Free Motion for Discovery - District Court of California - California

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1 HOLLY S. HANOVER, Esq. California State Bar Number 177303 2 1016 La Mesa Ave. Spring Valley, CA 91977 3 Telephone: (619) 295-1264 E-Mail: [email protected] 4 Attorney for Defendant, Denise Pelayo-Hernandez 5 6 7 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (THE HON. WILLIAM Q. HAYES) ) ) ) ) ) ) ) ) ) ) CASE NO. 08cr0972-WQH DATE: May 19, 2008 TIME: 2:00 p.m. STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION I. STATEMENT OF FACTS The following statement of facts is based, in part, on the

8 UNITED STATES OF AMERICA, Plaintiff, 9 10 v. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DENISE PELAYO HERNANDEZ (3), Defendant.

indictment, the complaint and initial statement of facts and other information provided by the United States Attorney's office. Counsel The

received approximately 135 pages of discovery on April 29,2008.

facts set forth in these motions are subject to amplification and/or modification at the time these motions are heard and are not adopted by the defense. On or about March 25, 2008, at approximately 9:57 p.m., Border Patrol Agent D. Hill was patrolling in the Boulevard, CA area driving southbound on Robbonwood Road. He observed a white Ford F-150 truck

travelling Northbound. He claims it appeared "heavily ladened" and that it "bounced excessively", so he decided to follow the truck as it entered into the Westbound side of Interstate 8. 1 He called in for a 08cr0972

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1 stolen vehicle, and was told it was not stolen, but a release of 2 liability ha been registered. He claims the vehicle was travelling As

3 slower than the posted limit and slower than the "flow of traffic".

4 agent hill drove up to the truck, he saw a silver tarp covering the bed 5 of the truck, he saw the driver (later identified as Ramon Vasquez 6 Cabrales) continue to look straight ahead, and then the truck exited I-8 7 at Buckman Springs road, before the checkpoint. 8 Agent Hill followed the truck off the freeway and was joined by an

9 unmarked vehicle, driven by agent W. Western, joined agent hill in 10 following the F-150 Southbound on Buckman Springs Road. Approximately

11 150 yards later, the truck pulled into a driveway with a locked gate. 12 Agents pulled in behind it, and identified themselves. 13 the driver, and 9 other individuals from the truck. 14 Approximately 1 hour later, at 11:00 p.m., border patrol agent A. Agents removed

15 Pearson was assigned to the checkpoint located on Highway 94 in Jamul, 16 California. At the primary inspection area, a gold Dodge Intrepid It was driving by Bernice Pelayo Hernandez and When asked Agent

17 approched his position.

18 Denise Pelayo Hernandez was a passenger in that vehicle.

19 about their citizenship, both replied they were U.S. citizens.

20 Pearson asked for some identification, and the driver, Bernice Pelayo 21 Hernandez stated that she did not have any identification, so Agent 22 Pearson sent her to secondary inspection for further checks. 23 Bernice was questioned in the secondary inspection area, and at

24 first she said she had been in Mexico, but then when confronted with the 25 fact that reports indicated that her vehicle had not crossed the border 26 in the past 72 hours, she gave several inculpatory detailed statements 27 about herself and her sister acting as scouts. Part of the statement

28 included Bernice stating that she had called a friend named "Ramon or 2 08cr0972

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1 Eduardo", and that she believed he would be driving a pick-up truck. 2 Bernice's purse was seized and contained documents which related to the 3 Ford F-150, including receipts for hamburgers found in the truck, and 4 ownership documents. 5 As a result of the statements made by Bernice Pelayo Hernandez,

6 both she and Denise Pelayo Hernandez were placed under arrest in 7 connection with the aliens seized in the F-150. After this time, both

8 women were held for several hours and then "officially" questioned. 9 Bernice Pelayo Hernandez was questioned at 3:20 a.m. and Denise was 10 questioned at 3:33 a.m. Unlike the prior questioning of Bernice, this

11 questioning session was preceding by giving them Miranda warnings. Both 12 women gave inculpatory statements during this questioning period. 13 Both Bernice and Denise Pelayo are out on bond while the case

14 proceeds. 15 16 17 II. THE COURT SHOULD COMPEL THE GOVERNMENT TO PRODUCE DISCOVERY Denise Pelayo Hernandez makes the following discovery motion This request is not limited to

18 pursuant to Rule 12(b)(4) and Rule 16.

19 those items that the prosecutor has actual knowledge of, but rather 20 includes all discovery listed below that is "in the possession, custody, 21 or control of any federal agency participating in the same investigation 22 of the defendant." United States v. Bryan, 868 F.2d 1032, 1036 (9th

23 Cir.), cert. denied, 493 U.S. 858 (1989). 24 Ms. Pelayo Hernandez may eventually also request a detailed list

25 of specific items that may not yet have been produced, and is requesting 26 that the government turn over and allow her counsel to view and inspect 27 all items at the earliest possible date. She also specifically requests 28 that the government retain, preserve and prevent from destruction, all 3 08cr0972

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1 evidence seized in this case (Including the weapons and ammunition) so 2 that counsel may have the opportunity to re-test it and have it's own 3 expert examine it if necessary. 4 (1) Ms. Pelayo Hernandez' Statements. The government must

5 disclose:

(1) copies of any written or recorded statements made by Ms.

