Case 2:07-cv-02513-GMS Document 1560 Filed 11/17/15 Page 1 of 5

1
2
3
4
5
6
7
8
9
10
11
12

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
A. Melvin McDonald, Bar #002298
JONES, SKELTON & HOCHULI, P.L.C.
2901 North Central Avenue, Suite 800
Phoenix, Arizona 85012
Telephone: (602) 263-1700
Fax: (602) 200-7847
mmcdonald@jshfirm.com

13

UNITED STATES DISTRICT COURT

14

DISTRICT OF ARIZONA

15
16

Manuel de Jesus Ortega Melendres, et al.,

Plaintiff,

17
v.

18
19

Joseph M. Arpaio, et al.,

Defendant.

20

NO. CV 07-02513-PHX-GMS
MOTION FOR
RECONSIDERATION
REGARDING ADMISSIBILITY
OF DENNIS MONTGOMERYS
HEARSAY STATEMENTS UNDER
RULE 801(d)(2)(D)

21
22

This Court has admitted certain Plaintiffs Exhibits over Defendant Arpaios

23

hearsay objections. Those Exhibits are emails and audio recordings containing statements

24

by Dennis Montgomery. In overruling Defendant Arpaios hearsay objections, the Court

25

has appeared to base its decision on the fact that Mr. Montgomery was a confidential

26

informant for the Maricopa County Sheriffs Office (MCSO), suggesting that the Court

27

believes Mr. Montgomerys informant status brings his statements within the ambit of

28
4580835.1
11/17/15

Case 2:07-cv-02513-GMS Document 1560 Filed 11/17/15 Page 2 of 5

Rule 801(d)(2)(D), Fed. R. Evid. Pursuant to the following Memorandum of Points and

Authorities, to the extent the Court relied on Rule 801(d)(2)(D) to admit statements from

Mr. Montgomery, Defendant Arpaio respectfully requests reconsideration of those rulings.

MEMORANDUM OF POINTS AND AUTHORITIES

I.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

While the Ninth Circuit has not directly addressed whether a confidential
informants statements constitute an admission for purposes of 801(d)(2)(D), the Second
and Third Circuits offer guidance. In United States v. Yildiz, the Second Circuit held that
[l]ike the Third Circuit, [w]e do not believe that the authors of Rule 801(d)(2)(D)
intended statements by informers as a general matter to fall under the rule, given their
tenuous relationship with the police officers with whom they work. 355 F.3d 80, 82 (2d
Cir. 2004) (quoting Lippay v. Christos, 996 F.2d 1490, 1499 (3d Cir.1993)).
Mr. Montgomerys relationship with MCSO was undoubtedly that of an
informant. See People of Territory of Guam v. Dela Rosa, 644 F.2d 1257, 1259 (9th Cir.
1980) (The Ninth Circuit defines an informant as one who provides information for
personal advantage or vindication, as well as for pay or immunity.). Mr. Montgomery
alleged that the United States government had improperly harvested personal information
from Maricopa County residents and sought both money and immunity in exchange for
information pertaining to the alleged harvestings. Even this Court has identified Mr.
Montgomery as an MCSO informant. Accordingly, as an informant, Mr. Montgomerys
statements do not constitute admissions by Sheriff Arpaio or MCSO under Rule
801(d)(2)(D).
II.

25
26
27
28

THE AUTHORS OF RULE 801(d)(2)(D) DID NOT INTEND FOR

STATEMENTS MADE BY INFORMANTS TO FALL UNDER THE RULE.

CONFIDENTIAL INFORMANTS MORE CLOSELY RESEMBLE

INDEPENDENT CONTRACTORS, WHOSE STATEMENTS DO NOT
QUALIFY FOR THE 801(d)(2)(D) EXCEPTION.
Even if this Court were to find that the relationship between MCSO and

Dennis Montgomery went beyond that of an informant, his statements would still not
qualify for the 801(d)(2)(D) hearsay exception. [S]tatements by informants should not
4580835.1
11/17/15

Case 2:07-cv-02513-GMS Document 1560 Filed 11/17/15 Page 3 of 5

be viewed as admissions by the government. Federal Evidence 8:56 (4th ed.). This is

because [u]nlike the more usual government agents and employees, the scope of an

informant's responsibility is hard to define. Id. Accordingly, informants more closely

resemble independent contractors than typical agents. Id. (emphasis added). And,

[a]bsent special circumstances in which actual government agents authorize an informant

to speak on a certain matter or an actual government agent adopts what an informant says

. . . an informant should not be viewed as an agent of the government for purposes of the

[801(d)(2)(D)] exception. Id. Notably, the Ninth Circuit has held that independent

contractors do not qualify as agents for the purposes of Rule 801(d)(2)(D) in the sense that

10

evidence of an independent contractor relationship is insufficient in itself to establish an

11

agency relationship for the purposes of the rule. U.S. v. Bonds, 608 F.3d 103, 117-118

12

(9th Cir. 2010).

