Free Motion for Discovery - District Court of California - California

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1 SHAUN KHOJAYAN (#197690) LAW OFFICES OF SHAUN KHOJAYAN 2 & ASSOCIATES, P.L.C. 121 Broadway, Suite 338 3 San Diego, CA 92101 Telephone: (619) 338-9110 (619) 338-9112 4 Facsimile: Email: [email protected] 5 Attorney for Defendant Matthew Alexander Smith 6 7 8 9 10 11 UNITED STATES OF AMERICA, 12 Plaintiff, 13 v. 14 MATTHEW ALEXANDER SMITH, 15 Defendant. 16 17 18 19 20 21 PLEASE TAKE NOTICE that on September 29, 2008 at 2:00 p.m. or as soon thereafter as 22 counsel may be heard, the defendant, Matthew Alexander Smtih, by and through his counsel, 23 Shaun Khojayan will ask the Court to enter an order granting the following motions. 24 25 /// 26 /// 27 /// 28 -1­ 08CR2716-H TO: KAREN P. HEWITT, UNITED STATES ATTORNEY, AND LUELLA MENDOZA CALDITO, ASSISTANT UNITED STATES ATTORNEY: Date: September 29, 2008 Time: 2:00 p.m. 1) COMPEL DISCOVERY; 2) SUPPRESS STATEMENTS; AND 3) GRANT LEAVE TO FILE FURTHER MOTIONS. MOTIONS TO: Case No.: 08CR2716-H UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

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I. STATEMENT OF FACTS The following statement of facts has been complied from information provided in the

4 discovery from the government. Mr. Smith does not adopt these facts as his own, and reserves 5 the right to take a contrary position at motions or trial. 6 Defendant Matthew Alexander Smith has been charged in an indictment charging

7 Bringing in Illegal Aliens for Financial Gain, 8 U.S.C. §1324 (a)(2)(B)(ii), Aiding and Abetting, 8 18 U.S.C. §2, Bringing in Illegal Aliens without Presentation, 8 U.S.C. §1324 (a)(2)(B) (iii), 9 Misuse of Passport, 18 U.S.C. §1544 and Use of a False Means of Identification, 18 U.S.C. 10 §1028 (a)(7) and (b)(1)(A)(I). The government's discovery alleges Mr. Smith made statements 11 in response to government questioning. 12 13 14 15 II. MOTION TO COMPEL DISCOVERY Mr. Smith moves for the production by the government of the following discovery and for

16 the preservation of evidence. This request is not limited to those items that the prosecutor knows of, 17 but rather includes all discovery listed below that is in the custody, control, care, or knowledge of 18 any government agency. See generally Kyles v. Whitley, 514 U.S. 419 (1995); United States v. 19 Bryan, 868 F.2d 1032 (9th Cir. 1989). 20 (1) The Defendant's Statements. The government must disclose to the defendant all copies

21 of any written or recorded statements made by the defendant; the substance of any statements made 22 by the defendant which the government intends to offer in evidence at trial; any response by the 23 defendant to interrogation; the substance of any oral statements which the government intends to introduce at trial and any written summaries of the defendant's oral statements contained in the 24 handwritten notes of the government agent; any response to any Miranda warnings which may have 25 been given to the defendant; as well as any other statements by the defendant. Fed. R. Crim. P. 26 16(a)(1)(A). The Advisory Committee Notes and the 1991 amendments to Rule 16 make clear that 27 28 -2­ 08CR2716-H

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1 the Government must reveal all the defendant's statements, whether oral or written, regardless of 2 whether the government intends to make any use of those statements. 3 (2) Arrest Reports, Notes and Dispatch Tapes. The defendant also specifically requests the

4 government to turn over all arrest reports, notes, dispatch or any other tapes, and TECS records that 5 relate to the circumstances surrounding his arrest or any questioning. This request includes, but is 6 not limited to, any rough notes, records, reports, transcripts or other documents in which statements 7 of the defendant or any other discoverable material is contained. Such material is discoverable under 8 Fed. R. Crim. P. 16(a)(1)(A) and Brady v. Maryland, 373 U.S. 83 (1963). The government must 9 produce arrest reports, investigator's notes, memos from arresting Agents, dispatch and other tapes, 10 sworn statements, and prosecution reports pertaining to the defendant and his arrest. See Fed. R. 11 Crim. P. 16(a)(1)(B) and (C), Fed. R. Crim. P. 26.2 and 12(I). 12 (3) Brady Material. The defendant requests all documents, statements, agents' reports, and

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

18 government must produce this information under Brady v. Maryland, 373 U.S. 83 (1963). This 19 request includes any cooperation or attempted cooperation by the defendant as well as any 20 information that could affect any base offense level or specific offense characteristic under Chapter 21 Two of the Guidelines. The defendant also requests any information relevant to a Chapter Three 22 adjustment, a determination of the defendant's criminal history, and information relevant to any other 23 application of the Guidelines. 24 (5) The Defendant's Prior Record. The defendant requests disclosure of his prior record.

