on Monday, but
he'll -- he might have a procedure on Tuesday, but he doesn't
know that. It's a possibility.
THE COURT: This is another injection, maybe, on
Tuesday?
MR. POPOLIZIO: I don't -- I didn't ask --
THE COURT: All right.
MR. POPOLIZIO: -- what the procedure was. That's all
I know.
THE COURT: Okay.
MR. POPOLIZIO: With regard to the issue of the
sidebar that I was thinking of when I asked for it, it's with
respect to a potential exhibit that might be used with
Detective Mackiewicz right now. And I talked to Attorney Nash,
and she may have a concern that she wants to address.
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Melendres v. Arpaio, 10/28/15 Evidentiary Hearing 3710
MS. MIJARES NASH: There was one exhibit, Your Honor.
It was the transcript of the telephonic interview or
conversation with Sergeant Tennyson and Detective Mackiewicz on
August 5th of 2015. We did cover that in the deposition. It
was admitted under seal during Lieutenant Seagraves' testimony
and we sealed that portion of the deposition as well.
And since that is still remaining under seal, and I
don't know that they intend to get into questions about that,
then I don't know if we need to take it under seal at that
point, or what the best course of action would be.
THE COURT: Why? Is there any reason it should remain
under seal?
MS. MIJARES NASH: I'm not aware of what the attorney
general had submitted to Your Honor and what the conversation
was between Your Honor and counsel for the parties addressing
the testimony that was under seal and is still under seal, so I
don't know that I have, necessarily, any idea what that
conversation was about.
I don't know if other counsel can address that with me
not present, but my understanding is that it was still -- and
again, without the attorney general's position or knowledge of
that, they don't know the answer to your question.
THE COURT: Any reason why that transcript should
remain under seal?
MR. POPOLIZIO: Well, it's an ongoing -- I believe
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Melendres v. Arpaio, 10/28/15 Evidentiary Hearing 3711
it's an ongoing Internal Affairs criminal investigation, and
just -- just for that, Your Honor, I think it should stay.
THE COURT: But again, I mean, this is an internal
criminal investigation that the public has complete and full
knowledge of, including this witness.
MS. MIJARES NASH: The topic of, perhaps, but not
necessarily the finer details, which I think some are included
in the transcript.
THE COURT: Well, I appreciate your raising this,
but -- do you want to be heard on this, Ms. Morin?
MS. MORIN: Your Honor, I understood your order --
sorry, this is Michelle Morin.
I understood your order to have unsealed things that
had already come into the record, and also I believe there was
testimony in open court by Sergeant Tennyson about the subject
matter that we're talking about. So I think it -- I don't see
a reason that it needs to go under seal.
Also, I do intend to question Detective Mackiewicz.
I'm not sure whether the questioning will require that the
transcript actually be used as well.
THE COURT: Well, all right. We'll see when we get
there. But if you're asserting that I admitted that exhibit
under seal or that I otherwise prohibited testimony from being
taken in open court regarding that transcript, I'd appreciate
it if you'd show me, Ms. Nash, because at this point, my memory
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Melendres v. Arpaio, 10/28/15 Evidentiary Hearing 3712
is not perfect, but I do not remember restricting the testimony
taken concerning that transcript to be under seal. And if that
is the case, I'm certainly not inclined to do it now.
MS. MIJARES NASH: Now, and I can certainly, while
we -- we're doing this, perhaps I probably can take a look
through it, because I do distinctly remember it being admitted
under seal during Lieutenant Seagraves' testimony.
THE COURT: Well, you can take a look, but again,
after I -- even then, I was admitting things under seal out of
caution.
MS. MIJARES NASH: Understood.
THE COURT: And since then I've unsealed lots of
things, and unless you can give me a reason why I should
unseal -- or why I should keep that under seal, I'm not
inclined to do it.
MS. MIJARES NASH: Understood.
THE COURT: All right.
MS. MIJARES NASH: Thank you.
THE COURT: Thank you.
(Bench conference concluded.)
THE COURT: Whenever you're ready, Ms. Morin.
MS. MORIN: Thank you, Your Honor.
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Mackiewicz - DX Morin, 10/28/15 Evidentiary Hearing 3713
BRIAN MACKIEWICZ,
recalled as a witness herein, having been previously duly
sworn, was examined and testified further as follows:
DIRECT EXAMINATION CONTINUED
BY MS. MORIN:
Q. Good morning, Detective Mackiewicz.
A. Good morning, ma'am.
Q. Sir, yesterday you testified about a time in early November
2013 when you and Mr. Zullo and Mr. Montgomery were in
Mr. Montgomery's office and searched for some version of
Judge Snow's name in the database.
Do you recall that testimony?
A. Yes, I do.
Q. So I'd like to go back to that to clarify one point.
You testified at one point that you weren't sure, I
believe, whether it was Mr. Montgomery or Mr. Zullo that
actually typed the search into Google to find out what was the
name of the judge, is that correct?
A. Yes, it is.
Q. And we played a portion of your deposition where you had
said that it was Mike Zullo's idea to do that.
Is that -- do you recall that?
A. Yes, I do.
Q. And do you stand by that testimony today that it was
actually Mike Zullo's idea to look for the name of the judge?
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A. No.
Q. You don't stand by that testimony?
A. No, I don't.
Q. Do you recall testifying several times at your deposition
that it was Mr. Zullo's idea to find out what the name of the
judge was?
A. I do.
Q. And you didn't object to that; you told me at your
deposition that you didn't object to that search, correct?
