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

Case 3:08-cr-02522-LAB

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Filed 08/13/2008

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KAREN P. HEWITT United States Attorney DAVID D. LESHNER Assistant U.S. Attorney California State Bar No. 207815 Federal Office Building 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-7163 [email protected] Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, v. ANTONIO ESPARZA-PEREZ, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) Criminal Case No. 08-CR-2522-LAB DATE: TIME: September 8, 2008 2:00 p.m.

UNITED STATES' NOTICE OF MOTIONS AND MOTIONS FOR: (1) (2) FINGERPRINT EXEMPLARS RECIPROCAL DISCOVERY

COMES NOW the plaintiff, UNITED STATES OF AMERICA, by and through its counsel, Karen P. Hewitt, United States Attorney, and David D. Leshner, Assistant United States Attorney, and hereby files its Motions for Fingerprint Exemplars and Reciprocal Discovery in the above-referenced case. Said motions are based upon the files and records of this case together with the attached memorandum of points and authorities. /// /// /// /// /// ///

Case 3:08-cr-02522-LAB

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MEMORANDUM OF POINTS AND AUTHORITIES I STATEMENT OF THE CASE On July 30, 2008, a one-count indictment was filed charging defendant Antonio Esparza-Perez with a violation of Title 8, United States Code, Sections 1326(a) and (b). Defendant was arraigned on the indictment on July 31, 2008 and entered a plea of not guilty. II STATEMENT OF FACTS Defendant's Apprehension On June 30, 2008, Border Patrol Agent C. Nonas-Truong was on duty approximately two miles west of the Calexico, CA West Port of Entry. At approximately 9:20 p.m., a Remote Video Surveillance ("RVS") operator observed two individuals crossing from Mexico into the United States by climbing over the border fence. Agent Nonas-Truong responded to the area and encountered the two individuals hiding north of Anza Road. Agent Nonas-Trunog conducted field interviews, and both Defendant and the other individual admitted to being citizens of Mexico without documents allowing them to enter or remain in the United States. At that point, Agent Nonas-Truong placed Defendant under arrest. Defendant subsequently received Miranda warnings and declined to answer questions. Defendant's Immigration History Defendant is a citizen of Mexico. On or about November 3, 1999, Defendant was removed from the United States to Mexico pursuant to an Order of an Immigration Judge. Defendant subsequently was removed from the United States to Mexico on July 19, 2007. C. Defendant's Criminal History On October 11, 1994, Defendant was convicted of lewd and lascivious acts upon a child under the age of 14, in violation of California Penal Code § 288(a). Defendant received a three-year prison sentence. On November 7, 2005, Defendant was convicted of illegal re-entry, in violation of 8 U.S.C. § 1326, and sentenced to 27 months custody. /// 2

08CR2522-LAB

Case 3:08-cr-02522-LAB

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Filed 08/13/2008

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III UNITED STATES' MOTIONS Motion For Fingerprint Exemplars The Government requests that the Court order that Defendant make himself available for fingerprinting by the Government's 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). B. Motion For Reciprocal Discovery The Government has and will continue to fully comply with its discovery obligations. To date, the Government has provided Defendant with 72 pages of discovery and one DVD, including reports of his arrest, his rap sheet, and copies of immigration and conviction documents. The Government moves the Court to order Defendant to provide all reciprocal discovery to which the United States is entitled under Federal Rules of Criminal Procedure 16(b) and 26.2. Specifically, Rule 16(b)(1) requires Defendant to disclose to the United States all exhibits, documents and reports of testing or examination which Defendant intends to use in his case-in-chief at trial and a written summary of the names, anticipated testimony, and bases for opinions of experts the defendant intends to call at trial under Rules 702, 703, and 705 of the Federal Rules of Evidence. IV CONCLUSION For the foregoing reasons, the Government respectfully requests that the Court grant its motions. DATED: August 13, 2008. Respectfully submitted, Karen P. Hewitt United States Attorney s/ David D. Leshner DAVID D. LESHNER Assistant U.S. Attorney

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Case 3:08-cr-02522-LAB

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, ) ) ) ) ) ) ) ) ) ) Case No. 08-CR-2522-LAB

CERTIFICATE OF SERVICE

ANTONIO ESPARZA-PEREZ, Defendant.

IT IS HEREBY CERTIFIED THAT: I, DAVID D. LESHNER, 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 UNITED STATES NOTICE OF MOTIONS AND MOTIONS FOR FINGERPRINT EXEMPLARS AND RECIPROCAL DISCOVERY 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. I declare under penalty of perjury that the foregoing is true and correct. Executed on August 13, 2008.

/s/ David D. Leshner DAVID D. LESHNER

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08CR2522-LAB