Free Motion to Suppress Evidence - District Court of California - California

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1 ERICK L. GUZMAN California Bar No. 244391 2 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 3 San Diego, CA 92101-5008 Telephone: (619) 234-8467 4 [email protected] 5 Attorneys for Mr. Fernando Rodriguez 6 7 8 9 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE LARRY A. BURNS) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 08CR2268-LAB DATE: August 25, 2008 TIME: 2:00 P.M. NOTICE OF MOTIONS AND MOTIONS TO: 1) 2) 3) 4) 5) SUPPRESS EVIDENCE DUE TO FOURTH AMENDMENT VIOLATIONS SUPPRESS STATEMENTS/CONDUCT A VOLUNTARINESS HEARING; DISMISS THE INDICTMENT FOR APPRENDI VIOLATION; PRESERVE EVIDENCE; AND COMPEL DISCOVERY.

11 UNITED STATES OF AMERICA, 12 13 v. 14 FERNANDO RODRIGUEZ 15 16 17 18 19 20 21 22 TO: 23 24 Defendant. Plaintiff,

KAREN P. HEWITT, UNITED STATES ATTORNEY; AND REBECCA KANTER, ASSISTANT UNITED STATES ATTORNEY: PLEASE TAKE NOTICE that, on AUGUST 25, 2008 at 2:00 P.M.., or as soon thereafter as counsel

25 may be heard, defendant, Fernando Rodriguez, by and through his attorneys, Erick L., Guzman, and Federal 26 Defenders of San Diego, Inc., will ask this Court to enter an order granting the following motions. 27 28 MOTIONS Defendant, Fernando Rodriguez, by and through his attorneys, Erick L. Guzman, and Federal Defenders of San Diego, Inc., asks this Court, pursuant to the United States Constitution, the Federal Rules

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1 of Criminal Procedure, and all other applicable statutes, case law, and local rules, for an order to: 2 3 4 5 6 7 (1) (2) (3) (4) (5) Suppress Evidence; Suppress Statements/Conduct a Voluntariness Hearing; Dismiss the Indictment Due to Violation of Apprendi and its Progeny; Preserve Evidence; and Compel Discovery.

These motions are based upon the instant motions and notice of motions, the attached statement of

8 facts and memorandum of points and authorities, the files and records in the above-captioned matter, and any 9 and all other materials that may come to this Court's attention prior to or during the hearing of these motions. 10 11 12 DATED: August 4, 2008 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /s/ ERICK L. GUZMAN ERICK L. GUZMAN Federal Defenders of San Diego, Inc. Attorneys for Mr. Rodriguez [email protected] Respectfully submitted,

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1 ERICK L. GUZMAN

California Bar No. 244391
2 FEDERAL DEFENDERS OF SAN DIEGO, INC.

225 Broadway, Suite 900
3 San Diego, CA 92101-5008

(619) 234-8467/Fax: (619) 687-2666
4 email: [email protected] 5 Attorneys for Mr. Rodriguez 6 7 8 9

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE LARRY A. BURNS) ) ) Plaintiff, ) ) v. ) ) FERNANDO RODRIGUEZ, ) ) Defendant. ) ) ______________________________________ ) I. STATEMENT OF FACTS1 On June 29, 2008, Mr. Rodriguez drove up to the Highway 86 Border Patrol Checkpoint, with his Case No. 08CR2268-LAB DATE: August 28, 2008 TIME: 2:00 P.M. STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTIONS

10 UNITED STATES OF AMERICA, 11 12 13 14 15 16 17 18

19 valid and current I-551 (green card). See Report of Investigation at 2 (attached as Exhibit A). A Border Patrol 20 agent told Mr. Rodriguez that he matched the description of a person for whom they were waiting.

See

21 Declaration of F. Rodriguez (attached as Exhibit B)2. Narcotics dog Hoby was directed to Mr. Rodriguez's 22 vehicle and gave a positive alert. See Exhibit A at 2. Mr. Rodriguez was directed and escorted to the inside 23 of an office. Mr. Rodriguez did not feel free to leave the office. See Exhibit B. At this point, Border Patrol 24 Agents asked Mr. Rodriguez if they could search the vehicle, and according to the government, he consented. 25 26

This statement of facts is based primarily on discovery received from the government. Obviously, it is not so based when it is attributed to Mr. Rodriguez's declaration. Mr. Rodriguez does not concede the 27 veracity of these facts.
28

1

Mr. Rodriguez is on bond in Arizona and could not deliver the signed declaration in time for this filing. The signed original declaration is en route to San Diego and will be forwarded to the Court upon receipt.

