Free Motion for Discovery - District Court of California - California

Case 3:08-cr-02201-DMS

Document 17

Filed 08/08/2008

Page 1 of 2

1 2 3 4 5 6

SYLVIA BAIZ California Bar No. 124367 The Granger Building 964 Fifth Avenue, Suite 214 San Diego, California 92101 Telephone: (619) 544-1410 Facsimile: (619) 544-1473 Attorney for Defendant Vincent UNITED STATES DISTRICT COURT

7 SOUTHERN DISTRICT OF CALIFORNIA 8

(HON. DANA M. SABRAW)
9

UNITED STATES OF AMERICA,
10

) )
) ) ) ) ) ) ) ) )

Criminal No. 08-CR-2201-DMS
Date: August 22, 2008 Time: 10:00 a.m.

Plaintiff,
11 v. 12

ROBERT VINCENT,
13 Defendant. 14 15 TO: 16 17 18 19 20 21 22 23 24 25 26 27 28

1) COMPEL DISCOVERY; AND 2) LEAVE TO FILE FURTHER MOTIONS

KAREN HEWITT, UNITED STATES ATTORNEY, AND JEFFREY D. MOORE, ASSISTANT UNITED STATES ATTORNEY PLEASE TAKE NOTICE that on August 22, 2008 at 10:00 a.m., or as soon

thereafter as counsel may be heard, the defendant, Robert Vincent by and through his counsel, Sylvia Baiz, will hereby move this Court to grant the above-entitled motions. // // // // // // // //

Case 3:08-cr-02201-DMS

Document 17

Filed 08/08/2008

Page 2 of 2

1 2 3 4 5 6 7 8

MOTIONS The defendant, Robert Vincent, by and through his attorney, Sylvia Baiz, and pursuant to Rules 12, 16, 24(a) of the Federal Rules of Criminal Procedure and Rules 404, 403, 609 of Federal Rules of Evidence any and all applicable local rules, hereby moves this Court to grant the following motions: 1) compel discovery; and 2) leave to file further motions These motions are based upon the attached statement of facts and memorandum of

9 points and authorities, the files and records in the above-captioned matter, and any and all 10 other evidence brought before this Court before or during the hearing on this motion. 11 12 13 Dated: August 8, 2008 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 /s/ Sylvia Baiz SYLVIA BAIZ Attorney for Defendant Vincent Respectfully submitted,

Case 3:08-cr-02201-DMS

Document 17-2

Filed 08/08/2008

Page 1 of 7

1 2 3 4

SYLVIA BAIZ California State Bar No. 124367 964 Fifth Avenue, Suite 214 San Diego, California 92101 Telephone: (619) 544-1410 Facsimile: (619) 544-1473 Attorney for Defendant Vincent

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. STATEMENT OF FACTS The statement of facts and the facts discussed in the memorandum of points and authorities, are strictly for the purposes of this motion and are not to be considered admissions by the defendant, Robert Vincent. Mr. Vincent expressly reserves the right to contradict, explain, amplify, or otherwise discuss any of the facts mentioned here at trial. According to government reports, on June 21, 2008 Mr. Vincent was the driver of a 1994 green Volvo that was stopped at a border patrol checkpoint on the west side of I-8. Agents opened the trunk of the car and found three undocumented persons inside. II.
MOTION TO COMPEL DISCOVERY Mr. Vincent requests the following discovery pursuant to Fed. R. Crim. P. 12(b)(4) and 16: (1) all written and oral statements made by Mr. Vincent. This request includes, but is

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HON. DANA M. SABRAW) UNITED STATES OF AMERICA, Plaintiff, v. ROBERT VINCENT, Defendant. ) ) ) ) ) ) ) ) ) ) Criminal No. 08-CR-2201-DMS STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTIONS

Case 3:08-cr-02201-DMS

Document 17-2

Filed 08/08/2008

Page 2 of 7

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

not limited to, any rough notes, records, reports, transcripts or other documents in which statements of Mr. Vincent are contained. It also includes the substance of any oral statements which the government intends to introduce at trial. These are all discoverable under Fed. R. Crim. P. 16(a)(1)(A) and Brady v. Maryland, 373 U.S. 83 (1963). Mr. Vincent also requests any response to any Miranda warnings which may have been given to him. See United States v. McElroy, 697 F.2d 459 (2d Cir. 1982); (2) all documents, statements, agents' reports, and tangible evidence favorable to Mr. Vincent on the issue of guilt or punishment and/or which affects the credibility of the government's case. Mr. Vincent specifically requests dispatch tapes or recordings related to communications amongst border patrol agents attempting to arrest Mr. Vincent. This evidence must be produced pursuant to Brady v. Maryland, 373 U.S. 83, 87 (1963), and United States v. Agurs, 427 U.S. 97 (1976); (3) all evidence, documents, records of judgments and convictions, photographs and tangible evidence, and information pertaining to any prior arrests and convictions or prior bad acts. Mr. Vincent specifically requests any evidence demonstrating that he previously evaded checkpoints or border patrol agents. Evidence of prior record is available under Fed. R. Crim. P. 16(a)(1)(B). Evidence of prior similar acts is discoverable under Fed. R. Crim. P. 16(a)(1)© and Fed. R. Evid. 404(b) and 609; (4) all evidence seized as a result of any search, either warrantless or with a warrant, in this case. He also specifically requests copies of all photographs, videotapes or recordings made in this case. This is available under Fed. R. Crim. P. 16(a)(1)©; (5) all arrest reports, investigator's notes, memos from arresting officers, sworn statements and prosecution reports pertaining to Mr. Vincent's arrest. These are available under Fed. R. Crim. P. 16(a)(1)(B) and ©, Fed. R. Crim. P. 26.2 and 12(I); (6) the personnel file of the interviewing agent(s) containing any complaints of assaults, abuse of discretion and authority and/or false arrest. Pitchess v. Superior Court, 11 Cal. 3d. 531, 539 (1974). In addition, the defense requests that the prosecutor examine the

2

Case 3:08-cr-02201-DMS

Document 17-2

Filed 08/08/2008

Page 3 of 7

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

personnel files of all testifying agents, and turn over Brady and Giglio material reasonably in advance of trial. United States v. Henthorne, 931 F.2d 29, 30-31(9th Cir. 1991). If the prosecutor is unsure as to whether the files contain Brady or Giglio material, the files should be submitted to the Court, in camera. Id. The prosecution should bear in mind that there exists an affirmative duty on the part of the government to examine the files. Id.; (7) any and all statements made by any other uncharged co-conspirators. The defense is entitled to this evidence because it is material to preparation for the defendant's case and potentially Brady material. Also, insofar as such statements may be introduced as co-conspirator statements, they are discoverable. Fed. R. Crim. 16(a)(1)© and Brady. This evidence must be produced pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and United States v. Agurs, 427 U.S. 97 (1976); (8) Mr. Vincent requests copies of any and all audio/video tape recordings made by the agents in this case and any and all transcripts, including taped recordings of any conversations of any of the agents involved in this case. This evidence is available under Fed. R. Crim. P. 16(a)(1)©; (9) Mr. Vincent specifically requests the name and last known address of each prospective government witness. See United States v. Napue, 834 F.2d 1311 (7th Cir. 1987); United States v. Tucker, 716 F.2d 583 (9th Cir. 1983) (failure to interview government witnesses by counsel is ineffective); United States v. Cook, 608 F.2d 1175, 1181 (9th Cir. 1979) (defense has equal right to talk to witnesses). (10) all other documents and tangible objects, including photographs, books, papers, documents, photographs, or building or places or copies of portions thereof which are material to Mr. Vincent's defense or intended for use in the government's case-in-chief or were obtained from or belong to Mr. Vincent. Mr. Vincent also requests access to all his personal belongings seized, including his wallet, any clothes he was wearing at the time of his arrest and any baggage he had with him. Rule 16(a)(1)©; (11) all results or reports of scientific tests or experiments, or copies of which are

