Free Motion for Reciprocal Discovery - District Court of California - California

Case 3:08-cr-02700-LAB

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KAREN P. HEWITT United States Attorney LUELLA M. CALDITO Assistant U.S. Attorney California State Bar No. 215953 Federal Office Building 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-7035 [email protected] Attorneys for Plaintiff UNITED STATES OF AMERICA

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, ) ) ) Plaintiff, ) ) ) v. ) ) ) JOSE MARTINEZ-LUCAS, ) ) ) Defendant. ) ) _________________________________ ) CRIM. CASE NO. DATE: TIME: 08CR2700-LAB

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September 22, 2008 2:00 p.m.

GOVERNMENT'S NOTICE OF MOTIONS AND MOTIONS FOR RECIPROCAL DISCOVERY AND TO COMPEL FINGERPRINT EXEMPLARS

NOTICE OF MOTION TO: James Matthew Brown, counsel for defendant, Jose Martinez-Lucas,

PLEASE TAKE NOTICE that on Monday, September 22, 2008, at 2:00 p.m., or as soon 23 thereafter as counsel may be heard, plaintiff, UNITED STATES OF AMERICA, by and through its 24 counsel, Karen P. Hewitt, United States Attorney, and Luella M. Caldito, Assistant United States 25 Attorney, will move the court for an order granting the Government's Motion for Reciprocal Discovery 26 and Motion to Compel Fingerprint Exemplars. 27 28

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MOTION COMES NOW the plaintiff, UNITED STATES OF AMERICA, by and through its counsel, KAREN P. HEWITT, United States Attorney, and Luella M. Caldito, Assistant United States Attorney, will hereby move the court for an order granting the Government's Motion for Reciprocal Discovery and Motion to Compel Fingerprint Exemplars. DATED: September 2, 2008. Respectfully submitted, KAREN P. HEWITT United States Attorney

/s/ Luella M. Caldito LUELLA M. CALDITO Assistant United States Attorney Attorneys for Plaintiff United States of America Email: [email protected]

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08CR2700-LAB

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KAREN P. HEWITT United States Attorney LUELLA M. CALDITO Assistant U.S. Attorney California State Bar No. 215953 Federal Office Building 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-7035 [email protected] Attorneys for Plaintiff UNITED STATES OF AMERICA

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, ) ) ) Plaintiff, ) ) ) v. ) ) ) JOSE MARTINEZ-LUCAS, ) ) ) Defendant. ) ) ________________________________ ) CRIM. CASE NO. DATE: TIME: 08CR2700-LAB

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September 22, 2008 2:00 p.m.

STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF GOVERNMENT'S MOTIONS FOR RECIPROCAL DISCOVERY AND TO COMPEL FINGERPRINT EXEMPLARS

COMES NOW, the plaintiff, UNITED STATES OF AMERICA, by and through its counsel, KAREN P. HEWITT, United States Attorney, and Luella M. Caldito, Assistant United States Attorney, hereby files the attached statement of facts and memorandum of points and authorities in support of Government's motion for reciprocal discovery and fingerprint exemplars. I STATEMENT OF THE CASE On August 13, 2008, a federal grand jury in the Southern District of California returned an Indictment charging Jose Martinez-Lucas ("Defendant") with Deported Alien Found In the United States, in violation of Title 8, United States Code, Section 1326(a) and (b). The Indictment further

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alleges that Defendant had been removed from the United States subsequent to May 18, 2007. Defendant was arraigned on the Indictment on August 12, 2008, and pled not guilty to the Indictment. II STATEMENT OF FACTS A. THE INSTANT OFFENSE

On May 23, 2008, at approximately 3:10 a.m., Border Patrol Agent M. Sablan was patrolling an area approximately three miles east and one mile north of the Tecate, California Port of Entry when he observed nine individuals running northwest away from the immediate border area. Agent Sablan followed the individuals' footprints for approximately 45 minutes on foot until he found the nine individuals attempting to conceal themselves in the brush. Agent Sablan identified himself as a Border Patrol agent. Shortly thereafter, all nine individuals, including Defendant, started running north, away from Agent Sablan. Agent Sablan was able to apprehend six of the individuals, including Defendant. Agent Sablan conducted a field immigration interview of all six individuals. All individuals, including Defendant, admitted that they were citizens of Mexico without valid immigration documents that would allow them to legally enter or remain in the United States. Defendant was arrested and transported to the Tecate Processing Center. Defendant's fingerprints were entered in record check systems, which revealed that Defendant had a criminal history and had been previously deported from the United States. At approximately 9:12 a.m., Defendant was advised of his Miranda rights which he acknowledged and waived. Defendant again stated that he was a citizen of Mexico and did not have any legal documents that would allow him to work or reside in the United States. Defendant further stated that he knew he was illegally entering the United States when he crossed the border. Lastly, Defendant stated that he was going to Bakersfield, California.

