Free Notice (Other) - District Court of California - California

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JODI D. THORP California State Bar No. 223663 427 C Street Suite 300 San Diego, California 92101 Telephone: (619) 233-3169 ext. 14 Attorneys for Mr. Motivoysyan

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO: CAROL LAM, UNITED STATES ATTORNEY; REBECCA CANTOR, ASSISTANT UNITED STATES ATTORNEY, AND NED LYNCH, MATERIAL WITNESS ATTORNEY PLEASE TAKE NOTICE, that on Thursday, June 12, 2008, at 9:30 a.m., or as soon thereafter as counsel may be heard, the defendant, Arsen Motivoysyan, by and through his counsel, Jodi D. Thorp, will ask this Court to enter an order denying the motion for videotape deposition and release of material witness based upon the following motions. // // // // // 1 08CR1455-BEN UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE NITA L. STORMES) ) ) Plaintiff, ) ) v. ) ) ARSEN MOTIVOYSYAN, ) ) ) Defendant. ) ) ___________________________________) UNITED STATES OF AMERICA, CASE: 08CR1455-BEN DATE: June 12, 2008 TIME: 9:30 a.m. NOTICE OF OPPOSITION TO MOTION, AND OPPOSITION TO MOTION FOR VIDEOTAPE DEPOSITION AND RELEASE OF MATERIAL WITNESS

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MOTIONS The defendant, Arsen Motivosyan, by and through his counsel, Jodi D. Thorp, pursuant to the United States Constitution, the Federal Rules of Criminal Procedure, and all other applicable statutes, case law and local rules, hereby files this opposition to motion to videotape

deposition and release of material witness. This opposition is based upon the instant motion and notice of motion, the attached statement of facts and memorandum of points and authorities, and all other materials that may come to this Court's attention at the time of the hearing on this motion.

Respectfully submitted, /s/ Jodi Thorp JODI D. THORP Attorneys for Mr. Arsen Motivosyan

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JODI D. THORP California State Bar No. 223663 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 San Diego, California 92101-5008 Telephone No. (619) 234-8467 Attorneys for Mr. Arsen Motivosyan

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE NITA L. STORMES) UNITED STATES OF AMERICA, Plaintiff, v. ARSEN MOTIVOSYAN, Defendant. ) ) ) ) ) ) ) ) ) ) ) I. STATEMENT OF FACTS1 Mr. Motivosyan was allegedly a passenger in a car stopped by border patrol on April 26, 2008. the car passengers' The border patrol officer asked to see all of All of the passengers were CASE: 08CR1455-BEN DATE: June 12, 2008 TIME: 9:30 a.m.

STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION TO MOTION

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documentation.

determined to have valid documentation to be in the United States. Hours later, border patrol allegedly approached Mr. Motivosyan while he was standing outside a car in a park. Again, the border patrol

The Statement of Facts is based, in part, on materials received from the government. Mr. Motivosyan does not accept this statement of facts as his own, and reserves the right to take a contrary position at motion hearings and trial. The facts alleged in these motions are subject to amplification and/or modification at the time these motions are heard.

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officer verified that Mr. Motivosyan had legal documentation to be in the United States. One person who was also outside the car was

determined to not have legal documentation to be in the United States. According to the border patrol officer, it appeared the people outside the car were going to get in the car. Motivosyan was entering as a back passenger. Everyone was arrested for a violation of 8 U.S.C. Section 1324 except the person without documentation, who has been held as a material witness. The material witness allegedly stated that he was going to get The officer believed Mr.

a ride to Los Angeles, California. To date, Mr. Motivosyan has received limited discovery. Although

he has received 101 pages of discovery, there has been almost no discovery on the material witness, including any discovery from the Afile of the material witness. Mr. Motivosyan has not received any other In

discovery with respect to statements of the material witness.

addition, counsel for Mr. Motivosyan has made two attempts to interview the material witness. The attorney for the material witness has yet to

respond to the requests.

II. MR. MOTIVOSYAN MOVES TO DENY MOTION BY MATERIAL WITNESS TO TESTIFY BY VIDEO DEPOSITION AND RELEASE Allowing video testimony would violate Mr. Motivosyan's right to compulsory process, right to due process, and right to confront witnesses against him. The release of an alien (material) witness

constitutes a violation of the Compulsory Process clause and Confrontation Clause of the Sixth Amendment, and the Due Process clause of the Fifth Amendment. United States v. Valenzuela-Bernal, 2 08CR1455-BEN

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458 U.S. 858, 873 (1982).

"Few rights are more fundamental than that Chambers v.

of an accused to present witnesses in his own defense."