13

Here, MCSO agents never authorized Mr. Montgomery to speak on

14

MCSOs behalf. Similarly, no statement by Mr. Montgomery was ever adopted, either

15

constructively or actually, by any agent of MCSO. In fact, Plaintiffs and this Court have

16

recognized that the opposite is true. The evidence presented to date demonstrates that

17

MCSO and its agents maintained an attitude of skepticism towards the information

18

provided by Mr. Montgomery, and never endorsed his information or statements.

19

Therefore, pursuant to Bonds, even viewing Mr. Montgomery as an independent

20

contractor of MCSO, his statements would still not constitute an admission for purposes

21

of Rule 801(d)(2)(D).

22

III.

23
24
25
26
27
28

NO AGENCY RELATIONSHIP WAS ESTABLISHED BETWEEN MCSO

AND DENNIS MONTGOMERY.
While Defendants acknowledge that there are situations in which an agency

relationship can be established between an informant and law enforcement agency, no

such relationship was formed between MCSO and Dennis Montgomery in this case. In
Lippay v. Christos, 996 F.2d 1490 (3d Cir. 1993), Plaintiff/Appellee brought suit against
an undercover agent for the Bureau of Narcotics (Bureau) and attempted to introduce
4580835.1
11/17/15

Case 2:07-cv-02513-GMS Document 1560 Filed 11/17/15 Page 4 of 5

statements made by a Bureau informant to Plaintiff/Appellees mother that were adverse

to the interest of the undercover agent. 996 F.2d at 1495. The Third Circuit noted that,

an agency relationship is established only where the party-opponent personally directed

[the declarant's] work on a continuing basis. Id. at 1498 (quoting Boren v. Sable, 887

F.2d 1032, 1041 (10th Cir. 1989) (emphasis added). Under the facts in Lippay, the Court

held that no agency relationship had been created for the for the purposes of Rule

801(d)(2)(D) because the informants relationship with the Bureau was tenuous, as the

bureau neither paid him a regular salary nor recognized him as an employee. Instead, the

bureau made occasional payments to [the informant] for the time he spent setting up drug

10

purchases. Therefore, [the informant] seems to have functioned as a sort of independent

11

contractor. Id. at 1499. The Court further reasoned that while the undercover agent

12

supervised some discrete aspects of the informants activities, such as giving him money

13

to make drug purchases and searching him before and after transactions, that did not

14

mean that [the undercover agent] functioned as [the informants] superior in the context

15

of an employer-employee relationship within Rule 801(d)(2)(D). Id.

16

Certainly, MCSO did not recognize Mr. Montgomery as an employee of

17

MCSO. Rather, the relationship between MCSO and Mr. Montgomery is analogous to the

18

facts presented in Lippay. Much like the informant in Lippay, Mr. Montgomery did not

19

receive a regular salary and only received occasional payments. Additionally, like the

20

undercover agent in Lippay, who only had supervisory control over some discrete aspects

21

of the informants activities, MCSO only had peripheral supervisory control over Mr.

22

Montgomery. For example, MCSO engaged Mr. Montgomery to provide information to

23

substantiate his allegations that the United States government had illegally harvested the

24

personal information of certain Maricopa County residents. However, Defendant Arpaio

25

and/or MCSO had no control over how, when, or where Mr. Montgomery obtained the

26

information, or if he would provide the information at all. Further, Defendant Arpaio

27

and/or MCSO had no control over Mr. Montgomerys day to day operations. Not even

28

Detective Brian Mackiewicz or Posseman Michael Zullo, who spent time with Mr.
4580835.1
11/17/15

Case 2:07-cv-02513-GMS Document 1560 Filed 11/17/15 Page 5 of 5

Montgomery in Seattle, had control over how, when, where, or if Mr. Montgomery would

obtain the information. Accordingly, the undisputed facts of this case demonstrate that no

agency relationship exists between MCSO and Mr. Montgomery.

IV.

CONCLUSION

For the foregoing reasons, Defendant Arpaio respectfully requests the Court

to reconsider any ruling that Dennis Montgomerys hearsay statements are admissible

under Rule 801(d)(2)(D), Fed. R. Evid.

8
DATED this 17th day of November, 2015.

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

10
11

By /s/John T. Masterson
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

12
13
14
15
16
17

CERTIFICATE OF SERVICE

18
19

I hereby certify that on this 17th day of November, 2015, I caused the

20

foregoing document to be filed electronically with the Clerk of Court through the

21

CM/ECF System for filing; and served on counsel of record via the Courts CM/ECF

22

system.

23
24

/s/Karen Gawel

25
26
27
28
4580835.1
11/17/15