Free Motion to Compel - District Court of California - California

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1 ERICA K. ZUNKEL California Bar No. 229285 2 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 3 San Diego, California 92101-5008 Telephone: (619) 234-8467 4 [email protected] 5 Attorneys for Mr. Penaloza-Jaimes 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 (HONORABLE WILLIAM Q. HAYES) 11 12 UNITED STATES OF AMERICA, 13 14 15 16 17 18 19 TO: 20 21 PLEASE TAKE NOTICE that on September 15, 2008 at 2:00 p.m., or as soon thereafter as counsel KAREN P. HEWITT, UNITED STATES ATTORNEY; AND CALEB MASON, ASSISTANT UNITED STATES ATTORNEY: ) ) Plaintiff, ) ) ) v. ) ) RAMON PENALOZA-JAIMES, ) ) Defendant. ) ) ______________________________________ ) CASE NO. 08CR2704-WQH DATE: September 15, 2008 TIME: 2:00 p.m. NOTICE OF MOTIONS AND MOTIONS TO: 1) 2) COMPEL DISCOVERY AND PRESERVE EVIDENCE; AND GRANT LEAVE TO FILE FURTHER MOTIONS.

22 may be heard, defendant, Ramon Penaloza-Jaimes, by and through his attorneys, Erica K. Zunkel and 23 Federal Defenders of San Diego, Inc., will ask this Court to enter an order granting the following motions. 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 08CR2704-WQH

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MOTIONS Defendant, Ramon Penaloza-Jaimes, by and through his attorneys, Erica K. Zunkel and Federal

3 Defenders of San Diego, Inc., asks this Court pursuant to the United States Constitution, the Federal Rules 4 of Criminal Procedure, and all other applicable statutes, case law, and local rules for an order to: 5 6 7 (1) (2) Compel Discovery and Preserve Evidence; and Grant Leave to File Further Motions.

These motions are based upon the instant motions and notice of motions, the attached statement of

8 facts and memorandum of points and authorities, the files and records in the above-captioned matter, and 9 any and all other materials that may come to this Court's attention prior to or during the hearing of these 10 motions. 11 12 13 Dated: August 25, 2008 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 08CR2704-WQH s/ Erica K. Zunkel ERICA K. ZUNKEL Federal Defenders of San Diego, Inc. Attorneys for Mr. Penaloza-Jaimes [email protected] Respectfully submitted,

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1 ERICA K. ZUNKEL California Bar No. 229285 2 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 3 San Diego, California 92101-5008 Telephone: (619) 234-8467 4 [email protected] 5 Attorneys for Mr. Penaloza-Jaimes 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 (HONORABLE WILLIAM Q. HAYES) 11 UNITED STATES OF AMERICA, 12 Plaintiff, 13 v. 14 RAMON PENALOZA-JAIMES, 15 16 17 18 19 20 I. STATEMENT OF FACTS1 On July 31, 2008, Mr. Penaloza was arrested by Border Patrol agents near the Imperial Beach Border Defendant. ) ) ) ) ) ) ) ) ) ) ) CASE NO. 08CR2704-WQH DATE: September 15, 2008 TIME: 2:00 p.m. STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS

21 Patrol Station after they found him hiding in the brush. Mr. Penaloza, who is deaf, allegedly made 22 statements to agents in the field and at the station post-Miranda. The government likely will attempt to 23 introduce these statements at trial. 24 On August 13, 2008, an indictment was handed down charging Mr. Penaloza-Jaimes with violating

25 8 U.S.C. §1326 (a) and (b) (deported alien found in the United States). On August 21, 2008, Mr. Penaloza26 Jaimes received 42 pages of discovery from the government. These motions follow. 27 28
1. The following is based primarily upon information supplied through Government discovery. Mr. Penaloza-Jaimes does not stipulate to its accuracy and reserves the right to challenge it at future proceedings.