A. I did not object to that search, no.
Q. But today you're telling me that you're changing your
testimony about whose idea it was to look for the judge's name?
A. No. What I'm saying is, is that it was Mike Zullo's idea,
but Dennis Montgomery is actually the one who Googled the name.
That's what I said in my deposition, and that's what I'm
standing by.
Q. Okay. And you did say also at your deposition that you
didn't recall whether Dennis Montgomery typed into his
computer, into a Google search engine or something of that
sort, versus Mike Zullo typing on his phone into a Google
search engine.
Do you recall that at your deposition?
A. Yes, I do. I originally thought that it was Mike. After I
further thought about it, it was actually Dennis Montgomery.
Q. Okay. Fair enough. Thank you, sir.
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A. Thank you.
Q. And then we had moved yesterday into December 2013, so I'd
like to continue that now, if you would.
A. No problem.
Q. If you could take a look, please, at Exhibit 2927.
A. Yes, ma'am.
Q. And this is the transcript of your December 11th, 2013
interview with Mr. Montgomery, correct?
A. Yes, it is.
Q. This is a transcript of the meeting that we've referred to
as the free talk, correct?
A. Correct.
Q. And you brought Mr. Montgomery from Seattle to Phoenix for
that meeting, correct?
A. Yes, I did.
Q. You drove down to Phoenix with him?
A. Yes, we did.
Q. And you kept this transcript in your files in the ordinary
course of your work on the Seattle investigation, right?
A. Yes, I did.
MS. MORIN: Your Honor, we move for the admission of
Exhibit 2927.
MR. POPOLIZIO: Objection, hearsay, foundation.
MS. MORIN: Your Honor, this is not offered for the
truth of -- truth of anything that Mr. Montgomery said, but
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just to show what he said.
THE COURT: All right. I'll admit it on that basis.
(Exhibit No. 2927 is admitted into evidence.)
MS. MORIN: Thank you, Your Honor.
BY MS. MORIN:
Q. Turn to Exhibit 2920, please, sir. And behind the cover
sheet that says document number 4, names of people involved, do
you recognize this is a document that you created?
A. Sorry, wait one second. I have to catch up here.
Q. Oh, I apologize.
A. Yes, it is.
Q. And you created this document after that free talk with the
Attorney General's Office, correct?
A. Yes, I did.
Q. And it's your list of the names that were brought up during
your first interview with Dennis Montgomery, as well as during
the free talk with the Attorney General's Office, correct?
A. Yes, it is.
Q. You created this document in the ordinary course of your
work on the investigation, correct?
A. Yes, I did.
MS. MORIN: Your Honor, we move for the admission of
Exhibit 2920.
MR. POPOLIZIO: No objection.
MR. WALKER: No objection.
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Mackiewicz - DX Morin, 10/28/15 Evidentiary Hearing 3717
THE COURT: Exhibit 2920 is admitted.
(Exhibit No. 2920 is admitted into evidence.)
THE WITNESS: Ma'am, I'd like to add one thing. Some
of the names were also derived from some of the e-mails of
information Dennis Montgomery gave us. So some of the names on
this list were actually names within the e-mails he provided
that came from multiple sources.
MS. MORIN: Fair enough. Thank you for that
clarification.
THE WITNESS: Thank you.
BY MS. MORIN:
Q. And if you turn to the second page of your list, Judge
Murray Snow appeared on that second page.
You see that?
A. Yes, I do.
Q. And you put Judge Snow's name on this list because Dennis
Montgomery mentioned Judge Snow's name frequently, is that
correct?
A. Yes, he did.
Q. Now, during the time you were in Seattle in late 2013, you
communicated with Chief Deputy Sheridan regularly, correct?
A. Yes, I did.
Q. Approximately once a week?
A. It was probably a little bit more than that, but yeah, at
least once a week.
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Mackiewicz - DX Morin, 10/28/15 Evidentiary Hearing 3718
Q. And you communicated with Sheriff Arpaio as well, correct?
A. Yes, I did.
Q. About twice a month with Sheriff Arpaio?
A. I communicated with Sheriff Arpaio less than I did with
Chief Sheridan.
Q. Was it --
A. I couldn't -- I couldn't put a figure on it. It was less
than Chief Deputy Sheridan.
Q. So less than once a week?
A. Yes.
Q. And do you recall testifying at your deposition that you
probably talked with Sheriff Arpaio about twice a month?
A. That would probably be about accurate.
Q. Okay. And you continued to talk with and keep Chief Deputy
Sheridan updated in 2014 as well, correct?
A. Yes, I did.
Q. Same with Sheriff Arpaio?
A. Not so much Sheriff Arpaio. I mostly talked to
Chief Deputy Sheridan until about middle of February, and
then -- or, I'm sorry, before the second week of January, and
then everything went through Travis Anglin.
Q. And you kept Sergeant Anglin updated as well, correct?
A. Yes, I did.
Q. And in late 2013 or early 2014, you participated in a
meeting about the Seattle investigation by speakerphone with
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several people in Phoenix, correct?
A. Yes, I did.
Q. And that meeting was called to discuss the information that
Dennis Montgomery was providing you in that investigation,
right?
A. Yes, it was.
Q. Mike Zullo was on the call as well?
A. Yes, he was.
Q. Was the sheriff on the line?
A. I can't be certain who was on the line; I was actually in
Seattle at the time. And I knew that there was a bunch of
people on the phone in Phoenix. I couldn't tell you exactly
who was on the phone or who wasn't on the phone.
