Free Motion to Compel - District Court of California - California

Case 3:08-cr-02263-BTM

Document 8

Filed 07/31/2008

Page 1 of 12

1 GREGORY MURPHY California State Bar No. 245505 2 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 3 San Diego, California 92101-5030 Telephone: (619) 234-8467 4 [email protected] 5 Attorneys for Mr. Jaime Santiago 6 7 8 9 10 11 12 UNITED STATES OF AMERICA, 13 14 15 16 17 18 19 20 21 PLEASE TAKE NOTICE that on August 15, 2008, at 1:30 p.m., or as soon thereafter as ) CASE NO. 08-cr-2263-BTM ) Plaintiff, ) DATE: August 15, 2008 ) TIME: 1:30 p.m. ) v. ) NOTICE OF MOTIONS AND ) MOTIONS: ) JAIME SANTIAGO ) (1) TO COMPEL DISCOVERY; AND ) (2) FOR LEAVE TO FILE FURTHER Defendant. ) MOTIONS ) ) __________________________________ ) TO: KAREN P. HEWITT, UNITED STATES ATTORNEY; AND CARLOS ARGUELLO, ASSISTANT UNITED STATES ATTORNEY: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE BARRY T. MOSKOWITZ)

22 counsel may be heard, the defendant, Jose Flores-Savala, by and through his counsel, Gregory T. 23 Murphy and Federal Defenders of San Diego, Inc., will ask this Court to enter an order granting the 24 following motions. 25 // 26 // 27 // 28 //

Case 3:08-cr-02263-BTM

Document 8

Filed 07/31/2008

Page 2 of 12

1 2

MOTIONS The defendant, Jaime Santiago, by and through his attorneys, Gregory Murphy and Federal

3 Defenders of San Diego, Inc., pursuant to the United States Constitution, the Federal Rules of 4 Criminal Procedure, and all other applicable statutes, case law and local rules, hereby moves this 5 Court for an order: 6 7 8 1) compelling discovery; 2) for leave to file further motions. 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 all other materials that may come 10 to this Court's attention at the time of the hearing on these motions. 11 12 13 Dated: July 31, 2008 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Respectfully submitted, /s/ Gregory Murphy GREGORY MURPHY Federal Defenders of San Diego, Inc. Attorneys for Mr. Jaime Santiago [email protected]

Case 3:08-cr-02263-BTM

Document 8

Filed 07/31/2008

Page 3 of 12

1 GREGORY MURPHY California State Bar No. 245505 2 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 3 San Diego, California 92101-5030 Telephone: (619) 234-8467 4 [email protected] 5 Attorneys for Mr. Jaime Santiago 6 7 8 9 10 11 12 UNITED STATES OF AMERICA, 13 14 v. 15 JAIME SANTIAGO 16 17 18 19 20 I. STATEMENT OF FACTS The government alleges Mr. Santiago was found in the United States after deportation Defendant _________________________________ Plaintiff, ) ) ) ) ) ) ) ) ) ) CASE NO. 08-cr-2263-BTM STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTIONS UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE BARRY T. MOSKOWITZ)

21 on August 17, 2007 in violation of 8 U.S.C. § 1326. 22 23 24 25 Mr. Flores-Savala has entered a plea of not guilty. II. MOTION TO COMPEL DISCOVERY Mr. Santiago requests the following discovery. His request is not limited to those items

26 of which the prosecutor is aware. It includes all discovery listed below that is in the custody, control, 27 care, or knowledge of any "closely related investigative [or other] agencies." See United States v. 28 Bryan, 868 F.2d 1032 (9th Cir. 1989).

Case 3:08-cr-02263-BTM

Document 8

Filed 07/31/2008

Page 4 of 12

1 1.

