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

Case 3:08-cr-02416-JLS

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KAREN P. HEWITT United States Attorney REBECCA S. KANTER Assistant U.S. Attorney California State Bar No. 230257 United States Attorney's Office 880 Front Street, Room 6293 San Diego, California 92101-8893 Phone: (619) 557-6747 Fax: (619) 235-4716 E-mail: [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 COMES NOW the plaintiff, UNITED STATES OF AMERICA, by and through its counsel, 21 United States Attorney, Karen P. Hewitt, and Assistant U.S. Attorney Rebecca S. Kanter, and hereby 22 files its Motion for Fingerprint Exemplars and Reciprocal Discovery in the above-referenced case. This 23 Motion is based upon the files and records of this case, together with the attached Statement of Facts 24 and Memorandum of Points and Authorities. 25 // 26 // 27 // 28 // Criminal Case No. 08cr2416-JLS UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) ) RICARDO GONZALEZ) NAVAREZ, ) ) Defendant. ) ) ) ) ) ) Criminal Case No. 08cr2416-JLS GOVERNMENT'S MOTION FOR: (1) FINGERPRINT EXEMPLARS (2) RECIPROCAL DISCOVERY TOGETHER WITH STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES Date: August 29, 2008 Time: 1:30 p.m. Courtroom: 6 The Honorable Janis L. Sammartino

Case 3:08-cr-02416-JLS

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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. Defendant's Apprehension

I STATEMENT OF FACTS

On My 30, 2008, at approximately 7:00 a.m., Ricardo Gonzalez-Navarez ("Defendant"), a.k.a. Carlos Gonzalez-Gonzalez, drove a tan Toyota pickup truck bearing California license plate number 2F22766 to the Interstate 8 checkpoint near pine Valley, California with one passenger. He approached the primary inspection area, where Border Patrol Agent Christopher Mehmel observed that Defendant was not making eye contact and was moving side-to-side in his seat as if he was nervous. Defendant claimed to be a United States citizen. The passenger, later identified as Francisco Cortez-Tercera, said he lost his immigration documents and produced a California Drivers License. As his record was checked, he admitted that he was in the United States illegally. Both Defendant and Cortez were placed under arrest. A records check based on Defendant's fingerprints revealed that he is a citizen and national of Mexico with an extensive immigration and criminal history. B. Criminal and Immigration History Between 1981 and 1982, Defendant sustained four convictions for Illegally Entry in violation of Title 8, United States Code, Section 1325, in the United States District Court for the Southern District of California. On May 27, 1997, Defendant sustained a conviction for Being a Deported Alien Found in the United States in violation of Title 8, United States Code, Section 1326. In 2000, Defendant sustained two convictions ­ one in the Southern District of California and one in the District of Arizona ­ for Importation of Marijuana in violation of Title 21, United States Code Sections 952 & 960. Defendant received sentences of 12 months and a day in each case. On June 7, 2002, Defendant sustained a conviction for False Statement to a Federal Officer in violation of Title 18, United States Code, Section 1001, for which the Honorable Barry Ted Moskowitz imposed a custodial sentence of 6 months. Defendant received an additional custodial sentence of 5 months when his supervised release was revoked on December 3, 2002. On January 25, 2005, Defendant sustained a conviction in the District of Oregon for Felon in Possession of a Firearm in violation of Title 18, United States Code, Section 922(g), for which he received a sentence of 37 2 Criminal Case No. 08cr2416-JLS

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months. On August 30, 2002, Defendant was ordered removed to Mexico by Immigration Judge Anthony Atenaide. Defendant was again ordered removed to Mexico by an immigration judge in Tacoma, Washington on September 18, 2006. Defendant has been removed on at least three prior occasions, most recently on September 22, 2006. II UNITED STATES' MOTIONS A. 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). The privilege against self-incrimination only applies to testimonial evidence. See Schmerber v. California, 384 U.S. 757, 761 (1966) (withdrawal of blood is not testimonial). Identifying physical characteristics, including fingerprints, are not testimonial in nature and the collection and use of such evidence does not violate Defendant's Fifth Amendment right against self-incrimination. United States v. DePalma, 414 F.2d 394, 397 (9th Cir. 1969). B. RECIPROCAL DISCOVERY The Government has and will continue to fully comply with its discovery obligations. The United States produced 247 pages of discovery between June 10, 2008 and July 17, 2008, including the reports from Border Patrol agents for his current and prior apprehensions, documents regarding Defendant's criminal history, and evidence of Defendant's immigration history. The Government moves the Court to order Defendant to provide all reciprocal discovery to which the United States is entitled under Rules 16(b) and 26.2. Rule 16(b)(2) requires Defendant to disclose to the United States all exhibits and documents which Defendant "intends to introduce as evidence in chief at the 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. // 3 Criminal Case No. 08cr2416-JLS

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III CONCLUSION For the foregoing reasons, the Government requests that the Court grant the Government's motion for reciprocal discovery and compelling the Defendant to provide a fingerprint exemplar. DATED: August 14, 2008.

Respectfully submitted, KAREN P. HEWITT United States Attorney

/s/Rebecca Kanter REBECCA S. KANTER Assistant United States Attorney Attorneys for Plaintiff United States of America

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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 I declare under penalty of perjury that the foregoing is true and correct. 22 Executed on August 14, 2008. 23 24 25 26 27 28 5 Criminal Case No. 08cr2416-JLS /s/ Rebecca Kanter REBECCA S. KANTER I hereby certify that I have caused to be mailed the foregoing, by the United States Postal Service, to the following non-ECF participants on this case: None the last known address, at which place there is delivery service of mail from the United States Postal Service. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ) Criminal Case No. 08cr2416-JLS ) Plaintiff, ) ) CERTIFICATE OF SERVICE v. ) ) RICARDO GONZALEZ-NAVAREZ, ) ) Defendant. ) ) IT IS HEREBY CERTIFIED THAT: I, REBECCA S. KANTER, 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 MOTION 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. John Fielding, Jr. UNITED STATES OF AMERICA,