6 Pelayo Hernandez; (2) copies of any written record containing the 7 substance of any statements made by Ms. Pelayo Hernandez; and (3) the 8 substance of any statements made by Ms. Pelayo Hernandez which the 9 government intends to use, for any purpose, at trial. This includes any 10 hand-written notes made by agents and any co-conspirator's or material 11 witness alleged statements as well, as well as any video or audio 12 recorded statements. See Fed. R. Crim. P. 16(a)(1)(A). Ms. Pelayo

13 Hernandez also specifically requests that the circumstances surrounding 14 any alleged waiver of his right to counsel and right to remain silent 15 be disclosed as well. 16 Statements of Others; the defense moves for an order directing the

17 government to permit the defense to inspect and copy any statements of 18 any co-defendant or co-conspirator, material witness, or confidential 19 informant that the government intends to offer against defendant under 20 Fed. R. Evid. 801(d)(2)(E), including, but not limited to: 21 22 23 24 25 26 27 28 (2) Ms. Pelayo Hernandez's Prior Record. 4 Ms. Pelayo Hernandez 08cr0972 (B) (A) Relevant written or recorded statements made by any codefendant or claimed co-conspirator, indicted or unindicted, that are in the government's possession, custody, or control, or that through due diligence may become known to the government; and The substance of any oral statement that the government intends to offer in evidence at the trial of this matter made by any co-defendant or claimed co-conspirator, indicted or unindicted, before or after arrest, in response to interrogation by any person known to the declarant to be a government agent.

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1 requests complete disclosure of his prior record if one exists. 2 Fed. R. Crim. P. 16(a)(1)(B). 3

See

(3) Documents and Tangible Objects. Ms. Pelayo Hernandez requests

4 the opportunity to inspect, copy, and photograph all documents and 5 tangible objects which are material to the defense or intended for use 6 in the government's case-in-chief or were obtained from or belong to 7 her. 8 See Fed. R. Crim. P. 16(a)(1)(C). (4) Reports of Scientific Tests or Examinations. Ms. Pelayo

9 Hernandez requests the reports of all tests and examinations which are 10 material to the preparation of the defense or are intended for use by 11 the government at trial. See Fed. R. Crim. P. 16(a)(1)(D). Ms. Pelayo If

12 Hernandez notes that no fingerprint analyses have been produced. 13 such analyses exist, Ms. Pelayo Hernandez requests a copy. 14 (5) Expert Witnesses.

Ms. Pelayo Hernandez requests the name and

15 qualifications of any person that the government intends to call as an 16 expert witness. See Fed. R. Crim. P. 16(a)(1)(E). Ms. Pelayo Hernandez 17 requests written summaries describing the bases and reasons for the 18 expert's opinions. See id. This request applies to any fingerprint and 19 handwriting experts that the government intends to call. 20 (6) Brady Material. Ms. Pelayo Hernandez requests all documents,

21 statements, agents' reports, and tangible evidence favorable to the 22 defendant on the issue of guilt or punishment. See Brady v. Maryland,

23 373 U.S. 83 (1963), Williams v. Taylor, 120 S.Ct. 1479 (2000), Strickler 24 v. Greene, 527 U.S. 263 (1999). 25 Impeachment evidence falls within the definition of evidence

26 favorable to the accused, and therefore Ms. Pelayo Hernandez requests 27 disclosure of any impeachment evidence concerning any of the

28 government's potential witnesses, including prior convictions and other 5 08cr0972

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1 evidence of criminal conduct. See United States v. Bagley, 473 U.S. 667 2 (1985); United States v. Agurs, 427 U.S. 97 (1976); Kyles v. Whitley, 3 514 U.S. 419 (1995). 4 In addition, Ms. Pelayo Hernandez requests any evidence tending to

5 show that a prospective government witness: (I) is biased or prejudiced 6 against the defendant; (ii) has a motive to falsify or distort his or 7 his testimony; (iii) is unable to perceive, remember, communicate, or 8 tell the truth; or (iv) has used narcotics or other controlled

9 substances, or has been an alcoholic. 10 any and all reports involving any

This would specifically include investigations and grand jury

11 testimony pertaining to the investigating and arresting agents or 12 confidential sources in this case. 13 (7) Request for Preservation of Evidence. Ms. Pelayo Hernandez

14 specifically requests the preservation of all physical or documentary 15 evidence that may be destroyed, lost, or otherwise put out of the 16 possession, custody, or care of the government and which relate to the 17 arrest or the events leading to the arrest in this case. 18 (8) Any Proposed 404(b) Evidence. "[U]pon request of the accused,

19 the prosecution . . . shall provide reasonable notice in advance of 20 trial . . . of the general nature" of any evidence the government 21 proposes to introduce under Rule 404(b). Fed. R. Evid. 404(b). Ms.

