Free Motion for Discovery - District Court of California - California

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Patrick J. Hennessey Jr. Attorney At Law (047993) 2356 Moore Street, Suite 201 San Diego, CA 92110 (619) 298-7802

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE LARRY ALAN BURNS, JUDGE) UNITED STATES OF AMERICA, Plaintiff, v. MIREYA ENRIQUEZ VELASQUEZ, Defendant. CASE NO. 08CR2712(2)LAB NOTICE OF MOTION AND MOTION FOR DISCOVERY AND TO FILE FURTHER MOTIONS DATE: TIME: 9/22/08 2:00 p.m.

TO:

TERRY HEWITT, UNITED STATES ATTORNEY AND HER AUTHORIZED REPRESENTATIVE: Please take notice that at the above date and time

defendant, Mireya Enriquez Velasquez, will move this court for an order granting the enclosed request for discovery and any other orders which may be deemed appropriate at the time of hearing at the motion. It is therefore requested this court grant the following motions of defendant Mireya Enriquez Velasquez.

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1. 2.

For further discovery. For leave to file further motions as deemed

appropriate. Respectfully submitted,

Dated:9/1/08

/S/Patrick Hennessey __________ PATRICK J. HENNESSEY, JR. Attorney for Defendant

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Patrick J. Hennessey Jr. Attorney At Law (047993) 2356 Moore Street, Suite 201 San Diego, CA 92110 (619) 298-7802

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE LARRY ALAN BURNS, JUDGE) UNITED STATES OF AMERICA, Plaintiff, v. MIREYA ENRIQUEZ VELASQUEZ, Defendant. CASE NO. 08CR2712(2) LAB STATEMENT OF THE CASE AND STATEMENT OF FACTS AND ARGUMENT IN SUPPORT OF MOTION FOR FURTHER DISCOVERY AND FOR LEAVE TO FILE ADDITIONAL MOTIONS. DATE: TIME: 9/22/08 2:00 p.m.

STATEMENT OF THE CASE Defendant, Mireya Enriquez Velasquez, is charged in the above case with multiple counts involving violation of the immigration laws of the United States and the smuggling or harboring of undocumented aliens in violation of Title 8 United States Code Section 1324 et.seq. The matter is currently set for

hearing of motions on September 22, 2008, at 2:00 p.m. . . . . .
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STATEMENT OF FACTS1 On or about July 31, 2008, two minor children had been smuggled into the United States. The plan of those responsible

for smuggling the children into the United States was to later smuggle into the United States the children's parents identified as Socorro Aguilar-Moreno and Maximo Hernandez-De La Cruz. It

appears that the mother of defendant Mireya Enriquez Velasquez was responsible for smuggling the people into the United States. It also appears that working with the mother was the defendant's sister, Miriam Enriquez Velasquez. At some time after the children had been smuggled into the United States, defendant allegedly was asked to care for the two children until the parents could come into the United States. Later, based upon representations that the parents had entered the United States, the defendant and her sister proceeded to San Ysidro, California where they planned to return the children to the custody of the parents. It was at this time that defendant

and her sister Miriam were arrested by officials with Immigration and Customs Enforcement. I POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION FOR DISCOVERY. In addition to anything defendant has currently received, she would request or enter a general request for discovery to include any and all evidence currently in the custody, control, The Statement of Facts is necessarily brief because, as of the date of preparation of these motions, no discovery had been received from the United States Attorney's office.
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care or knowledge of any investigative agency involved in this case. 1989) 1. Defendant's Statements. (See United States v. Bryan 868 Fed.2d 1032 (9th Cir.

The government must disclose to the defendant all copies of any written or recorded statements made by the defendant as well as the substance of any such statements made by the defendant that the government intends to offer in evidence at trial, either in its case-in-chief or in rebuttal. Also requested is any

response by the defendant to any interrogation, the substance of any oral statements that the government intends to introduce at trial, and any written summaries of the defendant's oral statements contained in the handwritten notes of the agents. (Id.; see also Fed. Rules Crim. Proc. 16(1)(A). 2. Arrest Reports And Notes.

