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

Case 3:08-cr-02578-JM

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KAREN P. HEWITT United States Attorney JOSEPH J.M. ORABONA Assistant U.S. Attorney California State Bar No. 223317 United States Attorney's Office 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-7736 Facsimile: (619) 235-2757 Email: [email protected] Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ) ) Plaintiff, ) ) v. ) ) ABEL FONSECA-OROS, ) ) ) Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ______________________________________) UNITED STATES OF AMERICA, Criminal Case No. 08CR2578-JM Date: August 29, 2008 Time: 11:00 a.m. Place: Courtroom 16 The Honorable Jeffrey T. Miller UNITED STATES' NOTICE OF MOTIONS AND MOTIONS FOR: (1) (2) (3) FINGERPRINT EXEMPLARS; RECIPROCAL DISCOVERY; AND LEAVE TO GRANT FURTHER MOTIONS

PLEASE TAKE NOTICE that on August 29, 2008, at 11:00 a.m., or as soon thereafter as counsel may be heard, plaintiff, UNITED STATES OF AMERICA, by and through its counsel, Karen P. Hewitt, United States Attorney, and Joseph J.M. Orabona, Assistant United States Attorney, will move the Court to enter an order granting the following motions. // // //
08CR2578-JM

Case 3:08-cr-02578-JM

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MOTIONS The plaintiff, UNITED STATES OF AMERICA, by and through its counsel, KAREN P. HEWITT, United States Attorney, and Joseph J.M. Orabona, 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 a separately captioned statement of facts and memorandum of points and authorities. DATED: August 13, 2008 Respectfully submitted, KAREN P. HEWITT United States Attorney /s/ Joseph J.M. Orabona JOSEPH J.M. ORABONA Assistant United States Attorney

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KAREN P. HEWITT United States Attorney JOSEPH J.M. ORABONA Assistant U.S. Attorney California State Bar No. 223317 Federal Office Building 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-7736 Facsimile: (619) 235-2757 Email: [email protected] Attorneys for Plaintiff United States of America

UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES OF AMERICA, ) ) ) Plaintiff, ) ) v. ) ) ) ABEL FONSECA-OROS, ) ) ) Defendant. ) ) ) ) ) _____________________________________ ) Criminal Case No. 08CR2578-JM Date: August 29, 2008 Time: 11:00 a.m. Place: Courtroom 16 The Honorable Jeffrey T. Miller STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES

The plaintiff, UNITED STATES OF AMERICA, by and through its counsel, KAREN P. HEWITT, United States Attorney, and Joseph J.M. Orabona, Assistant United States Attorney, hereby files its Motions in the above-referenced case for (1) Fingerprint Exemplars; (2) Reciprocal Discovery; and (3) Leave to File Further Motions. These motions are based on the files and records of this case together with the attached statement of facts and memorandum of points and authorities. // // //

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I STATEMENT OF THE CASE On August 6, 2008, a federal grand jury in the Southern District of California returned an Indictment charging Abel Fonseca-Oros ("Defendant") with deported alien found in the United States, in violation of 8 U.S.C. § 1326(a) and (b). On August 8, 2008, Defendant was arraigned on the Indictment and pled not guilty. 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 1. Arrest by the Escondido Police Department

On May 23, 2008, at approximately 7:00 p.m., the Temecula Border Patrol I-15 Checkpoint received a phone call requesting a translation request from the Escondido Police Department. Border Patrol Agent A. Rodriguez responded to the Escondido Police Department where they had taken a suspected illegal alien into custody, later identified as Abel Fonseca-Oros ("Defendant"). Escondido Police Officer Whitaker had arrested Defendant for driving without a valid driver's license. Officer Whitaker issued a citation and towed Defendant's vehicle. Agent Rodriguez acted as the translator, and afterward, he questioned Defendant about his citizenship. Defendant freely admitted to being a citizen and national of Mexico. Defendant stated that he did not have any documentation to enter or remain in the United States. Agent Rodriguez placed Defendant under arrest and transported him to the Murrieta Border Patrol Station for processing. 2. Immigration Records Checks

At the Border Patrol Station, Border Patrol agents performed various records checks using Defendant's fingerprints and photograph, which revealed that Defendant had a prior criminal and immigration history. At approximately 8:00 p.m., Agent Rodriguez informed Defendant of his right to speak with the Mexican Consulate. Defendant declined the offer. // //

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3.

