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KRIS J. KRAUS California State Bar No. 233699 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 San Diego, California 92101-5008 Telephone: (619) 234-8467 [email protected] Attorneys for Mr. Juan Ruben Prieto-Aparicio

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE THOMAS J. WHELAN) UNITED STATES OF AMERICA, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) CASE NO. 08CR2583-TJW DATE: SEPTEMBER 15, 2008 TIME: 2:00 p.m. NOTICE OF MOTIONS AND MOTIONS TO: (1) (2) (3) COMPEL DISCOVERY; PRESERVE EVIDENCE; AND GRANT LEAVE TO FILE FURTHER MOTIONS.

JUAN RUBEN PRIETO-APARICIO Defendant.

KAREN P. HEWITT, UNITED STATES ATTORNEY, AND DOUGLAS KEEHN, ASSISTANT UNITED STATES ATTORNEY: PLEASE TAKE NOTICE that on September 15, 2008, at 2:00 p.m., or as soon thereafter as counsel

may be heard, defendant, Juan Ruben Prieto-Aparicio, by and through his attorneys, Kris J. Kraus, and Federal Defenders of San Diego, Inc., will ask this Court to enter an order granting the following motions. // // // // // // //

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MOTIONS Defendant, Juan Ruben Prieto-Aparicio, by and through his attorneys, Kris J. Kraus, and Federal Defenders of San Diego, Inc., asks this Court pursuant to the United States Constitution, the Federal Rules of Criminal Procedure, and all other applicable statutes, case law, and local rules for an order to: (1) (2) (3) Compel Discovery; 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 facts and memorandum of points and authorities, the files and records in the above-captioned matter, and any and all other materials that may come to this Court's attention prior to or during the hearing of these motions. Respectfully submitted,

/s/ Kris J. Kraus KRIS J. KRAUS Federal Defenders of San Diego, Inc. Attorneys for Mr. Prieto-Aparicio [email protected]

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CERTIFICATE OF SERVICE Counsel for Defendant certifies that the foregoing pleading is true and accurate to the best of his information and belief, and that a copy of the foregoing document has been served this day upon: Douglas Keehn Assistant United States Attorney [email protected]

/s/ Kris J. Kraus KRIS J. KRAUS Federal Defenders 225 Broadway, Suite 900 San Diego, CA 92101-5030 (619) 234-8467 (tel) (619) 687-2666 (fax) e-mail: [email protected]

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1 KRIS J. KRAUS California State Bar No. 233699 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 Juan Ruben Prieto-Aparicio 6 7 8 9 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE THOMAS J. WHELAN) ) ) ) ) ) ) ) ) ) ) I. BACKGROUND1 On June 26, 2008, Border Patrol Agent Zamora was performing line watch duties in Imperial Beach, CASE NO. 08CR2583-TJW

11 UNITED STATES OF AMERICA, 12 13 v. 14 JUAN RUBEN PRIETO-APARICIO, 15 16 17 18 19 Defendant. Plaintiff,

STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS

20 California when he responded to a report of suspected illegal alien activity in an area known as "The Steel 21 Yard." "The Steel Yard" is approximately three miles east of the San Ysidro, California Port of Entry and fifty 22 yards north of the International Border. After a brief search, Zamora found three individuals. 23 After identifying himself as a border patrol agent, Zamora interrogated the three individuals as to

24 their immigration status. All three are alleged to have said that they were illegally present inside the United 25 States. After they were transported to the Imperial Beach Border Patrol Station, one of the individuals was 26 identified as Mr. Prieto-Aparicio. A subsequent records check revealed that Mr. Prieto-Aparicio had a criminal 27 and immigration record. Prosecution was authorized. 28 Unless otherwise stated, the "facts" referenced in these papers come from government-produced documents that the defense continues to investigate. Mr. Prieto-Aparicio does not admit the accuracy of this information and reserves the right to challenge it at any time.
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On August 6, 2008, the grand jury returned a true bill of indictment charging Mr. Prieto-Aparicio

2 with one (1) count of violating 8 U.S.C. § 1326(a) & (b) -Attempted Entry After Deportation. These motions 3 follow. 4 5 6 II. MOTION TO COMPEL DISCOVERY Mr. Prieto-Aparicio moves for the production of the following discovery. This request is not limited

7 to those items that the prosecutor knows of, but rather includes all discovery listed below that is in the 8 custody, control, care, or knowledge of any "closely related investigative [or other] agencies." See 9 United States v. Bryan, 868 F.2d 1032 (9th Cir. 1989). 10 To date, defense counsel has received 26 pages of discovery. Mr. Prieto-Aparicio respectfully

11 requests that the government be ordered to produce discovery because Mr. Prieto-Aparicio has reason to 12 believe that he has not received all the discoverable material in his case. Mr. Prieto-Aparicio specifically 13 requests production of a copy of the taped proceedings and any and all documents memorializing the 14 deportation proceedings allegedly held and any other proceedings that the government intends to rely upon 15 at trial. This request includes discovery of materials known to the government attorney, as well as discovery 16 of materials which the government attorney may become aware of through the exercise of due diligence. See 17 FED. R. CRIM. P. 16. 18 Mr. Prieto-Aparicio has also not received a full copy of his A-file. Mr. Prieto-Aparicio filed a request

19 for his A-file with the National Records Center pursuant to the Freedom of Information Act, however, he fears 20 that his request will not be processed until after the completion of his trial. Thus, Mr. Prieto-Aparicio requests 21 a full copy of his A-file and any other immigration files linked to his immigration history. Mr. Prieto-Aparicio 22 specifically requests the documents memorializing the alleged deportation proceedings and any other 23 proceedings that the government intends to rely upon at trial. 24 Mr. Prieto-Aparicio additionally requests that the Court order the government to allow him the

25 opportunity to review his A-file in its entirety. First, the A-file contains documentation concerning his alleged 26 deportation. Part of Mr. Prieto-Aparicio defense may be that his underlying deportation was invalid. The 27 documents in the A-file would help illuminate the validity or futility of such a defense. For example, A-file 28 //

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1 documents typically contain biographical information. Such information is essential to determining whether 2 Mr. Prieto-Aparicio's deportation was invalid. 3 Second, the government will likely try to show at trial that a government officer searched the A-file

4 and did not find an application by Mr. Prieto-Aparicio for permission to enter the United States. Mr. Prieto5 Aparicio anticipates that the government will attempt to admit a "Certificate of Non-Existence of Record" 6 against him, arguing that if Mr. Prieto-Aparicio had ever applied for permission to enter the United States, 7 such an application would be found in the A-file and because such an application is not in the A-file, Mr. 8 Prieto-Aparicio must not have applied for permission to enter the United States. 9 Although the certificate might be admissible, the question of the thoroughness of the search

10 conducted by the government of the A-file is, and should be, open to cross-examination. United States v. 11 Sager, 227 F.3d 1138, 1145 (2000) (error not to allow jury to "grade the investigation."). Mr. Prieto-Aparicio 12 should be able to review his A-file in order to see whether any application for lawful admission exists. 13 Moreover, Mr. Prieto-Aparicio should also be able to verify whether other documents that would ordinarily 14 be in the A-file are "non-existent," or otherwise missing from his A-file. Mr. Prieto-Aparicio may assert a 15 defense that his application for lawful entry was lost or otherwise misplaced by the government. He must be 16 allowed the opportunity to review his A-file and the manner in which it is being maintained by the government 17 in order to present this defense. 18 In addition, Mr. Prieto-Aparicio moves for the production by the government of the following

19 discovery. This request is not limited to those items that the prosecutor knows of, but rather includes all 20 discovery listed below that is in the custody, control, care, or knowledge of any government agency. See 21 generally Kyles v. Whitley, 514 U.S. 419 (1995); United States v. Bryan, 868 F.2d 1032 (9th Cir. 1989). 22 (1) Mr. Prieto-Aparicio's Statements. The government must disclose to Mr. Prieto-Aparicio all

23 copies of any written or recorded statements made by him; the substance of any statements made by him that 24 the government intends to offer in evidence at trial; any response by him to interrogation; the substance of any 25 oral statements which the government intends to introduce at trial and any written summaries of him oral 26 statements contained in the handwritten notes of government agent; any response to any Miranda warnings 27 that may have been given to him; as well as any other statements by him. FED. R. CRIM. P. 16(a)(1)(A). The 28 Advisory Committee Notes and the 1991 amendments to Rule 16 make clear that the government must reveal

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1 all Mr. Prieto-Aparicio's statements, whether oral or written, regardless of whether the government intends 2 to make any use of those statements. Additionally, the government must "disclose any written record which 3 contains reference to a relevant oral statement by Mr. Prieto-Aparicio which was in response to interrogation, 4 without regard to whether the prosecution intends to use the statement at trial." FED. R. CRIM. P. 16 advisory 5 committee notes (1991 Amendment) (emphasis added). 6 (2) Arrest Reports, Notes, Dispatch Tapes, and Audio/Video Recordings. Mr. Prieto-Aparicio also

7 specifically requests that all arrest reports, notes, and dispatch or any other audio/video recordings that relate 8 to the circumstances surrounding arrest or any questioning, be turned over. This request includes, but is not 9 limited to, any rough notes, records, reports, in field communication between officers, transcripts or other 10 documents in which statements of Mr. Prieto-Aparicio or any other discoverable material is contained. This 11 request includes any redacted portions of the Report of Investigation ("ROI") and any subsequent 12 ROIs that the case agent or any other agent has written. This is all discoverable under FED. R. CRIM. P. 13 16(a)(1)(A) and Brady v. Maryland, 373 U.S. 83 (1963). See also Loux v. United States, 389 F.2d 911 (9th 14 Cir.), cert. denied, 393 U.S. 869 (1968); United States v. Johnson, 525 F.2d 999 (2d Cir. 1975), cert. denied, 15 424 U.S. 920 (1976); United States v. Lewis, 511 F.2d 798 (D.C. Cir. 1975); United States v. Pilnick, 267 16 F. Supp. 791 (S.D.N.Y. 1967). 17 Arrest reports, investigator's notes, memos from arresting officers, dispatch tapes, audio/video

18 recordings, sworn statements, and prosecution reports pertaining to the defendant are available under FED. 19 R. CRIM. P. 16(a)(1)(B) and (c), FED. R. CRIM. P. 26.2 and 12(I). Preservation of rough notes is specifically 20 requested, whether or not the Government deems them discoverable at this time. 21 (3) Brady Material. Mr. Prieto-Aparicio requests all documents, statements, agents' reports, and

22 tangible evidence favorable to him on the issue of guilt and/or that affects the credibility of the government's 23 case. Impeachment, as well as, exculpatory evidence falls within Brady's definition of evidence favorable to 24 the accused. United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 427 U.S. 97 (1976). 25 (4) Any Information That May Result in a Lower Sentence Under The Sentencing Guidelines. As

26 discussed above, this information is discoverable under Brady v. Maryland, 373 U.S. 83 (1963). This request 27 includes any cooperation or attempted cooperation by Mr. Prieto-Aparicio, as well as any information that 28 could affect any base offense level or specific offense characteristic under Chapter Two of the Sentencing

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1 Guidelines. Also included in this request is any information relevant to a Chapter Three adjustment, a 2 determination of Mr. Prieto-Aparicio's criminal history, or any other application of the Guidelines. 3 (5) Mr. Prieto-Aparicio's Prior Record. Evidence of prior record is discoverable under FED. R. CRIM.

4 P. 16(a)(1)(B). Defense Counsel specifically requests a complete copy of any criminal record. Mr. Prieto5 Aparicio requests all evidence, documents, records of judgments and convictions, photographs and tangible 6 evidence, and information pertaining to any prior arrests and convictions. 7 (6) Any Proposed 404(b) Evidence. Evidence of prior similar acts is discoverable under FED. R.

8 CRIM. P. 16(a)(1)(c) and FED. R. EVID. 404(b) and 609. In addition, under FED. R. EVID. 404(b), "upon request 9 of the accused, the prosecution . . . shall provide reasonable notice in advance of trial . . . of the general nature 10 . . ." of any evidence the government proposes to introduce under FED. R. EVID. 404(b) at trial. Sufficient 11 notice requires the government to "articulate precisely the evidential hypothesis by which a fact of 12 consequence may be inferred from the other acts evidence." United States v. Mehrmanesh, 689 F.2d 822, 830 13 (9th Cir. 1982) (emphasis added; internal citations omitted); see also United States v. Brooke, 4 F.3d 1480, 14 1483 (9th Cir. 1993) (reaffirming Mehrmanesh and reversing convictions). 15 This includes any "TECS" records (records of prior border crossings) that the government intends

16 to introduce at trial, whether in its case-in-chief, impeachment, or rebuttal. United States v. Vega, 188 F.3d 17 1150, 1154-55 (9th Cir. 1999). Although there is nothing intrinsically improper about prior border crossings, 18 they are nonetheless subject to 404(b), as they are "other acts" evidence that the Government must produce 19 before trial. United States v. Vega, 188 F.3d 1150, 1154-55 (9th Cir. 1999). 20 Mr. Prieto-Aparicio requests that such notice be given at least four (4) weeks before trial to give

21 the defense time to adequately investigate and prepare for trial. 22 (7) Evidence Seized. Evidence seized as a result of any search, either warrantless or with a warrant,

23 is discoverable under FED. R. CRIM. P. 16(a)(1)(c), and Mr. Prieto-Aparicio requests it. 24 (8) Tangible Objects. Mr. Prieto-Aparicio requests, under FED. R. CRIM. P. 16(a)(1)(c), the

25 opportunity to inspect and copy as well as test, if necessary, all other documents and tangible portions objects, 26 including photographs, books, papers, documents, photographs of buildings or places or copies of thereof 27 which are material to the defense or intended for use in the government's case-in-chief or were obtained from 28 or belong to him.

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Specifically, Mr. Prieto-Aparicio requests color copies of all photographs in this case in the

2 Government's possession. 3 (9) Evidence of Bias or Motive to Lie. Mr. Prieto-Aparicio requests any evidence that any

4 prospective government witness is biased or prejudiced against Mr. Prieto-Aparicio, or has a motive to falsify 5 or distort his or him testimony. Pennsylvania v. Ritchie, 480 U.S. 39 (1987); United States v. Strifler, 851 6 F.2d 1197 (9th Cir. 1988). 7 (10) Impeachment Evidence. Mr. Prieto-Aparicio requests any evidence that any prospective

8 government witness has engaged in any criminal act whether or not resulting in a conviction and whether any 9 witness has made a statement favorable to Mr. Prieto-Aparicio. See FED. R. EVID. 608, 609 and 613. Such 10 evidence is discoverable under Brady v. Maryland, supra. See United States v. Strifler, 851 F.2d 1197 (9th 11 Cir. 1988) (witness' prior record); Thomas v. United States, 343 F.2d 49 (9th Cir. 1965) (evidence that 12 detracts from a witness' credibility).All of this is relevant impeachment information. 13 (11) Evidence of Criminal Investigation of Any Government Witness. Mr. Prieto-Aparicio requests

14 any evidence that any prospective witness is under investigation by federal, state or local authorities for any 15 criminal conduct. United States v. Chitty, 760 F.2d 425 (2d Cir. 1985). 16 (12) Evidence Affecting Perception, Recollection, Ability to Communicate. Mr. Prieto-Aparicio

17 requests any evidence, including any medical or psychiatric report or evaluation, tending to show that any 18 prospective witness's ability to perceive, remember, communicate, or tell the truth is impaired; and any 19 evidence that a witness has ever used narcotics or other controlled substance, or has ever been an alcoholic. 20 United States v. Strifler, 851 F.2d 1197 (9th Cir. 1988); Chavis v. North Carolina, 637 F.2d 213, 224 (4th Cir. 21 1980). 22 (13) Witness Addresses. Mr. Prieto-Aparicio requests the name and last known address of each

23 prospective government witness. See United States v. Napue, 834 F.2d 1311 (7th Cir. 1987); United States 24 v. Tucker, 716 F.2d 576 (9th Cir. 1983) (failure to interview government witnesses by counsel is ineffective); 25 United States v. Cook, 608 F.2d 1175, 1181 (9th Cir. 1979) (defense has equal right to talk to witnesses). Mr. 26 Prieto-Aparicio also requests the name and last known address of every witness to the crime or crimes charged 27 (or any of the overt acts committed in furtherance thereof) who will not be called as a government witness. 28 United States v. Cadet, 727 F.2d 1453 (9th Cir. 1984).

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(14) Name of Witnesses Favorable to Mr. Prieto-Aparicio. Mr. Prieto-Aparicio requests the name

2 of any witness who made any arguably favorable statement concerning him or who could not identify him or 3 who was unsure of him identity, or participation in the crime charged. Jackson v. Wainwright, 390 F.2d 288 4 (5th Cir. 1968); Chavis v. North Carolina, 637 F.2d 213, 223 (4th Cir. 1980); Jones v. Jago, 575 F.2d 1164, 5 1168 (6th Cir.), cert. denied, 439 U.S. 883 (1978); Hudson v. Blackburn, 601 F.2d 785 (5th Cir. 1979), cert. 6 denied, 444 U.S. 1086 (1980). 7 (15) Statements Relevant to the Defense. Mr. Prieto-Aparicio requests disclosure of any statement

8 that may be "relevant to any possible defense or contention" that he might assert. United States v. Bailleaux, 9 685 F.2d 1105 (9th Cir. 1982). This includes grand jury transcripts that are relevant to Mr. Prieto10 Aparicio's motion to dismiss the indictment. 11 (16) Jencks Act Material. Mr. Prieto-Aparicio requests all material to which he is entitled pursuant

12 to the Jencks Act, 18 U.S.C. § 3500, reasonably in advance of trial, including dispatch tapes. A verbal 13 acknowledgment that "rough" notes constitute an accurate account of the witness' interview is sufficient for 14 the report or notes to qualify as a statement under § 3500(e)(1). Campbell v. United States, 373 U.S. 487, 15 490-92 (1963). 16 (17) Giglio Information. Pursuant to Giglio v. United States, 405 U.S. 150 (1972), Mr. Prieto-

17 Aparicio requests all statements and/or promises, expressed or implied, made to any government witnesses, 18 in exchange for their testimony in this case, and all other information which could arguably be used for the 19 impeachment of any government witnesses. 20 (18) Reports of Scientific Tests or Examinations. Pursuant to FED. R. CRIM. P. 16(a)(1)(D), Mr.

21 Prieto-Aparicio requests the reports of all tests and examinations conducted upon the evidence in this case. 22 Including, but not limited to, any fingerprint testing done upon any evidence seized in this case, that is within 23 the possession, custody, or control of the government, the existence of which is known, or by the exercise of 24 due diligence may become known, to the attorney for the government, and which are material to the 25 preparation of the defense or are intended for use by the government as evidence in chief at the trial. 26 (19) Henthorn Material. Mr. Prieto-Aparicio requests that the prosecutor review the personnel files

27 of the officers involved in this arrests, and those who will testify, and produce to him any exculpatory 28 information at least two weeks prior to trial and one week prior to the motion hearing. See United States v.

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1 Henthorn, 931 F.2d 29 (9th Cir. 1991). In addition, he requests that if the government is uncertain whether 2 certain information is to be turned over pursuant to this request, that it produce such information to the Court 3 in advance of the trial and the motion hearing for an in camera inspection. 4 (20) Informants and Cooperating Witnesses. Mr. Prieto-Aparicio requests disclosure of the names

5 and addresses of all informants or cooperating witnesses used or to be used in this case. To the extent that 6 there was any informant, or any other tip leading to a TECS hit in this case Mr. Prieto-Aparicio requests 7 disclosure of the names and addresses of all informants or cooperating witnesses used or to be used in this 8 case, and in particular, disclosure of any informant who was a percipient witness in this case or otherwise 9 participated in the crime charged against him. The government must disclose the informant's identity and 10 location, as well as disclose the existence of any other percipient witness unknown or unknowable to the 11 defense. Roviaro v. United States, 353 U.S. 53, 61-62 (1957). Mr. Prieto-Aparicio also requests disclosure 12 of any information indicating bias on the part of any informant or cooperating witness. Giglio v. United States, 13 405 U.S. 150 (1972). Such information would include what, if any, inducements, favors, payments, or threats 14 were made to the witness to secure cooperation with the authorities. 15 (21) Expert Witnesses. Mr. Prieto-Aparicio requests disclosure of the identities of any expert

16 witnesses the government intends to call at trial as well as "a written summary of testimony that the 17 government intends to use," including the "witnesses' opinions, the bases and the reasons for those opinions, 18 and the witnesses' qualifications." FED. R. CRIM. P. 16(a)(1)(E). 19 (22) Personnel Records of Government Officers Involved in the Arrest. Mr. Prieto-Aparicio requests

20 all citizen complaints and other related internal affairs documents involving any of the immigration officers 21 or other law enforcement officers who were involved in the investigation, arrest and interrogation of Mr. 22 Prieto-Aparicio. See Pitchess v. Superior Court, 11 Cal. 3d 531, 539 (1974). Because of the sensitive nature 23 of these documents, defense counsel will be unable to procure them from any other source. 24 (23) Training of Relevant Law Enforcement Officers. Mr. Prieto-Aparicio requests copies of all

25 written, videotaped or otherwise recorded policies or training instructions or manuals issued by all law 26 enforcement agencies involved in the case (United States Customs Service, Border Patrol, INS, Department 27 of Homeland Security, etc.) to their employees regarding: (a) the handling of vehicles suspected to be 28 transporting contraband across the port of entry; (b) the referral to secondary inspection of persons within