The Defendant's Statements. The government must disclose to Mr. Santiago all copies

2 of any written or recorded statements made by Mr. Santiago; the substance of any statements made 3 by Mr. Santiago that the government intends to offer in evidence at trial; any response by 4 Mr. Santiago to interrogation; the substance of any oral statements that the government intends to 5 introduce at trial and any written summaries of Mr. Santiago's oral statements contained in the 6 handwritten notes of the government agent; any response to any Miranda warnings that may have 7 been given to Mr. Santiago; and any other statements by Mr. Santiago. Fed. R. Crim. P. 16(a)(1)(A) 8 and (B). The Advisory Committee Notes and the 1991 amendments to Rule 16 make clear that the 9 government must reveal all Mr. Santiago's statements, whether oral or written, regardless of whether 10 the government intends to make any use of those statements. 11 Mr.Santiago specifically requests a copy of the audio recording of any deportation

12 proceeding. 13 2. Arrest Reports, Notes and Dispatch Tapes. Mr. Santiago also specifically requests that

14 all arrest reports, notes and dispatch or any other tapes that relate to the circumstances surrounding 15 his arrest or any questioning, if such reports have not already been produced in their entirety, be 16 turned over to him. This request includes, but is not limited to, any rough notes, records, reports, 17 transcripts or other documents in which statements of Mr. Santiago or any other discoverable 18 material is contained. Mr. Santiago includes in this request any redacted portions of the Report of 19 Investigation ("ROI") and any subsequent ROIs that the case agent or any other agent has written. 20 This is all discoverable under Fed. R. Crim. P. 16(a)(1)(A) and (B) and Brady v. Maryland, 373 U.S. 21 83 (1963). See also Loux v. United States, 389 F.2d 911 (9th Cir. 1968). Arrest reports, 22 investigator's notes, memos from arresting officers, dispatch tapes, sworn statements, and 23 prosecution reports pertaining to Mr. Santiago are available under Fed. R. Crim. P. 16(a)(1)(A) and 24 (B), Fed. R. Crim. P. 26.2 and 12(h). Preservation of rough notes is requested, whether or not the 25 government deems them discoverable. 26 3. Brady Material. Mr. Santiago requests all documents, statements, agents' reports, and

27 tangible evidence favorable to him on the issue of guilt and/or that affects the credibility of the 28 government's case. Impeachment and exculpatory evidence both fall within Brady's definition of 2

Case 3:08-cr-02263-BTM

Document 8

Filed 07/31/2008

Page 5 of 12

1 evidence favorable to the accused. United States v. Bagley, 473 U.S. 667 (1985); United States v. 2 Agurs, 427 U.S. 97 (1976). 3 4. Any Information That May Result in a Lower Sentence. As discussed above, any

4 information that may result in a more favorable sentence must also be disclosed pursuant to Brady, 5 373 U.S. 83. The government must disclose any cooperation or attempted cooperation by Mr. 6 Santiago, as well as any information that could affect any base offense level or specific offense 7 characteristic under Chapter Two of the United States Sentencing Commission Guidelines Manual 8 ("Guidelines"). Also included in this request is any information relevant to a Chapter Three 9 adjustment, a determination of Mr. Santiago's criminal history, or any other application of the 10 Guidelines. 11 5. The Defendant's Prior Record. Evidence of a prior record is available under Fed. R.

12 Crim. P. 16(a)(1)(D). Mr. Santiago specifically requests a complete copy of any criminal record. 13 6. Any Proposed 404(b) Evidence. Evidence of prior similar acts is discoverable under Fed.

