Free Response in Opposition - District Court of California - California

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KAREN P. HEWITT United States Attorney MICHELLE M. PETTIT Assistant U.S. Attorney California State Bar No. 253406 Federal Office Building 880 Front Street, Room 6293 San Diego, California 92101-8800 Telephone: (619) 557-7450 Facsimile: (619) 235-2757 Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA 10 UNITED STATES OF AMERICA, 11 Plaintiff, 12 v. 13 14 15 16 17 Defendants. 18 19 20 21 22 23 24 25 26 27 28 COMES NOW the Plaintiff, UNITED STATES OF AMERICA, by and through its counsel, Karen P. Hewitt, United States Attorney, and Michelle M. Pettit, Assistant United States Attorney, and hereby files its response and opposition to Defendants' above-referenced motions. This response is based upon the files and records of ANTONIO FRANCISCO MORENOGUTIERREZ (1), URIEL PARDO-MOLINA (2), SALVADOR CABANAS-GOMEZ (3), MARCO ANTONIO PAREDESVALENZUELA (4), ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Criminal Case No. 08CR2510-BEN DATE: September 15, 2008 TIME: 2:00 p.m. UNITED STATES' RESPONSE AND OPPOSITION TO DEFENDANTS' MOTIONS TO: (1) (2) COMPEL DISCOVERY AND FILE ADDITIONAL MOTIONS.

TOGETHER WITH STATEMENT OF FACTS AND A MEMORANDUM OF POINTS AND AUTHORITIES

this case, together with the attached statement of facts and a memorandum of points and authorities. // //

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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 A. THE CHARGE

I. STATEMENT OF THE CASE

On July 29, 2008, a grand jury sitting in the Southern District of California returned a twelve count Indictment charging defendants with Bring in Illegal Aliens for Financial Gain in violation of 8 U.S.C. § 1324(a)(2)(B)(ii), Aiding and Abetting in violation of 18 U.S.C. § 2, and Transportation of Illegal Aliens and Aiding and Abetting in violation of 8 U.S.C. §

1324(a)(1)(A)(ii) and (v)(II). arraigned on the Indictment. B. STATUS OF DISCOVERY

On the same day, defendants were

On August 19, 2008, the United States made available over 200 pages of written discovery to all defendants. On August 26, 2008, the United States made an additional pages of written discovery and two compact discs available to the defendants. II. STATEMENT OF FACTS On July 10, 2008, Border Patrol Agents apprehended a group of eight individuals one illegally present as a in the United States, Ivan

including

later

identified

material

witness,

Cervantes-Lavariega (aka Ivan Cervantes-Cervantes).

Cervantes

provided agents information regarding his recent illegal entry into the United States, including a detailed description of the area through which he was smuggled. On July 11, 2008, Border Patrol Agents investigated the area described by Cervantes that was located on State Route 94 in the eastern region of San Diego County. 2 During that investigation,
08CR2510-BEN

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agents

discovered

a

large

group

of

individuals

concealing

themselves in a boulder formation at the bottom of a canyon. After searching the area, a total of 33 individuals were

apprehended due to their lack of United States citizenship or documentation to legally remain in the United States. The six

material witnesses identified multiple footguides in the group after reviewing a stack of photographs of all the individuals arrest. All four Defendants were all identified as footguides. III. POINTS AND AUTHORITIES A. THE UNITED STATES HAS AND WILL CONTINUE TO COMPLY WITH ITS DISCOVERY OBLIGATIONS The United States is aware of its obligation under Brady v.

13 Maryland, 373 U.S. 83 (1963), the Jencks Act (18 U.S.C. §3500), 14 and Rule 16 of the Federal Rules of Criminal Procedures, and will 15 continue to comply with all discovery rules. 16 States has produced over two hundred (200) pages of discovery to 17 date and has substantially exceeded the requirements of Rule 16 18 and associated case law. 19 defendants, the United States responds as follows: 20 1. 21 The United States has provided defendants with a compact disc 22 containing the recorded statements of the defendants made during 23 their post-arrest interviews by law enforcement officers. 24 are no other statements, oral, recorded or written, made by the 25 defendants to any law enforcement officer. 26 written rights warnings have been disclosed to the defendants. 27 // 28 3
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In fact, the United

Regarding the specific requests made by

Defendants' Statements

There

Additionally, any

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2.