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1 those vehicles; (c) the detention of individuals within those vehicles; (d) the search of those vehicles and the 2 occupants of those vehicles, including the proper means of obtaining consent to search and what constitutes 3 consent to search; (e) the informing of suspects of their Constitutional rights; (f) the questioning of suspects 4 and witnesses. Mr. Prieto-Aparicio also requests all written or otherwise attainable information regarding the 5 training of ICE agents at ports of entry in California to detect or discover narcotics in vehicles entering the 6 United States, including any training offered to Border Patrol, INS, or officers of Homeland Security 7 Department, by the DEA or other law enforcement agencies or individuals. 8 (24) Names and Contact Information for All Agents in the Field at the Time of the Arrest. Mr. Prieto-

9 Aparicio requests the name and contact information for each of the agents in the field at the time of the arrest. 10 See United States v. Napue, 834 F.2d 1311 (7th Cir. 1987); United States v. Tucker, 716 F.2d 576 (9th Cir. 11 1983) (failure to interview government witnesses by counsel is ineffective); United States v. Cook, 608 F.2d 12 1175, 1181 (9th Cir. 1979) (defense has equal right to talk to witnesses). Mr. Prieto-Aparicio also requests 13 the name and contact information of every agent to the crime or crimes charged (or any of the overt acts 14 committed in furtherance thereof) who will not be called as a government witness. United States v. Cadet, 727 15 F.2d 1453 (9th Cir. 1984). 16 (25) Agreements Between the Government and Witnesses. Mr. Prieto-Aparicio requests discovery

17 regarding any express or implicit promise, understanding, offer of immunity, of past, present, or future 18 compensation, or any other kind of agreement or understanding, including any implicit understanding relating 19 to criminal or civil income tax, forfeiture or fine liability, between any prospective government witness and 20 the government (federal, state and/or local). This request also includes any discussion with a potential witness 21 about or advice concerning any immigration benefits, any contemplated prosecution, or any possible plea 22 bargain, even if no bargain was made or the advice not followed. 23 (26) Residual Request. Mr. Prieto-Aparicio intends by this discovery motion to invoke him rights to

24 discovery to the fullest extent possible under the Federal Rules of Criminal Procedure and the Constitution 25 and laws of the United States. This request specifically includes all subsections of Rule 16. Mr. Prieto26 Aparicio requests that the government provide him and his attorney with the above requested material 27 sufficiently in advance of trial. 28 //

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III. THIS COURT SHOULD ORDER PRESERVATION OF EVIDENCE Mr. Prieto-Aparicio requests the preservation of all physical evidence in this case. This includes any

4 evidence that may be destroyed, lost, or otherwise put out of the possession, custody, or care of the 5 government (or its private contractors) in this case. United States v. Riley, 189 F.3d 802, 806-08 6 (9th Cir.1999). This request includes, but is not limited to: (1) the results of any fingerprint analysis; (2) Mr. 7 Prieto-Aparicio's personal effects; (3) the agents' rough notes; (4) any radio broadcast, if it is recorded; (5) 8 any evidence seized from Mr. Prieto-Aparicio or any third party (i.e., material witnesses, co-defendants); (6) 9 any alleged contraband seized in this case; (7) and any cellular phone(s). This request also includes any 10 material or percipient witnesses who might be deported or otherwise likely to become unavailable (e.g. 11 undocumented aliens and transients). 12 It is requested that the prosecutor be ordered to question all the agencies and individuals involved in

13 the prosecution and investigation of this case to determine if such evidence exists, and if it does exist, to 14 inform those parties to preserve any such evidence. 15 16 17 IV. MOTION FOR LEAVE TO FILE ADDITIONAL MOTIONS Defense counsel has received 26 pages of discovery in this case and has not yet had the opportunity

18 to complete important aspects of the investigation. As information comes to light, due to the government 19 providing additional discovery in response to these motions or an order of this Court, Mr. Prieto-Aparicio will 20 almost certainly find it necessary to file further motions. It is, therefore, requested that defense counsel be 21 allowed the opportunity to file further motions based upon information gained through the discovery process. 22 // 23 // 24 // 25 // 26 // 27 // 28 //

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V. CONCLUSION For the foregoing reasons, Mr. Prieto-Aparicio respectfully requests that the Court grant the above

4 motions. 5 6 7 Dated: August 26, 2008 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /s/ Kris J. Kraus KRIS J. KRAUS Federal Defenders of San Diego, Inc. Attorneys for Mr. Prieto-Aparicio [email protected] Respectfully submitted,

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