Free Stipulation of Fact and Joint Motion for Release of M/W - District Court of California - California

Case 3:08-cr-02153-BEN

Document 10

Filed 06/26/2008

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KAREN P. HEWITT
United States Attorney
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CARLA J. BRESSLER
Assistant United States Attorney
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California State Bar No. 134886
United States Attorney's Office
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Federal Office Building
880 Front Street, Room 6293
5 San Diego, California 92101
Telephone: (619) 557-6763
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Attorneys for Plaintiff 7
UNITED STATES OF AMERICA 8


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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA,
Plaintiff, v.
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Magistrate Case No. 08MJ1818

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FERNANDO MARTINEZ (2), ) ) Defendant. 14
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STIPULATION OF FACT AND JOINT MOTION FOR RELEASE OF MATERIAL WITNESS(ES) AND ORDER THEREON
(Pre-Indictment Fast-Track Program)

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IT IS HEREBY STIPULATED AND AGREED between the plaintiff, UNITED STATES

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OF AMERICA, by and through its counsel, Karen P. Hewitt, United States Attorney, and 18
Carla J. Bressler, Assistant United States Attorney, and defendant FERNANDO MARTINEZ, by 19
and through and with the advice and consent of Michael S. Berg, counsel for defendant, that: 20 21
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1.

Defendant agrees to execute this stipulation on or before the first preliminary hearing

date and to participate in a full and complete inquiry by the Court into whether defendant knowingly, intelligently and voluntarily entered into it. Defendant agrees further to waive indictment and plead guilty to the pre-indictment information charging defendant with a non-mandatory minimum count of Transportation of Aliens and Aiding and Abetting, in violation of 8 U.S.C. § 1324(a)(1 )(A)(ii) and (v)(II).

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Case 3:08-cr-02153-BEN

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2.

Defendant acknowledges receipt of a plea agreement in this case and agrees to

provide the signed, original plea agreement to the Government not later than five business days before the disposition date set by the Court. 3. Defendant agrees to plead guilty to the charge pursuant to the plea agreement on or

before July 14,2008. 4. The material witnesses, Santiago Navarro-Beas, Elfego Garcia-Ruiz and Serafin

Hernandez-Garcia, in this case:

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b. June 9, 2008; c.

Are aliens with no lawful right to enter or remain in the United States; Entered or attempted to enter the United States illegally on or about

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Were found in a vehicle driven by codefendant in or near Murrieta, California

and that defendant knew or acted in reckless disregard ofthe fact that they were aliens with no lawful right to enter or remain in the United States;

d.

Were paying an undisclosed amount ofmoney to others to be brought into the

United States illegally and/or transported illegally to their destination therein; and, e. May be released and remanded immediately to the Department ofHomeland

Security for return to their country of origin.
5.

After the material witnesses are ordered released by the Court pursuant to this

stipulation and joint motion, if defendant does not plead guilty to the charge set forth above, for any reason, or thereafter withdraws his guilty plea to that charge, defendant agrees that in any proceeding, including, but not limited to, motion hearings, trial, sentencing, appeal or collateral attack, that: a. substantive evidence; b. The United States may elicit hearsay testimony from arresting agents The stipulated facts set forth in paragraph 4 above shall be admitted as

regarding any statements made by the material wi tness(es) provided in discovery, and such testimony shall be admitted as substantive evidence under Fed. R. Evid. 804(b)(3) as statements against interest of (an) unavailable witness(es); and,
Stipulation of Fact and Joint Motion for Release of Material Witness(es) And Order Thereon in United States v. Fernando Martinez (2)

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08MJ1818

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Case 3:08-cr-02153-BEN

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c.

Understanding that under Crawford v. Washington, 124 S. Ct. 1354 (2004),

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"testimonial" hearsay statements are not admissible against a defendant unless defendant confronted and cross-examined the witness(es) who made the "testimonial" hearsay statements, defendant waives the right to confront and cross-examine the material witness(es) in this case.

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By signing this stipulation and joint motion, defendant certifies that defendant has

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read it (or that it has been read to defendant in defendant's native language). Defendant certifies further that defendant has discussed the terms of this stipulation and joint motion with defense counsel and fully understands its meaning and effect. Based on the foregoing, the parties jointly move the stipulation into evidence and for the immediate release and remand of the above-named material witness(es) to the Department of Homeland Security for return to their country of origin.

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It is STIPULATED AND AGREED this date.
Respectfully submitted, KAREN P. HEWITT United Stat ttorney Dated:

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FENAN 0 M
Defendant

RTINEZ

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Stipulation of Fact and Joint Motion for Release of Material Witness(es) And Order Thereon in United States v. Fernando Martinez (2)

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08MJ1818

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ORDER
Upon joint application and motion of the parties, and for good cause shown,

THE STIPULATION is admitted into evidence, and, IT IS ORDERED that the above-named material witness(es) be released and remanded
forthwith to the Department of Homeland Security for return to their country of origin.

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SO ORDERED.

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United States Magistrate Judge

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Stipulation of Fact and Joint Motion for Release of Material Witness(es) And Order Thereon in United States v. Fernando Martinez (2)

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