Q. Could you tell us if Chief Deputy Sheridan was online?
A. I believe he was, but I can't say for certain.
Q. And Mr. Montgomery did not participate, correct?
A. No, he did not.
Q. And you gave your update about what was going on in Seattle
and about Mr. Montgomery's information, correct?
A. Yes, ma'am.
Q. Turn to Exhibit 2085, please, sir.
Do you recognize this as a document that you created?
A. Yes, I do.
Q. And you wrote this to try to keep an accounting of how much
money you were spending, or the Sheriff's Office was spending
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Mackiewicz - DX Morin, 10/28/15 Evidentiary Hearing 3720
on Mr. Montgomery, correct?
A. Yes, I do.
Q. And you created this in the ordinary course of your work on
the investigation?
A. Yes, I did.
Q. You had firsthand knowledge of the payments that you
recorded here, correct?
A. Yes, I did.
Q. And these payments that are listed in Exhibit 2085 all
occurred, correct?
A. Yes, they did.
MS. MORIN: Your Honor, we move for the admission of
Exhibit 2085.
MR. POPOLIZIO: Objection, Your Honor, relevance, 403.
MR. WALKER: Join.
THE COURT: Overruled. Exhibit 205 is admitted.
Is it 2085?
MS. MORIN: Correct, 2085. Thank you, Your Honor.
(Exhibit No. 2085 is admitted into evidence.)
BY MS. MORIN:
Q. And on the first page of the --
MS. MORIN: Your Honor, could this be published?
THE COURT: Yes, it may.
MS. MORIN: Thank you.
BY MS. MORIN:
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Mackiewicz - DX Morin, 10/28/15 Evidentiary Hearing 3721
Q. So on the first page of the list of expenditures, do you
see where it says December 6th, 2014, $2100 for video
processing card?
A. Yes, I do.
Q. Sir, should that be December 6, 2013? Is that a typo?
A. Yes, it is. I'm sorry about that.
Q. Thank you, sir.
And that $2100 was spent on a video processing card
for Mr. Montgomery's computer, correct?
A. Yes, it was.
Q. And that came from Posse funds, correct?
A. Yes, it did.
Q. And on the second page you listed a total of approximately
$6700 in equipment at the bottom of the page.
Do you see that?
A. Yes, I do.
Q. That's also equipment for Mr. Montgomery?
A. Yes, it is.
Q. And this equipment represents a portion of -- or at least
some of this equipment, it represents a portion of the cost of
the 50 hard drives that were purchased for Mr. Montgomery, is
that correct?
A. I can't tell you exactly how many hard drives were bought,
but several hard drives were bought in the course of the
investigation.
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Mackiewicz - DX Morin, 10/28/15 Evidentiary Hearing 3722
Q. And this is a part of that money, correct?
A. Correct.
Q. Thank you, sir.
And Mr. Montgomery was paid as a confidential
informant by the Sheriff's Office about twice a month, correct?
A. Thereabout.
Q. And that continued through September-October of 2014, is
that right?
A. I believe end of September was the last payment.
Q. Sir, if you could look at Exhibit 2906, please. And you
might want to pull out also 2907 through 29015. We'll be
looking at some of those.
THE COURT: Was that 2906?
MS. MORIN: Yes, Your Honor, I apologize. 2906 is the
one that we will look at for the time being.
THE WITNESS: I have 2906.
BY MS. MORIN:
Q. And, sir, do you recognize this as one of the Maricopa
County Sheriff's Office memoranda that you wrote relating to
and recording a confidential informant payment to
Mr. Montgomery?
A. Yes, I do.
Q. And along with the first page memo, there's also a copy of
a handwritten receipt. And you wrote that receipt, right?
A. Yes, I did.
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Mackiewicz - DX Morin, 10/28/15 Evidentiary Hearing 3723
Q. You signed it?
A. Yes, I did.
Q. And there's a -- is there a witness signature as well?
A. Yes, ma'am.
Q. Is that Mr. Zullo's signature?
A. I believe so.
Q. Okay. And I mentioned 2907 through 2915. If you could
take a look at those, please, sir, and just confirm that those
are also copies of spending memoranda that you wrote, similar
to 2906.
A. Yes.
I'd just like to add on 2915 there is no handwritten
receipt, and there would have had to have been a handwritten
receipt attached with that. I don't know where that went, but
there would have had to been one produced to turn in the memo
in the first place.
Q. Okay. Thank you, sir.
A. You're welcome.
MS. MORIN: Your Honor, we move for the admission of
Exhibit 2906 through 2915.
MR. POPOLIZIO: Objection, relevance, 403.
MR. WALKER: Join.
THE COURT: Overruled. Exhibit 2906 through 2915 are
admitted.
(Exhibits Nos. 2906 - 2915 are admitted in evidence.)
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Mackiewicz - DX Morin, 10/28/15 Evidentiary Hearing 3724
MS. MORIN: Thank you, Your Honor.
Sir, you can put those aside.
THE WITNESS: Thank you.
BY MS. MORIN:
Q. If you could turn, please, to Exhibit 2921.
A. Yes, ma'am.
Q. And behind the cover sheet that says document number 5,
quote, checklist for Elmer, checklist for Dennis, do you see
that cover sheet?
A. Yes, I do.
Q. And "Elmer," it refers to Dennis Montgomery, correct?
A. Yes, it does.
Q. And do you recognize the document behind the cover sheet as
a document that you saw during the Seattle investigation?
