Free Motion to Compel - District Court of California - California

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1 SARA M. PELOQUIN California Bar No. 245956 2 JOHN C. ELLIS, JR. California Bar No. 228083 3 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 4 San Diego, California 92101-5008 Telephone: (619) 234-8467 5 [email protected], [email protected] 6 Attorneys for The Accused 7 8 9 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE LEO S. PAPAS) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 08MJ2266-LSP Date: August 7 , 2008 Time: 9:30 a.m. NOTICE OF MOTION AND MOTIONS TO 1) COMPEL DISCOVERY 2)PRESENT EVIDENCE TO REBUT PROBABLE CAUSE

11 UNITED STATES OF AMERICA, 12 13 v. 14 THE PERSON CHARGED AS EUGENE GEORGE WARNER 15 16 17 18 19 TO: Defendant. Plaintiff,

KAREN P. HEWITT, UNITED STATES ATTORNEY;AND, GEORGE MANAHAN, ASSISTANT UNITED STATES ATTORNEY: PLEASE TAKE NOTICE that as soon as counsel may be heard, The person charged as

20 Eugene George Warner, by and through counsel, Sara M. Peloquin, and Federal Defenders of San 21 Diego, Inc., will ask this Court to enter an order granting the motion listed below. 22 // 23 // 24 // 25 // 26 // 27 // 28 //

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MOTIONS The person charged as Eugene George Warner, by and through his attorneys, Sara M.

3 Peloquin, and Federal Defenders of San Diego, Inc., pursuant to the United States Constitution, the 4 Federal Rules of Criminal Procedure, and all other applicable statutes, case law and local rules, 5 hereby moves this Court for an order to: 6 7 8 1) Compel Discovery 2) Present Evidence to Rebut Probable Cause These motions are based upon the instant motions and notice of motions, the attached

9 statement of facts and memorandum of points and authorities, and any and all other materials that may 10 come to this Court's attention at the time of the hearing on these motions. 11 12 13 Dated: August 6, 2008 14 15 16 17 18 19 20 21 22 23 24 25 26 27 08MJ2266-LSP 28 2 /s/ Sara M. Peloquin SARA M. PELOQUIN JOHN C. ELLIS, JR. Federal Defenders of San Diego, Inc. Attorneys for the accused. Respectfully submitted,

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1 SARA M. PELOQUIN California Bar No. 245945 2 JOHN C. ELLIS, JR. California Bar No.228083 3 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 4 San Diego, California 92101-5008 Telephone: (619) 234-8467, ext.3716 5 [email protected], [email protected] 6 Attorneys for the accused 7 8 9 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE LEO S. PAPAS) ) ) ) ) ) ) ) ) ) ) ) Case No. 08MJ2266-LSP STATEMENT OF FACTS AND POINTS AND AUTHORITIES IN SUPPORT OF THE ACCUSED'S MOTIONS

11 UNITED STATES OF AMERICA, 12 13 v. 14 THE PERSON CHARGED AS EUGENE GEORGE WARNER, 15 Defendant. 16 17 18 19 Plaintiff,

I. STATEMENT OF FACTS The accused in this case was arrested on July 24, 2008, on a warrant issued out of the District of

20 Alaska. The warrant commands the arrest of Eugene George Warner to answer an indictment charging tax 21 evasion, attempt to interfere with the administration of internal revenue law, false tax returns, bankruptcy 22 fraud and mail fraud. On July 25, 2008, the accused appeared before this Court. The Court scheduled a 23 hearing for August 7, 2008, to determine whether the accused is the person named in the out-of-district 24 warrant and indictment 25 26 27
II. MOTION TO COMPEL DISCOVERY The accused is entitled to discovery of all evidence that will be presented by the government at his

28 identification/removal hearing, including: 1) production of the statements from all witnesses, 2) production

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1 of statements from either "Eugene Warner" or the accused, 3) production of any photographs of "Eugene 2 Warner" or the accused, 4) a complete criminal history of "Eugene Warner", 5) production of all relevant 3 reports of investigation, 6) production of all personal property seized from the accused, both at the time of 4 arrest, and pursuant to any search warrants, and 7) the production of all Brady material, evidence of 5 innocence, and Jencks material. 6
(1) Production of Witness Statements. The government must disclose to the accused all copies of

7 any written or recorded statements made by all witnesses; the substance of any statements made by witnesses 8 which the government intends to offer in evidence at the removal hearing. Fed. R. Crim. P. 26.2. 9
(2) Production of Statements by either "Eugene Warner" or the accused. The government must

10 disclose to the accused all copies of any written or recorded statements made by him; the substance of any 11 statements made by either "Eugene Warner" or the accused, which the government intends to offer in 12 evidence at the removal hearing; see id., any response by either "Eugene Warner" or the accused to 13 interrogation; the substance of any oral statements which the government intends to introduce at the hearing 14 and any written summaries of these oral statements contained in the handwritten notes of the government 15 agent; any response to any Miranda warnings which may have been given; as well as any other statements 16 by either "Eugene Warner" or the accused. Fed. R. Crim. P. 16(a)(1)(A) and (B)1. 17
(3) Photographs of "Eugene Warner" or the accused. The accused requests disclosure of

18 photographs of "Eugene Warner" and the accused... 19
(4) "Eugene Warner's" Prior Record. The accused requests disclosure of "Eugene Warner's" prior