22 Pelayo Hernandez requests such notice as soon as possible, in order to 23 allow for adequate trial preparation. 24 (9) Witness Addresses. Ms. Pelayo Hernandez requests the name and She also

25 last known address of each prospective government witness.

26 requests the name and last known address of every witness to the crime 27 or crimes charged (or any of the overt acts committed in furtherance 28 thereof) who will not be called as a government witness. 6 08cr0972

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1

(10)

Jencks

Act

Material.

Ms.

Pelayo

Hernandez

requests

2 production in advance of trial of all material discoverable pursuant to 3 the Jencks Act, 18 U.S.C. § 3500. This production will avoid needless This request includes any

4 delays at pretrial hearings and at trial.

5 "rough" notes taken by the agents in this case; these notes must be 6 produced pursuant to 18 U.S.C. § 3500(e)(1). This request also includes 7 production of transcripts of the testimony of any witness before the 8 grand jury. Counsel would like access to all witnesses' last known See 18 U.S.C. §

9 address so an attempt can be made to contact them. 10 3500(e)(3). 11 (11) Residual Request.

Ms. Pelayo Hernandez intends by this

12 discovery motion to invoke her rights to discovery to the fullest extent 13 possible under the Federal Rules of Criminal Procedure and the

14 Constitution and laws of the United States.

Ms. Pelayo Hernandez

15 requests that the government provide her and his attorney with the 16 above-requested material sufficiently in advance of trial. 17 (12) Government Examination of Law Enforcement Personnel Files Ms.

18 Pelayo Hernandez requests that the government examine the personnel 19 files and any other files within its custody, care or control, or which 20 could be obtained by the government, for all testifying witnesses. Ms.

21 Pelayo Hernandez requests that these files be reviewed by the government 22 attorney for evidence of perjurious conduct or other conduct like 23 dishonesty, or any other material relevant to impeachment, or any 24 information that is exculpatory, pursuant to its duty under United 25 States v. Henthorn, 931 F.2d 29 (9th Cir. 1991). 26 The obligation to examine files arises by virtue of the defense the Ninth Circuit in Henthorn the agents' files because the

27 making a demand for their review: 28 remanded for in camera review of 7

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1 government failed to examine the files of agents who testified at trial. 2 This Court should therefore order the government to review all such 3 files for all testifying witnesses and turn over any material relevant 4 to impeachment or that is exculpatory to Ms. Pelayo Hernandez prior to 5 trial. Ms. Pelayo Hernandez specifically requests that the prosecutor, 6 not the law enforcement officers, review the files in this case. The

7 duty to review the files, under Henthorn, should be the prosecutor's and 8 not the officers'. Only the prosecutor has the legal knowledge and

9 ethical obligations to fully comply with this request. 10 11 12 13 III. THIS COURT SHOULD PRECLUDE THE PROSECUTION FROM PROCEEDING UNDER AN AIDING AND ABETTING THEORY Ms. Pelayo Hernandez moves this Court to preclude the Government

14 from proceeding under an aiding and abetting theory for the following 15 reasons. 16 A. 17 18 Aiding and Abetting Requires Proof of Specific Intent Beyond the Elements of the Underlying Offense, and the Government's Failure to Allege This Element in the Indictment is a Material Omission. The Fifth Amendment requires that "[n]o person shall be held to for a capital, or otherwise infamous crime, unless on a

19 answer

20 presentment or indictment of a Grand Jury . . . ." U.S. Const. amend. 21 V. Consistent with this Constitutional requirement, the Supreme Court

22 has held that an indictment must "fully, directly, and expressly, 23 without any uncertainty or ambiguity, set forth all the elements 24 necessary to constitute the offense intended to be punished." 25 States v. Carll, 105 U.S. 611, 612-13 (1881) (emphasis added). 26 Black letter law holds that an indictment which does not allege an See, "[A]n 08cr0972 United

27 element of an offense, even an implied element, is defective. 28 e.g., Russell v. United States, 369 U.S. 749, 763-64 (1962). 8

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1 indictment's complete failure to recite an essential element of the 2 charged offense is not a minor or technical flaw subject to harmless 3 error analysis, but a fatal flaw requiring dismissal of the indictment." 4 United States v. Velasco-Medina, 305 F.3d 839, 846 (9th Cir. 2002) 5 (quoting United States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir. 1999)); 6 United States v. Keith, 605 F.2d 462, 464 (9th Cir. 1979) ("The failure 7 of an indictment to detail each element of the charged offense generally 8 constitutes a fatal defect."). 9 In the Ninth Circuit, "circuit law is clear that aiding and

10 abetting contains an additional element of specific intent, beyond the 11 mental state required by the principal crime." 12 Sayetsitty, 107 F.3d 1405, 1412 (9th Cir. 1997). 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 08cr0972 The elements necessary to convict an individual under an aiding and abetting theory are (1) that the accused had the specific intent to facilitate the commission of a crime by another, (2) that the accused had the requisite intent of the underlying substantive offense, (3) that the accused assisted or participated in the commission of the underlying offense, and (4) that someone committed the underlying substantive offense. Id. (emphasis in original) (quoting United States v. Gaskins, 849 F.2d 454, 459 (9th Cir. 1988)). "It is the aider and abettor's state of United States v.