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III GOVERNMENT'S MOTIONS MOTION FOR RECIPROCAL DISCOVERY
A.

RULE 16(b)

The United States, pursuant to Rule 16 of the Federal Rules of Criminal Procedure, requests that Defendant permit the United States to inspect, copy, and photograph any and all books, papers, documents, photographs, tangible objects, or make copies of portions thereof, which are within the possession, custody or control of Defendant and which Defendant intends to introduce as evidence in his case-in-chief at trial. The United States further requests that it be permitted to inspect and copy or photograph any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with this case, which are in the possession or control of Defendant, which Defendant intends to introduce as evidence-in-chief at the trial, or which were prepared by a witness whom Defendant intends to call as a witness. Because the United States will comply with a defense request for delivery of reports of examinations, the United States is entitled to the items listed above under Rule 16(b)(1) of the Federal Rules of Criminal Procedure. The United States also requests that the Court make such order as it deems necessary under Rules 16(d)(1) and (2) to ensure that the United States receives the discovery to which it is entitled. 2. RULE 26.2

Rule 26.2 of the Federal Rules of Criminal Procedure requires the production of prior statements of all witnesses, except a statement made by Defendant. This rule thus provides for the reciprocal production of Jencks statements. The time frame established by the rule requires the statement to be provided after the witness has testified. To expedite trial proceedings, the United States hereby requests that Defendant be ordered to supply all prior statements of defense witnesses by a reasonable date before trial to be set by the Court. Such an order should include any form in which these statements are memorialized, including but not limited to, tape recordings, handwritten or typed notes and/or reports. 3

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B.

Motion to Compel Fingerprint Exemplars The Government requests that Defendant be ordered to make himself available for

fingerprint exemplars at a time and place convenient to the Government's fingerprint expert. See United States v. Kloepper, 725 F. Supp. 638, 640 (D. Mass. 1989) (the District Court has "inherent authority" to order a defendant to provide handwriting exemplars, fingerprints, and palmprints). Since the fingerprint exemplars are sought for the sole purpose of proving Defendant's identity, rather for than investigatory purposes, the Fourth Amendment is not implicated. The Ninth Circuit in United States v. Ortiz-Hernandez, 427 F.3d 567, 576-79 (9th Cir. 2005), upheld the Government's ability to compel a defendant to submit to fingerprinting for purposes of identification at trial. See United States v. Garcia-Beltran, 389 F.3d 864, 866-68 (9th Cir. 2004) (citing United States v. Parga-Rosas, 238 F.3d 1209, 1215 (9th Cir. 2001)). Furthermore, an order requiring Defendant to provide fingerprint exemplars does not infringe on Defendant's Fifth Amendment rights. See Schmerber v. California, 384 U.S. 757, 770-71 (1966) (the Fifth Amendment privilege "offers no protection against compulsion to submit to fingerprinting"); Williams v. Schario, 93 F.3d 527, 529 (8th Cir. 1996) (the taking of fingerprints in the absence of Miranda warnings did not constitute testimonial incrimination as proscribed by the Fifth Amendment). IV CONCLUSION For the foregoing reasons, the United States requests that the Government's Motions be granted. DATED: September 2, 2008. Respectfully Submitted, KAREN P. HEWITT United States Attorney /s/ Luella M. Caldito LUELLA M. CALDITO Assistant U.S. Attorney [email protected] 4

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /s/ Luella M. Caldito LUELLA M. CALDITO 5 v. JOSE MARTINEZ-LUCAS, Defendant. IT IS HEREBY CERTIFIED THAT: I, LUELLA M. CALDITO, am a citizen of the United States and am at least eighteen years of age. My business address is 880 Front Street, Room 6293, San Diego, California 92101-8893. I am not a party to the above-entitled action. I have caused service of GOVERNMENT'S NOTICE OF MOTIONS AND MOTIONS FOR RECIPROCAL DISCOVERY AND TO COMPEL FINGERPRINT EXEMPLARS on the following parties by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically notifies them. 1. James Brown UNITED STATES OF AMERICA, Plaintiff, ) ) ) ) ) ) ) ) ) ) Case No. 08CR2700-LAB UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

CERTIFICATE OF SERVICE

I hereby certify that I have caused to be mailed the foregoing, by the United States Postal Service, to the following non-ECF participants on this case: None the last known address, at which place there is delivery service of mail from the United States Postal Service. I declare under penalty of perjury that the foregoing is true and correct. Executed on September 2, 2008.