Free Motion to Compel - District Court of California - California

Case 3:08-cr-02348-WQH
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NORMA A. AGUILAR California State Bar No. 211088
225 Broadway, Suite 900 San Diego, CA 92101-5030 (619) 234-8467/Fax: (619) 687-2666 E-Mail: [email protected]

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE WILLIAM Q. HAYES) UNITED STATES OF AMERICA, Plaintiff, v. ADAM GRANT GUNDERSON, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 08CR2348-WQH DATE: AUGUST 25, 2008 TIME: 2:00 P.M. NOTICE OF MOTIONS AND MOTIONS TO: (1) (2) COMPEL DISCOVERY/PRESERVE EVIDENCE; GRANT LEAVE TO FILE FURTHER MOTIONS

TO:

KAREN HEWITT, UNITED STATES ATTORNEY, AND LUELLA CALDITO, ASSISTANT UNITED STATES ATTORNEY: PLEASE TAKE NOTICE that on August 25, 2008 at 2:00 p.m., or as soon thereafter as

counsel may be heard, defendant, Adam Grant Gunderson, by and through his attorney, Norma A. Aguilar, will ask this Court to enter an order granting the following motions. // // // // //
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MOTIONS Defendant, Adam Grant Gunderson, by and through his attorney, Norma A. Aguilar and Federal Defenders of San Diego Inc., asks this Court pursuant to the United States Constitution, the Federal Rules of Criminal Procedure, and all other applicable statutes, case law, and local rules for an order to:
(1) Compel Discovery/Preserve Evidence; and

(2)

Grant Leave to File Further Motions.

These motions are based upon the instant motions and notice of motions, the attached statement of facts and memorandum of points and authorities, the files and records in the abovecaptioned matter, and any and all other materials that may come to this Court's attention prior to or during the hearing of these motions. Respectfully submitted, /s/ Norma A. Aguilar NORMA A. AGUILAR Attorney for Mr. Gunderson [email protected]

Dated:

August 13, 2008

2

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1 NORMA A. AGUILAR California State Bar No. 211088 2 Federal Defenders of San Diego, Inc. 225 Broadway, Suite 900 3 San Diego, CA 92101-5030 (619) 234-8467/Fax: (619) 687-2666 4 E-Mail: [email protected] 5 Attorneys for Mr. Gunderson, 6 7 8 9 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE WILLIAM Q. HAYES) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 08CR2348-WQH DATE: AUGUST 25, 2008 TIME: 2:00 P.M. STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTIONS

11 UNITED STATES OF AMERICA, 12 13 v. 14 ADAM GRANT GUNDERSON, 15 16 17 18 Defendant. Plaintiff,

STATEMENT OF FACTS1 Mr. Gunderson was arrested on June 21, 2008 at the Highway 8 checkpoint, in Pine Valley,

19 California. Two undocumented aliens were found inside the vehicle that Mr. Gunderson was driving. Upon 20 arrest, Mr. Gunderson invoked his right to remain silent. 21 The June 2007 Grand Jury returned an indictment against Mr. Gunderson, charging him with

22 Transportation of Illegal Aliens and Aiding and Abetting, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and 23 (v)(II). 24 // 25 // 26 Unless otherwise stated, the "facts" referenced in these papers come from governmentproduced discovery that the defense continues to investigate. Mr. Gunderson does not admit the accuracy 28 of this information and reserves the right to challenge it at any time. 27 1 08CR2348-WQH
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MEMORANDUM OF POINTS AND AUTHORITIES I. MOTION TO COMPEL DISCOVERY AND PRESERVE EVIDENCE Mr. Gunderson moves for the production by the government of the following discovery and for the

5 preservation of evidence. This request is not limited to those items that the prosecutor knows of, but rather 6 includes all discovery listed below that is in the custody, control, care, or knowledge of any government 7 agency. See generally Kyles v. Whitley, 514 U.S. 419 (1995); United States v. Bryan, 868 F.2d 1032 (9th 8 Cir. 1989). By this requests, he intends to invoke all his discovery rights under both statutory and 9 Constitutional authority. This his request includes but is not limited to: 10 (1) The Defendant's Statements. The Government must disclose to the defendant all copies of any