2

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1 See id. Marijuana was located in an auxiliary tank that was attached to the bed of the truck. 2

Border Patrol agents placed Mr. Rodriguez in a small room, with his back against the wall. See id.

3 There were two agents present, and both agents were great in stature. See id. Border Patrol Agents told Mr. 4 Rodriguez that they wanted him a few questions. Mr. Rodriguez was intimidated by the agents and felt some 5 pressure to speak with them. See id. They told him that it would help Mr. Rodriguez if he told them what 6 happened. See id. Mr. Rodriguez denied knowledge of the Marijuana. 7

On June 30, Agent Huxman requested the surveillance footage related to Mr. Rodriguez's arrest, and

8 was told that he would not be able to receive it. See Exhibit DEA report at 7 (attached as Exhibit C). Mr. 9 Rodriguez then inquired into the status of this footage, and was informed by the United States Attorney's 10 office that no such footage existed due to technical problems. 11 12 13

II. MOTION TO SUPPRESS EVIDENCE Mr. Rodriguez moves the Court to suppress evidence, and/or dismiss the indictment, based on

14 violation of Mr. Rodriguez's Fourth Amendment rights. 15 A. 16

Background As mentioned above, Mr. Rodriguez has not received the video of the events surrounding his arrest.

17 As mentioned above, Mr. Rodriguez has been informed that no such tape exists. Accordingly, these motions 18 are based on defense counsel's information. 19 B. 20

Checkpoint Related Issues Based on what defense counsel knows at this time, Mr. Rodriguez raises four general issues (which

21 contain sub-issues) with respect to the checkpoint search of his car: (1) the "immigration" checkpoint is 22 impermissibly being used for general law enforcement purposes (i.e., to search for drugs), and was so used 23 in this case; (2) Mr. Rodriguez was impermissibly referred to secondary3 inspection, and the wait in secondary 24 inspection was improper; (3) any consent to search was invalid; and (4) without establishing that the narcotic 25 detector dog is reliable, the government cannot rely on its alleged alert to provide probable cause for the 26 27 28

It is defense counsel's understanding that "secondary" at the Highway 86 checkpoint is an office, as opposed to the "secondary" areas at the ports of entry. 2 08CR2268-LAB

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1 search, and without an alert there was no probable cause. Accordingly, the Court should suppress the fruits4 2 of any violations it finds. 3 4

1.

The Immigration Checkpoint Is Impermissibly Being Used For General Law Enforcement Purposes (i.e., To Search For Drugs), And Was So Used In This Case

Defense counsel's experience suggests that the government is using what it calls "immigration"
5

checkpoints for general law enforcement purposes; i.e., to look for drugs. That impression is buttressed in
6

this case by a few things. First, following the discovery of the marijuana primary inspector, Agent Vega,
7

stated that the following regarding the events at the primary inspection area:
8 9 10 11 12

I was working pre-primary inspection with my service canine Hoby [REDACTED] when white [sic] Ford F-250 pickup truck approached our position. Agent Marino was working Iprimary inspection and identified himself as a Border Patrol Agent and asked the driver of what country he was a citizen. The driver, later identified as Rodriguez-Mendoza, Fernando said he was a citizen of Mexico and presented a valid I-551 card. While Agent Marino was interviewing Rodriguez, I conducted a canine sniff of the vehicle. Canine Hoby alerted to the truck bed which contained a large storage tool box and an auxiliary fuel tank.

13 Exhibit C at 2. This suggests Agent Ortiz referred the truck to secondary for a drug search, not for 14 immigration purposes. Also, the Border Patrol agent's statement that they were waiting for Mr. Rodriguez 15 buttresses this conclusion. See Exhibit B. This, is consistent with defense counsel's experience with respect 16 to the government's use of immigration checkpoints. In fact, such improper use of an immigration checkpoint 17 was established during a hearing in Judge Moskowitz's courtroom in United States v. Rummerfield, S.D. Cal. 18 Case No. 02CR2727. 19

These facts suggest a programmatic Fourth Amendment violation, as well as an individual violation