A. Yes, I do.
Q. And this document was created by Mr. Zullo, correct?
A. Mike Zullo, correct.
MS. MORIN: Your Honor, we move for the admission of
Exhibit 2921.
MR. POPOLIZIO: Objection, foundation.
THE COURT: You want to lay some more foundation?
BY MS. MORIN:
Q. Did you receive this document from Mr. Zullo?
A. I don't remember actually receiving it. I recognize -- I
recognize the document. I know Mike Zullo authored it. I
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Mackiewicz - DX Morin, 10/28/15 Evidentiary Hearing 3725
don't know anything more than that.
Q. But you had it in your files, correct, to produce to the
monitors in this case?
A. Everything reference the Seattle case was in the files.
Q. And that was then produced to the monitors in this case
from your files, correct?
A. I gave all the information to Chief Knight, and I'm not
really too sure what he did with those.
Q. And you're familiar with the contents of the checklist,
correct?
A. Some of the items.
Q. But generally what they are?
A. Yes.
Q. And this is a list of items that in this case Mr. Zullo
created, because they're items that Mr. Montgomery was
promising to provide, correct?
MR. POPOLIZIO: Objection, foundation.
THE COURT: If you know, you may answer the question.
THE WITNESS: I'm sorry, can you repeat the question?
BY MS. MORIN:
Q. So to your knowledge, this is a list reflecting items that
Dennis Montgomery was promising to provide, and that in this
case Mr. Zullo was keeping track of, correct?
MR. POPOLIZIO: Objection, foundation.
THE COURT: Overruled.
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Mackiewicz - DX Morin, 10/28/15 Evidentiary Hearing 3726
THE WITNESS: Some of the items on this list are
things that Dennis Montgomery had mentioned. That's all I can
testify to; I can't tell you any more than that.
MS. MORIN: Fair enough. Thank you, sir.
Your Honor, we move for the admission of 2921.
MR. POPOLIZIO: Objection, foundation.
THE COURT: I'll allow it.
(Exhibit No. 2921 is admitted into evidence.)
MS. MORIN: Thank you, Your Honor.
BY MS. MORIN:
Q. Sir, you can turn to 2922, please.
And do you see there behind the cover sheet that says
document number 6, quote, list 2, a document that you authored?
A. Yes.
Q. And this is your checklist that you created in relation to
items that Mr. Montgomery was promising to provide, correct?
A. Yes, ma'am.
Q. Items that you wanted to potentially follow up with with
Mr. Montgomery, correct?
A. I believe these were the things that were mentioned in the
free talk agreement that he had to provide to us so we could
turn it over to the AG's office to satisfy the free talk
agreement that was on December 6th of 2013.
Q. And Mr. Montgomery never produced any of those items,
correct?
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Mackiewicz - DX Morin, 10/28/15 Evidentiary Hearing 3727
A. No.
MS. MORIN: Your Honor, we move for the admission of
Exhibit 2922.
MR. POPOLIZIO: No objection, Your Honor.
MR. WALKER: No objection.
THE COURT: Exhibit 2922 is admitted.
(Exhibit No. 2922 is admitted into evidence.)
BY MS. MORIN:
Q. Now, Mr. Montgomery did produce a number of documents in
the course of the investigation, correct?
A. Yes, he did.
Q. If you could turn to Exhibit 2917, please.
A. Yes, ma'am.
Q. And this is one of the documents provided to you by
Mr. Montgomery, correct?
A. Yes, it was.
MS. MORIN: Your Honor, we move for the admission of
2917.
MR. POPOLIZIO: Objection, foundation.
THE COURT: Overruled.
MR. POPOLIZIO: Hearsay.
MS. MORIN: Your Honor, it's not offered for the truth
of the matters.
THE COURT: Overruled. Exhibit 2917 is admitted.
(Exhibit No. 2917 is admitted into evidence.)
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Mackiewicz - DX Morin, 10/28/15 Evidentiary Hearing 3728
BY MS. MORIN:
Q. And you discussed this document with Chief Deputy Sheridan,
correct?
A. Yes, I did.
Q. You can turn to Exhibit 2918, please.
A. Yes, ma'am.
Q. This is another document that came from Mr. Montgomery,
correct?
A. Yes, it is.
Q. And to your knowledge, Chief Deputy Sheridan and Sheriff
Arpaio were also aware of this document, right?
A. Yes, they were.
Q. You discussed this document with them, correct?
A. Yes, I did.
Q. Late 2013 or early 2014?
A. Around that time frame, correct.
MS. MORIN: Your Honor, we move for the admission of
2918.
MR. POPOLIZIO: Objection, foundation, 403,
cumulative.
THE COURT: Overruled. Exhibit 2918 is admitted.
(Exhibit No. 2918 is admitted into evidence.)
MS. MORIN: Thank you, Your Honor.
BY MS. MORIN:
Q. You can put that aside, sir.
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Mackiewicz - DX Morin, 10/28/15 Evidentiary Hearing 3729
If you could turn to Exhibit 2904, please.
A. Yes, ma'am.
Q. Do you see this is an e-mail from yourself to Jenise Moreno
dated January 9th, 2014?
A. Yes, I do.
Q. Did you send this e-mail?
A. Yes, I did.
Q. And you kept this e-mail in your files as part of your work
on the investigation?
A. I must have.
MS. MORIN: Your Honor, I move for the admission of
Exhibit 2904.