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MOTION TO COMPEL DISCOVERY/PRESERVE EVIDENCE Mr. Penaloza moves for the production of the following discovery. This request is not limited to

4 those items that the prosecutor knows of, but rather includes all discovery listed below that is in the custody, 5 control, care, or knowledge of any "closely related investigative [or other] agencies." See United States v. 6 Bryan, 868 F.2d 1032 (9th Cir. 1989). 7 To date, defense counsel has received 42 pages of discovery. Mr. Penaloza respectfully requests that

8 the Government be ordered to produce discovery because Mr. Penaloza has reason to believe that he has not 9 received all of the discoverable material in his case. For example, Mr Penaloza has not received the audio 10 recordings from any of his alleged deportations, nor has he received any documents relating to any prior 11 deportation/removal. Mr. Penaloza specifically requests production of a copy of the taped proceedings and 12 any and all documents memorializing the deportation proceeding allegedly held and any other 13 proceedings that the Government intends to rely upon at trial. This request includes discovery of materials 14 known to the Government attorney, as well as discovery of materials which the Government attorney may 15 become aware of through the exercise of due diligence. See FED . R. CRIM . P. 16. 16 Mr. Penaloza requests again that the Court order the Government to allow him the opportunity to

17 review his A-file in its entirety. First, the A-file contains documentation concerning his alleged deportation. 18 Part of Mr. Penaloza defense may be that his underlying deportation was invalid. The documents in the A19 file would help illuminate the validity or futility of such a defense. For example, A-file documents typically 20 contain biographical information. Such information is essential to determining whether Mr. Penaloza's 21 deportation was invalid. 22 Second, the Government will likely try to show at trial that a government officer searched the A-file

23 and did not find an application by Mr. Penaloza for permission to enter the United States. Mr. Penaloza 24 anticipates that the Government will attempt to admit a "Certificate of Non-Existence of Record" against 25 him, arguing that if Mr. Penaloza had ever applied for permission to enter the United States, such an 26 application would be found in the A-file and because such an application is not in the A-file, Mr. Penaloza 27 must not have applied for permission to enter the United States. 28 / / / 2 08CR2704-WQH

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Although the certificate might be admissible, the question of the thoroughness of the search

2 conducted by the Government of the A-file is, and should be, open to cross-examination. United States v. 3 Sager, 227 F.3d 1138, 1145 (2000) (error not to allow jury to "grade the investigation."). Mr. Penaloza 4 should be able to review his A-file in order to see whether any application for lawful admission exists. 5 Moreover, Mr. Penaloza should also be able to verify whether other documents that would ordinarily be in 6 the A-file are "non-existent," or otherwise missing from his A-file. Mr. Penaloza may assert a defense that 7 his application for lawful entry was lost or otherwise misplaced by the Government. He must be allowed 8 the opportunity to review his A-file and the manner in which it is being maintained by the Government in 9 order to present this defense. 10 Pursuant to Rule 16, the Court can order the government to allow defense counsel to view his A-file.

11 Rule 16(e) states as follows: 12 13 14 [U]pon a defendant's request, the government must permit the defendant to inspect and copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and (I) the item is material to preparing the defense; (ii) the government intends to use the item in its case-in-chief at trial[.]

15 As set forth above, the A-file and its contents undoubtedly will be a central piece of evidence at trial. The 16 government likely will elicit evidence regarding the reliability of the A-file and what documents exist and 17 do not exist within the A-file. Mr. Penaloza has every right to challenge this evidence and only can do so 18 after his defense counsel has viewed the A-file. 19 20 In addition, Mr. Penaloza moves for the production of the following discovery: 1. Mr. Penaloza's Statements. The Government must disclose to Mr. Penaloza all copies of any

21 written or recorded statements made by Mr. Penaloza; the substance of any statements made by Mr. Penaloza 22 which the Government intends to offer in evidence at trial; any response by Mr. Penaloza to interrogation; 23 the substance of any oral statements which the Government intends to introduce at trial and any written 24 summaries of Mr. Penaloza's oral statements contained in the handwritten notes of the Government agent; 25 any response to any Miranda warnings which may have been given to Mr. Penaloza; as well as any other 26 statements attributed to Mr. Penaloza. FED . R. CRIM . P. 16(a)(1)(A). The Advisory Committee Notes and 27 the 1991 amendments to Rule 16 make clear that the Government must reveal all Mr. Penaloza's statements, 28 whether written or oral, regardless of whether the Government intends to make any use of those statements. 3 08CR2704-WQH

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1 Mr. Penaloza specifically requests all audio and videotaped copies of his statements and any rough 2 notes taken pertaining to the substance of his statements. Mr. Penaloza also requests any handwritten 3 documents/notes relating to agents' communication with him before, during, and after the 4 interrogation. 5 2. Arrest Reports, Notes and Dispatch Tapes. Mr. Penaloza also specifically requests the