3

Case 3:08-cr-02201-DMS

Document 17-2

Filed 08/08/2008

Page 4 of 7

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

within the possession, control, or custody of the government or which are known or become known to the attorney for the government, that are material to the preparation of the defense, including the opinions, analysis and conclusions of experts consulted by law enforcement including finger print specialists in the instant case. These must be disclosed, once a request is made, even though obtained by the government later, pursuant to Fed.R.Crim.Pro. 16(a)(1)(D). (12) any express or implicit promise, understanding, offer of immunity, of past, present, or future compensation, agreement to execute a voluntary return rather than deportation or any other kind of agreement or understanding between any prospective government witness and the government (federal, state and local), including any implicit understanding relating to criminal or civil income tax liability. United States v. Shaffer, 789 F.2d 682 (9th Cir. 1986); United States v. Risken, 788 F. 2d 1361 (8th Cir. 1986); United States v. Luc Levasseur, 826 F.2d 158 (1st Cir. 1987); (13) any discussion with a potential witness about or advice concerning any contemplated prosecution, or any possible plea bargain, even if no bargain was made, or the advice not followed. Brown v. Duggen, 831 F.2d 1546, 1558 (11th Cir. 1986) (evidence that witness sought plea bargain is to be disclosed, even if no deal struck); Haber v. Wainwright, 756 F.2d 1520, 1524 (11th Cir. 1985); (14) any evidence that of any witnesses who were with Mr. Vincent at the time of his arrest or information that any prospective government witness is biased or prejudiced against the defendant, has a motive to falsify or distort his or her testimony or is prejudiced against Mexican people. Pennsylvania v. Ritchie, 480 S.Ct. 39 (1989); United States v. Strifler, 851 F.2d 1192 (9th Cir. 1988); (15) any evidence that any prospective government witness has engaged in any criminal act whether or not resulting in a conviction. See Rule 608(b), Federal Rules of Evidence and Brady; (16) any evidence that any prospective witness is under investigation by federal, state

4

Case 3:08-cr-02201-DMS

Document 17-2

Filed 08/08/2008

Page 5 of 7

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

or local authorities for any criminal conduct. United States v. Chitty, 760 F.2d 425 (2d Cir.), cert. denied, 474 U.S. 945 (1985); and, (17) any evidence, including any medical or psychiatric report or evaluation, tending to show that any prospective witness's ability to perceive, remember, communicate, or tell the truth is impaired; and any evidence that a witness has ever used narcotics or other controlled substance, or has ever been an alcoholic. United States v. Strifler, 851 F.2d 1197 (9th Cir. July 11, 1988); Chavis v. North Carolina, 637 F.2d 213, 224 (4th Cir. 1980); (18) the name and last known address of every witness to the crime or crimes charged (or any of the overt acts committed in furtherance thereof) who will not be called as a government witness. Mr. Vincent specifically requests any notes, reports or recordings of any statements made by material witnesses who were released. United States v. Cadet, 727 F.2d 1469 (9th Cir. 1984); (19) the name and last known address of each prospective government witness. See United States v. Napue, 834 F.2d 1311 (7th Cir. 1987); United States v. Tucker, 716 F.2d 583 (9th Cir. 1983) (failure to interview government witnesses by counsel is ineffective); United States v. Cook, 608 F.2d 1175, 1181 (9th Cir. 1979) (defense has equal right to talk to witnesses); (20) the name of any witness who made an arguably favorable statement concerning the defendant or who could not identify him or who was unsure of his identity, or participation in the crime charged. Jackson v. Wainwright, 390 F.2d 288 (5th Cir. 1968); Chavis v. North Carolina, 637 F.2d 213, 223 (4th Cir. 1980); James v. Jago, 575 F.2d 1164, 1168 (6th Cir. 1978); Hudson v. Blackburn, 601 F.2d 785 (5th Cir. 1975); (21) Mr. Vincent requests a transcript of the grand jury testimony and rough notes of all witnesses expected to testify at the motion hearing or at trial. This evidence is discoverable under Fed. R. Crim. P. 12(I) and 26 and will be requested pursuant to (22) Jencks Act Material. The defense requests all material to which defendant is entitled pursuant to the Jencks Act, 18 U.S.C. § 3500, reasonably in advance of trial,

5

Case 3:08-cr-02201-DMS

Document 17-2

Filed 08/08/2008

Page 6 of 7

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

including dispatch tapes. A verbal acknowledgment that "rough" notes constitute an accurate account of the witness' interview is sufficient for the report or notes to qualify as a statement under §3500(e)(1). Campbell v. United States, 373 U.S. 487, 490-92 (1963). In United States v. Boshell, 952 F.2d 1101 (9th Cir. 1991), the Ninth Circuit held that when an agent goes over interview notes with the subject of the interview the notes are then subject to the Jencks Act. The defense requests pre-trial production of Jencks material to expedite crossexamination and to avoid lengthy recesses during the pre-trial motions hearings or trial. Mr. Vincent specifically requests rough notes regarding the interview of Mr. Vincent, especially if the notes reflect the time and place of those statements. Mr. Vincent puts the government on notice that he will seek rough notes of any and all testifying agents on the date set for the motion hearing, and requests that the agent/witnesses be instructed to bring the notes to court.