Defendant's Post-Arrest Statements

On May 24, 2008, at approximately 6:00 p.m., Agent J. Estacuy advised Defendant of his Miranda rights, in the Spanish language. Defendant acknowledged that he understood his rights and agreed to waive his rights and speak with the agents without the presence of an attorney. Defendant admitted that he was a citizen and national of Mexico without any documentation to enter or remain in the United States legally. Defendant said he was born in Guanajuato, Mexico on March 22, 1968. He admitted that he had been previously deported and since his last deportation in November 2005, he has not received authorization to return to the United States. Defendant admitted that he illegally reentered the United States on or about December 23, 2005 through the mountains near San Ysidro, California. B. DEFENDANT'S IMMIGRATION HISTORY

A records check 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 pursuant to an order issued by an immigration judge on November 14, 2005. Defendant has been deported and removed from the United States on four prior occasions: (a) August 6, 1993; (b) July 5, 1994; (c) December 5, 2003; and (d) November 14, 2005. After Defendant's last deportation, there is no evidence in the reports and records maintained by the Department of Homeland Security that Defendant 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

Defendant has an extensive criminal history. The United States, propounds that Defendant has at least thirteen criminal history points placing him in Criminal History Category VI.
CONVICT DATE 11/26/1987 05/27/1988 07/11/1988 08/11/1988 COURT OF CONVICTION CASC ­ San Diego CASC ­ San Diego CASC ­ San Diego CASC ­ San Diego CHARGE Cal. PC § 594 ­ Vandalism (M) Cal. PC § 602.5 ­ Trespassing (M) Cal. PC § 148 ­ False ID to Peace Officer (M) Cal. PC § 602.5 ­ Trespassing (M) TERM 20 days' jail, 3 years probation 3 years probation 285 days' jail, 3 years probation 105 days' jail, 3 years probation

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CONVICT DATE 10/06/1989 02/07/1991 04/28/1992 04/28/1992 03/07/1994 03/06/2002 09/03/2002 03/29/2005

COURT OF CONVICTION CASC ­ San Diego CASC ­ San Diego CASC ­ San Diego CASC ­ San Diego USDC ­ San Diego CASC ­ San Diego USDC ­ San Diego CASC ­ San Diego

CHARGE Cal. H&S § 11550(b) ­ Under the Influence of a Controlled Substance (M) Cal. H&S § 11377(a) ­ Possession of a Controlled Substance (M) Cal. PC § 245(a)(1) ­ Assault with a Deadly Weapon likely to cause Great Bodily Injury (F) Cal. PC § 459 ­ Burglary (F) 8 U.S.C. § 1325 ­ Illegal Entry (M) Cal. PC § 242 ­ Battery [involved spouse] (M) 8 U.S.C. § 1325 ­ Illegal Entry (M) 8 U.S.C. § 1325 ­ Illegal Entry (F) Cal. PC § 484(a) ­ Theft (F) Cal. VC § 10851 ­ Take Vehicle w/o Consent (F)

TERM 120 days' jail, 3 years probation 45 days' jail, 3 years probation 3 years' prison 2 years' prison 120 days' jail 15 days' jail, 3 years probation 30 months' prison, 1 yr supervised release 16 months' prison

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) (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. //

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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 42 pages of discovery (including reports of the arresting officers and agents, a criminal history report, documents concerning Defendant's prior convictions, immigration history, and documents from Defendant's Alien File ("A-File")) and 1 DVD-ROM containing Defendant's videotaped, post-arrest statement. As of the date of this Motion, the United States is awaiting receipt of Defendant's Alien File ("A-File") and has ordered tapes of Defendant's prior deportation. As such, the United States intends to provide additional discovery after it has had an opportunity to review Defendant's A-File and deportation tapes. As 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.

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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. 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 13, 2008 Respectfully submitted, KAREN P. HEWITT United States Attorney /s/ Joseph J.M. Orabona JOSEPH J.M. ORABONA Assistant United States Attorney

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA ) ) Plaintiff, ) ) v. ) ) ABEL FONSECA-OROS, ) ) Defendant. ) ____________________________________) IT IS HEREBY CERTIFIED that: I, Joseph J.M. Orabona, 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 the Notice of Motions and Motions For (1) Fingerprint Exemplars; (2) Reciprocal Discovery; and (3) Leave to File Further Motions; together with the separately captioned Statement of Facts and Memorandum of Points and Authorities on the following parties by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically notifies them. Marc Xavier Carlos Bardsley and Carlos LLP 424 F Street, Suite A San Diego, California 92101-6118 Tel: (619) 702-3226 Fax: (619) 702-5415 Email: [email protected] Lead Attorney for Defendant I declare under penalty of perjury that the foregoing is true and correct. Criminal Case No. 08CR2578-BEN CERTIFICATE OF SERVICE

22 23 24 25 26 27 28 Executed on August 13, 2008. /s/ Joseph J.M. Orabona JOSEPH J.M. ORABONA Assistant United States Attorney

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