mind, rather than the state of mind of the principal, that determines the former's liability." United States v. Short, 493 F.2d 1170, 1172

(9th Cir. 1974), modified, 500 F.2d 676 (9th Cir. 1974), cert. denied, 419 U.S. 1000 (1974). Given that the Ninth Circuit has held that "the

specific intent to facilitate the commission of a crime by another" is an element of aiding and abetting, Gaskins, 849 F.2d at 459, it must be charged in the indictment. "If an element is necessary to convict, it

is also necessary to indict, because elements of a crime do not change as criminal proceedings progress." United States v. Hill, 279 F.3d 731,

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1 741 (9th Cir. 2002). 2 B. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
1

The Cases Holding that the Aiding and Abetting Theory is Implied in Every Federal Indictment are Not to the Contrary It is true that the Ninth Circuit has stated in dictum that aiding

and abetting is implied in every indictment.

See United States v.

Armstrong, 909 F.2d 1238, 1241 (9th Cir. 1990); United States v. Michaels, 796 F.2d 1112, 1117-1118 (9th Cir. 1986). However, the Ninth

Circuit cases address only challenges to jury instructions, not a challenge to the indictment. question presented here. Because the aiding and abetting statute, 18 U.S.C. § 2, "states a rule of criminal responsibility for acts which one assists another in performing," Nye & Nissen v. United States, 336 U.S. 613, 620 (1949), the acts set forth in the statute merely describe the means of The cases accordingly do not resolve the

committing an offense.

Armstrong, 909 F.2d at 1243.

See also United

States v. Causey, 835 F.2d 1289, 1292 (9th Cir. 1987); Michaels, 796 F.2d at 1117-18. Put another way, Armstrong and its antecedents do not

hold that an indictment may omit the additional intent element required for a conviction under the aiding and abetting theory; they simply recognize that 18 U.S.C. § 2 sets forth the acts of the defendant that expose her to liability as a principal. Because these cases do not

discuss the additional intent element which is necessary to convict a defendant under the aiding and abetting theory, they are inapposite.1 C. Neither The Prosecution Nor The Court May Broaden The Permissible Bases For Conviction Beyond Those Charged In The Indictment.

If section 2 does not require all offense elements to be alleged in the indictment, then it is 27 unconstitutional. Congress cannot exempt its statutes from the requirements of the Grand Jury Clause of the Fifth Amendment. Thus, if this Court holds that section 2 does not require all 28 elements necessary to convict to be alleged in the indictment, then it must strike this statute down. 10 08cr0972

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1

Requiring the proof to remain true to the indictment enables the

2 grand jury to protect citizens from the unilateral power of the 3 Government to institute criminal prosecutions. United States v. Miller, 4 471 U.S. 130, 139 (1985). In accordance with these principles, the

5 United States Supreme Court has observed that 6 7 8 9 10 [i]f it lies within the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been, or what the grand jury would probably have made it if their attention had been called to suggested changes, the great importance which the common law attaches to an indictment by a grand jury, as a prerequisite to a prisoner's trial for a crime, and without which the constitution says "no person shall be held to answer," may be frittered away until its value is almost destroyed.

11 Ex parte Bain, 121 U.S. 1, 10 (1962), overruled on other grounds by
2 12 United States v. Cotton, 535 U.S. 625 (2002).

Accordingly, the Court

13 has held that a district court may not broaden the possible bases for 14 conviction beyond those alleged in the indictment. 15 States, 361 U.S. 212, 218 16 n.3 (1960). Stirone v. United

"An amendment of the indictment occurs when the charging terms of

17 the indictment are altered, either literally or in effect, by the 18 prosecutor or a court after the grand jury has last passed upon them." 19 United States v. Von Stoll, 726 F.2d 584, 586 (9th Cir. 1984). See also 20 United States v. Cusimano, 148 F.3d 824, 829 (7th Cir. 1998)

21 (recognizing that a court may not constructively amend the indictment 22 through its instructions to the jury); United States v. Dipentino, 242 23 F.3d 1090, 1094 (9th Cir. 2001) (finding constructive amendment where 24 district court instructed jury on work practice standard not alleged in 25 26
2

Cotton did not overrule the cited holding in Bain, nor parallel holdings in Russell or Stirone. 27 Cotton, 535 U.S. at 631. Indeed, it expressly left this holding of Bain intact. Id. Nor did the Court decide whether an indictment error is a structural defect or whether such an error affects 28 substantial rights. Id. at 631-33. Thus, it does not aid this Court's analysis. 11 08cr0972

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1 indictment); United States v. Leichtnam, 948 F.2d 370, 380-81 (7th Cir. 2 1991) (finding constructive amendment where indictment charged the 3 defendant with using a specific firearm and where the evidence and the 4 district court's instructions "broaden[ed] the possible bases for 5 conviction to include knowingly using or carrying any firearm")

6 (emphasis in original). 7 Indeed, one court observed that "[w]hat becomes essential to a