14 R. Crim. P. 16(a)(1)(D) and Fed. R. Evid. 404(b) and 609. In addition, under Fed. R. Evid. 404(b), 15 "upon request of the accused, the prosecution . . . shall provide reasonable notice in advance of trial 16 . . . of the general nature . . . ." of any evidence the government proposes to introduce under Fed. R. 17 Evid. 404(b) at trial. Sufficient notice requires the government to "articulate precisely the evidential 18 hypothesis by which a fact of consequence may be inferred from the other acts evidence." United 19 States v. Mehrmanesh, 689 F.2d 822, 830 (9th Cir. 1982) (emphasis added; internal citations 20 omitted); see also United States v. Brooke, 4 F.3d 1480, 1483 (9th Cir. 1993) (reaffirming 21 Mehrmanesh and reversing convictions). 22 7. Evidence Seized. Evidence seized as a result of any search, either warrantless or with a

23 warrant, is discoverable under Fed. R. Crim. P. 16(a)(1)(E). 24 8. Request for Preservation of Evidence. The defense specifically requests that all dispatch

25 tapes or any other physical evidence that may be destroyed, lost, or otherwise put out of the 26 possession, custody, or care of the government and that relate to the arrest or the events leading to 27 the arrest in this case be preserved. This request includes, but is not limited to, Mr. Santiago's 28 personal effects and any evidence seized from Mr. Santiago or any third party. This request also 3

Case 3:08-cr-02263-BTM

Document 8

Filed 07/31/2008

Page 6 of 12

1 includes any material or percipient witnesses who might be deported or otherwise likely to become 2 unavailable (e.g. undocumented aliens and transients). Mr. Santiago requests that the prosecutor be 3 ordered to question all the agencies and individuals involved in the prosecution and investigation of 4 this case to determine if such evidence exists, and if it does exist, to inform those parties to preserve 5 any such evidence. 6 9. Henthorn Material. Mr. Santiago requests that the Assistant United States Attorney

7 ("AUSA") assigned to this case oversee (not personally conduct) a review of all personnel files of 8 each agent involved in the present case for impeachment material. See Kyles v. Whitley, 514 U.S. 9 437, 438 (1995) (holding that "the individual prosecutor has a duty to learn of any favorable 10 evidence known to the others acting on the government's behalf in the case, including the police"); 11 United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991). This request includes, but is not limited to, 12 any complaints filed (by a member of the public, by another agent, or any other person) against the 13 agent, whether or not the investigating authority has taken any action, as well as any matter for which 14 a disciplinary review was undertaken, whether or not any disciplinary action was ultimately 15 recommended. Mr. Santiago further requests production of any such information at least one week 16 prior to the motion hearing and two weeks prior to trial. If the prosecutor is uncertain whether 17 certain information should be disclosed pursuant to this request, this information should be produced 18 to the Court in advance of the motion hearing and the trial for an in camera inspection. 19 10. Tangible Objects. Mr. Santiago requests the opportunity to inspect, copy, and test, as

20 necessary, all other documents and tangible objects, including photographs, books, papers, 21 documents, fingerprint analyses, or copies of portions thereof, that are material to the defense or 22 intended for use in the government's case-in-chief or were obtained from or belong to Mr. Santiago. 23 Fed. R. Crim. P. 16(a)(1)(E). Specifically, Mr. Santiago requests color copies of all photographs 24 in the government's possession of the alleged narcotics and the vehicle in which the narcotics were 25 found. 26 11. Expert Witnesses. Mr. Santiago requests the name, qualifications, and a written summary

27 of the testimony of any person that the government intends to call as an expert witness during its case 28 in chief. Fed. R. Crim. P. 16(a)(1)(G). This summary should include a description of the witness' 4