6 Government to turn over all arrest reports, notes, dispatch or any other tapes, and TECS records that relate 7 to the circumstances surrounding his arrest or any questioning. This request includes, but is not limited to, 8 any rough notes, records, reports, transcripts or other documents in which statements of Mr. Penaloza or any 9 other discoverable material is contained. Such material is discoverable under FED . R. CRIM . P. 16(a)(1)(A) 10 and Brady v. Maryland, 373 U.S. 83 (1963). The Government must produce arrest reports, investigator's 11 notes, memos from arresting officers, dispatch tapes, sworn statements, and prosecution reports pertaining 12 to Mr. Penaloza. See FED . R. CRIM . P. 16(a)(1)(B) and (c), FED . R. CRIM . P. 26.2 and 12(i). 13 3. Brady Material. Mr. Penaloza requests all documents, statements, agents' reports, and tangible

14 evidence favorable to Mr. Penaloza on the issue of guilt and/or which affects the credibility of the 15 Government's witnesses and the Government's case. Under Brady, impeachment as well as exculpatory 16 evidence falls within the definition of evidence favorable to the accused. United States v. Bagley, 473 U.S. 17 667 (1985); United States v. Agurs, 427 U.S. 97 (1976). 18 4. Any Information That May Result in a Lower Sentence Under The Guidelines.

19 Notwithstanding the advisory nature of the sentencing guidelines, the Government must produce this 20 information under Brady v. Maryland, 373 U.S. 83 (1963), because it is exculpatory and/or mitigating 21 evidence relevant to a possible future determination with respect to sentencing. 22 5. Mr. Penaloza's Prior Record. Mr. Penaloza requests disclosure of his prior record. FED . R.

23 CRIM . P. 16(a)(1)(B). 24 6. Any Proposed 404(b) Evidence. Evidence of prior similar acts is discoverable under Fed. R.

25 Crim. P. 16(a)(1)(c) and Fed. R. Evid. 404(b) and 609. In addition, under Fed. R. Evid. 404(b), "upon 26 request of the accused, the prosecution . . . shall provide reasonable notice in advance of trial . . . of the 27 general nature . . . ." of any evidence the government proposes to introduce under Fed. R. Evid. 404(b) at 28 trial. Sufficient notice requires the government to "articulate precisely the evidential hypothesis by which 4 08CR2704-WQH

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1 a fact of consequence may be inferred from the other acts evidence." United States v. Mehrmanesh, 689 F.2d 2 822, 830 (9th Cir. 1982) (emphasis added; internal citations omitted); see also United States v. Brooke, 4 3 F.3d 1480, 1483 (9th Cir. 1993) (reaffirming Mehrmanesh and reversing convictions). 4 This request includes any "TECS" records as well as any other record(s) of prior border crossings

5 (voluntary entries) that the Government intends to introduce at trial, whether in its case-in-chief, as 6 impeachment, or in its rebuttal case. Although there is nothing intrinsically improper about prior border 7 crossings (except, as here, where there are allegations of undocumented status), they are nonetheless subject 8 to 404(b), as they are "other acts" evidence that the government must produce before trial. United States 9 v. Vega, 188 F.3d 1150, 1154-1155 (9th Cir. 1999). 10 The defendant requests that such notice be given three weeks before trial to give the defense time

11 to adequately investigate and prepare for trial. 12 7. Evidence Seized. Mr. Penaloza requests production of evidence seized as a result of any search,

13 either warrantless or with a warrant. FED . R. CRIM . P. 16(a)(1)(c). 14 8. Request for Preservation of Evidence. Mr. Penaloza specifically requests the preservation of

15 all physical evidence that may be destroyed, lost, or otherwise put out of the possession, custody, or care of 16 the Government and which relates to the arrest or the events leading to the arrest in this case. This request 17 includes, but is not limited to, the results of any fingerprint analysis, Mr. Penaloza's personal effects, and 18 any evidence seized from Mr. Penaloza. 19 9. Henthorn Material. Mr. Penaloza requests that the Assistant United States Attorney ("AUSA")

20 assigned to this case oversee (not personally conduct) a review of all personnel files of each agent involved 21 in the present case for impeachment material. See Kyles v. Whitley, 514 U.S. 419 (1995) (holding that "the 22 individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the 23 Government's behalf in the case, including the police"); United States v. Henthorn, 931 F.2d 29 (9th Cir. 24 1991); United States v. Jennings, 960 F.2d 1488 (9th Cir. 1992) (AUSA may not be ordered to personally 25 conduct examination of records; appropriate Government agency may review files and notify AUSA of 26 contents as long as AUSA makes the determination regarding material to be disclosed); United States v. 27 Herring, 83 F.3d 1120 (9th Cir. 1996) (accord). 28 / / / 5 08CR2704-WQH