8 charged offense in a particular case--that is, above and beyond what is 9 necessary as a statutory matter--depends upon the structure of the 10 indictment . . . and is thus completely within the government's 11 control." United States v. Willoughby, 27 F.3d 263, 266 (7th Cir. 1994) 12 (internal citation omitted); United States v. Weissman, 899 F.2d 1111, 13 1115 (11th Cir. 1990) (finding constructive amendment and observing that 14 "it must be stressed that the government, through its ability to craft 15 indictments, is the master of the scope of the charged RICO conspiracy 16 . . . . It is the prosecution which sets the parameters to which a RICO 17 conspiracy trial must be confined; having set the stage, the government 18 must be satisfied with the limits of its own creation.") (citations 19 omitted). A constructive amendment always requires reversal because it 20 deprives a defendant of her right to be tried only on the grand jury's 21 charge. Stirone, 361 U.S. at 217; United States v. Floresca, 38 F.3d

22 706, 713 (4th Cir. 1994) (en banc). 23 Applying these principles here, if the indictment fails to set

24 forth the additional element of specific intent required to convict a 25 defendant under the aiding and abetting theory, then neither the 26 Government nor this Court can broaden the indictment to include aiding 27 and abetting as a possible basis for conviction. 28 D. The Indictment Here Does Not Authorize The Prosecution To Proceed 12 08cr0972

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1 2

Under An Aiding And Abetting Theory. Sayetsitty clearly holds that to convict a defendant under an

3 aiding and abetting theory, the government must prove at least two 4 different intent elements: the defendant must have specifically intended 5 to aid the principal in the commission of the offense, and the defendant 6 must have the requisite intent for the underlying offense. 107 F.3d at 7 1412. Aiding and abetting clearly requires proof of an additional Id.

8 intent element beyond the intent required by the statute. 9

Here, for example, to convict under an aiding-and-abetting theory,

10 the government needs to prove that the defendant intended to aid a 11 principal in the commission of the offense, in addition to proving the 12 intent elements attributed to the principal. These are distinct

13 elements, and under Hill, DuBo, and Pernillo-Fuentes, all of these 14 elements need to be alleged in the indictment. See Du Bo, 186 F.3d at

15 1179; Pernillo-Fuentes, 252 F.3d at 1032; Hill, 279 F.3d at 741. 16 Because the indictment here failed to allege this additional intent 17 element, this Court may not allow the Government to proceed under an 18 aiding and abetting theory. A contrary holding would constructively

19 amend the indictment and impermissibly broaden the scope of the charges. 20 E. 21 22 23 24 25 26 27 28 13 08cr0972 The Indictment's Mere Citation to 18 U.S.C. § 2, the Aiding-andAbetting Statute, Does Not Render the Indictment Sufficient. The Government may argue that even if the intent to aid and abet were required to be alleged in the indictment, the aiding-and-abetting statute was cited in the indictment here. It is true that the

indictment cited -- without more -- 18 U.S.C. § 2. However, this does not render the indictment sufficient. Ms. Pelayo Hernandez's argument is not that the language, "aiding and abetting," or any of the language set forth in 18 U.S.C. § 2, must

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1 be alleged in the indictment; rather, Ms. Pelayo Hernandez argues that 2 the element recognized by the Ninth Circuit's case law -- that the 3 defendant had the specific intent to aid the principal in the commission 4 of the offense -- must be alleged in the indictment. 5 Additionally, the Ninth Circuit's case law cannot be clearer: when

6 the indictment is questioned prior to trial, "[a] correct citation to 7 the statute is not sufficient to compensate for the exclusion [of an 8 essential element]." United States v. Kurka, 818 F.2d 1427, 1431 (9th

9 Cir. 1987) (citing Givens v. Housewright, 786 F.2d 1378, 1381 (9th Cir. 10 1986); United States v. Rojo, 727 F.2d 1415, 1418-19 (9th Cir. 1983)). 11 Accord United States v. James, 980 F.2d 1314, 1318 (9th Cir. 1992). In

12 Kurka, the defendant moved to dismiss the indictment on the ground that 13 it failed to allege that the damage to the property was willful. 818

14 F.2d at 1428. Even though the indictment cited the correct statute, the 15 Ninth Circuit held that "[t]he failure to include the element of 16 willfulness . . . render[ed] the indictment constitutionally defective," 17 and accordingly reversed the defendant's conviction. Id. at 1430-31.

18 Likewise, here, mere citation to 18 U.S.C. § 2 does not render the 19 indictment sufficient. 20 In any event, 18 U.S.C. § 2 does not set forth any offense See Armstrong, 909 F.2d at 1241. to this statute does not reflect As a consequence, mere that the Grand Jury

21 elements. 22 citation

23 considered, much less found, the essential element that the Defendant 24 had the specific intent to aid the principal in the commission of the 25 offense. Thus, citation to 18 U.S.C. § 2 does not cure the deficiency

26 in the indictment. 27 Thus, this Court should preclude the Government from proceeding

28 under an aiding and abetting theory. 14 08cr0972

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1 2 3 4 5 6 A.