Mississippi, 410 U.S. 284, 302 (1973); Faretta v. California, 422 U.S. 806, 818 (1975); Washington v. Texas, 388 U.S. 14, 19 (1967). right to compel the attendance of witnesses, and to offer their testimony at trial, has long been recognized to be at the core of the right to present a defense. Washington, 388 U.S. at 19. The

Despite the constitutional law directly on point, the Federal Rules allow for a witness to be deposed. However, before a deposition

the moving party has the initial burden to demonstrate that "exceptional circumstances" exist and it "is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial." Fed. R. Crim. P. 15 (a);

United States v. Omene 143 F.3d 1167, 1170 (9th Cir. 1998). The material witness argues that he is exempt from the "exceptional circumstances" requirement because he is requesting the deposition under FRCP 15(a)(2). He is incorrect. FRCP 15(a)(1) discusses the FRCP 15(a)(2) only It

general requirements for a videotaped deposition.

adds that the material witness himself can request the deposition. does not take away the special circumstances requirement. Rule 15

allows depositions of material witnesses to be taken whenever there exists exceptional circumstances. 663 (9th Cir. 2000). The district court has the authority to order the taking of a videotaped deposition. Torres-Ruiz v. U.S. District Court for S.D. of The Ninth Circuit in United States v. Hayes, 231 F.3d

California, 120 F.3d 933 (9th Cir. 1997).

Torres-Ruiz held that a material witness must be released after a showing that his or her "testimony can adequately be secured by 3 08CR1455-BEN

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deposition," and that "further detention is not necessary to prevent a failure of justice." Id. at 935 (citation omitted). In Torres-Ruiz,

the Court found that the material witness' release was mandatory, based on a conjunctive reading of Federal Rule of Criminal Procedure 15 and Title 18 U.S.C. § 3144. This presupposes the notion that the The initial burden

initial burden has been met by the moving party.

requires the moving party to show that an "exceptional circumstance" exists and that further detention will be a "hardship." 120 F.3d at 935-36; (9th Cir. 1998). Once the initial burden has been met, the objecting party has the burden to demonstrate that "further detention" is "necessary to prevent a failure of justice." Torres-Ruiz, 120 F.3d at 935. A Torres-Ruiz,

see also United States v. Omene, 143 F.3d at 1170

failure of justice would exist if Mr. Motivosyan were not able to confront witnesses against him, or compel witnesses to testify at trial. The videotaped deposition and release of the material witness

(a.k.a. undocumented illegal alien) in this case would also result in a due process violation. In the present case, the initial burden by the moving party has not been met. The material witness has not demonstrated that further Nor has the material witness

incarceration would be a "hardship."

demonstrated that an "exceptional circumstance" exists which would require his release. The material witness states that his family However, this was the case Thus, the

members are refugees in another country.

prior to the material witness coming to the United States.

mere fact that they are refugees in another country does not show hardship. The material witness also states that he plans to request

asylum in the United States which means he will be detained during the 4 08CR1455-BEN

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asylum proceedings in any event. while the asylum claim is pending.

The United States cannot deport him Thus, the material witness's

detention during this case does not place an additional hardship on him. The material witness can request that his asylum action begin Alternatively, he can post bond in

while he is in federal custody.

his federal case and remain in immigration custody pending this case and pending his asylum claim. The fact remains that the material

witness attempted to enter the United States illegally and potentially faces criminal charges for that illegal entry. Furthermore, live testimony is preferable and vital, given the fact that the jury will be instructed to assess the credibility of the witness, based in part, on the witness' manner while testifying and any other factors that bear on believability. Instr. 1.7 and 3.7 (1997). 9th Cir. Crim. Jury

Another factor to be considered is the

benefit conferred upon the witness in return for his testimony, including being returned to Armenia and not being charged with attempted illegal entry into the United States. Instr. 4.8 and 4.10.1 (1997). 9th Cir. Crim. Jury

Thus, live testimony is vital for the

jury to make a determination of the witness' credibility. An element of transportation of illegal aliens requires that the transportation be "in furtherance of such violation of law." § 1324 (a)(1)(A)(ii); 8 U.S.C.

See United States v. Nguyen, 73 F.3d 887 (9th

Cir. 1995) (conviction reversed where no specific intent instruction given, where knowledge and criminal intent are both required). The

Ninth Circuit Model Jury Instructions require that "the defendant knowingly transported or moved, or attempted to transport or move [the alien] in order to help [the alien] remain in the United States illegally. 9th Cir. Crim. Jury Instr. 9.1.4. (1997). 5 08CR1455-BEN

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Finally, at this stage in his case, Mr. Motivosyan has not received discovery related to the material witness, including his Afile documentation, criminal history documentation etc. Mr.

Motivosyan has a right to effectively examine and cross-examine witnesses. To make Mr. Motivosyan proceed at this point, without

adequate investigation for cross examination would deny him his Sixth Amendment Rights. III. CONCLUSION For the foregoing reasons, Mr. Motivosyan respectfully requests that this Court deny the motion to grant a videotape deposition and release of the material witness. Respectfully submitted,

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 08CR1455-BEN DATED: June 6, 2008 /s/ Jodi D. Thorp JODI D. THORP Counsel for Mr. Motivosyan