MR. POPOLIZIO: Objection, relevance.
THE COURT: Overruled. Exhibit 2904 is admitted.
(Exhibit No. 2904 is admitted into evidence.)
BY MS. MORIN:
Q. And do you see in the attachments that are listed on
Exhibit 2904 it says there were two attachments there?
A. I see that, correct.
Q. The first one is entitled JoeWeb.rev.1.5.a.pdf?
A. Yes, I do.
Q. And the second one is JoeArpaio.rev1.5a.pdf.
Do you see that?
A. Yes, I do.
Q. If you could turn back to Exhibit 2918, please.
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Mackiewicz - DX Morin, 10/28/15 Evidentiary Hearing 3730
Which is in evidence, so I'll ask that it be
published.
THE COURT: It may be published.
MS. MORIN: Thank you, Your Honor.
THE WITNESS: Yes, ma'am.
BY MS. MORIN:
Q. And do you see at the bottom of the page it has a diagram
on it entitled "Arpaio Brief." There is a line that says "This
Page is Still Under Construction rev(1.5a)"?
A. Yes, I do.
Q. Is this, to your recollection, the attachment that you --
one of the attachments to Exhibit 2904 that you e-mailed?
A. Yes, ma'am.
Q. Okay. And you can turn back to Exhibit 2904.
Do you see that it says to Ms. Moreno: "Can you
please print these in color. Please make sure NO ONE else sees
the information contained in them. Thanks."
A. Yes, I do.
Q. Sir, you didn't want everyone to know about this
investigation, right?
A. It was an investigation. We typically don't like people to
know about investigations.
Q. So you made sure to tell Ms. Moreno to make sure no one
else sees the attachment that you had -- you had e-mailed to
her, correct?
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Mackiewicz - DX Morin, 10/28/15 Evidentiary Hearing 3731
A. Correct.
Q. And you're aware of who Ms. Moreno is, correct?
A. Secretary up on the fifth floor. I don't know exactly who
she works for.
Q. She's Chief MacIntyre's secretary, correct?
A. Could be.
Q. Sir, if you could turn, please, to Exhibit 2919.
MS. MORIN: Your Honor, I apologize. There is an
arrow on the monitor. I'd like to ask if that --
THE COURT: Have you been told how you can get rid of
that yourself?
MS. MORIN: I do not know how to get rid of that. I
apologize.
THE COURT: If you touch the monitor, the screen over
here, you can get rid of any --
THE CLERK: It's this one over here; that one doesn't
have one.
MR. MASTERSON: Hit the arrow part itself.
THE CLERK: There's an area that says "clear," so
touch the monitor in that area.
MS. MORIN: It's okay. It does not appear to be
working.
THE CLERK: I'll just clear it up here.
MS. MORIN: I apologize.
Thank you.
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Mackiewicz - DX Morin, 10/28/15 Evidentiary Hearing 3732
THE CLERK: You're welcome.
BY MS. MORIN:
Q. Sir, are we looking at -- are you looking at Exhibit 2919?
A. Yes, I am.
Q. Thank you.
So behind the cover sheet of Exhibit 2919 that says
"Document #3, 'Whistleblower Chronicles' (CIA Chronicles)" --
A. Yes, ma'am.
Q. -- do you see a document that was also provided to you by
Mr. Montgomery?
A. Yes, ma'am.
Q. And you kept this document in your Seattle investigation
files as well, correct?
A. Yes, I did.
MS. MORIN: Your Honor, we move for the admission of
Exhibit 2919.
MR. POPOLIZIO: Relevance, foundation, 403.
THE COURT: Overruled. Exhibit 2919 is admitted.
(Exhibit No. 2919 is admitted into evidence.)
BY MS. MORIN:
Q. And to your knowledge, Mr. Montgomery actually revised the
document in Exhibit 2919 several times, correct?
A. He could have.
Q. Well, that's a practice you actually observed him to follow
with a lot of his documents, right?
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Mackiewicz - DX Morin, 10/28/15 Evidentiary Hearing 3733
A. Yes.
Q. And you've seen other versions of a document that looks
like this Whistleblower Chronicles document, correct?
A. I'm sorry?
Q. You've seen other versions of a document that resembles the
Whistleblower Chronicles from Mr. Montgomery, correct?
A. I could, correct.
Q. Okay. Let's turn to Exhibit 2923, please.
A. Yes, ma'am.
Q. So do you see behind the cover sheet that says
"Document #7, 'DOJ/Arpaio Timeline,'" another document that was
provided by Mr. Montgomery?
A. Yes, it was.
Q. And this is another document you kept in your files for the
Seattle investigation, correct?
A. Yes, ma'am.
MS. MORIN: Your Honor, we move for the admission of
Exhibit 2923.
MR. POPOLIZIO: Objection, relevance, foundation, 403.
THE COURT: Overruled. Exhibit 2923 is admitted.
MS. MORIN: Thank you, Your Honor.
(Exhibit No. 2923 is admitted into evidence.)
MS. MORIN: Sir, you can put that aside.
BY MS. MORIN:
Q. Turn, please, to Exhibit 2901.
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Mackiewicz - DX Morin, 10/28/15 Evidentiary Hearing 3734
Sir, this is an e-mail you sent to Mike Zullo on
September 21st, 2014, is that correct?
A. Yes, it is.
Q. And it says: "Can you please make sure all the --" I'm
sorry. I'm going to withdraw that.
