Free Response in Opposition - District Court of California - California

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KAREN P. HEWITT United States Attorney SHERRI WALKER HOBSON Assistant U.S. Attorney California State Bar No. Federal Office Building 880 Front Street, Room 6293 San Diego, California 92101-8893 Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT

8 SOUTHERN DISTRICT OF CALIFORNIA 9 UNITED STATES OF AMERICA, 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S/sherri hobson SHERRI WALKER HOBSON Assistant U.S. Attorney ) ) Plaintiff, ) ) v. ) ) ) ALFONSO RAMIREZ-MEDINA, ) ) ) Defendants. ) ____________________________________) Crim Case No. 08CR2127W DATE: August 18, 2008 TIME: 2 P.M. GOVERNMENT'S RESPONSE AND OPPOSITION TO DEFENDANTS' MOTION FOR DISCOVERY

COMES NOW the plaintiff, UNITED STATES OF AMERICA, by and through its counsel, Karen P. Hewitt, United States Attorney, and Sherri Walker Hobson, Assistant United States Attorney, and hereby files its response and opposition to defendants' motion. DATED: August 11, 2008. Respectfully submitted, KAREN P. HEWITT United States Attorney

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II STATEMENT OF FACTS On July 10, 2008, over one month ago, defendant filed his motions. On July 14, 2008, the United States provided 98 pages of discovery. On June 12, 2008, defendant entered the United States at the Otay Mesa Cargo Port of Entry, driving a tractor-trailer. The primary inspector noticed that defendant did not make any eye contact and had a glazed and worried expression on his face. The inspector asked where the defendant was going and he said to an "Otay Mesa warehouse," however, the manifest did not indicate any Otay Mesa warehouse, but a delivery address in Los Angeles. The primary inspector sent the defendant to x-ray and intensive inspection. A narcotics dog also alerted to defendant's trailer. Agents found 805 packages of marijuana intermingled with jalapenos inside 245 boxes inside the trailer. There were many other boxes containing fruits or vegetables that did not contain the marijuana. Defendant told the inspectors that he was driving to Los Angeles. When

Mirandized, defendant invoked his rights. II POINTS AND AUTHORITIES A. DEFENDANTS' MOTION TO COMPEL FURTHER DISCOVERY The Government has provided thousands of pages of discovery to date. It will continue to recognize its obligations under Brady v. Maryland, 373 U.S. 83 (1963), the Jencks Act (18 U.S.C. § 3500), and Rule 16 of the Federal Rules of Criminal Procedures. Defendants' additional discovery requests are addressed below. 1. The Government Will Comply With Its Obligation Under Brady v. Maryland

The Government is well aware of and will fully perform its duty under Brady v. Maryland, 24 373 U.S. 83 (1963), and United States v. Agurs, 427 U.S. 97 (1976), to disclose exculpatory 25 evidence within its possession that is material to the issue of guilt or punishment. The defendant, 26 however, is not entitled to all evidence known or believed to exist which is, or may be, favorable 27 28 Page 2 08CR2127W

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to him, or which pertains to the credibility of the Government's case. As stated in United States v. Gardner, 611 F.2d 770 (9th Cir. 1980), it must be noted that: [T]he prosecution does not have a constitutional duty to disclose every bit of information that might affect the jury's decision; it need only disclose information favorable to the defense that meets the appropriate standard of materiality. 611 F.2d at 774-775. See also, United States v. Sukumolachan, 610 F.2d 685, 687 (9th Cir. 1980) (the Government not required to create exculpatory material that does not exist); United States v. Flores, 540 F.2d 432, 438 (9th Cir. 1976) (Brady does not create any pretrial discovery privileges not contained in the Federal Rules of Criminal Procedure). 2. The Disclosure of Statements Prior To The Witness Testifying on Direct Examination At Trial

Production of witness statements is governed by the Jencks Act (18 U.S.C. § 3500) and need occur only after the witness testifies on direct examination. United States v. Taylor, 802 F.2d 1108, 1118 (9th Cir. 1986), cert. denied, 479 U.S. 1094 (1986); United States v. Mills, 641 F.2d 785, 790 (9th Cir.), cert. denied, 454 U.S. 902 (1981). Indeed, even material believed to be exculpatory and therefore subject to disclosure under the Brady doctrine, if contained in a witness statement subject to the Jencks Act, need not be revealed until such time as the witness statement is disclosed under the Act. See United States v. Bernard, 623, F.2d 551, 556-57 (9th Cir. 1979). Further, the Government reserves the right to withhold the statements of any particular witnesses it deems necessary until after they testify. Otherwise, the Government will disclose the statements of witnesses, if it has not already done so, no later than five days prior to trial, provided that defense attorney complied with his obligations under Federal Rules of Criminal procedure 12.1, 12.2 and 16 and 26.2 and provided that defense attorney will turn over all "reverse Jencks" statements at that time. 3. Production of Agent's Handwritten Notes