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10. Tangible Objects. Mr. Penaloza requests the opportunity to inspect, copy, and test, as

2 necessary, all other documents and tangible objects, including photographs, books, papers, documents, 3 fingerprint analyses, or copies of portions thereof, which are material to the defense, intended for use in the 4 Government's case-in-chief, or were obtained from or belong to Mr. Penaloza. FED . R. CRIM . P. 16(a)(1)(c). 5 Specifically, Mr. Penaloza requests copies of the audio tapes of his alleged prior deportations or 6 removals. 7 11. Expert Witnesses. Mr. Penaloza requests the name, qualifications, and a written summary of

8 the testimony of any person that the Government intends to call as an expert witness during its case in chief. 9 FED . R. CRIM . P. 16(a)(1)(E). The defense requests the notice of expert testimony be provided at a minimum 10 of two weeks prior to trial so that the defense can properly prepare to address and respond to this testimony, 11 including obtaining its own expert and/or investigating the opinions, credentials of the Government's expert 12 and a hearing in advance of trial to determine the admissibility of qualifications of any expert. See Kumho 13 Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999) (trial judge is "gatekeeper" and must determine, 14 reliability and relevancy of expert testimony and such determinations may require "special briefing or other 15 proceedings"). 16 12. Evidence of Bias or Motive to Lie. Mr. Penaloza requests any evidence that any prospective

17 Government witness is biased or prejudiced against Mr. Penaloza, or has a motive to falsify or distort his 18 or her testimony. 19 13. Impeachment Evidence. Mr. Penaloza requests any evidence that any prospective Government

20 witness has engaged in any criminal act whether or not resulting in a conviction and whether any witness 21 has made a statement favorable to Mr. Penaloza. See FED . R. EVID . 608, 609 and 613; Brady v. Maryland. 22 14. Evidence of Criminal Investigation of Any Government Witness. Mr. Penaloza requests any

23 evidence that any prospective witness is under investigation by federal, state or local authorities for any 24 criminal conduct. 25 15. Evidence Affecting Perception, Recollection, Ability to Communicate, or Truth Telling.

26 Mr. Penaloza requests any evidence, including any medical or psychiatric report or evaluation, that tends 27 to show that any prospective witness' ability to perceive, remember, communicate, or tell the truth is 28 / / / 6 08CR2704-WQH

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1 impaired, and any evidence that a witness has ever used narcotics or other controlled substances, or has ever 2 been an alcoholic. 3 16. Witness Addresses. Mr. Penaloza requests the name and last known address of each

4 prospective Government witness. Mr. Penaloza also requests the name and last known address of every 5 witness to the crime or crimes charged (or any of the overt acts committed in furtherance thereof) who will 6 not be called as a Government witness. 7 17. Name of Witnesses Favorable to Mr. Penaloza. Mr. Penaloza requests the name of any

8 witness who made an arguably favorable statement concerning Mr. Penaloza or who could not identify him 9 or who was unsure of his identity, or participation in the crime charged. 10 18. Statements Relevant to the Defense. Mr. Penaloza requests disclosure of any statement

11 relevant to any possible defense or contention that he might assert in his defense. 12 19. Jencks Act Material. Mr. Penaloza requests production in advance of trial of all material,

13 including dispatch tapes, which the Government must produce pursuant to the Jencks Act, 18 U.S.C. § 3500. 14 Advance production will avoid the possibility of delay at trial to allow Mr. Penaloza to investigate the Jencks 15 material. A verbal acknowledgment that "rough" notes constitute an accurate account of the witness' 16 interview is sufficient for the report or notes to qualify as a statement under section 3500(e)(1). Campbell 17 v. United States, 373 U.S. 487, 490-92 (1963). In United States v. Boshell, 952 F.2d 1101 (9th Cir. 1991) 18 the Ninth Circuit held that when an agent goes over interview notes with the subject of the interview the 19 notes are then subject to the Jencks Act. 20 20. Giglio Information & Agreements Between the Government and Witnesses. Pursuant to