20 of Mr. Rodriguez's Fourth Amendment rights. See Indianapolis v. Edmond, 531 U.S. 32, 47-48 (2000); 21 Whren, 517 U.S. 806, 811 (1996); Wilson, 7 F.3d at 828 (indicating that investigating a vehicle for drugs at 22 a fixed checkpoint under the pretext of an immigration inspection violates the Fourth Amendment). As Judge 23 Kozinski stated in a concurrence in United States v. Soyland, "[t]here's reason to suspect the agents working 24 these checkpoints are looking for more than illegal aliens. If this is true, it subverts the rationale of Martinez25 Fuerte and turns a legitimate administrative search into a massive violation of the Fourth Amendment." 3 26 F.3d at 1316. 27 28

Mr. Rodriguez will address the fruits analysis if and when the Court finds a constitutional violation. 3 08CR2268-LAB

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1

Accordingly, Mr. Rodriguez requests that the government be required to produce discovery on this

2 issue, including any materials (written, recorded, videotaped, etc.) pertaining to the Border Patrol policy, 3 procedure, and practice with respect to searching for drugs or other contraband at the Highway 86 checkpoint, 4 or immigration checkpoints generally. Mr. Rodriguez also requests that the government be required to 5 provide data regarding the number of searches and arrests at the Highway 86 checkpoint over the past two 6 years, the reasons for the searches (if known), and the charges leveled upon arrest, if any. Mr. Rodriguez also 7 requests that the Court order the government to produce the names of those responsible for training and 8 implementing Border Patrol policy regarding searching for contraband at the Highway 86 checkpoint, so such 9 people may be subpoenaed to testify before this Court. Mr. Rodriguez also requests that the Court order 10 discovery of any materials tending to show that on June 29, 2008, the officers at the checkpoint were looking 11 to search F-250's, or Mr. Rodriguez's car, or people named Fernando Rodriguez-Mendoza, including that the 12 Court order production of the checkpoint video for the eight hours preceding Mr. Rodriguez's arrival there, 13 and any information or materials that show there was a look-out for a vehicle similar to Mr. Rodriguez's. 14 Finally, Mr. Rodriguez requests that the Court order production of any materials or information that show the 15 purpose for referring Mr. Rodriguez's car to secondary was to search for drugs, or that the referral was for 16 anything other than immigration purposes. 17 18

2.

Mr. Rodriguez Was Impermissibly Referred To Secondary Inspection, And The Wait In Secondary Inspection Was Unreasonable

Mr. Rodriguez was impermissibly referred to secondary inspection, and the scope of his detention
19

there, before any search was conducted, or consent was obtained, violated the Fourth Amendment.
20

In United States v. Martinez-Fuerte, 428 U.S. 543 (1976), the Supreme Court indicated that while
21

immigration checkpoints are permissible, they must be "limited to the types of stops described in [its] opinion.
22

Any further detention . . . must be based on consent or probable cause." 428 U.S. at 567. Regarding the scope
23

of the stop, Martinez-Fuerte only permits agents to request "a response to a brief question or two and possibly
24

the production of a document evidencing a right to be in the United States," and conduct a "visible inspection
25

of the vehicle limited to what can be seen without a search." Martinez-Fuerte, 428 U.S. at 558 (quotation
26

omitted); see also Soyland, 3 F.3d at 1318 (noting that a Fourth Amendment violation occurs "when a Border
27

Patrol agent conducts a separate investigation after he's established there are no immigration law violations")
28

(Kozinski, J., concurring). 4 08CR2268-LAB

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1

Here, Agent Marino was learned that Mr. Rodriguez was a Legal Permanent Resident and was

2 presented with a valid green card. Agent Marino also had a chance to look inside the vehicle. Thus, any 3 further detention was required to be supported by "consent or probable cause." The referral to secondary was 4 not supported by either. Mr. Rodriguez recognizes that the government is claiming that Mr. Rodriguez 5 consented to the search immediately. However, Mr. Rodriguez has set out a different factual scenario with 6 the request for consent not occurring until much later. See Exhibit B. Notwithstanding, even under Agent 7 Vega's version of the events, his request for consents occurs impermissibly late. 8 9

3.

Any Consent To Search Was Invalid

The search of Mr. Rodriguez's vehicle also offended the Fourth Amendment because it was not

10 supported by probable cause. 11

The government likely will assert that the search of Mr. Rodriguez's car was permissible because he

12 consented to such a search. As an initial matter, because the scope of the detention exceeded that permissible 13 under Martinez-Fuerte, any alleged consent to search the car was invalid because it is tainted by the illegal 14 detention. See Florida v. Royer, 460 U.S. 491, 502-504 (1983) (holding that because "the detention [in that 15 case] was a more serious intrusion on [the defendant's] personal liberty than is allowable on a mere suspicion 16 of criminal activity," the defendant's consent to search his luggage "was tainted by the illegality and was 17 ineffective to justify the search"). 18