The Government objects to defendants' blanket request for production of rough notes (i.e. investigator's notes) of agents that may exist. Prior production of these notes is not necessary

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because they are not "statements" within the meaning of the Jencks Act unless they comprise both a substantially verbatim narrative of a witness' assertions and they have been approved or adopted by the witness. United States v. Spencer, 618 F.2d 605, 606-607 (9th Cir. 1980); see also, United States v. Griffin, 659 F.2d 932, 936-938 (9th Cir. 1981), cert. denied, 456 U.S. 949 (1982). Moreover, in addition to the applicable case law, Rule 16(a)(2) of the Federal Rules of Criminal Procedure specifically exempts from disclosure the work product of the Government. The Government considers the rough notes of its agents to be work product and as such these notes are not subject to discovery. The Government will, however, request its agents to preserve their rough notes in the event that an appropriate showing of materiality is made at a later date. Although the Government will request its agents to preserve their handwritten notes or "rough" notes in the event materiality is shown, it objects to defendant's requests for full production for immediate examination and inspection. 4. Defendant's Prior Convictions or Similar Acts

The Government will disclosed defendants' criminal record. The Government will provide one-month notice of any Rule 404(b) evidence prior to trial. 5. Seized Evidence

Defense attorneys may schedule an appointment with the prosecutor to review any seized evidence. Defense has scheduled to examine the tractor-trailer on Thursday, August 13. 6. Prior Wrongful Conduct Of Government Witnesses

The Government will provide the criminal convictions and prior material acts of misconduct, if any exist, of its trial witnesses as mandated in Giglio v. United States, supra, 405 U.S. 150 (1972). The Government will provide such impeachment material, if any, at the time it files its trial memorandum although it is not required to produce such material until after its witnesses have testified at trial or at a hearing. See United States v. Bernard, 623 F.2d 551, 556 (9th Cir. 1979).

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1 2 3 4 5 6 7 8 9 At this time, the Government is not aware of any evidence that any Government witness' 10 ability to perceive is impaired by the use of controlled substance or alcohol. 11 9. 12 There is no requirement for the Government to supply defendants in a non-capital case with 13 a list of the witnesses it expects to call at trial. United States v. Dischner, 974 F.2d 1502 (9th Cir. 14 1992)("we have consistently held that in noncapital cases, the government does not need to disclose 15 the names of its witnesses prior to trial"); United States v. Thompson, 493 F.2d 305, 309 (9th Cir. 16 1974), cert. denied, 419 U.S. 835 (1974); United States v. Glass, 421 F.2d 832, 833 (9th Cir. 1969). 17 18 However, the Government will provide a tentative list of the witnesses it expects to call at 19 trial when it files its trial memorandum, approximately five days before trial. 20 11. 21 The Government will conduct a "Henthorn" review of the testifying federal officers in this 22 case. 23 12. 24 The Government will provide notice of any expert testimony approximately one month 25 prior to trial. 26 27 28 Page 5 08CR2127W Expert Notice Henthorn Review Witness List 7. Motives Of Government Witnesses

The Government agrees to provide information related to the bias, prejudice or other motivation of government trial witnesses as mandated in Napue v. Illinois, 360 U.S. 264 (1959). The Government will provide such impeachment material, if any, at the time it files its trial memorandum. At this time, the Government is unaware that prospective witnesses are biased or prejudiced against the defendant, or has a motive to falsify or distort their testimony. 8. Ability to Perceive; Any Drug or Alcohol Use by Government Witness

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13.

Cooperating Witnesses/Defendants

The Government is not aware of any cooperating witnesses. 14. Pen Registers/Wire Applications

There are no pen registers or wire applications involved in this case. There are cell phone records, which will be provided. 15. Training Records/Performance Goals and Policy Awards

Defendant has not demonstrated any reasons for disclosure of training records. He has not identified how or why any training materials are relevant in this tractor-trailer case. Similarly, defendant has not demonstrated what, how and why policy awards are relevant to this case. 16. TECS Records

The Government will provide TECS records. III CONCLUSION For the foregoing reasons, the Government respectfully requests that defendant's motions, except where not opposed, be denied. DATED: August 13, 2008. Respectfully submitted, KAREN P. HEWITT United States Attorney S/SHERRI WALKER HOBSON SHERRI WALKER HOBSON Assistant U.S. Attorney

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1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 UNITED STATES OF AMERICA, 4 Plaintiff, 5 v. 6 ALFONSO RAMIREZ-MEDINA, 7 Defendant. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 7 I am not a party to the above-entitled action. I have caused service of Government's Response and Opposition to Defendant's Motion on the following parties by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically notifies them. Gregory Murphy I declare under penalty of perjury that the foregoing is true and correct. Executed on August 13, 2008. s/ Sherri Walker Hobson SHERRI WALKER HOBSON IT IS HEREBY CERTIFIED THAT: I, Sherri Walker Hobson, 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. ) ) ) ) ) ) ) ) ) ) Case No. 08CR2127W

CERTIFICATE OF SERVICE