Case 3:08-cr-02263-BTM

Document 8

Filed 07/31/2008

Page 7 of 12

1 opinion(s), as well as the bases and the reasons for the opinion(s). See United States v. Duvall, 272 2 F.3d 825 (7th Cir. 2001) (finding that government's written expert notice did not adequately 3 summarize or describe police detective's testimony in drug prosecution where notice provided only 4 a list of the general subject matters to be covered and failed to identify what opinion the expert 5 would offer on those subjects). This request includes, but is not limited to, disclosure of the 6 qualifications of any government witness who will testify that he understands and/or speaks Spanish 7 or any other foreign language that may have been used during the course of an interview with 8 Ms. Santiago or any other witness. Mr. Santiago requests the notice of expert testimony be provided 9 at a minimum of three weeks prior to trial so that the defense can properly prepare to address and 10 respond to this testimony, including obtaining its own expert and/or investigating the opinions, 11 credentials of the government's expert and obtain a hearing in advance of trial to determine the 12 admissibility of qualifications of any expert. See Kumho v. Carmichael Tire Co., 526 U.S. 137, 119 13 S.Ct. 1167, 1176 (1999) (trial judge is "gatekeeper" and must determine, reliability and relevancy 14 of expert testimony and such determinations may require "special briefing or other proceedings") 15 12. Impeachment evidence. Mr. Santiago requests any evidence that any prospective

16 government witness has engaged in any criminal act whether or not resulting in a conviction and 17 whether any witness has made a statement favorable to Mr. Santiago. See Fed. R. Evid. 608, 609 18 and 613. Such evidence is discoverable under Brady, 373 U.S. at 83. See United States v. Strifler, 19 851 F.2d 1197 (9th Cir. 1988) (witness' prior record); Thomas v. United States, 343 F.2d 49 (9th 20 Cir. 1965) (evidence that detracts from a witness' credibility). 21 13. Evidence of Criminal Investigation of Any Government Witness. Mr. Santiago requests

22 any evidence that any prospective witness is under investigation by federal, state or local authorities 23 for any criminal conduct. United States v. Chitty, 760 F.2d 425 (2d Cir. 1985). 24 14. Evidence of Bias or Motive to Lie. Mr. Santiago requests evidence that any prospective

25 government witness is biased or prejudiced against Mr. Santiago, or has a motive to falsify or distort 26 his or her testimony. Pennsylvania v. Ritchie, 480 U.S. 39 (1987); Strifler, 851 F.2d 1197. 27 15. Evidence Affecting Perception, Recollection, Ability to Communicate, or Veracity.

28 Ms. Flores requests any evidence, including any medical or psychiatric report or evaluation, tending 5

Case 3:08-cr-02263-BTM

Document 8

Filed 07/31/2008

Page 8 of 12

1 to show that any prospective witness's ability to perceive, remember, communicate, or tell the truth 2 is impaired; and any evidence that a witness has ever used narcotics or other controlled substance, 3 or has ever been an alcoholic. Strifler, 851 F.2d 1197; Chavis v. North Carolina, 637 F.2d 213, 224 4 (4th Cir. 1980). 5 16. Witness Addresses. Mr. Santiago requests the name and last known address of each

6 prospective government witness. See United States v. Napue, 834 F.2d 1311 (7th Cir. 1987); United 7 States v. Tucker, 716 F.2d 576 (9th Cir. 1983) (failure to interview government witnesses by counsel 8 is ineffective); United States v. Cook, 608 F.2d 1175, 1181 (9th Cir. 1979) (defense has equal right 9 to talk to witnesses). Mr. Santiago also requests the name and last known address of every witness 10 to the crime or crimes charged (or any of the overt acts committed in furtherance thereof) who will 11 not be called as a government witness. United States v. Cadet, 727 F.2d 1453 (9th Cir. 1984). 12 17. Names of Witnesses Favorable to the Defendant. Mr. Santiago requests the name of any

13 witness who made any arguably favorable statement concerning Mr. Santiago or who could not 14 identify him or who was unsure of his identity or participation in the crime charged. Jackson v. 15 Wainwright, 390 F.2d 288 (5th Cir. 1968); Chavis, 637 F.2d at 223; Jones v. Jago, 575 F.2d 16 1164,1168 (6th Cir.1978); Hudson v. Blackburn, 601 F.2d 785 (5th Cir. 1979), cert. denied, 444 U.S. 17 1086 (1980). 18 18. Statements Relevant to the Defense. Mr. Santiago requests disclosure of any statement