Moreover, any consent cannot be said to have been voluntary because an encounter cannot be said

19 to be consensual if a "reasonable person would have believed that he was not free to leave." California v. 20 Hodari D., 499 U.S. 621, 627-28 (1991). Mr. Rodriguez was ordered to secondary by an armed, uniformed 21 officer, and was made to wait there while other armed, uniformed officers searched other cars. In addition, 22 his identification was taken from him in the primary area. Accordingly, he would not have felt free to leave. 23

And the testimony of other Border Patrol agents in similar circumstances indicates Mr. Rodriguez,

24 in fact, was not free to leave. In testimony before Judge Lorenz, Border Patrol Agent Ernesto Arellano 25 testified about searches at the San Clemente checkpoint, and stated that "we require consent from all owners 26 of vehicles or people in the vehicle, to look in the trunk." See Portion of Transcript at 6 (attached at Exhibit 27 D). Similarly, in testimony by Border Patrol agent Mullens before Judge Miller, he stated the practice at the 28 Interstate 8 checkpoint is that when consent to open the trunk is requested, the driver is not free to leave, and

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1 "[i]f a vehicle is placed in secondary, it is not free to leave until it is released." See Portion of Transcript at 2 29 (attached at Exhibit E). This reinforces what a reasonable person would believe: he can't just leave. 3 4

4.

There Was No Probable Cause For The Search, Absent A Showing The Narcotic Detector Dog Was Reliable

Finally, presumably the government will rely on the alleged dog alert to support probable cause for
5

the search. Mr. Rodriguez seeks to challenge the reliability of the dog (based on defense counsel's broad
6

experience indicating that such dogs are improperly trained and maintained), and thus requests discovery
7

consistent with United States v. Cedano-Arellano, 332 F.3d 568, 571 (9th Cir. 2003). A copy of the dog
8

expert's declaration supporting the discovery request in Cedano-Arellano is attached as Exhibit F, to make
9

clear what Mr. Rodriguez is requesting, the basis therefor, and what was ruled on in that case.
10

III.
11

MOTION TO SUPPRESS STATEMENTS
12

If the government seeks to introduce statements attributable to Mr. Rodriguez, the government
13

must first prove that they comply with Miranda and were voluntary.
14

A.
15 16

Any Waiver by Mr. Rodriguez was not Knowing, Intelligent, and Voluntary. In order for any statements made by Mr. Rodriguez to be admissible against him, the government

must demonstrate that they were obtained in compliance with the Miranda decision.
17

The government must establish that Mr. Rodriguez's waiver of his Miranda rights was voluntary,
18

knowing, and intelligent. See Schneckloth v. Bustamonte, 412 U.S. 218 (1973). When interrogation
19

continues without the presence of an attorney, and a statement results, the government has a heavy burden to
20

demonstrate that the defendant has intelligently and voluntarily waived his privilege against self-incrimination.
21

Miranda, 384 U.S. at 475. The court must indulge every reasonable presumption against waiver of
22

fundamental constitutional rights, so the burden on the government is great. United States v. Heldt, 745 F.
23

2d 1275, 1277 (9th Cir. 1984).
24

In determining whether a waiver is voluntary, knowing, and intelligent, the court looks to the totality
25

of the circumstances surrounding the case. Edwards v. Arizona, 451 U.S. 477 (1981); United States v.
26

Garibay, 143 F.3d 534 (9th Cir. 1998). The Ninth Circuit has held that determination of the validity of a
27

Miranda waiver requires a two prong analysis: the waiver must be both (1) voluntary and (2) knowing and
28

intelligent. Derrick v. Peterson, 924 F. 2d 813 (9th Cir. 1990). The second prong requires an inquiry into 6 08CR2268-LAB

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1 whether "the waiver [was] made with a full awareness both of the nature of the right being abandoned and the 2 consequences of the decision to abandon it." Id. at 820-821 (quoting Colorado v. Spring, 479 U.S. 564, 573 3 (1987)).

