Case 2:07-cv-02513-GMS Document 1540 Filed 11/12/15 Page 1 of 3

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John T. Masterson, Bar #007447

Joseph J. Popolizio, Bar #017434
Justin M. Ackerman, Bar #030726
JONES, SKELTON & HOCHULI, P.L.C.
2901 North Central Avenue, Suite 800
Phoenix, Arizona 85012
Telephone: (602) 263-1700
Fax: (602) 200-7846
jmasterson@jshfirm.com
jpopolizio@jshfirm.com
jackerman@jshfirm.com
Attorneys for Defendant Joseph M. Arpaio in
his official capacity as Sheriff of Maricopa
County, AZ

UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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Manuel de Jesus Ortega Melendres, et al.,

Plaintiff,

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v.

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Joseph M. Arpaio, et al.,

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TRIAL MEMORANDUM RE:

NON-PARTY ZULLOS WAIVER
OF FIFTH AMENDMENT
PRIVILEGE

Defendant.

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NO. CV 07-02513-PHX-GMS

Defendant Arpaio files this Memorandum regarding Mr. Zullos waiver of

his Fifth Amendment privilege regarding certain areas of inquiry due to his response to
questions during his deposition that occurred on November 9, 2015.
In civil proceedings, witnesses are afforded less protections under the Fifth
Amendment than in criminal proceedings. See e.g., United States v. SolanoGodines, 120
F.3d 957, 962 (9th Cir. 1997) (cited in S.E.C. v. Colello, 139 F.3d 674, 677 (9th Cir.
1998)); see also Baxter v. Palmigiano, 425 U.S. 308, 318 (1976). Having once related
part of the facts of a transaction, a witness cannot be permitted to assert a Fifth
Amendment privilege to prevent disclosure of additional relevant facts. Rogers v. United
States, 340 U.S. 367, 372-73 (1951) (Disclosure of a fact waives the privilege as to
details.); Draper v. State, 596 S.W.2d 855, 857 (Tex. Crim. App. 1980) (Once having
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related part of the facts of the transaction, a witness should not be permitted to assert a

Fifth Amendment privilege to prevent disclosure of additional relevant facts.). As the

Supreme Court stated in Brown v. Walker, 161 U.S. 591, 597 (1896), if the witness

himself elects to waive his privilege, as he may doubtless do, since the privilege is for his

protection and not for that of other parties, and discloses his criminal connections, he is

not permitted to stop, but must go on and make a full disclosure.

Following this rule, the Ninth Circuit has uniformly held that, where

criminating facts have been voluntarily revealed, the privilege cannot be invoked to avoid

disclosure of the details. In re Seper, 705 F.2d 1499, 1501 (9th Cir. 1983); id. (quoting

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Hashagen v. United States, 283 F.2d 345, 352 (9th Cir. 1960)) (thus an admission of a

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criminating fact may waive the privilege as to the details of that fact so long as they do not

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further incriminate, but where those detains would so incriminate, the privilege is not

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waived.).

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Accordingly, to the extent Mr. Zullo attempts to assert his Fifth Amendment

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privilege regarding questions elicited by counsel on areas he has already voluntarily

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provided testimony, this Court should preclude him from doing so to the extent such

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questions would not further incriminate him.

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DATED this 12th day of November, 2015.

JONES, SKELTON & HOCHULI, P.L.C.

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By Joseph J. Popolizio
John T. Masterson
Joseph J. Popolizio
Justin M. Ackerman
2901 North Central Avenue, Suite 800
Phoenix, Arizona 85012
Attorneys for Defendant Joseph M. Arpaio
and the Maricopa County Sheriffs Office

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CERTIFICATE OF SERVICE

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I hereby certify that on this 12th day of November, 2015, I caused the

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foregoing document to be filed electronically with the Clerk of Court through the
CM/ECF System for filing; and served on counsel of record via the Courts CM/ECF
system as follows:

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/s Mary M. Soto

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