19 that may be "relevant to any possible defense or contention" that he might assert. United States v. 20 Bailleaux, 685 F.2d 1105 (9th Cir. 1982). This includes grand jury transcripts that are relevant to 21 the defense motion to dismiss the indictment. 22 19. Jencks Act Material. Mr. Santiago requests production in advance of the motion hearing

23 or trial of all material, including dispatch tapes, that the government must produce pursuant to the 24 Jencks Act, 18 U.S.C. § 3500 and Fed. R. Crim. P. 26.2. A verbal acknowledgment that "rough" 25 notes constitute an accurate account of the witness' interview is sufficient for the report or notes to 26 qualify as a statement under section 3500(e)(1). Campbell v. United States, 373 U.S. 487, 490-92 27 (1963); see also United States v. Boshell, 952 F.2d 1101 (9th Cir. 1991) (holding that interview notes 28 constitutes Jencks material when an agent reviews notes with the subject of the interview); see also 6

Case 3:08-cr-02263-BTM

Document 8

Filed 07/31/2008

Page 9 of 12

1 United States v. Riley, 189 F.3d 802, 806-808 (9th Cir. 1999). Advance production will avoid the 2 possibility of delay of the motion hearing or trial to allow Mr. Santiago to investigate the Jencks 3 material. Mr. Santiago requests pre-trial disclosure of such statements to avoid unnecessary recesses 4 and delays and to allow defense counsel to prepare for, and use properly any Jencks statements 5 during cross-examination. 6 20. Giglio Information. Pursuant to Giglio v. United States, 405 U.S. 150 (1972),

7 Mr. Santiago requests all statements and/or promises, expressed or implied, made to any government 8 witnesses, in exchange for their testimony in this case, and all other information that could arguably 9 be used for the impeachment of any government witnesses. 10 21. Agreements Between the Government and Witnesses. Mr. Santiago requests discovery

11 regarding any express or implicit promise, understanding, offer of immunity, of past, present, or 12 future compensation, or any other kind of agreement or understanding, including any implicit 13 understanding relating to criminal or civil income tax, forfeiture or fine liability, between any 14 prospective government witness and the government (federal, state and/or local). This request also 15 includes any discussion with a potential witness about or advice concerning any immigration 16 benefits, any contemplated prosecution, or any possible plea bargain, even if no bargain was made 17 or the advice not followed. 18 22. Informants and Cooperating Witnesses. Mr. Santiago requests disclosure of the names

19 and addresses of all informants or cooperating witnesses used or to be used in this case, and in 20 particular, disclosure of any informant who was a percipient witness in this case or otherwise 21 participated in the crime charged against Mr. Santiago. The government must disclose the 22 informant's identity and location, as well as disclose the existence of any other percipient witness 23 unknown or unknowable to the defense. Roviaro v. United States, 353 U.S. 52, 61-62 (1957). The 24 government must disclose any information derived from informants that exculpates or tends to 25 exculpate Mr. Santiago. 26 23. Bias by Informants or Cooperating Witnesses. Mr. Santiago requests disclosure of any

27 information indicating bias on the part of any informant or cooperating witness. Giglio, 405 U.S. 28 // 7

Case 3:08-cr-02263-BTM

Document 8

Filed 07/31/2008

Page 10 of 12

1 24. Such information would include what, if any, inducements, favors, payments or threats were 2 made to the witness to secure cooperation with the authorities. 3 25. Personnel Records of Government Officers Involved in the Arrest. Mr. Santiago requests

4 all citizen complaints and other related internal affairs documents involving any of the immigration 5 officers or other law enforcement officers who were involved in the investigation, arrest and 6 interrogation of Mr. Santiago. See Pitchess v. Superior Court, 11 Cal. 3d 531, 539 (1974). Because 7 of the sensitive nature of these documents, defense counsel will be unable to procure them from any 8 other source. 9 26. Performance Goals and Policy Awards. Mr. Santiago requests disclosure of information