And you see that there is an e-mail that you forwarded
in the body of your message that's from David Webb, which is
Mr. Montgomery, correct?
A. Yes, I do.
MS. MORIN: Your Honor, we move for the admission of
Exhibit 2901.
MR. POPOLIZIO: Relevance, Your Honor.
THE COURT: Overruled. Exhibit 2901 is admitted.
(Exhibit No. 2901 is admitted into evidence.)
MS. MORIN: Your Honor, if that could be -- could that
be published, please?
THE COURT: It may.
MS. MORIN: Thank you.
BY MS. MORIN:
Q. Do you see that you wrote to Mr. Zullo: "Can you please
make sure all the info on this timelike --"
Is that supposed to be "timeline"?
A. Timeline, I'm sorry.
Q. Okay. "Can you please make sure all the info on this
timeline is true and accurate to Elmer knowledge."
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Mackiewicz - DX Morin, 10/28/15 Evidentiary Hearing 3735
Do you see that?
A. Yes, I do.
Q. And you were talking about the time line that Dennis
Montgomery -- or a time line that Dennis Montgomery had
provided, correct?
A. Yes, I am.
Q. So moving now to September 2014, around the time of this
e-mail, by this time Mr. Montgomery had still not provided what
he was promising to provide, correct?
A. Correct.
Q. You couldn't corroborate what he had been telling you?
A. I could not.
Q. So by September 2014, you were at the point where you
wanted to be done with the Montgomery investigation, correct?
A. Yes, ma'am.
Q. But you had not written a final report on that
investigation at that time, right?
A. I did not.
Q. And to your knowledge, Mr. Zullo continued to stay in touch
with Mr. Montgomery after September 2014, correct?
A. Yes, he did.
Q. I'd like to move ahead a bit to November 2014. If you
could turn to Exhibit 2938, please.
A. Yes, ma'am.
Q. You see that this is an e-mail that you sent to Larry
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Mackiewicz - DX Morin, 10/28/15 Evidentiary Hearing 3736
Klayman, cc'ing Michael Zullo, Dennis Montgomery using his
David Webb e-mail address, Dina James, as well as e-mail chains
that follow the first e-mail, those e-mail chains coming from
Larry Klayman and Dennis Montgomery?
A. Yes, I do.
Q. And in the e-mail that you wrote to Mr. Klayman, you
expressed your unhappiness with Mr. Montgomery's failure to
complete his work, correct?
A. Yes, I do.
MS. MORIN: Your Honor, we move for the admission of
Exhibit 2938.
MR. POPOLIZIO: Objection, relevance, foundation, 805.
THE COURT: Overruled. Exhibit 2938 is admitted.
(Exhibit No. 2938 is admitted into evidence.)
BY MS. MORIN:
Q. So in November you went into some detail in your e-mail to
Mr. Klayman about everything that -- or about things that the
Sheriff's Office had done for Mr. Montgomery, correct?
A. Yes, we did.
Q. Paid him a lot of money?
A. Yes.
Q. Opened the door to a federal judge?
A. There was a federal judge, correct.
Q. That's because you believed Mr. Montgomery's story, right?
A. I believed parts of Dennis Montgomery's story.
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Mackiewicz - DX Morin, 10/28/15 Evidentiary Hearing 3737
Q. Okay. And if you look at the November 3rd, 10:25 e-mail --
sorry. The November 3rd, 8:16 a.m. e-mail from yourself to
"Gentlemen" that begins in the middle of the first page.
Do you see that?
A. Yes, I do.
Q. And in the third paragraph of that e-mail it begins: "From
day one."
Do you see that paragraph?
A. Yes, I do.
Q. And do you see where you say: "... we opened the door to a
Federal Judge to give you as much protection as possible. Mike
and I went to the Administration several times and asked for
extensions to continue this investigation because we believed
your 'STORY' and the information you provided."
Do you see that?
A. Yes, I do.
Q. You wrote those words, right?
A. Yes, I did.
Q. You can put that aside. Thank you.
Can you turn to Exhibit 2937, please.
A. Yes, ma'am.
Q. Do you see this is another e-mail that you wrote to
Mr. Klayman, this one you also sent to Mike Zullo, on November
5th, 2014?
A. Yes, it is.
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Mackiewicz - DX Morin, 10/28/15 Evidentiary Hearing 3738
Q. And you forwarded an e-mail that you sent only to
Mr. Klayman below that, as well an e-mail from Mr. Klayman.
Do you see that?
A. Correct.
Q. And looking at the bottom of the first page going onto the
second page, that's another e-mail that you sent to Larry
Klayman, correct?
A. Yes, it is.
MS. MORIN: Your Honor, we move for the admission of
Exhibit 2937.
MR. POPOLIZIO: Objection, relevance, foundation,
hearsay, 805.
THE COURT: Overruled. Exhibit 2937 is admitted.
(Exhibit No. 2937 is admitted into evidence.)
MS. MORIN: Thank you, Your Honor.
BY MS. MORIN:
Q. So looking at the e-mail that you sent on -- starting on
the bottom of the first page and primarily on the second page,
do you see that you refer to Mr. Klayman's having called
Sheriff Arpaio about the work with Mr. Montgomery?
A. Yes, I do.
Q. And you also informed Mr. Klayman that Mike Zullo was not
happy with the way Mr. Klayman threatened him, threatened Mike
Zullo, is that correct?