Not only must the waiver be uncoerced, then, it must also involve a "requisite level of

4 comprehension" before a court may conclude that Miranda rights have been legitimately waived. Id. (quoting 5 Colorado v. Spring, 479 U.S. at 573). Unless and until Miranda warnings and a knowing and intelligent 6 waiver are demonstrated by the prosecution, no evidence obtained as a result of the interrogation can be used 7 against the defendant. Miranda, 384 U.S. at 479. The government in this case must prove that Mr. Rodriguez 8 waived his rights intelligently and voluntarily. Mr. Rodriguez disputes any allegation any waiver was 9 knowing, intelligent, and voluntarily. 10

Mr. Rodriguez does not speak English. He was confronted by large, armed agents--at least some

11 of whom did not speak Spanish--and forced into a small room, with his back against the wall. See Exhibit B. 12 This situation was overwhelming and nerve-wracking. Accordingly, any waiver was not knowing, nor 13 intelligent, voluntary, and must be suppressed. 14 B. 15

Mr. Rodriguez's Statements Must Be Voluntary. Even if this Court determines that Mr. Rodriguez validly waived his Miranda rights, it must still

16 make a determination that any statements are voluntary. Under 18 U.S.C. § 3501(a), this Court is required 17 to determine, whether any statements made by Mr. Rodriguez are voluntary. In addition, section 3501(b) 18 requires this Court to consider various enumerated factors, including whether Mr. Rodriguez understood the 19 nature of the charges against him and whether he understood his rights. Without such evidence, this Court 20 cannot adequately consider these statutorily mandated factors. Also, the factors listed above to support a lack 21 of a intelligent waiver also support finding a lack of voluntariness. 22

Moreover, section 3501(a) requires this Court to make a factual determination. Where a factual

23 determination is required, Fed. R. Crim. P. 12 obligates courts to make factual findings. See United States 24 v. Prieto-Villa, 910 F.2d 601, 606-10 (9th Cir. 1990). Because "`suppression hearings are often as important 25 as the trial itself,'" id. at 610 (quoting Waller v. Georgia, 467 U.S. 39, 46 (1984)), these findings should be 26 supported by evidence, not merely an unsubstantiated recitation of purported evidence in a prosecutor's 27 responsive pleading. 28

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1 C. 2

The Statements Must be Suppressed for Violation of the Vienna Convention.5 Article 36 of the Vienna Convention on Consular Relations, April 24, 1963 U.S.T. 77, provides that

3 law enforcement officials "shall inform...without delay" arrested foreign nationals of their right to notification 4 of their consulates. The Ninth Circuit has held that this treaty creates enforceable individual rights. Lombera5 Camorlinga, 170 F.3d at 1244, (reversed on other grounds, Lombera-Camolinga, 206 F.3d 882, 885 (9th cir. 6 2000). 7

In order for law enforcement to comply with the "without delay" requirement of Article 36, they must

8 inform a foreign national of their consulate right before any interrogation takes place. This proposition is 9 supported by the further language that: "The rights referred to in paragraph 1 of this Article shall be exercised 10 in conformity with the laws and regulations of the receiving state." The most analogous and relevant laws of 11 the this country (the Receiving state) would be the law regarding advising of rights before questioning by law 12 enforcement. See Miranda v. Arizona, 384 U.S. 476 (1966). That body of law requires that people be 13 informed of their rights prior to questioning. Therefore, to be in conformity with U.S. law--as required by 14 Article 36--the consulate right notification must precede custodial interrogation. 15

The en banc opinion of Lombera-Camorlinga states the exclusionary rule was not the necessary

16 remedy for violations of this treaty, in part because the State Department "indicate[d] that it has historically 17 enforced the Vienna Convention itself, investigating reports of violations and apologizing to foreign 18 government and working with domestic law enforcement to prevent future violations when necessary." It 19 appears now, seven years later, that the State Department's efforts are insufficient to curtail blatant violations 20 of the Vienna Convention. In this case, Border Patrol agents claim to have read Mr. Rodriguez his Miranda 21 rights, so it is clear that they believed him to be in custody. See Exhibit C at 5. 22

The Border Patrol agents in this case violated the Vienna Convention, and therefore, the any

23 statements that occurred after this violation should be suppressed. 24 25 26 27 28

Mr. Rodriguez recognizes that the en banc decision of Lombera-Camorlinga, 206 F.3d 882 is arguably to the contrary. Mr. Rodriguez raises the issue to preserve his appellate record. 8 08CR2268-LAB

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1 2 3 4

IV. THE COURT SHOULD DISMISS INDICTMENT BASED ON APPRENDI V. NEW JERSEY AND ITS PROGENY Mr. Rodriguez moves to dismiss based on the unconstitutionality of 21 U.S.C. §§ 841 and 960. It

5 is clear that Congress intended drug type and quantity to be sentencing factors to be decided by a judge by a 6 preponderance of the evidence. That regime is contrary to the holding of Apprendi v. New Jersey, 530 U.S. 7 466 (2000), and its progeny, and thus the statute is unconstitutional, and the indictment should be dismissed. 8

Moreover, the "fix" for the statute leads to the conclusion that the government should have to prove

9 knowledge of drug type and quantity, something the government disagrees with, and thus likely something 10 on which the government misinstructed the grand jury. Dismissal may be appropriate on this basis, and thus 11 the Court should order production of the grand jury transcript. See Fed. R. Crim. P. 6(e)(3)(E)(ii). 12

V.
13

MOTION TO PRESERVE AND INSPECT EVIDENCE
14

Mr. Rodriguez renews the request for preservation of evidence that was originally made before
15

Judge Lewis in El Centro California. See Clerk's Docket Sheet at 8. This includes any evidence that may
16

be destroyed, lost, or otherwise put out of the possession, custody, or care of the government (or its private
17

contractors) in this case. See United States v. Riley, 189 F.3d 802, 806-08 (9th Cir.1999). This request
18

includes, but is not limited to: (1) the defendant's personal effects; (2) the vehicle seized in the event; (3)
19

any videotapes capturing Mr. Rodriguez6 or any third party in relation to this case (4) any recorded
20

communications made by government or non-government officials related to the above captioned case,
21

e.g., 911 or dispatch tapes; and, (5) any other evidence seized from the defendant or any third party in
22

relation to this case. This request also includes any material or percipient witnesses who might be
23

deported or otherwise likely to become unavailable. Mr. Rodriguez requests that government counsel be
24

ordered to notify the agencies and private contractors with custody of such evidence be informed of the
25

Court's preservation order. Further, Mr. Rodriguez requests an order granting defense counsel and/or their
26

investigators access to the evidence for the purposes of investigation, including inspection, and
27 28

Mr. Rodriguez recognizes that the government claims that no such footage exists. He makes this request in the event that such footage is discovered later. 9 08CR2268-LAB

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1 photographing. FED. R. CRIM. P. 16(a)(1)(C). A proposed order is attached for the convenience of the 2 Court. Mr. Rodriguez also requests an order form this Court allowing Federal Defenders of San Diego 3 access to re-weigh the alleged Marijuana. Again, a proposed order is attached. 4

Mr. Rodriguez also requests preservation of any radio relays involving Border Patrol Agents, or

5 other law enforcement agencies, regarding this arrest. He further requests preservation of any video 6 records or written memorializations of his post arrest statements from June 29, 2008. 7

Mr. Rodriguez requests that the above materials be preserved throughout the pendency of the

8 case, including any appeals. 9 10 11

VI. MOTION TO COMPEL DISCOVERY At this time, Mr. Rodriguez has received limited discovery. Mr. Rodriguez hereby moves for

12

the production of all additional discoverable material.
13

At this time Mr. Rodriguez has received only thirty-four pages of discovery and requests the
14

following additional discovery materials. This request is not limited to those items that the prosecutor
15

knows of. It includes all discovery listed below that is in the custody, control, care, or knowledge of any
16

"closely related investigative [or other] agencies." See United States v. Bryan, 868 F.2d 1032 (9th Cir.
17

1989); United States v. Jernigan, 492 F.3d 1050 (9th Cir. 2007) (en banc). Also, Mr. Rodriguez renews
18

his request for any recording of his post arrest statement, any written memorialization of his statement, or
19

any notes written by the agents during his interrogation; intelligible copies of the pages 16, 17 of 27-31 of
20

discovery; the request made above at section II.B.1; the reports prepared in connection with the
21

malfunctioning of the video equipment of the Highway 86 checkpoint that was supposed to capture Mr.
22

Rodriguez at pre-primary, primary and his interrogation; and reports dealing with the repair of that
23

equipment. Also, Mr. Rodriguez requests:
24

(1) Brady Material. The defendant requests all documents, statements, agents' reports, and
25

tangible evidence favorable to the defendant on the issue of guilt and/or which affects the credibility of the
26

government's case. Under Brady, impeachment as well as exculpatory evidence falls within the definition
27

of evidence favorable to the accused. United States v. Bagley, 473 U.S. 667 (1985); United States v.
28

Agurs, 427 U.S. 97 (1976). 10 08CR2268-LAB

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1

(2) Any Proposed 404(b) Evidence. The government must produce evidence of prior similar

