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

Case 3:08-cr-00971-L

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KAREN P. HEWITT United States Attorney NICOLE ACTON JONES Assistant U.S. Attorney California State Bar No. 231929 United States Attorney's Office 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-5482 E-mail: [email protected] Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ) ) Plaintiff, ) ) ) v. ) ) ) VICTOR EDUARDO SILVA, ) ) ) Defendant. ) ) ) ) ) ____________________________________) UNITED STATES OF AMERICA Criminal Case No. 08CR0971-L GOVERNMENT'S MOTION FOR: (1) FINGERPRINT EXEMPLARS (2) RECIPROCAL DISCOVERY TOGETHER WITH STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES Date: May 19, 2008 Time: 2:00 p.m. Court: The Hon. M. James Lorenz

COMES NOW the plaintiff, UNITED STATES OF AMERICA, by and through its counsel, Karen P. Hewitt, United States Attorney, and Nicole Acton Jones, Assistant United States Attorney, and hereby files its Motion for Fingerprint Exemplars and Reciprocal Discovery in the above-referenced case. Said motions are based upon the files and records of this case together with the attached statement of facts and memorandum of points and authorities. // // // // //

Case 3:08-cr-00971-L

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I STATEMENT OF THE CASE On April 9, 2008, a federal grand jury in the Southern District of California returned a one-count Indictment charging defendant Victor Eduardo Silva ("Defendant") with Attempted Entry After Deportation, in violation of Title 8, United States Code, Section 1326. On April 15, 2008, Defendant was arraigned on the Indictment and entered a plea of not guilty. II STATEMENT OF FACTS

On March 28, 2008, at approximately 12:15 a.m., Border Patrol Agent Smith responded to a call from an infrared scope operator that two subjects were heading north of the area known as "The Mesa." This area is about two miles east of the Otay Mesa Port of Entry and about two hundred yards north of the border between the United States and Mexico. Upon responding to the area, Agent Smith found two individuals concealing themselves in the high brush. Agent Smith identified himself and conducted an immigration interview. Defendant admitted to being a Mexican citizen without immigration documents. Defendant was then arrested and transported to the Chula Vista Border Patrol Station for processing. At the station, Defendant's biographical information, fingerprints and photograph were entered into the IDENT and IAFIS computer databases, which revealed Defendant's criminal and immigration history. At approximately 5:20 a.m., Agent Smith advised Defendant of his Miranda rights. Defendant elected to invoke his right to counsel. Defendant was also advised of his right to speak to the Mexican consular office and declined. B. Defendant's Criminal and Immigration History On or about March 3, 1998, Defendant was convicted in Los Angeles County Superior Court of attempted murder in violation of PC § 187(a). Defendant was sentenced to 11 years in prison. On July 10, 2007, Defendant was deported from the United States to Mexico by an Immigration Judge. On March 24, 2008. Defendant's deportation order was reinstated and he was again removed from the United States to Mexico.

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Case 3:08-cr-00971-L

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III UNITED STATES' MOTIONS 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 Government is prepared to schedule a viewing of Defendant's A-File. The Government has obtained a copy of the audiotape of Defendant's deportation hearing and will provide counsel with a copy. Furthermore, the Government will request that the arresting agency preserve any evidence the Government intends to introduce in its case-in-chief or that may be material to the defense. 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 08CR0971-L

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IV CONCLUSION For the foregoing reasons, the Government respectfully requests that its motions be granted. DATED: May 5, 2008.

Respectfully Submitted, KAREN P. HEWITT United States Attorney /s/ Nicole Acton Jones NICOLE ACTON JONES Assistant U.S. Attorney

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 I declare under penalty of perjury that the foregoing is true and correct. 21 Executed on March 5, 2008. 22 23 24 25 26 27 28 5 08CR0971-L /s/ Nicole Acton Jones NICOLE ACTON JONES Assistant U.S. Attorney Defendant. ___________________________________ IT IS HEREBY CERTIFIED THAT: I, NICOLE ACTON JONES, 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 GOVERNMENT'S 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. 1. David Peterson, Federal Defenders of San Diego, Inc. 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. v. VICTOR EDUARDO SILVA, UNITED STATES OF AMERICA, Plaintiff, ) Criminal Case No. 08CR0971-L ) ) ) ) ) ) ) CERTIFICATE OF SERVICE ) ) ) ) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA