Free Motion for Fingerprint Exemplars - District Court of California - California

Case 3:08-cr-02584-H

Document 10

Filed 08/29/2008

Page 1 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

KAREN P. HEWITT United States Attorney CALEB E. MASON Assistant United States Attorney California Bar No. 246653 Federal Office Building 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-5956/(619)235-4716(Fax) Email: [email protected] Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, v. MAURILLO SOLANO-RAMIREZ, Defendant. ) ) ) ) ) ) ) ) ) ) ) Case No. 08CR2584H Date: Sep. 15, 2008 Time: 2 p.m. The Honorable Marilyn L. Huff UNITED STATES' NOTICE OF MOTIONS AND MOTIONS FOR: (1) (2) (3) FINGERPRINT EXEMPLARS; RECIPROCAL DISCOVERY; AND LEAVE TO FILE FURTHER MOTIONS

PLEASE TAKE NOTICE that on September 15, 2008, at 2 p.m., or as soon thereafter as 21 22 23 24 25 26 27 28 // // counsel may be heard, plaintiff, UNITED STATES OF AMERICA, by and through its counsel, Karen P. Hewitt, United States Attorney, and Caleb E. Mason, Assistant United States Attorney, will move the Court to enter an order granting the following motions. //

Case 3:08-cr-02584-H

Document 10

Filed 08/29/2008

Page 2 of 7

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 A.

MOTIONS The plaintiff, UNITED STATES OF AMERICA, by and through its counsel, KAREN P. HEWITT, United States Attorney, and Caleb E. Mason, Assistant United States Attorney, hereby moves this Court for an order granting the following motions for: 1. 2. 3. Fingerprint Exemplars; Reciprocal Discovery; and Leave to File Further Motions.

The motions noted above are based on the files and records of this case, together with the following statement of facts and memorandum of points and authorities.

I STATEMENT OF THE CASE On August 6, 2008, a federal grand jury in the Southern District of California returned an Indictment charging Maurillo Solano-Ramirez ("Defendant") with being a deported alien found in the United States, in violation of 8 U.S.C. § 1326(a) and (b). On August 7, 2008, Defendant was arraigned on the Indictment and pled not guilty. The motion hearing/trial setting date is September 15, 2008. The United States hereby files the following motions for fingerprint exemplars, reciprocal discovery and leave to file further motions. II STATEMENT OF FACTS OFFENSE CONDUCT

On July 1, 2008, at approximately 4:30 a.m., Border Patrol Agent Weir was patrolling along the U.S.-Mexico border approximately 25 miles east of Calexico, CA. Agent Weir observed a line of footprints leading north from the border through sand dunes toward the All-American canal. Agent Weir followed the footprints to the canal bank, where they terminated at a concrete dam called "Drop 2" that spans the canal. Agent Weir radioed a remote surveillance camera operator for assistance. The operator scanned the area, and observed five individuals in the bushes on the other side of the dam. Agent Weir crossed the dam and approached the individuals. He identified himself as a Border Patrol Agent and conducted a field interview with the individuals. When Agent Weir interviewed 2
08CR2584H

Case 3:08-cr-02584-H

Document 10

Filed 08/29/2008

Page 3 of 7

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

Defendant, Defendant freely admitted that he had entered the country illegally, that he was a citizen and national of Mexico, and that he did not have documentation to enter or remain legally in the United States. Defendant, along with the other individuals, was arrested and transported to the Calexico Border Patrol Station for processing. B. DEFENDANT'S IMMIGRATION HISTORY A records check conducted at the station, based on Defendant's fingerprints and biographical data, confirmed that Defendant is a citizen and national of Mexico, and that Defendant was ordered excluded, deported, and removed from the United States to Mexico by an immigration judge on March 27, 2000, and was physically removed to Mexico that same day. Defendant has been removed on seven other occasions, most recently on April 8, 2008. Defendant also has 33 voluntary returns. There is no evidence in the reports and records maintained by the Department of Homeland Security that Defendant has applied to the U.S. Attorney General or the Secretary of the Department of Homeland Security to lawfully return to the United States. C. DEFENDANT'S CRIMINAL HISTORY

Records checks revealed the following criminal history: On March 30, 2000, Defendant was convicted of Illegal Entry in violation of 8 U.S.C. § 1325, and sentenced to 30 days' imprisonment. On May 1, 2003, Defendant was convicted of Illegal Entry in violation of 8 U.S.C. § 1325, and sentenced to 90 days' imprisonment. On April 13, 2004, Defendant was convicted of Illegal Entry in violation of 8 U.S.C. § 1325, and sentenced to 100 days' imprisonment . On June 9, 2005, Defendant was convicted of Illegal Entry in violation of 8 U.S.C. § 1325, and sentenced to 90 days' imprisonment. On July 9, 2007, Defendant was convicted of Illegal Entry in violation of 8 U.S.C. § 1325, and sentenced to 120 days' imprisonment. On October 18, 2007, Defendant was convicted of Illegal Entry in violation of 8 U.S.C. § 1325, and sentenced to 150 days' imprisonment. On August 22, 2005, Defendant was convicted of Threatening with the Intent to Terrorize, in violation of California Penal Code § 422, and sentenced to sixteen months' imprisonment. D. DEFENDANT'S STATEMENT

The above-listed immigration and criminal history was received by the Border Patrol agents at approximately 9:45 a.m. on July 1, 2008. Upon reviewing Defendant's criminal and immigration

3

08CR2584H

Case 3:08-cr-02584-H

Document 10

Filed 08/29/2008

Page 4 of 7

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

history, the agents determined that Defendant could be subject to criminal prosecution, and advised him of his Miranda rights at approximately 1:25 p.m. on July 1, 2008. Defendant waived his rights and made a statement. He admitted that he was a resident and citizen of Mexico, that he has been deported, and that he has no legal authorization to enter or remain in the United States. He stated that he had been living in Mexicali, but had received a phone call from a smuggler he knows in Indio, California, asking him to smuggle four individuals into the United States. He agreed to do so for a fee of $300 per person. He stated that he guided the four individuals through the desert and across the canal, and that he was to meet a vehicle on Highway 78. He further stated that he had guided people illegally into the United States on approximately ten prior occasions.

III MEMORANDUM OF POINTS AND AUTHORITIES A. MOTION FOR FINGERPRINT EXEMPLARS

The United States requests that the Court order that Defendant make himself available for fingerprinting by the United States' fingerprint expert. See United States v. Ortiz-Hernandez, 427 F.3d 567, 576-77 (9th Cir. 2005) (holding that the government may have defendant fingerprinted and use criminal and immigration records in Section 1326 prosecution). Identifying physical characteristics, including fingerprints, are not testimonial in nature and the collection and use of such evidence would not violate Defendant's Fifth Amendment right against self-incrimination. United States v. DePalma, 414 F.2d 394, 397 (9th Cir. 1969). See also Schmerber v. California, 384 U.S. 757, 761 (1966) (withdrawal of blood is not testimonial). B. MOTION FOR RECIPROCAL DISCOVERY

The United States hereby requests Defendant deliver all material to which the United States may be entitled under Fed. R. Crim. P. 16(b) and 26.2. 1. Defendant's Disclosures Under Fed R. Crim. P. 16(b)

The United States has voluntarily complied and will continue to comply with the requirements of Fed. R. Crim. P. 16(a). As of the date of this Motion, the United States has produced 88 pages of discovery and one DVD (including Defendant's interview, reports of the arresting officers and agents, criminal history reports, and documents concerning Defendant's criminal and immigration history). As

4

08CR2584H

Case 3:08-cr-02584-H

Document 10

Filed 08/29/2008

Page 5 of 7

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

of the date of this Motion, the United States has not received any reciprocal discovery from Defendant. Therefore, the United States invokes Fed. R. Crim. P. 16(b), requiring that reciprocal discovery be provided to the United States. The United States hereby requests 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 he intends to introduce as evidence-in-chief at the trial, or which was prepared by a witness whom Defendant intends to call as a witness. Because the United States will comply with Defendant's request for delivery of reports of examinations, the United States is entitled to the items listed above under Fed. R. Crim. P. 16(b)(1). The United States also requests that the Court make such order as it deems necessary under Fed. R. Crim. P. 16(d)(1) and (2) to ensure that the United States receives the discovery to which it is entitled.

2.

Witness Statements Under Fed. R. Crim. P. 26.2

Fed. R. Crim. P. 26.2 requires the production of prior statements of all witnesses, except a statement made by Defendant. Fed. R. Crim. P. 26.2 requires reciprocal production of statements, in accordance with the Jencks Act. The timeframe established by Fed. R. Crim. P. 26.2 requires the statement to be provided after the witness has testified. In order to expedite trial proceedings, the United States hereby requests 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. C. MOTION FOR LEAVE TO FILE FURTHER MOTIONS

Should new information or legal issues arise, the United States respectfully requests the opportunity to file such further motions as may be appropriate.

5

08CR2584H

Case 3:08-cr-02584-H

Document 10

Filed 08/29/2008

Page 6 of 7

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

IV CONCLUSION For the foregoing reasons, the United States requests the Court grant the United States' Motions for Fingerprint Exemplars, Reciprocal Discovery and Leave to File Further Motions. DATED: August 29, 2008 KAREN P. HEWITT United States Attorney

/S/ Caleb E. Mason CALEB E. MASON Assistant United States Attorney Attorneys for Plaintiff United States of America Email: [email protected]

6

08CR2584H

Case 3:08-cr-02584-H

Document 10

Filed 08/29/2008

Page 7 of 7

1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 UNITED STATES OF AMERICA, 4 Plaintiff, 5 v. 6 MAURILLO SOLANO-RAMIREZ, 7 Defendant. 8 9 10 11 I am not a party to the above-entitled action. I have caused service of: 12 UNITED STATES' NOTICE OF MOTIONS AND MOTIONS FOR: 13 14 15 16 17 18 19 2008. 20 21 22 23 24 25 26 27 28 s/ Caleb E. Mason CALEB E. MASON I declare under penalty of perjury that the foregoing is true and correct. Executed on August 29, on the following parties by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically notifies them. Sylvia Baiz, Esq. Attorney for Defendant (1) (2) (3) FINGERPRINT EXEMPLARS; RECIPROCAL DISCOVERY; AND LEAVE TO GRANT FURTHER MOTIONS IT IS HEREBY CERTIFIED THAT: I, CALEB E. MASON, 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.
) Case No. 08cr2584H ) ) ) CERTIFICATE OF SERVICE ) ) ) ) ) )

7

08CR2584H