2 acts under Fed. R. Crim. P. 16(a)(1) and Fed. R. Evid. 404(b) and any prior convictions which would be 3 used to impeach as noted in Fed. R. Crim. P. 609. In addition, under Fed. R. Evid. 404(b), "upon request 4 of the accused, the prosecution . . . shall provide reasonable notice in advance of trial . . . of the general 5 nature" of any evidence the government proposes to introduce under Fed. R. Evid. 404(b) at trial. The 6 defendant requests such notice two weeks before trial in order to give the defense time adequately to 7 investigate and prepare for trial. 8

(3) Evidence Seized. The defendant requests production of evidence seized as a result of any

9 search. Fed. R. Crim. P. 16(a)(1)(E). She wishes to inspect the evidence before trial. Specifically, the 10 defense requests the opportunity to inspect the 1993 Honda Odyssey seized in this case. In addition, 11 the defense wishes to inspect the 50.34 kilograms of marijuana allegedly found in the seized vehicle. 12 See Section III, below. A proposed preservation order has been electronically mailed to the Court 13 for the Court's signature. 14

(4) Request for Preservation of Evidence. The defendant specifically requests the preservation

15 of all physical evidence that may be destroyed, lost, or otherwise put out of the possession, custody, or 16 care of the government and which relates to the arrest or the events leading to the arrest in this case. This 17 request includes, but is not limited to, any samples of narcotics used to run any scientific tests, any 18 narcotics, the results of any fingerprint analysis, the vehicle which the defendant drove, the defendant's 19 personal effects, and any evidence seized from the defendant or any third party. 20

In addition, Mr. Rodriguez specifically requests that the Assistant United States Attorney

21 assigned to this case oversee a review of all personnel files of each agent involved in the present case for 22 impeachment material. Kyles v. Whitley, 115 S. Ct. 1555 (1995); United States v. Henthorn, 931 F.2d 29 23 (9th Cir. 1991); but see United States v. Herring, 83 F.3d 1120 (9th Cir. 1996). 24

(5) Tangible Objects. The defendant seeks to inspect and copy as well as test, if necessary, all

25 other documents and tangible objects, including photographs, books, papers, documents, alleged narcotics, 26 fingerprint analyses, vehicles, or copies of portions thereof, which are material to the defense or intended 27 for use in the government's case-in-chief or were obtained from or belong to the defendant. Fed. R. Crim. 28 P. 16(a)(1)(E). A proposed preservation order has been electronically mailed to the Court for the

11

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1 Court's signature. 2

(6) Expert Witnesses. The defendant requests the name, qualifications, and a written summary

3 of the testimony of any person that the government intends to call as an expert witness during its case in 4 chief. Fed. R. Crim. P. 16(a)(1)(G). 5

(7) Evidence of Bias or Motive to Lie. The defendant requests any evidence that any prospective

6 government witness is biased or prejudiced against the defendant, or has a motive to falsify or distort her 7 testimony. 8

(8) Impeachment Evidence. The defendant requests any evidence that any prospective

9 government witness has engaged in any criminal act, whether or not resulting in a conviction, and whether 10 any witness has made a statement favorable to the defendant. See Fed. R. Evid. 608, 609 and 613; Brady 11 v. Maryland. 12

(9) Evidence of Criminal Investigation of Any Government Witness. The defendant requests

13 any evidence that any prospective witness is under investigation by federal, state or local authorities for 14 any criminal conduct. 15

(10) Evidence Affecting Perception, Recollection, Ability to Communicate, or Truth Telling.

16 The defense requests any evidence, including any medical or psychiatric report or evaluation, that tends to 17 show that any prospective witness' ability to perceive, remember, communicate, or tell the truth is 18 impaired, and any evidence that a witness has ever used narcotics or other controlled substance, or has 19 ever been an alcoholic. 20

(11) Witness Addresses. The defendant requests the name and last known address of each

21 prospective government witness. The defendant also requests the name and last known address of every 22 witness to the crime or crimes charged (or any of the overt acts committed in furtherance thereof) who will 23 not be called as a government witness. 24

(12) Name of Witnesses Favorable to the Defendant. The defendant requests the name of any

25 witness who made an arguably favorable statement concerning the defendant. 26

(13) Statements Relevant to the Defense. The defendant requests disclosure of any statement

27 relevant to any possible defense or contention that she might assert. 28

(14) Jencks Act Material. The defendant requests production in advance of trial of all material,

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1 including dispatch tapes, which the government must produce pursuant to the Jencks Act, 18 U.S.C. 2 § 3500. Advance production will avoid the possibility of delay at the request of defendant to investigate 3 the Jencks material. 4