11 written or recorded statements made by the defendant; the substance of any statements made by the 12 defendant which the Government intends to offer in evidence at trial; any response by the defendant to 13 interrogation; the substance of any oral statements which the Government intends to introduce at trial and 14 any written summaries of the defendant's oral statements contained in the handwritten notes of the 15 Government agent; any response to any Miranda warnings which may have been given to the defendant; as 16 well as any other statements by the defendant. Fed. R. Crim. P. 16(a)(1)(A). The Advisory Committee 17 Notes and the 1991 amendments to Rule 16 make clear that the Government must reveal all the defendant's 18 statements, whetheroral or written, regardless of whether the government intends to make any use of those 19 statements. 20 (2) Arrest Reports, Notes and Dispatch Tapes. The defense also specifically requests that all arrest

21 reports, notes and dispatch or any other tapes that relate to the circumstances surrounding her arrest or any 22 questioning, if such reports have not already been produced in their entirety, be turned over to her. This 23 request includes, but is not limited to, any rough notes, records, reports, transcripts or other documents in 24 which statements of the defendant or any other discoverable material is contained. This is all discoverable 25 under Fed. R. Crim. P. 16(a)(1)(A) and Brady v. Maryland, 373 U.S. 83 (1963). See also Loux v. 26 United States, 389 F.2d 911 (9th Cir. 1968). Arrest reports, investigator's notes, memos from arresting 27 officers, dispatch tapes, sworn statements, and prosecution reports pertaining to the defendant are available 28 under Fed. R. Crim. P. 16(a)(1)(B) and (C), Fed. R. Crim. P. 26.2 and 12(i). Preservation of rough notes 2 08CR2348-WQH

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1 is requested, whether or not the government deems them discoverable. 2 (3) Brady Material. Mr. Gunderson requests all documents, statements, agents' reports, and tangible

3 evidence favorable to the defendant on the issue of guilt and/or which affects the credibility of the 4 government's case. Impeachment as well as exculpatory evidence falls within Brady's definition of evidence 5 favorable to the accused. United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 427 U.S. 6 97 (1976). 7 (4) Any Information That May result in a Lower Sentence Under The Guidelines. As discussed

8 above, this information is discoverable under Brady v. Maryland, 373 U.S. 83 (1963). This request includes 9 any cooperation or attempted cooperation by the defendant, as well as any information that could affect any 10 base offense level or specific offense characteristic under Chapter Two of the Guidelines. Also included 11 in this request is any information relevant to a Chapter Three adjustment, a determination of the defendant's 12 criminal history, or any other application of the Guidelines. 13 (5) The Defendant's Prior Record. Evidence of prior record is available under Fed. R. Crim. P.

14 16(a)(1)(B). Counsel specifically requests a complete copy of any criminal record. 15 (6) Any Proposed 404(b) Evidence. Evidence of prior similar acts is discoverable under Fed. R.

16 Crim. P. 16(a)(1)(C) and Fed. R. Evid. 404(b) and 609. In addition, under Fed. R. Evid. 404(b), "upon 17 request of the accused, the prosecution . . . shall provide reasonable notice in advance of trial . . . of the 18 general nature . . ." of any evidence the government proposes to introduce under Fed. R. Evid. 404(b) at trial. 19 The defendant requests that such notice be given three weeks before trial in order to give the defense time 20 to adequately investigate and prepare for trial. 21 (7) Evidence Seized. Evidence seized as a result of any search, either warrantless or with a warrant,

22 is discoverable under Fed. R. Crim. P. 16(a)(1)(C). 23 (8) Request for Preservation of Evidence. The defense specifically requests that all dispatch tapes

24 or any other physical evidence that may be destroyed, lost, or otherwise put out of the possession, custody, 25 or care of the government and which relate to the arrest or the events leading to the arrest in this case be 26 preserved. This request includes, but is not limited to, all persons who were apprehended as passengers in 27 the van at issue in the instant case, the results of any fingerprint analysis, the defendant's personal effects, 28 the vehicle, and any other evidence seized from the defendant or any third party. It is requested that the 3 08CR2348-WQH