Defendants' Prior Record prior records have been disclosed to the

Defendants' defendants. 3. Defense

Documents and Tangible Objects attorneys may schedule an appointment with the

Assistant United States Attorney at a mutually convenient time and place to review any seized evidence. 4. Reports of Scientific Tests or Examinations

Several cellular phones are currently being analyzed by the Regional Computer Forensics Laboratory (RCFL). The United States

will release any relevant RCFL reports to the Defendants once they have been completed. 5. Expert Witness Testimony

The United States will provide notice of any expert testimony approximately one month prior to trial. 6. Brady Material

The United States is aware of its obligations under Brady and its progeny. defendants To the extent that any evidence favorable to the it has been provided to the defendants.

exists,

Counsel for the United States is unaware of any evidence favorable to the defendants. The defendants request the true name and address of Ivan Cervantes-Lavariega and the minor detained as a co-conspirator. Cervantes true name is properly listed in the Indictment, and he remains in custody. The United States will disclose the true name and location of the minor only as direct by the Court. // // 4
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7.

Rule 404(b) Evidence

The United States will provide the defendants with notice of its intent to present evidence pursuant to Rule 404(b) two weeks before trial or as otherwise ordered by the Court. Defendants'

prior detentions have been disclosed to the defendants. 8. Jencks Act Material

To the extent that material qualifies as a statement of a witness under the Jencks Act, it will be provided to the

defendants in advance of trial. 9. Evidence of Bias or Motive to Lie

The United States agrees to provide information related to bias, prejudice, or other motivation of United States trial witnesses. The United States will provide such impeachment At

material, if any, at the time it files its trial memorandum.

this time, the Government is unaware that prospective witnesses are biased or prejudiced against the defendants, or has a motive to falsify or distort their testimony. 10. Giglio Material

If any promises are made to any United States witness, that information will be provided to the defendants in advance of trial. 11. Evidence of Criminal Investigations of Any Witness States is unaware of any current criminal

United

investigation against any potential witness.

If information

regarding a criminal investigation becomes available, the United States will provide that information to the defendants in advance of trial. // 5
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12.

Examination of Law Enforcement Personnel Files

The United States will conduct a review, in accordance with United States v. Henthorn, 931 F.2d 29 (9th Cir. 1891), of the testifying federal officers in this case. B. REQUEST TO FILE FURTHER MOTIONS

The United States has no objection to the Court providing the defendants with a reasonable time period within which to bring additional motions. That time period should be restricted to a

particular date to avoid the necessity of multiple responses and multiple hearings. IV. CONCLUSION For the foregoing reasons, the United States respectfully requests that defendants' motions, except where not opposed, be denied. DATED: September 9, 2008. Respectfully submitted, KAREN P. HEWITT United States Attorney s/Michelle M. Pettit MICHELLE M. PETTIT Assistant U.S. Attorney

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Criminal Case No. 08CR2510-BEN

CERTIFICATE OF SERVICE

ANTONIO FRANCISCO MORENOGUTIERREZ (1), URIEL PARDO-MOLINA (2), SALVADOR CABANAS-GOMEZ (3), MARCO ANTONIO PAREDESVALENZUELA (4), Defendants.

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. 2. 3. 4. 5.

IT IS HEREBY CERTIFIED THAT: I, Michelle M. Pettit, 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' RESPONSE AND OPPOSITION TO DEFENDANTS' MOTION TO COMPEL DISCOVERY AND FILE ADDITIONAL MOTIONS on the following parties by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically notifies them. John D. Kirby, Esq. Howard B. Frank, Esq. Kenneth J. Troiano, Esq. Maxine I. Dobro, Esq. Neil R. Trop, Esq.

I declare under penalty of perjury that the foregoing is true and correct. Executed on September 9, 2008. s/Michelle M. Pettit MICHELLE M. PETTIT Assistant U.S. Attorney