10 regarding standards used for measuring, compensating or reprimanding the conduct of all law 11 enforcement officers involved in the case (Customs, Border Patrol, INS, etc.) to the extent such 12 information relates to the arrest of undocumented immigrants. This request specifically includes 13 information concerning performance goals, policy awards, and the standards used by DHS for 14 commending, demoting, or promoting agents for their work with immigration crimes. 15 27. Reports of Scientific Tests or Examinations. Pursuant to Fed. R. Crim. P. 16(a)(1)(F),

16 Mr. Santiago requests the reports of all tests and examinations conducted upon the evidence in this 17 case, including, but not limited to, any fingerprint testing done upon any evidence seized in this case, 18 that is within the possession, custody, or control of the government, the existence of which is known, 19 or by the exercise of due diligence may become known, to the attorney for the government, and that 20 are material to the preparation of the defense or are intended for use by the government as evidence 21 in chief at the trial. 22 28. Brady Information. The defendant requests all documents, statements, agents' reports,

23 and tangible evidence favorable to the defendant on the issue of guilt and/or which affects the 24 credibility of the government's case. Under Brady v. Maryland, 373 U.S. 83 (1963), impeachment 25 as well as exculpatory evidence falls within the definition of evidence favorable to the accused. 26 United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 427 U.S. 97 (1976). 27 29. Any Proposed 404(b) Evidence. The government must produce evidence of prior similar

28 acts under Fed. R. Crim. P. 16(a)(1) and Fed. R. Evid. 404(b) and any prior convictions which would 8

Case 3:08-cr-02263-BTM

Document 8

Filed 07/31/2008

Page 11 of 12

1 be used to impeach as noted in Fed. R. Crim. P. 609. In addition, under Fed. R. Evid. 404(b), "upon 2 request of the accused, the prosecution . . . shall provide reasonable notice in advance of trial . . . of 3 the general nature" of any evidence the government proposes to introduce under Fed. R. Evid. 404(b) 4 at trial. The defendant requests notice two weeks before trial to give the defense time to investigate 5 and prepare for trial. 6 30. Residual Request. The defendant intends by this discovery motion to invoke his rights

7 to discovery to the fullest extent possible under the Federal Rules of Criminal Procedure and the 8 Constitution and laws of the United States. 9 10 11 III. MOTION FOR LEAVE TO FILE FURTHER MOTIONS Mr. Santiago has not yet received a copy of the audio tape of his removal proceeding or As new

12 viewed the government's viewed the government's physical evidence against him.

13 information surfaces ­ via discovery provided by government, defense investigation, or an order of 14 this court ­ the defense may need to file further motions or to supplement existing motions. 15 Accordingly, Mr. Santiago requests leave to file further motions at a later date. 16 17 18 19 20 21 Dated: July 31, 2008 22 23 24 25 26 27 28 9 IV. CONCLUSION For the reasons stated, Mr. Santiago requests this Court grant his motions. Respectfully submitted, /s/ Gregory Murphy GREGORY MURPHY Federal Defenders of San Diego, Inc. Attorneys for Mr. Santiago [email protected]

Case 3:08-cr-02263-BTM

Document 8

Filed 07/31/2008

Page 12 of 12

GREGORY T. MURPHY California State Bar No. 245505 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 Jaime Santiago

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE BARRY T. MOSKOWITZ) ) ) Plaintiff, ) ) v. ) ) JAIME SANTIAGO, ) ) Defendant. ) ________________________________________ ) UNITED STATES OF AMERICA, Case No. 08CR2263-BTM

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: U.S. Attorney CR [email protected] Respectfully submitted,

DATED:

July 31, 2008

/s/ Gregory T. Murphy GREGORY T. MURPHY Federal Defenders of San Diego, Inc. Attorneys for Jaime Santiago