IV. THE COURT SHOULD SUPPRESS EVIDENCE SEIZED IN VIOLATION OF DENISE PELAYO HERNANDEZ' RIGHTS This Court Should Suppress Evidence Obtained in Violation of the Fourth Amendment. The Fourth Amendment's prohibition of unreasonable searches and

7 seizures extends to seizures of the person and brief investigatory stops 8 of vehicles. 9 (1975). See United States v. Brignoni-Ponce, 422 U.S. 873, 878

An officer may not detain a motorist without "a particularized

10 and objective bases for suspecting the particular person stopped of 11 criminal activity." 12 (1981). United States v. Cortez, 449 U.S. 411, 417-418

This "objective basis, or `reasonable suspicion' must consist

13 of `specific, articulable facts which, together with objective and 14 reasonable inferences, form the basis for suspecting that the particular 15 person detained is engaged in criminal activity.'" United States v.

16 Garcia-Camacho, 53 F.3d 244, 246 (9th Cir. 1995) (citations omitted); 17 accord United States v. Sigmond-Ballesteros, 285 F.3d 1117, 1120 (9th 18 Cir. 2002) (finding that district court erred in finding that vehicle 19 stop was unconstitutional). 20 In the instant case, the arresting officer did not have reasonable

21 suspicion to stop Denise Pelayo Henandez for any crime, and did not have 22 any basis to question Bernice Pelayo Hernandez for anything other than 23 her citizenship. Instead, the officer began asking her about how and

24 when she entered the United States - both inquiries would be irrelevant 25 to finding out whether or not an individual was a citizen of the United 26 States. The agent instead ran a 72 hour lane check to see if Ms. Neither this nor

27 Pelayo's vehicle had crossed into the United States.

28 any other supposed justification­including Bernice Pelayo's failure to 15 08cr0972

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1 produce identification was a sufficient reason to send Denise Pelayo to 2 secondary or hold her for any reason. Because the agents did not have

3 reasonable suspicion to believe that Denise Pelayo committed any offense 4 - until Bernice Pelayo gave incriminating statements in the secondary 5 area (these statements were given in a custodial situation without 6 Miranda Warnings given ahead of time), Denice Pelayo Hernandez'

7 detention was unconstitutional. 8 B. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bernice Pelayo's Lack of Identification Was Not Sufficient Probable Cause to Allow for Inquiry into Other Crimes. The Fourth Amendment to the United States Constitution generally proscribes unreasonable searches and seizures. U.S. Const., amend. IV. Any search or seizure effected without a warrant is per se unreasonable. Katz v. United States, 389 U.S. 347, 357 (1967). There is no dispute

in this case that the stop at the checkpoint was done without the benefit of a warrant. The instant case implicates the exception for immigration

checkpoints, unique procedures maintained by the United States Border Patrol here in Southern California and certain other border regions of the country to aid interdiction of undocumented persons. The stops

effected at the immigration checkpoints at San Clemente and Temecula and the one off of Highway 94 are "seizures" within the meaning of the Fourth Amendment. (1976). United States v. Martinez-Fuerte, 428 U.S. 543, 556

Nonetheless, they are permissible as warrantless seizures so

long as the officials effecting the stops are careful to remain within the bounds of their very narrowly circumscribed authority. Id. at 567.

In allowing these stops, the Supreme Court was careful to note: "[n]either the vehicle nor its occupants are searched, and visual inspection of the vehicle is limited to what can be seen without a search." Id. at 558. Additionally, "[r]eferrals are made for the sole 16 08cr0972

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1 purpose of conducting a routine and limited inquiry into residence 2 status that cannot feasiblely be made of every motorist where the 3 traffic is heavy." Id. at 560. The Court emphasized that "[t]he

4 principal protection of Fourth Amendment rights at checkpoints lies in 5 appropriate limitations on the scope of the stop." Id. at 566-67

6 (citing to Terry v. Ohio, 392 U.S. 1, 24-27 (1968), and United States 7 v. Brignoni-Ponce, 422 U.S. 873, 881-82 (1975)) (emphasis added). 8 Once the initial immigration stop ripens into either a full-blown

9 search, an arrest, or some other sort of investigation, the seizure must 10 be supported by either probable cause or consent. 11 Ortiz, 422 U.S. 891, 896-97 (1975). United States v.

Here, the checkpoint functioned as

12 a pretext to do a records check on both Bernice and Denise Pelayo, and 13 the agents lacked probable cause to search them, and to the best of 14 counsel's knowledge, neither of the women gave any voluntary consent for 15 detention or search. Thus, this Court must suppress all evidence See Wong Sun v. United

16 obtained as a result of the illegal search. 17 States, 371 U.S. 471, 484 (1963). 18 19 20 21 22 23 24 25 26 27 28 1.

The Extended Detention Was a Pretext for Additional Inquiries and Records Checks to attempt to Ferret out Other Crimes.

Checkpoints used as a pretext to find additional crimes violate the Fourth Amendment. (2000); United See City of Indianapolis v. Edmond, 531 U.S. 32, 45 v. Huguenin, 154 F.3d 547, 555 (6th Cir.