25 Fed. R. Crim. P. 16(a)(1)(B). 26 (6) Any Proposed 404(b) Evidence. The government must produce evidence of prior similar

27 acts under Fed. R. Crim. P. 16(a)(1)(C) and Fed. R. Evid. 404(b) and 609. In addition, under Fed. R. 28 Evid. 404(b), "upon request of the accused, the prosecution . . . shall provide reasonable notice in -3­ 08CR2716-H

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1 advance of trial . . . of the general nature" of any evidence the government proposes to introduce 2 under Fed. R. Evid. 404(b) at trial. The defendant requests such notice sufficiently in advance of 3 trial in order to give the defense time to adequately investigate and prepare for trial. 4 (7) Evidence Seized. The defendant requests production of evidence seized as a result of

5 any search, either warrantless or with a warrant. Fed. R. Crim. P. 16(a)(1)(C). 6 (8) Request for Preservation of Evidence. The defendant specifically requests the

7 preservation of all dispatch tapes or any other physical evidence that may be destroyed, lost, or 8 otherwise put out of the possession, custody, or care of the government and which relate to the arrest 9 or the events leading to the arrest in this case. This request includes, but is not limited to, the results 10 of any fingerprint analysis, the defendant's personal effects, the vehicle, and any evidence seized 11 from the defendant or any third party. 12 (9) Tangible Objects. The defendant requests the opportunity to inspect and copy as well as

13 test, if necessary, all other documents and tangible objects, including photographs, books, papers, 14 documents, fingerprint analyses, vehicles, or copies of portions thereof, which are material to the 15 defense or intended for use in the government's case in chief or were obtained from or belong to the 16 defendant. Fed. R. Crim. P. 16(a)(1)(C). 17 (10) Expert Witnesses. The defendant requests the name, qualifications, and a written

18 summary of the testimony of any person that the government intends to call as an expert witness 19 during its case in chief. Fed. R. Crim. P. 16(a)(1)(E). 20 (11) Evidence of Bias or Motive to Lie. The defendant requests any evidence that any

21 prospective government witness is biased or prejudiced against the defendant, or has a motive to 22 falsify or distort his or his testimony. 23 (12) Impeachment Evidence. The defendant requests any evidence that any prospective

24 government witness has engaged in any criminal act whether or not resulting in a conviction and 25 whether any witness has made a statement favorable to the defendant. See Fed. R. Evid. 608, 609 26 and 613; Brady v. Maryland. In addition, Mr. Macias-Encinas requests that the Assistant United 27 States Attorney assigned to this case oversee a review of all personnel files of each agent involved in 28 the present case for impeachment material. Kyles v. Whitley, 115 S. Ct. 1555 (1995); United States -4­ 08CR2716-H

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1 v. Henthorn, 931 F.2d 29 (9th Cir. 1991); but see United States v. Herring, 83 F.3d 1120 (9th Cir. 2 1996). 3 (13) Evidence of Criminal Investigation of Any Government Witness. The defendant

4 requests any evidence that any prospective witness is under investigation by federal, state or local 5 authorities for any criminal conduct. 6 (14) Evidence Affecting Perception, Recollection, Ability to Communicate, or Truth Telling.

7 The defense requests any evidence, including any medical or psychiatric report or evaluation, that 8 tends to show that any prospective witness' ability to perceive, remember, communicate, or tell the 9 truth is impaired, and any evidence that a witness has ever used narcotics or other controlled 10 substance, or has ever been an alcoholic. 11 (15) Witness Addresses. The defendant requests the name and last known address of each

12 prospective government witness. The defendant also requests the name and last known address of 13 every witness to the crime or crimes charged (or any of the overt acts committed in furtherance 14 thereof) who will not be called as a government witness. 15 (16) Name of Witnesses Favorable to the Defendant. The defendant requests the name of

16 any witness who made an arguably favorable statement concerning the defendant or who could not 17 identify him or who was unsure of his identity, or participation in the crime charged. 18 (17) Statements Relevant to the Defense. The defendant requests disclosure of any

19 statement relevant to any possible defense or contention that he might assert. 20 (18) Jencks Act Material. The defendant requests production in advance of trial of all

21 material, including dispatch tapes, which the government must produce pursuant to the Jencks Act, 22 18 U.S.C. § 3500. Advance production will avoid the possibility of delay at the request of defendant 23 to investigate the Jencks material. A verbal acknowledgment that "rough" notes constitute an 24 accurate account of the witness' interview is sufficient for the report or notes to qualify as a 25 statement under section 3500(e)(1). Campbell v. United States, 373 U.S. 487, 490-92 (1963). In 26 United States v. Boshell, 952 F.2d 1101 (9th Cir. 1991) the Ninth Circuit held that when an agent 27 goes over interview notes with the subject of the interview the notes are then subject to the Jencks 28 Act. -5­ 08CR2716-H

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(19) Giglio Information. Pursuant to Giglio v. United States, 405 U.S. 150 (1972), the