A. Yes.
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Mackiewicz - DX Morin, 10/28/15 Evidentiary Hearing 3739
Q. And at the bottom of that e-mail you say that, "Oh bye the
way the Sheriff wants an update on Wednesday at 1600 hours."
Do you see that?
A. Correct.
Q. So in November of 2014 you were conferring with the sheriff
about the work Mr. Montgomery was doing, is that correct?
A. There was times that I conferred with the sheriff, correct.
Q. Thank you. You can put that aside.
If you could turn to Exhibit 2940, please.
A. Yes, ma'am.
Q. And do you see this is also an e-mail -- or this is an
e-mail dated November 6, 2014, this one from Mr. Montgomery to
Mike Zullo, copying yourself?
A. Yes, ma'am.
Q. Do you recognize this document as an e-mail that you
received?
A. Yes.
MS. MORIN: Your Honor, we move for the admission of
Exhibit 2940.
MR. POPOLIZIO: Objection, foundation, relevance, 403,
805.
THE COURT: Overruled. I'll let you reserve any 805
objections you want to make if they come up.
Can you identify them now?
MR. POPOLIZIO: I believe there's -- we have e-mails
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Mackiewicz - DX Morin, 10/28/15 Evidentiary Hearing 3740
here from Dennis Montgomery coming in, so that's -- this would
be hearsay within hearsay, Your Honor.
THE COURT: Well, Dennis Montgomery was a confidential
informant for the MCSO, correct?
MR. POPOLIZIO: But it is still hearsay.
THE COURT: Is it being offered -- are those
statements being offered for the truth of the matter asserted,
Ms. Morin?
MS. MORIN: The statements by Mr. Montgomery are not
offered for the truth.
THE COURT: Overruled. Exhibit 2940 is admitted.
(Exhibit No. 2940 is admitted into evidence.)
MS. MORIN: Thank you, Your Honor.
BY MS. MORIN:
Q. You know, let's move on. Can you put that aside, please,
and turn to Exhibit 2263.
A. That's 2263?
Q. Yes, sir.
A. Yes, ma'am.
Q. And do you see that this is an e-mail that you sent to
Mr. Klayman on November 7th, 2014, also copying Mike Zullo,
Dennis Montgomery, Dina James?
A. Yes, ma'am.
Q. And in this e-mail you again expressed to Mr. Klayman your
dissatisfaction with Mr. Montgomery's failure to provide what
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Mackiewicz - DX Morin, 10/28/15 Evidentiary Hearing 3741
he promised, correct?
A. Correct.
MS. MORIN: Your Honor, we move for the admission of
Exhibit 2263.
MR. POPOLIZIO: Objection, relevance, hearsay.
THE COURT: Overruled. Exhibit 2263 is admitted.
(Exhibit No. 2263 is admitted into evidence.)
BY MS. MORIN:
Q. And do you see, sir, that you refer to the 50 hard drives
Dennis Montgomery provided to the Montgomery -- or to the
Maricopa County Sheriff's Office at the beginning of your
e-mail?
A. Yes, I do.
Q. Moving forward, if you could turn to Exhibit 2266, please.
A. I'm sorry. Can you repeat that?
Q. Could you turn to Exhibit 2266, please.
A. Yes, ma'am.
Q. And this is an e-mail that you sent to Mr. Zullo on
November 14th, 2014, correct?
A. Yes, it is.
Q. And you wrote that --
MS. MORIN: Well, Your Honor, I move for the admission
of Exhibit 2266.
MR. POPOLIZIO: One moment, Your Honor.
Objection, relevance, hearsay.
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Mackiewicz - DX Morin, 10/28/15 Evidentiary Hearing 3742
THE COURT: Overruled. Exhibit 2266 is admitted.
(Exhibit No. 2266 is admitted into evidence.)
MS. MORIN: Thank you, Your Honor.
If this could be published, please.
THE COURT: It may be.
MS. MORIN: Thank you.
BY MS. MORIN:
Q. Detective Mackiewicz, you wrote to Mr. Zullo on November
14th, 2014: "This is going to burn Klayman and Elmer's house
down to the ground."
Do you see that?
A. Yes, I do.
Q. And you forwarded an e-mail along with that message, and
the e-mail was from Thomas Drake referring to a summary
provided by Thomas Drake and Kirk Wiebe, correct?
A. Yes.
Q. And that summary was a document that, according to Thomas
Drake, found that Mr. Montgomery is a complete and total fraud,
correct?
A. Correct.
Q. And when you wrote "This is going to burn Klayman and
Elmer's house down to the ground," you meant that that report
destroyed any credibility of Montgomery and Klayman regarding
the investigation, right?
A. Yes, ma'am.
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Mackiewicz - DX Morin, 10/28/15 Evidentiary Hearing 3743
Q. Proved that that investigation was not going to be
fruitful, correct?
A. Correct.
Q. And had not been fruitful, in fact, correct?
A. Correct.
Q. If we could move forward to December 2014 at this point.
If you could please turn to Exhibit 2935.
A. Yes, ma'am.
Q. Do you see that this is an e-mail from Mr. Zullo to
yourself, dated December 16th, 2014, with the subject line,
"Forward Arpaio"?
A. Yes, ma'am.
Q. And this is an e-mail you did receive from Mr. Zullo,
correct?
A. Yes, ma'am.
Q. And among the e-mails that he forwards are an e-mail chain
from Dennis Montgomery, correct, using the David Webb e-mail
address?
A. Yes, it is.
MS. MORIN: Your Honor, I move for the admission of
Exhibit 2935.
