Free Motion for Fingerprint Exemplars - District Court of California - California

Case 3:08-cr-02164-JM

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KAREN P. HEWITT United States Attorney REBECCA S. KANTER Assistant U.S. Attorney California State Bar No. 230257 United States Attorney's Office 880 Front Street, Room 6293 San Diego, California 92101-8893 Phone: (619) 557-6747 Fax: (619) 235-4716 E-mail: [email protected] Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT

10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 13 14 15 16 17 18 19 20 COMES NOW the plaintiff, UNITED STATES OF AMERICA, by and through its counsel, 21 United States Attorney, Karen P. Hewitt, and Assistant U.S. Attorney Rebecca S. Kanter, and hereby 22 files its Motion for Fingerprint Exemplars and Reciprocal Discovery in the above-referenced case. This 23 Motion is based upon the files and records of this case, together with the attached Statement of Facts 24 and Memorandum of Points and Authorities. 25 // 26 // 27 // 28 // Criminal Case No. 08cr2164-JM UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) ) ALBERTO FIERROS) HURTADO, ) ) Defendant. ) ) ) ) ) ) Criminal Case No. 08cr2164-JM GOVERNMENT'S MOTION FOR: (1) FINGERPRINT EXEMPLARS (2) RECIPROCAL DISCOVERY TOGETHER WITH STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES Date: August 22, 2008 Time: 11:00 a.m. Courtroom: 16 The Honorable Jeffrey T. Miller

Case 3:08-cr-02164-JM

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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 A. Defendant's Apprehension

I STATEMENT OF FACTS

On April 14, 2008, at approximately 6:10 a.m., Senior Border Patrol Agent Robert Reyes responded to a seismic activation approximately one quater mile west of the Tecate Port of Entry. Agent Reyes saw three individuals fleeing south towards the international fence line. Agent Reyes searched in the immediate area and found three other individuals attempting to conceal themselves in heavy brush. Agent Reyes identified himself as a U.S. Border Patrol agent in the English and Spanish language. All three individuals, including one later identified as Alberto Fierros-Hurtado ("Defendant"), freely admitted that they are citizens of Mexico with no immigration documents allowing them to enter or remain in the United States legally. A records check based on Defendant's fingerprints revealed that he is a citizen and national of Mexico with an immigration and criminal history. B. Criminal and Immigration History Defendant sustained two convictions ­ in 2002 and 2004 ­ for Possession of a Controlled Substance in violation of California Health & Safety Code Section 11377(a). Defendant was convicted on January 10, 1991 of Carrying a Loaded Firearm in Public in violation of California Penal Code Section 12031(a). Finally, Defendant was convicted on November 9, 2004 for Receiving Stolen Property in violation of California Penal Code Section 496(a). Defendant was ordered deported to Mexico by an immigration judge on June 19, 2006. Defendant has been removed three times, most recently on February 28, 2008, less than two months before his apprehension. C. Post-Miranda Statement Border Patrol Agent Robert Lopez read Defendant his Miranda rights in the Spanish language at approximately 12:23 p.m. He advised Defendant that his administrative rights no longer applied, and informed Defendant that he was going to be charged criminally. Defendant indicated that he understood his rights and agreed to answer questions without an attorney present. Defendant said that he was born in Guadalajara, Jalisco, Mexico. He said he is a citizen of 2 Criminal Case No. 08cr2164-JM

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Mexico, and both his parents were born in Michoacan. He admitted that he has no legal documents to enter or remain in the United States, and has no pending petitions with the Immigration Service. He admitted to being previously deported. He said he entered the United States voluntarily by jumping the fence. He said he was heading to Los Angeles to visit his wife and children. II UNITED STATES' MOTIONS A. FINGERPRINT EXEMPLARS The United States requests that the Court order that Defendant make himself available for fingerprinting by the United States' fingerprint expert. See United States v. Ortiz-Hernandez, 427 F.3d 567, 576-77 (9th Cir. 2005) (Government may have defendant fingerprinted and use criminal and immigration records in Section 1326 prosecution). The privilege against self-incrimination only applies to testimonial evidence. See Schmerber v. California, 384 U.S. 757, 761 (1966) (withdrawal of blood is not testimonial). Identifying physical characteristics, including fingerprints, are not testimonial in nature and the collection and use of such evidence does not violate Defendant's Fifth Amendment right against self-incrimination. United States v. DePalma, 414 F.2d 394, 397 (9th Cir. 1969). B. RECIPROCAL DISCOVERY The Government has and will continue to fully comply with its discovery obligations. The United States produced 35 pages of discovery between April 28, 2008 and June 10, 2008, including the reports from Border Patrol agents, a DVD of Defendant's post-arrest statement, documents regarding Defendant's criminal history, and evidence of Defendant's immigration history. The Government moves the Court to order Defendant to provide all reciprocal discovery to which the United States is entitled under Rules 16(b) and 26.2. Rule 16(b)(2) requires Defendant to disclose to the United States all exhibits and documents which Defendant "intends to introduce as evidence in chief at the trial" and a written summary of the names, anticipated testimony, and bases for opinions of experts the defendant intends to call at trial under Rules 702, 703, and 705 of the Federal Rules of Evidence. // // 3 Criminal Case No. 08cr2164-JM

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III CONCLUSION For the foregoing reasons, the Government requests that the Court grant the Government's motion for reciprocal discovery and compelling the Defendant to provide a fingerprint exemplar. DATED: August 14, 2008.

Respectfully submitted, KAREN P. HEWITT United States Attorney

/s/Rebecca Kanter REBECCA S. KANTER Assistant United States Attorney Attorneys for Plaintiff United States of America

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 I declare under penalty of perjury that the foregoing is true and correct. 22 Executed on August 14, 2008. 23 24 25 26 27 28 5 Criminal Case No. 08cr2164-JM /s/ Rebecca Kanter REBECCA S. KANTER I hereby certify that I have caused to be mailed the foregoing, by the United States Postal Service, to the following non-ECF participants on this case: None the last known address, at which place there is delivery service of mail from the United States Postal Service. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ) Criminal Case No. 08cr2164-JM ) Plaintiff, ) ) CERTIFICATE OF SERVICE v. ) ) ALBERTO FIERROS-HURTADO, ) ) Defendant. ) ) IT IS HEREBY CERTIFIED THAT: I, REBECCA S. KANTER, am a citizen of the United States and am at least eighteen years of age. My business address is 880 Front Street, Room 6293, San Diego, California 92101-8893. I am not a party to the above-entitled action. I have caused service of MOTION FOR FINGERPRINT EXEMPLARS AND RECIPROCAL DISCOVERY on the following parties by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically notifies them. Leila Morgan, Federal Defenders of San Diego, Inc. UNITED STATES OF AMERICA,