The defendant requests the government turn over all arrest reports and notes. This would include but not be limited to any

rough notes, records, reports, transcripts or other documents in which the statements of the defendant or any other discoverable material are contained. Also included in this would be any

recordings of telephone conversations or other communications. These materials are discoverable under Fed. Rules Crim. Proc. 16(a)(1)(A) and Brady v. Maryland (1963) 373 U.S. 83. 3. Brady Material.

The defendant requests all documents, statements, agent's reports, or tangible evidence favorable to the defendant on the issue of guilt and/or which may affect the credibility of the 5

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government's case and/or impact her level of involvement in the case. (Kyles v. Whitley (1995) 514 U.S. 4, 19) In this regard,

the defendant would specifically request any information as to the offense and in particular information relative to her involvement in the current offense, including but not limited to, any evidence establishing she was a lesser involved person and under the direction or control of other persons. 4. Information That May Result In A Lower Sentence Under

The Federal Sentencing Guidelines. The government must also produce this information under Brady v. Maryland, supra. This would include any statements

given by the defendant who could be viewed as cooperative as well as any other information that may have an impact upon her position within the federal sentencing guidelines and whether she was involved as a minor or lesser participant in the offense. 5. Any Proposed 404(b) and 609 Evidence.

The government must also produce evidence of prior similar acts or conduct under Fed. Rules Crim. Proc. 16(a)(1)(C) and Fed. Rules of Evidence Sections 404(b) and 609. In addition, on

request of the accused, the prosecution must provide reasonable notice in advance of trial of the general nature of any evidence the government seeks to introduce under Rule 404(b). This

applies to evidence that the government not only introduces in its case­in-chief, but any evidence the government would use in rebuttal. 6. (United States v. Vega 188 Fed.3d 1150 (9th Cir.1999)) Impeachment Evidence.

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The defendant requests any evidence that any prospective government witness engaged in any criminal act, whether or not resulting in a conviction and whether any witness made a statement favorable to the defendant. 7. Jencks Act Material.

The defendant requests production in advance of trial of all material which the government must produce pursuant to the Jencks Act, 18 U.S.C. Section 3500 Fed. Rules Crim. Proc. Rule 26.2. Advance production of this information will avoid the possibility of delay at the request of the defendant to review appropriate Jencks material. II REQUEST FOR LEAVE TO FILE ADDITIONAL MOTIONS Defendant expects additional discovery will be provided by the government that may support the filing of additional, appropriate motions. Counsel will request leave to file these

additional motions with appropriate notice to the United States Attorney, if and when such additional discovery is received and evaluated.

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CONCLUSION For the foregoing reasons it is requested this court grant defendant's motions to: 1. 2. For further discovery and, For leave to file additional motions if deemed

appropriate. Dated: 9/1/08 /S/_Patrick Hennessey _ PATRICK J. HENNESSEY, JR. Attorney for Defendant

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CERTIFICATE OF MAIL

I, the undersigned, declare that: I am over the age of eighteen years and not a party to the action; I am employed in the County of San Diego, California, within which county the subject mailing occurred; my business address is 2356 Moore Street, Suite 201, San Diego, California; I am familiar with this firm's practice for collection and processing correspondence for mailing with the United States Postal Service pursuant to which practice all correspondence will be deposited with the United States Postal Service the same day in the ordinary course of business. I served the following document(s):

NOTICE OF MOTION AND MOTION FOR DISCOVERY
by placing a copy thereof for each addressee named hereafter, addressed to each such addressee, in a separate envelope, postage prepaid, sealed and deposited at this firm's mailstation on 9/2/08 . Office of the United States Attorney 880 Front Street, Fifth Floor San Diego, CA 92101 Federal Defenders 225 Broadway, Ste. 900 San Diego, CA 92101

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on 9/2/08.

/S/_Patrick Hennessey_____________________________ PATRICK J. HENNESSEY, JR.

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