2 defendant requests all statements and/or promises, express or implied, made to any government 3 witnesses, in exchange for their testimony in this case, and all other information which could 4 arguably be used for the impeachment of any government witnesses. 5 (20) Agreements Between the Government and Witnesses. The defendant requests

6 discovery regarding any express or implicit promise, understanding, offer of immunity, of past, 7 present, or future compensation, or any other kind of agreement or understanding, including any 8 implicit understanding relating to criminal or civil income tax, forfeiture or fine liability, between 9 any prospective government witness and the government (federal, state and/or local). This request 10 also includes any discussion with a potential witness about or advice concerning any contemplated 11 prosecution, or any possible plea bargain, even if no bargain was made, or the advice not followed. 12 (21) Informants and Cooperating Witnesses. The defendant requests disclosure of the names

13 and addresses of all informants or cooperating witnesses used or to be used in this case, and in 14 particular, disclosure of any informant who was a percipient witness in this case or otherwise 15 participated in the crime charged against Mr. Macias-Encinas. The government must disclose the 16 informant's identity and location, as well as disclose the existence of any other percipient witness 17 unknown or unknowable to the defense. Roviaro v. United States, 353 U.S. 52, 61-62 (1957). The 18 government must disclose any information derived from informants which exculpates or tends to 19 exculpate the defendant. 20 (22) Bias by Informants or Cooperating Witnesses. The defendant requests disclosure of any

21 information indicating bias on the part of any informant or cooperating witness. Giglio v. United 22 States, 405 U.S. 150 (1972). Such information would include what, if any, inducements, favors, 23 payments or threats were made to the witness to secure cooperation with the authorities. 24 (23) Residual Request. Mr. Macias-Encinas intends by this discovery motion to invoke his

25 rights to discovery to the fullest extent possible under the Federal Rules of Criminal Procedure and 26 the Constitution and laws of the United States. Mr. Macias-Encinas requests that the government 27 provide him and his attorney with the above requested material sufficiently in advance of trial to 28 avoid unnecessary delay prior to cross-examination. -6­ 08CR2716-H

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1 2 3 4 III. MOTION TO SUPPRESS STATEMENTS The Supreme Court has determined that a person must be advised of his Miranda rights if,

5 and when, he is "subjected to restraints comparable to those of a formal arrest." Berkemer v. 6 McCarty, 468 U.S. 420 (1984). "[A] host of factors must be considered in order to determine 7 whether the suspect's freedom of action is curtailed to a degree associated with formal arrest.'" 8 Berkemer, 468 U.S. 420. Among the factors to be considered are whether the suspect was 9 questioned in familiar or at least neutral surroundings, the number of law enforcement Agents 10 present at the scene, the degree of physical restraint placed upon the suspect, and the duration and 11 character of the interrogation. Streifel, 781 F.2d at 961 n.13 (quoting 1 W. Lafave & J. Israel, 12 Criminal Procedure § 6.6, at 494-99 (1984). Blocking a vehicle's ability to exit is also relevant to the 13 inquiry. Streifel, 781 F.2d at 962 n.15. 14 In the instant case, the detention of Mr. Smith had all the hallmarks of an arrest. Prior to any

15 questioning, Mr. Smith should have been advised of his Miranda rights, and as a result of the Agents' 16 failure to do so, any statements or evidence obtained thereafter must be suppressed. 17 18 19 20 IV. MOTION FOR LEAVE TO FILE FURTHER MOTIONS Defense counsel has received limited discovery in this case. As information comes to

21 light, due to the government providing additional discovery in response to these motions or an 22 order of this Court, the defense may find it necessary to file further motions. It is, therefore, 23 requested that defense counsel be allowed the opportunity to file further motions based upon 24 information gained through the discovery process. 25 26 27 28 /// /// -7­ 08CR2716-H

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V. CONCLUSION For the foregoing reasons, Mr. Smith respectfully requests that this Court grant these

4 motions. 5 6 7 Dated:9/8/08 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8­ 08CR2716-H s/ Shaun Khojayan ______________ SHAUN KHOJAYAN Attorney for Defendant Smith Email: [email protected] Respectfully submitted, LAW OFFICES OF SHAUN KHOJAYAN & ASSOCIATES, P.L.C.

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CERTIFICATE OF SERVICE Counsel for Defendant certifies that the foregoing pleading is true and accurate and that a

3 copy of the foregoing document has been served this day upon: 4 Electronic Mail Notice List 5 The following are those who are currently on the list to receive e-mail notices for this case. 6 7 8 9 10 11 Manual Notice List Shaun Khojayan [email protected] [email protected] Luella Mendoza Caldito [email protected]

The following is the list of attorneys who are not on the list to receive e-mail notices for this case (who therefore require manual noticing). You may wish to use your mouse to select and copy 12 this list into your word processing program in order to create notices or labels for these recipients. 13 14 15 16 17 Dated: September 8, 2008 18 19 20 21 22 23 24 25 26 27 28 -1­
CERTIFICATE OF SERVICE

·

(No manual recipients)

I declare under penalty of perjury that the foregoing is true and correct.

s/ Shaun Khojayan___________ Shaun Khojayan, Declarant