MR. POPOLIZIO: Objection, relevance, 403.
THE COURT: Overruled. Exhibit 2935 is admitted.
(Exhibit No. 2935 is admitted into evidence.)
BY MS. MORIN:
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Mackiewicz - DX Morin, 10/28/15 Evidentiary Hearing 3744
Q. And in the top e-mail from Mr. Zullo to Mr. Montgomery, the
subject line is "Arpaio."
Do you see that?
A. Yes, ma'am.
MS. MORIN: Actually, could this be published, Your
Honor?
THE COURT: It may be.
MS. MORIN: Thank you.
BY MS. MORIN:
Q. Do you see in your -- or in Mr. Zullo's e-mail in the
second paragraph he refers to "the phony information you handed
MCSO about Snow."
Do you see that?
A. Yes, ma'am.
Q. He's speaking to Mr. Montgomery there, or writing an e-mail
to Mr. Montgomery?
A. Yes, he is.
Q. And that reference is to Judge Snow, correct?
A. I would imagine.
Q. You can put that aside. Thank you.
Sir, I'm going to shift gears to another line of
questioning for you at this moment. You're aware that Mary Ann
McKessy has made certain allegations against you, allegations
that gave rise to an MCSO investigation, correct?
MR. POPOLIZIO: Objection, relevance, 403.
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Mackiewicz - DX Morin, 10/28/15 Evidentiary Hearing 3745
THE COURT: Overruled.
THE WITNESS: You know what, ma'am? I was read a
notice of investigation I received ordering me not to discuss
anything about the investigation. I've been informed that
failure to comply with this order will result in disciplinary
action. Therefore, at the instruction of my counsel, I
respectfully decline to answer any question.
MS. MORIN: Your Honor, I'd ask for an order that
Mr. -- or, sorry, that Detective Mackiewicz answer the
question, which I believe in this case was just a yes or no
question.
THE COURT: Ms. Nash, on what authority do you say
binds this Court from entering such an order?
MS. MIJARES NASH: Your Honor, I would --
THE COURT: You need to get a microphone.
Not that one. Thank you.
MS. MIJARES NASH: Your Honor, the policy of the
Sheriff's Office, specifically GH-2, does require anybody who
is under a notice of investigation not to discuss the subject
of that investigation or anything about the investigation, with
limited exception. And any violation of that order would
subject any subject, including Detective Mackiewicz, to any
kind of disciplinary action, including termination.
THE COURT: All right.
Detective Mackiewicz, I'm going to direct you to
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Mackiewicz - DX Morin, 10/28/15 Evidentiary Hearing 3746
answer the question. And if the Sheriff's Office attempts to
discipline you because you've answered the question, you may
raise the matter with the Court.
THE WITNESS: Okay.
BY MS. MORIN:
Q. So the question that I asked was: You're aware that
Mary Ann McKessy has made certain allegations against you,
giving rise to an investigation?
A. Yes, I do.
Q. And at some point Sheriff Arpaio wanted to find out whether
Mary Ann McKessy was, quote-unquote, the snitch, is that right?
MR. POPOLIZIO: Objection, foundation, relevance.
THE COURT: Do you want to lay some foundation?
MS. MORIN: Sure.
BY MS. MORIN:
Q. Sir, you had an interview, or -- you're aware that there
was a telephone interview between yourself and Detective
Tennyson on August 5th, 2015, right?
A. Yes, I do.
Q. And you're familiar with the fact that there's a transcript
of that interview?
A. Yes, I do.
Q. And you've seen that transcript, right?
A. Yes, I have.
Q. And do you recall telling Mr. Tennyson about a comment that
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Sheriff Arpaio made regarding finding out who the snitch was?
A. Yes, I do.
Q. So did Sheriff Arpaio, in fact, want to find out who was
the snitch, and whether Mary Ann McKessy was the snitch?
MR. POPOLIZIO: Objection, foundation.
THE COURT: I think you're going to have to lay
foundation as to how he knows that.
MS. MORIN: Sure, Your Honor.
BY MS. MORIN:
Q. Those were words that you told -- you relayed -- or that
was information that you relayed to Sergeant Tennyson, correct?
A. I can't tell you what the sheriff did want or didn't want;
I wasn't privy to that conversation in the first place.
Q. Right. But returning to your August -- August 5th, 2015
telephone call with Detective Tennyson, you did relay to
Detective Tennyson that the sheriff wanted to find out who the
snitch was, right? That's something you said?
A. Yes, ma'am.
Q. And you had a basis for saying that, right?
A. I don't understand your question.
Q. You had a basis for making that comment to Detective
Tennyson when you were speaking with Detective Tennyson, right?
A. Yes, ma'am.
Q. What was your basis?
A. The Sheriff's Office wondered who was leaking information
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to the media. That's what our -- that's -- that's what our
concern was. There was information being produced in the media
that shouldn't have been produced in the media because it was
affecting our investigation.
The whole reason why you keep a criminal investigation
secret is so it won't affect the criminal investigation in the
long run. That's exactly what was happening.
Q. And when you say information was leaking to the media, you
were -- you are referring to information relating to the
Seattle investigation involving Mr. Montgomery, right?
A. Just in general.
Q. What do you mean, "just in general"?
A. Just --
Q. Withdraw that.
When you said to Detective Tennyson the sheriff wanted
to find out who the snitch was, you were referring to who a
snitch was with respect to leaking information about the
Seattle investigation to the pre