States

1998)(checkpoint unconstitutional where primary purpose was to intercept drugs); United States v. Morales-Zamora, 974 F.2d 149, 153 (10th Cir. 1992)(roadblock stop unconstitutional where evidence showed primary reason was to search for drugs and not to check driver's license); Texas v. Brown, 460 U.S. 730, 743 (1983)(Fourth Amendment violated if "the roadblock was a pretext whereby evidence of narcotics violation might be uncovered in `plain view' in the course of check for driver's 17 08cr0972

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1 licenses"); United States v. Soyland, 3 F.3d 1312, 1314-15 (9th Cir. 2 1993)(Ninth Circuit declines to address issue because it was not 3 properly before the court). 4 Here, the Border Patrol Agents were clearly trying to find out more Instead of

5 than just the legal status of Bernice Pelayo Hernandez.

6 running Ms. Pelayo's fingerprints through the database to check on her 7 status, agents began asking about how and when she crossed, and then 8 conducted inquiries about her vehicle - none of which had anything to 9 do with her status as a United States citizen. Since the purpose of

10 their inquiry was beyond the scope of her citizenship, all evidence 11 seized as a result of that inquiry must be suppressed. 12 C. 13 14 15 16 17 18 19 20 21 22 23 All Statements Given Buy Both Bernice and Denise Pelayo Hernandez Were the Fruits of the Poisonous Tree and Should Be Suppressed. All evidence and the fruits of the unconstitutional detention (e.g., statements given by both Denise and Bernice Pelayo, all evidence seized from them and from the F-150 truck) must be suppressed. See Wong Sun v. United States, 371 U.S. 471 (1963); see also United States v. Romero-Bustamente, 337 F.3d 1104 (9th Cir. 2003) (finding Fourth

Amendment violation, suppressing alien material witnesses, and requiring dismissal of indictment). 1. Any Statements Made by Bernice and Denise Pelayo Hernandez Should Be Suppressed a. The Government Must Demonstrate Compliance With Miranda.

In their reports, agents claim that both women were read their

24 Miranda Rights, but it seems clear from the reports that these warnings 25 were given hours after the initial questioning of Bernice Pelayo. The

26 only reason that the two women were arrested and later questioned 27 several hours later, was a direct result of the answers that Bernice 28 Pelayo Hernandez gave to officers after she was sent to the secondary 18 08cr0972

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1 Inspection area. 2 There is no indication that Bernice Pelayo Hernandez was read her

3 Miranda Rights before the initial questioning in the Secondary area at 4 all. Additionally, counsel could find no written waivers. The

5 questioning of both women hours later, after getting the answers agents 6 needed from the questioning in the secondary area, was done after 7 Bernice Pelayo Hernandez had spoken to agents without being informed of 8 her rights, and the questions after Miranda to both women were a direct 9 result of the answers that agents received from their pre-Miranda 10 questioning. 11 12 b. Miranda Warnings Must Precede Custodial Interrogation.

The Supreme Court has held that the prosecution may not use whether exculpatory or inculpatory, stemming from a

13 statements,

14 custodial interrogation of the defendant unless it demonstrates the use 15 of procedural safeguards effective to secure the privilege against self16 incrimination. See Miranda v. Arizona, 384 U.S. 436, 444 (1966). The

17 law imposes no substantive duty upon the defendant to make any showing 18 other than that the statement was taken from the defendant during 19 custodial interrogation. 20 Id. at 476.

Custodial interrogation is questioning initiated by law enforcement

21 officers after a person has been taken into custody or otherwise 22 deprived of his freedom of action in any significant way. 23 see Orozco v. Texas, 394 U.S. 324, 327 (1969). Id. at 477;

In Stansbury v.

24 California, the Supreme Court clarified its prior decisions by stating 25 that "the initial determination of custody depends on the objective 26 circumstances of the interrogation, not on the subjective views harbored 27 by either the interrogating officers or the person being questioned." 28 511 U.S. 318, 323 (1994). 19 08cr0972

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1

The Ninth Circuit has held that a suspect will be found to be in

2 custody if the actions of the interrogating officers and the surrounding 3 circumstances, fairly construed, would reasonably have led him to 4 believe he could not freely leave. See United States v. Lee, 699 F.2d

5 466, 468 (9th Cir. 1982); United States v. Bekowies, 432 F.2d 8, 12 (9th 6 Cir. 1970). In determining whether a person is in custody, a reviewing

7 court must consider the language used to summon the defendant, the 8 physical surroundings of the interrogation, and the extent to which the 9 defendant is confronted with evidence of his guilt. 10 v. Estrada-Lucas, 651 F.2d 1261 (9th Cir. 1980). 11 Once a person is in custody, Miranda warnings must be given prior In United States v. Leasure, the Ninth Circuit See United States

12 to any interrogation.

13 held that "custody," for the purposes of Miranda warnings, usually begin 14 at the point of secondary inspection in border cases. 122 F.3d 837, 840 15 (1997). Miranda warnings must advise the defendant of each of his or See United States v. Bland, 908 F.2d 471, 473

16 her "critical" rights. 17 (9th Cir. 1990).