21 Giglio v. United States, 405 U.S. 150 (1972), Mr. Penaloza requests all statements and/or promises, express 22 or implied, made to any witness, in exchange for their testimony in this case, and all other information which 23 could be used for impeachment. 24 21. Agreements Between the Government and Witnesses. Mr. Penaloza requests discovery

25 regarding any express or implicit promise, understanding, offer of immunity, of past, present, or future 26 compensation, or any other kind of agreement, promise, or understanding, including any implicit 27 understanding relating to criminal or civil income tax, forfeiture or fine liability, between any prospective 28 Government witness and the Government (federal, state and/or local). This request also includes any 7 08CR2704-WQH

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1 discussion with a potential witness about or advice concerning any contemplated prosecution, or any 2 possible plea bargain, even if no bargain was made, or the advice not followed, and specifically includes any 3 discussion with a potential witness regarding that witness' immigration status and/or any affect that the 4 witness' statements or lack thereof might have on that status, including the granting or revoking of such 5 immigration status or any other immigration status, including but not limited to citizenship, nationality, a 6 green card, border crossing card, parole letter, or permission to remain in the United States. 7 22. Informants and Cooperating Witnesses. Mr. Penaloza requests disclosure of the names and

8 addresses of all informants or cooperating witnesses used or to be used in this case, and in particular, 9 disclosure of any informant who was a percipient witness in this case or otherwise participated in the crime 10 charged against Mr. Penaloza. The Government must disclose the informant's identity and location, as well 11 as the existence of any other percipient witness unknown or unknowable to the defense. Roviaro v. United 12 States, 353 U.S. 53, 61-62 (1957). The Government must disclose any information derived from informants 13 which exculpates or tends to exculpate Mr. Penaloza. Brady v. Maryland, 373 U.S. 83 (1963) 14 23. Bias by Informants or Cooperating Witnesses. Mr. Penaloza requests disclosure of any

15 information indicating bias on the part of any informant or cooperating witness. Giglio v. United States, 405 16 U.S. 150 (1972). Such information includes, but is not limited to, any inducements, favors, payments or 17 threats that were made to the witness in order to secure cooperation with the authorities. 18 24. Scientific and Other Information. Mr. Penaloza requests the results of any scientific or other

19 tests or examinations conducted by any Government agency or their subcontractors in connection with this 20 case. See Rule 16(a)(1)(D). 21 25. Residual Request. Mr. Penaloza intends by this discovery motion to invoke his rights to

22 discovery to the fullest extent possible under the Federal Rules of Criminal Procedure and the Constitution 23 and laws of the United States. Mr. Penaloza requests that the Government provide him and his attorney with 24 the above requested material sufficiently in advance of trial to avoid unnecessary delay prior to cross25 examination. 26 / / / 27 / / / 28 / / / 8 08CR2704-WQH

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MOTION FOR LEAVE TO FILE ADDITIONAL MOTIONS Defense counsel just received initial discovery from the government late last week. Discovery is not

4 complete. Mr. Penaloza contemplates further motions once discovery is received and reviewed with Mr. 5 Penaloza. Therefore, counsel requests leave to file additional motions. 6 7 8 9 10 11 Dated: August 25, 2008 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 08CR2704-WQH s/ Erica K. Zunkel ERICA K. ZUNKEL Federal Defenders of San Diego, Inc. Attorneys for Mr. Penaloza [email protected] IV. CONCLUSION For the foregoing reasons, Mr. Penaloza respectfully requests that the Court grant the above motions. Respectfully submitted,

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ERICA K. ZUNKEL California State Bar No. 229285 2 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 3 San Diego, CA 92101-5008 (619) 234-8467/Fax: (619) 687-2666 4 E-Mail: [email protected]
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Attorneys for Ramon Penaloza-Jaimes

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE WILLIAM Q. HAYES) ) ) Plaintiff, ) ) v. ) ) RAMON PENALOZA-JAIMES, ) ) Defendant. ) __________________________________________) UNITED STATES OF AMERICA, Case No. 08CR2704-WQH

CERTIFICATE OF SERVICE

Counsel for Defendant certifies that the foregoing pleading is true and accurate to the best of her information and belief, and that a copy of the foregoing document has been served this day upon: U.S. Attorney CR [email protected]; and Caleb E. Mason [email protected],[email protected],[email protected] Respectfully submitted,

DATED:

August 25, 2008

/s/ Erica K. Zunkel ERICA K. ZUNKEL Federal Defenders of San Diego, Inc. Attorneys for Ramon Penaloza-Jaimes