Sheriff Joe Arpaio's version of G. Gordon Liddy, Cold Case Posse commander Mike Zullo, is invoking his Fifth Amendment protection against self-incrimination under the U.S. Constitution, according to a recent filing in Arpaio's ongoing federal contempt trial.
A used-car dealer who along with Sheriff Joe embraced the wing-nutty crusade to invalidate President Barack Obama's birth certificate, Zullo remains a key witness in Arpaio's contempt case.
Currently, the posse man is scheduled to be deposed by plaintiffs' attorneys Friday at 9 a.m. Next week, he's set to testify before federal Judge G. Murray Snow, who is overseeing the proceedings.
Plaintiffs have subpoenaed all records from Zullo having to do with the so-called "Seattle investigation" during a specified time range. After some legal wrangling over the subpoena, Snow issued an order earlier this month telling Zullo to cough up the requested documents and giving the defense until Tuesday, October 20, to produce them for plaintiffs.
But late Tuesday, Joe Popolizio, one of Arpaio's many attorneys, filed a "notice of partial compliance," informing the court that some of Zullo's documents are being withheld "due to the Fourth Amendment, Fifth Amendment, and due process protections that Mr. Zullo believes may apply to him and the production of these materials."
Popolizio notes that as of Sunday evening, he has "provided plaintiffs with four batches of production . . . consisting of [3,649] pages of documentation."
The defense is in possession of the "additional material," according to Popolizio, but is "being prohibited by Mr. Zullo from producing it," until the court orders otherwise.
Previously, New Times asked Popolizio's co-counsel, John Masterson, whether his firm, Jones, Skelton, Hochuli, was representing Zullo. Masterson acknowledged that it had been, in part because Zullo had been following Arpaio's orders in an unofficial capacity.
Zullo had a vendor number with the county, and the MCSO paid for Zullo (along with Detective Brian Mackiewicz and Sergeant Travis Anglin) to travel to Seattle to babysit Arpaio's paid confidential informant, Dennis Montgomery.
Montgomery, a supposed computer guru and former CIA contractor, was busy fleshing out a bizarre anti-Arpaio conspiracy theory involving Snow, the U.S. Department of Justice, and numerous others.
Zullo played head cheerleader for the Seattle operation, according to the testimony of Anglin and others. And Anglin has described the unique access Zullo had to Arpaio, with Zullo constantly on the phone with the sheriff.
An experienced investigator, Anglin chafed at Zullo's influence, and even tried to get Zullo booted from the Seattle investigation, which lasted more than a year and cost anywhere from $250,000 to $1 million in public funds. But Arpaio ended up taking Anglin off the case instead.
Arpaio initially learned of Montgomery during an October 2013 meeting at MCSO headquarters with Zullo and then-billionaire Tim Blixseth, who has since declared bankruptcy and now, ironically, is being held in federal custody in Montana for contempt of court.
A "smoking gun" memo typed by Arpaio in late 2013 describes how Arpaio ordered Zullo to San Diego to run down a tipster's allegation that Arpaio's phones were tapped by the feds.
Most infamously, in 2012, Arpaio dispatched Mackiewicz to Hawaii at county expense to assist Zullo with his probe of the president's birth certificate.
More recently, in the contempt trial, Arpaio has denied donating $10,000 of his own money to Zullo to help Zullo with expenses in Seattle.
However, questions still linger over this issue. Arpaio easily could have made a donation through a third party or directly to the Cold Case Posse, thus avoiding scrutiny.
Moreover, Arpaio has many rich friends for whom $10,000 is nothing.
Asked about Zullo's attempt to withhold documents using his Fifth Amendment right against self-incrimination, ACLU attorney Dan Pochoda told New Times that there could be problems with the strategy.
"There are questionable legalities about whether [invoking the Fifth Amendment] would be honored in a civil proceeding," Pochoda explained, "as opposed to a criminal trial where there would not be any sanctions against the person. Here, the court might well find it's not proper...because it's not a criminal proceeding."
Snow could order the documents turned over, and Popolizio's filing seems to invite that move. After all, Popolizio has possession of the documents, not Zullo. Popolizio also sayst Zullo is "seeking counsel to represent him."
What sort of documents might expose Zullo to criminal liability?
Given that Arpaio sought immunity for Montgomery through the Arizona Attorney General's Office under former AG Tom Horne and given that Mackiewicz is under criminal investigation for possible spiking of overtime during the Seattle operation, speculation abounds.
Arpaio himself is looking at criminal-contempt allegations, and may have broken any number of federal statutes, involving everything from perjury to obstruction of justice to inchoate crimes involving the purchase of material believed to be classified and/or stolen.
Thing is, future criminal liability might be lessened by a willingness to squeal, something Zullo would be wise to consider. Will Zullo turn on Arpaio? Time will tell.
Update 3:42 PM 10/21/2015: The ACLU has filed a notice of a subpoena it plans to serve on Popolizio and his firm, demanding the production of the withheld Zullo documents by 4 p.m. Thursday. See below.
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Update 10/22/2015: Word is that Jones, Skelton wants Judge Snow to weigh in on the withheld documents and whether they have to comply with the subpoena, so it's on hold for the moment as the judge is out of town. Zullo's deposition is still scheduled for Friday, 10/23.
Update 10/23/2015: According to my sources, Zullo showed for his deposition this a.m. in Central Phoenix, but refused to answer any questions until he gets an attorney. The CCP honcho claims to be without one presently.
Update 10/26/2015: Snow held a telephonic conference among the parties, including Zullo, at 11 a.m. this morning. I do not have all details, but I am hearing that Zullo now has new deadlines to meet regarding document production. There are also deadlines for any attorney for Zullo, assuming he gets one, to make objections. (Apparently, he has asked an attorney in Georgia to rep him.) Word is that Zullo might be deposed and/or testify next week, if at all. If he testifies but takes the 5th, court could draw "adverse inferences," about the matter or matters he refuses to testify on, meaning the court could assume that whatever he takes the 5th about would not be good for the defense. Arpaio's contempt trial resumes Tuesday, October 27, at 9 a.m. If I get any more info, I will update. Otherwise, expect live Tweeting during the first break in the hearing around midmorning Tuesday.
Further Update 10/26/2015: Snow issues order based on telephonic hearing earlier in the day, tells Zullo he must file any protective order based on 5th, 4th Amendments by October 30, instructs Arpaio's criminal attorney Mel MecDonald to correspond with attorney in Georgia that Zullo has been talking to about representing him, and tells Arpaio's civil attorney Joe Popolizio that he has a day to decide if he represents Zullo. Note: Contrary to earlier report, Zullo may not have been present for Telephonic conference. He is not mentioned in those making "appearances" before Snow, and the language of Snow's order suggests he was not present.