(23) Prior arrests. Federal Rule of Evidence 404(b) requires that the government
provide "reasonable notice in advance of trial" of any evidence of "other crimes, wrongs, or acts" it plans to introduce. Fed. R. Evid. 404(b), 1991 Advisory Committee Notes. Timely notice of such evidence is also critical so that Mr. Vincent may adequately prepare his defense. The Court should exclude any evidence the Government will seek to introduce under Rule 404(b) that has not been disclosed in discovery. The discovery material makes reference to removal proceedings. Because the Government carries the burden of showing how any other acts evidence is relevant to one or more issues in the case, "it must articulate precisely the evidential hypothesis by which a fact of consequence may be inferred from the other acts evidence." United States v. Mehrmanesh, 689 F.2d 822, 830 (9 th Cir. 1982) (citing United States v. Hernandez-Miranda, 601 F.2d 1104, 1108 (9 th Cir. 1979) (emphasis added); accord United States v. Brooke, 4 F.3d 1480, 1483 (9 th Cir. 1993). Because the Government has failed to articulate the precise evidential hypothesis by which a fact of consequence will be shown by this evidence, this evidence must be excluded under Fed. R. Evid. 401, 404(b). Further, their admission would be more prejudicial than probative, as they would make the jury more likely to convict Mr.

6

Case 3:08-cr-02201-DMS

Document 17-2

Filed 08/08/2008

Page 7 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

Vincent because it believes he has the propensity to commit crimes rather than because of the evidence presented at trial. This evidence must therefore by excluded under Fed. R. Evid. 403 as well. Mr. Vincent specifically requests government investigative reports regarding any other arrests for "smuggling," including events of transportation, harboring or any other conduct consider by the government to be involved with attempts to assist undocumented persons in any manner.

III.
LEAVE TO FILE FURTHER MOTIONS Because the government had not produced all discoverable matters at the time that Mr. Vincent drafted these motions, Mr. Vincent requests that he be allowed time to file such additional pretrial motions as may become necessary. IV.

CONCLUSION For the foregoing reasons, it is respectfully requested that the court grant the above motions. Respectfully submitted,

17 18 Date: August 8, 2008 19 20 21 22 23 24 25 26 27 28 7 /S/Sylvia Baiz SYLVIA BAIZ Attorney for Mr. Vincent

Case 3:08-cr-02201-DMS

Document 17-3

Filed 08/08/2008

Page 1 of 1

1 2 3 4 5 v. 6

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HON. DANA M. SABRAW) UNITED STATES OF AMERICA, )
) ) ) ) ) ) ) )

Criminal No. 08-CR-2201-DMS

PROOF OF SERVICE

ROBERT VINCENT,
7 Defendant. 8 9 10 11 12 13 14 15 16 17

IT IS HEREBY CERTIFIED THAT: I, SYLVIA A. BAIZ, am a citizen of the United States and am at least eighteen years of age. My business address is 964 Fifth Avenue, Suite 214, San Diego, California, 92101. I am not a party to the above-entitled action. I have caused service of the (1) COMPEL DISCOVERY; (2) LEAVE TO FILE FURTHER MOTIONS.; STATEMENT OF FACTS AND MEMORANDUM IN SUPPORT OF DEFENDANTS MOTIONS on the following parties by electronically filing the foregoing with the clerk of the District Court using its ECF System, which electronically notifies them. Judge Jeffrey T. Miller [email protected] Assistant United State Attorney [email protected] I declare under penalty of perjury that the foregoing is true and correct.

18

Executed on August 8, 2008.
19 20 21 22 23 24 25 26 27 28

/s/ Sylvia A. Baiz SYLVIA A. BAIZ