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1 government be ordered to question all the agencies and individuals involved in the prosecution and 2 investigation of this case to determine if such evidence exists, and if it does exist to inform those parties to 3 preserve any such evidence. 4 (9) Tangible Objects. The defense requests, under Fed. R. Crim. P. 16(a)(1)(C) the opportunity to

5 inspect and copy as well as test, if necessary, all other documents and tangible objects, including 6 photographs, books, papers, documents, photographs of buildings or places or copies of portions thereof 7 which are material to the defense or intended for use in the government's case-in-chief or were obtained from 8 or belong to the defendant. Specifically, Mr. Gunderson requests a copy of the videotape interview of the 9 material witness, if one exists. 10 (10) Evidence of Bias or Motive to Lie. The defense requests any evidence that any prospective

11 government witness is biased or prejudiced against the defendant, or has a motive to falsify or distort his or 12 her testimony. Pennsylvania v. Ritchie, 480 U.S. 39 (1987); United States v. Strifler, 851 F.2d 1197 (9th 13 Cir. 1988). 14 (11) Impeachment evidence. Mr. Gunderson requests any evidence that any prospective government

15 witness has engaged in any criminal act whether or not resulting in a conviction and whether any witness 16 has made a statement favorable to the defendant. See Fed. R. Evid. 608, 609 and 613. Such evidence is 17 discoverable under Brady v. Maryland, supra. See United States v. Strifler, 851 F.2d 1197 (9th Cir. 1988) 18 (witness' prior record); Thomas v. United States, 343 F.2d 49 (9th Cir. 1965) (evidence that detracts from 19 a witness' credibility). 20 (12) Evidence of Criminal Investigation of Any Government Witness. The defense requests any

21 evidence that any prospective witness is under investigation by federal, state or local authorities for any 22 criminal conduct. United States v. Chitty, 760 F.2d 425 (2d Cir. 1985). 23 (13) Evidence Affecting Perception, Recollection, Ability to Communicate. Mr. Gunderson requests

24 any evidence, including any medical or psychiatric report or evaluation, tending to show that any prospective 25 witness's ability to perceive, remember, communicate, or tell the truth is impaired; and any evidence that 26 a witness has ever used narcotics or other controlled substance, or has ever been an alcoholic. United States 27 v. Strifler, 851 F.2d 1197 (9th Cir. 1988); Chavis v. North Carolina, 637 F.2d 213, 224 (4th Cir. 1980). 28 (14) Witness Addresses. The defense requests the name and last known address of each prospective 4 08CR2348-WQH

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1 government witness. See United States v. Napue, 834 F.2d 1311 (7th Cir. 1987); United States v. Tucker, 2 716 F.2d 576 (9th Cir. 1983) (failure to interview government witnesses by counsel is ineffective); United 3 States v. Cook, 608 F.2d 1175, 1181 (9th Cir. 1979)) (defense has equal right to talk to witnesses). The 4 defendant also requests the name and last known address of every witness to the crime or crimes charged 5 (or any of the overt acts committed in furtherance thereof) who will not be called as a government witness. 6 United States v. Cadet, 727 F.2d 1453 (9th Cir. 1984). 7 (15) Name of Witnesses Favorable to the Defendant. Mr. Gunderson requests the name of any

8 witness who made any arguably favorable statement concerning the defendant or who could not identify her 9 or who was unsure of her identity, or participation in the crime charged. Jackson v. Wainwright, 390 F.2d 10 288 (5th Cir. 1968); Chavis v. North Carolina, 637 F.2d 213, 223 (4th Cir. 1980); Jones v. Jago, 575 F.2d 11 1164, 1168 (6th Cir.), cert. denied, 439 U.S. 883 (1978); Hudson v. Blackburn, 601 F.2d 785 (5th Cir. 1979), 12 cert. denied, 444 U.S. 1086 (1980). 13 (16) Statements Relevant to the Defense. Mr. Gunderson requests disclosure of any statement that

14 may be "relevant to any possible defense or contention" that she might assert. United States v. Bailleaux, 15 685 F.2d 1105 (9th Cir. 1982). This would include Grand Jury transcripts which are relevant to the defense 16 motion to dismiss the indictment. 17 (17) Jencks Act Material. The defense requests all material to which Mr. Gunderson is entitled