20 record. Fed. R. Crim. P. 16(a)(1)(D). 21
(5) Reports of Investigation. The accused also specifically requests that the government turn over

22 all arrest reports, notes and reports of investigation records not already produced that relate to the 23 circumstances surrounding his arrest or any questioning. This request includes, but is not limited to, any 24 rough notes, records, reports, transcripts, referral slips, or other documents in which statements of the accused 25 26 Of course, any of the accused's statements, which are exculpatory, must be produced, as well. 27 See Brady v. Maryland, 373 U.S. 83 (1963). 28 2 08MJ2266-LSP
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1 or any other discoverable material is contained. Such material is discoverable under Fed. R. Crim. P. 2 16(a)(1)(A) and Brady v. Maryland. The government must produce arrest reports, investigators' notes, 3 memos from arresting officers, sworn statements, and prosecution reports pertaining to the defendant. See 4 Fed. R. Crim. P. 16(a)(1)(B) and (C), 26.2 and 12(I); United States v. Harris, 543 F.2d 1247, 1253 (9th Cir. 5 1976) (original notes with suspect or witness must be preserved); see also United States v. Anderson, 813 6 F.2d 1450, 1458 (9th Cir. 1987) (reaffirming Harris' holding). 7
(6) Evidence Seized. The accused requests production of evidence seized as a result of any search,

8 either warrantless or with a warrant. Fed. R. Crim. P. 16(a)(1)(E). 9
(7) Brady Material. The accused requests all documents, statements, agents' reports, and tangible

10 evidence favorable to the defendant on the issue of identity or probable cause and/or which affects the 11 credibility of the government's case. Kyles v. Whitley, 514 U.S. 419 (1995). Under Brady, Kyles and their 12 progeny, impeachment, as well as exculpatory evidence, falls within the definition of evidence favorable to 13 the accused. See also United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 427 U.S. 97 14 (1976). This includes information obtained from other investigations which exculpates the accused. 15 16 17
III.

MOTION TO PRESENT EVIDENCE TO REBUT PROBABLE CAUSE
An indictment is only prima facie evidence of a showing of probable cause. Johnson v. Hotchkiss,

18 35 F.2d 914 (9th Cir. 1929). The indictment fulfills two constitutional imperatives, the Fifth Amendment's 19 due process requirement and the probable cause requirement of the Fourth Amendment. United States ex rel. 20 Kassin v. Mullligan, 295 U.S. 396. However, the accused is entitled to present affirmative evidence to 21 overcome any presumption of the existence of probable cause arising from the indictment, failure to admit 22 such evidence is reversible error. Johnson v. Hotchkiss, 35 F.2d 914; Kassin v. Mulligan, 295 U.S. 396, at 23 401 (1935). United States ex rel. Nourse v. White, 11 F.2d 843 (7th Cir. 1926); Bullard v. Day, 53 F.2d 206 24 (9th. Cir 1931); Meehan v. United States, 11 F.2d 847 (6th Cir. 1926). Removal must be denied where the 25 affirmative proof offered by the accused showing a lack of probable cause goes unrebutted except by the 26 indictment. Bullard v. Day, 53 F.2d 206 (9th Cir. 1931). 27 28 3 08MJ2266-LSP

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"Arbitrary of capricious appraisal of evidence or disregard indubitably established is in legal effect

2 failure to consider, the equivalent of the exclusion that we have condemned, and denial of the right to be 3 heard before removal". Kassin, 295 U.S. at 402. 4
In Johnson v. Hotchkiss, the individual who was the subject of the removal proceeding, offered

5 evidence that he had not been present in the district from which the indictment issued for more than a year 6 prior to the issuance of the indictment and that he did not know any of the other persons named in the 7 indictment. 35 F.2d 914, at 915. The accused also offered evidence of his good character. Id. The Ninth 8 Circuit reversed and remanded for the release of the accused holding that the evidence presented was 9 sufficient to overcome any presumption of probable cause arising from the indictment. Id., at 916. 10
In United States ex. rel Nourse v. White, the Ninth Circuit reversed the order of removal where the

11 individuals that were the subject of the out-of-district indictment were prevented by the District Court from 12 presenting evidence to challenge probable cause. 11 F.2d 843, at 845. 13 14 15 16 17 18 Dated: August 6, 2008 19 20 21 22 23 24 25 26 27 28 4 08MJ2266-LSP
/s/ Sara M. Peloquin SARA M. PELOQUIN JOHN C. ELLIS, JR. Federal Defenders of San Diego, Inc. Attorneys for the accused IV. CONCLUSION For the foregoing reasons, The accused respectfully requests that the Court grant the above motions. Respectfully submitted,

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, v. ) ) ) ) ) )

Case No. 08MJ2266-LSP

CERTIFICATE OF SERVICE

THE PERSON CHARGED AS EUGENE GEORGE WARNER,
Defendant. ____________________________________

)
) ) ) )

Counsel for Defendant certifies that the foregoing pleading, is true and accurate to the best of her information and belief, and that a copy of the foregoing has been electronically served this day upon: George Manahan, Assistant United States Attorney 880 Front Street San Diego, CA 92101

Dated: August 6, 2008

/s/ Sara M. Peloquin SARA M. PELOQUIN Federal Defenders 225 Broadway, Suite 900 San Diego, CA 92101-5030 (619) 234-8467 (tel) (619) 687-2666 (fax) Email: [email protected]