Furthermore, if a defendant indicates that he wishes

18 to remain silent or requests counsel, the interrogation must cease. See 19 Miranda, 384 U.S. at 473-74; see also Edwards v. Arizona, 451 U.S. 477, 20 482 (1981). 21 In this case, both Bernice and Denise Pelayo were in custody in the

22 secondary inspection area, and they were not free to leave. 23 24 c. This Court Should Conduct An Evidentiary Hearing.

Right now, agents reports do not give many facts regarding the

25 circumstances of the questioning of Bernice Pelayo Hernandez in the 26 secondary area. If the Court wishes additional inquiry into the factual 27 situation, an evidentiary hearing could shed additional light in the 28 determination about whether or not Bernice Pelayo Hernandez's statements 20 08cr0972

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1 and the evidence obtained after eliciting those statements should be 2 admitted into evidence. Under 18 U.S.C. § 3501(a), this Court is

3 required to determine, outside the presence of the jury, whether any 4 statements made by Ms. Pelayo Hernandez are voluntary. In addition, 18

5 U.S.C. § 3501(b) requires this Court to consider various enumerated 6 factors, including Ms. Pelayo Hernandez's understanding of her rights 7 and of the charges against her. 8 this Court cannot adequately Without the presentation of evidence, consider these statutorily mandated

9 factors. 10 Moreover, § 3501(a) requires this Court to make a factual

11 determination. If a factual determination is required, courts must make 12 factual findings by Fed. R. Crim. P. 12. See United States v. PrietoSince "`suppression

13 Villa, 910 F.2d 601, 606-10 (9th Cir. 1990).

14 hearings are often as important as the trial itself,'" id. at 609-10 15 (quoting Waller v. Georgia, 467 U.S. 39, 46 (1984)), these findings 16 should be supported by evidence, not merely an unsubstantiated

17 recitation of purported evidence in a prosecutor's responsive pleading. 18 19 20 d. There Is No Factual Dispute as to Denise Pelayo Hernandez' Voluntariness, So No Declaration by Her Is Useful or Necessary

Denise Pelayo Hernandez is not making a traditional statement motion based upon voluntariness in these documents.

21 suppression

22 Instead, she is arguing that the only reason she was questioned in the 23 first place, was because her sister, Bernice Pelayo Hernandez was 24 questioned in a custodial situation without the benefit of Miranda 25 warnings, and the direct result of that questioning, led to the arrest 26 and further questioning of both women. 27 As such, Denise Pelayo Hernandez' argument is that her statements

28 are the fruit of the poisonous tree, because all evidence obtained after 21 08cr0972

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1 Bernice Pelayo's statements (including the statements of Denise) was 2 obtained only because of the answers that Bernice Pelayo gave to agents. 3 These answers were given without the benefit of Miranda warnings, and 4 without any probable cause for their inquiry in the first place. 5 The only reason Bernice and Denise Pelayo Hernandez were sent to

6 the secondary area of the checkpoint, was because Bernice did not have 7 her identification on her. Inquiry into her status as a United States

8 Citizen, or DMV driving records may have been warranted, but agents went 9 much further than that simple inquiry. Agents questioned Bernice Pelayo 10 about when, where, and how she entered the United States last, and then 11 sought to impeach her by running reports through the border patrol 12 checkpoints to see if she had crossed when she said she had. No part

13 of that inquiry had anything to do with her status as a United States 14 Citizen or her ability to drive a vehicle in the State of California. 15 This extended investigation into Bernice Pelayo Hernandez

16 snowballed into Bernice giving agents statements which related to 17 smuggling aliens and scouting for smugglers. This line of inquiry had

18 nothing to do with why she was sent over to secondary to begin with, nor 19 were any Miranda warnings given to her in the secondary area while she 20 was being questioned. As a result, without the benefit of Miranda

21 warnings, she gave several detailed incriminating statements about 22 herself and her sister, Denise Pelayo, and this led to their official 23 arrest. These statement directly led to the detention of both women,

24 and subsequent searches of them and questioning of them. 25 As such, all evidence obtained after the initial questioning,

26 including the statements given during that questioning, should be 27 suppressed. 28 22 08cr0972

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1 2 3 4 V. THE COURT SHOULD GRANT LEAVE TO FILE FURTHER MOTIONS In order to properly present additional pretrial motions, Ms.

5 Pelayo Hernandez needs more information which may be provided through 6 counsel's discovery request. 7 additional research and/or As more information comes to light and as investigation is completed, additional

8 substantive motions may be necessary. Accordingly, Ms. Pelayo Hernandez 9 requests that the Court permit her to file further motions before trial. 10 11 12 VI. CONCLUSION For the foregoing reasons, Ms. Pelayo Hernandez respectfully

13 requests that the Court grant her motions. 14 15 16 Dated: April 30, 2008 17 18 19 20 21 22 23 24 25 26 27 28 23 08cr0972 Respectfully submitted,

s/ Holly S. Hanover Attorney for Denise Pelayo Hernandez E-mail: [email protected]

Holly S. Hanover