18 pursuant to the Jencks Act, 18 U.S.C. § 3500, reasonably in advance of trial, including dispatch tapes. A 19 verbal acknowledgment that "rough" notes constitute an accurate account of the witness' interview is 20 sufficient for the report or notes to qualify as a statement under § 3500(e)(1). Campbell v. United States, 21 373 U.S. 487, 490-92 (1963). 22 (18) Giglio Information. Pursuant to Giglio v. United States, 405 U.S. 150 (1972), the defendant

23 requests all statements and/or promises, expressed or implied, made to any government witnesses, in 24 exchange for their testimony in this case, and all other information which could arguably be used for the 25 impeachment of any government witnesses. 26 (19) Reports of Scientific Tests or Examinations. Pursuant to Fed. R. Crim. P. 16(a)(1)(D), the

27 defendant requests the reports of all tests and examinations conducted upon the evidence in this case. 28 Including, but not limited to, any fingerprint testing done upon any evidence seized in this case, that is within 5 08CR2348-WQH

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1 the possession, custody, or control of the government, the existence of which is known, or by the exercise 2 of due diligence may become known, to the attorney for the government, and which are material to the 3 preparation of the defense or are intended for use by the government as evidence in chief at the trial. 4 (20) Henthorn Material. The defense requests that the prosecutor review the personnel files of the

5 officers involved in her arrests, and those who will testify, and produce to her any exculpatory information 6 at least two weeks prior to trial and one week prior to the motion hearing. See United States v. Henthorn, 7 931 F.2d 29 (9th Cir. 1991). In addition, she requests that if the government is uncertain whether certain 8 information is to be turned over pursuant to this request, that it produce such information to the Court in 9 advance of the trial and the motion hearing for an in camera inspection. 10 (21) Informants and Cooperating Witnesses. Mr. Gunderson requests disclosure of the names and

11 addresses of all informants or cooperating witnesses used or to be used in this case. The government must 12 disclose the informant's identity and location, as well as disclose the existence of any other percipient 13 witness unknown or unknowable to the defense. Roviaro v. United States, 353 U.S. 53, 61-62 (1957). Mr. 14 Gunderson also requests disclosure of any information indicating bias on the part of any informant or 15 cooperating witness. Giglio v. United States, 405 U.S. 150 (1972). Such information would include 16 inducements, favors, payments, or threats made to the witness to secure cooperation with the authorities. 17 (22) Expert Witnesses. The defendant requests disclosure of any expert witnesses the government

18 intends to call at trial and "a written summary of testimony that the government intends to use," including 19 the "witnesses' opinions, the bases and the reasons for those opinions" and his or her qualifications. Fed. 20 R. Crim. P. 16(a)(1)(E). 21 (23) Residual Request. The defense intends by this discovery motion to invoke her rights to

22 discovery to the fullest extent possible under the Federal Rules of Criminal Procedure and the Constitution 23 and laws of the United States. This request specifically includes all subsections of Rule 16. Mr. Gunderson 24 requests that the government provide her and her attorney with the above requested material sufficiently in 25 advance of trial. 26 27 28 6 08CR2348-WQH

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II. REQUEST FOR LEAVE TO FILE FURTHER MOTIONS To date, Mr. Gunderson and defense counsel have received limited discovery from the government.

4 It is anticipated that as new information comes to light, the defense will likely find it necessary to file further 5 motions. 6 7 8 9 Respectfully submitted, 10 11 Dated: August 13, 2008 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 08CR2348-WQH /s/ Norma A. Aguilar NORMA A. AGUILAR Attorney for Mr. Gunderson [email protected] III. CONCLUSION For the reasons stated above, Mr. Gunderson moves this Court to grant her motions.

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ) ) Plaintiff, ) ) v. ) ) ADAM GRANT GUNDERSON, ) ) Defendant. ) _______________________________________) UNITED STATES OF AMERICA,

Case No. 08CR2348-WQH

CERTIFICATE OF SERVICE

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: Luella Caldito, Assistant United States Attorney 880 Front Street San Diego, CA 92101

Dated: August 13, 2008 /s/ Norma A. Aguilar NORMA A. AGUILAR Federal Defenders 225 Broadway, Suite 900 San Diego, CA 92101-5030 (619) 234-8467 (tel) (619) 687-2666 (fax) Email: [email protected]