(15) Giglio Information. Under Giglio v. United States, 405 U.S. 150 (1972), the defendant

5 requests all statements and/or promises, express or implied, made to any government witnesses, in 6 exchange for their testimony in this case, and all other information which could arguably be used for the 7 impeachment of any government witnesses. 8

(16) Scientific and Other Information. To the extent not already provided, the defendant

9 requests the results of any scientific or other tests or examinations, including testing done on the alleged 10 marijuana. See Rule 16(a)(1)(F). 11

(17) Informants and Cooperating Witnesses. The defense requests disclosure of the name(s),

12 address(es), and location(s) of all informants or cooperating witnesses used or to be used in this case, and 13 in particular, disclosure of any informant who was a percipient witness in this case or otherwise 14 participated in the charged crime. Roviaro v. United States, 353 U.S. 52, 61-62 (1957). The government 15 must disclose any information derived from informants which exculpates or tends to exculpate the 16 defendant. Brady v. Maryland, 373 U.S. 83 (1963). The government must disclose any information 17 indicating bias on the part of any informant or cooperating witness. Id. 18

(18) Personnel Records of Government Officers Involved in the Arrest. Mr. Rodriguez

19 specifically requests all citizen complaints and other related internal affairs documents involving any of 20 the Customs officers or other law enforcement officers who were involved in the investigation, arrest and 21 interrogation of her, pursuant to Pitchess v. Superior Court, 11 Cal. 3d 531, 539 (1974). Because of the 22 sensitive nature of these documents, defense counsel will not be able to procure them from any other 23 source. 24

(19) Government Examination of Law Enforcement Personnel Files. The defendant requests that

25 the Government examine the personnel files and any other files within its custody, care or control, or 26 which could be obtained by the government, for all testifying witnesses, including testifying officers. She 27 requests that these files be reviewed by the Government attorney for evidence of perjurious conduct or 28 other like dishonesty, or any other material relevant to impeachment, or any information that is

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1 exculpatory, pursuant to its duty under United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991). Only the 2 prosecutor has the legal knowledge and ethical obligations to fully comply with this request. 3

(20) Training of Border Patrol and DEA Agents. The defendant requests copies of any and all

4 written policies and/or training manuals issued by the Department of Homeland Security to their 5 employees regarding: (1) the handling of vehicles suspected to be transporting illegal contraband near or 6 to the border; (2) the detention of individuals within those vehicles suspected of carrying contraband; and 7 (3) the search of those vehicles and the occupants of those vehicles. 8

(21) Residual Request. Mr. Rodriguez intends by this discovery motion to invoke her rights to

9 discovery to the fullest extent possible under the Federal Rules of Criminal Procedure and the Constitution 10 and laws of the United States. Mr. Rodriguez requests that the government provide her with the above 11 requested material sufficiently in advance of trial to avoid unnecessary delay prior to cross-examination. 12

VII.
13

CONCLUSION
14

For the reasons stated above, Mr. Rodriguez moves this Court to grant his motions.
15

Respectfully submitted,
16 17 DATED: 18 19 20 21 22 23 24 25 26 27 28

August 4, 2008

/s/ Erick L. Guzman /s/ ERICK L. GUZMAN Federal Defenders of San Diego, Inc. Attorneys for Mr. Rodriguez

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ERICK L. GUZMAN California State Bar No. 244391 2 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 3 San Diego, CA 92101-5008 (619) 234-8467/Fax: (619) 687-2666 4 E-Mail: [email protected]
1 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Attorneys for Fernando Rodriguez

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE LARRY A. BURNS) ) ) Plaintiff, ) ) v. ) ) FERNANDO RODRIGUEZ, ) ) Defendant. ) ______________________________________ ) UNITED STATES OF AMERICA, Case No. 08CR2268-LAB

CERTIFICATE OF SERVICE

Counsel for Defendant certifies that the foregoing pleading is true and accurate to the best of his information and belief, and that a copy of the foregoing document has been served this day upon: Rebecca Kanter [email protected],[email protected],[email protected] Respectfully submitted,

DATED:

August 4, 2008

/s/ Erick L. Guzman ERICK L. GUZMAN Federal Defenders of San Diego, Inc. Attorneys for Fernando Rodriguez

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UNITED STATES v. FERNANDO RODRIGUEZ U.S.D.C. Case No. 08CR 2268-LAB INDEX OF EXHIBITS Exhibit A. Exhibit B. Exhibit C. Exhibit D. Exhibit E. Exhibit F. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 35

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