Free Motion to Preserve Evidence - District Court of California - California

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ERICA K. ZUNKEL California State Bar No. 229285 2 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 3 San Diego, CA 92101-5008 (619) 234-8467/Fax: (619) 687-2666 4 E-Mail: [email protected]
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Attorneys for Ms. Ruiz-Montenegro

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE M. JAMES LORENZ) ) ) Plaintiff, ) ) v. ) ) MONIQUE RUIZ-MONTENEGRO (2), ) ) Defendant. ) ____________________________________ ) I. STATEMENT OF FACTS1 On February 6, 2008, at approximately 5:00 p.m., Ms. Ruiz entered the United States from Mexico through the Calexico West Port of Entry as the passenger of a 2005 Dodge Stratus driven by co-defendant Rodrigo Velasquez-Cota. In secondary inspection, officers discovered cocaine concealed inside of the car's dashboard. Mr. Velasquez and Ms. Ruiz were arrested and detained at the Port of Entry. According to the Report of Investigation ("ROI") written by Special Agent Russell Vensk, Ms. Ruiz was advised of her Miranda rights at 9:40 p.m. She allegedly waived them and proceeded to make statements to agents. During the interrogation, Ms. Ruiz told agents that she accompanied Mr. Velasquez to Mexico to visit family members and eat. Agents ridiculed what Ms. Ruiz told them about what happened on the day of her arrest as "the most ridiculous story." Exhibit A at 14 (Translation/Transcript of Videotaped Interrogation). Unless otherwise noted, the facts in this Statement of Facts are derived from governmentproduced discovery. Ms. Ruiz does not concede the accuracy of these facts and reserves the right to contest these facts at future proceedings.
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UNITED STATES OF AMERICA,

Case No. DATE: TIME:

08cr1073-L May 27, 2008 2:00 p.m.

STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS

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Agent Vensk told her: "If I was a juror, I'd be mad because I'd be insulted that you'd think that I would even believe something so stupid." Id. He told her that she was the passenger in a car that was "full of cocaine," that it was a major federal felony, and that she was going to prison. Id. Early in the interrogation, Agent Vensk asked Ms. Ruiz how she knew the driver, Mr. Velasquez. She told him that he was the father of her baby, but that they were no longer together. Id. at 3. She indicated to agents that she was afraid of doing things to upset him and therefore did not ask a lot of questions about the trip to Mexico. Id. at 13. Later in the interrogation, when the agents were ridiculing the "ridiculousness" of Ms. Ruiz's account of events, Agent Vensk brought up Ms. Ruiz's child: "You've got a kid that you just got back, who you may not have back anymore. That may be done now, you may have just screwed yourself out of that. And if you keep lying, this is what's going to happen here, we know what happened, okay. You two guy, you and him, came across the border in a car full of cocaine." Id. at 15. Ms. Ruiz felt harassed and pressured to speak to agents. See Exhibit B, Declaration of Monique Ruiz-Montenegro. Ms. Ruiz is currently charged by way of indictment with Importation of Cocaine in violation of Title 21 U.S.C. §§ 952 and 960 and Possession of Cocaine with Intent to Distribute in violation of Title 21 U.S.C. § 841(a)(1). The indictment in the instant case was returned by the January 2007 grand jury. That grand jury was instructed by the Honorable Larry A. Burns, United States District Court Judge on January 11, 2007. See Reporter's Partial Transcript of the Proceedings, dated January 11, 2007, a copy of which is attached hereto as Exhibit C. Judge Burns' instructions deviate from the instructions at issue in the major Ninth Circuit cases challenging a form grand jury instruction previously given in this district in several ways.2 After repeatedly emphasizing to the grand jurors that probable cause determination was their sole responsibility, see Ex. C at 3, 3-4, 5,3 Judge Burns instructed the grand jurors that they were forbidden "from judg[ing] the wisdom of the criminal laws enacted by Congress; that is, whether or not there should be a federal law or should not be a federal law designating certain activity [as] criminal is not up to you." See id. at 8. The instructions go beyond that, however, and tell the grand jurors that, should "you disagree with that

See, e.g., United States v. Cortez-Rivera, 454 F.3d 1038 (9th Cir. 2006); United States v. Navarro-Vargas, 408 F.3d 1184 (9th Cir.) (en banc), cert. denied, 126 S. Ct. 736 (2005) (NavarroVargas II); United States v. Navarro-Vargas, 367 F.3d 896 (9th Cir. 2004) (Navarro-Vargas I); United States v. Marcucci, 299 F.3d 1156 (9th Cir. 2002) (per curiam).
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See also id. at 20 ("You're all about probable cause."). 2 08cr1073-L

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judgment made by Congress, then your option is not to say 'well, I'm going to vote against indicting even though I think that the evidence is sufficient' or 'I'm going to vote in favor of even though the evidence may be insufficient.'" See id. at 8-9. Thus, the instruction flatly bars the grand jury from declining to indict because the grand jurors disagree with a proposed prosecution. Immediately before limiting the grand jurors' powers in the way just described, Judge Burns referred to an instance in the grand juror selection process in which he excused three potential jurors. See id. at 8. I've gone over this with a couple of people. You understood from the questions and answers that a couple of people were excused, I think three in this case, because they could not adhere to the principle that I'm about to tell you. Id. That "principle" was Judge Burns' discussion of the grand jurors' inability to give effect to their disagreement with Congress. See id. at 8-9. Thus, Judge Burns not only instructed the grand jurors on his view of their discretion; he enforced that view on pain of being excused from service as a grand juror. In addition to his instructions on the authority to choose not to indict, Judge Burns also assured the grand jurors that prosecutors would present to them evidence that tended to undercut probable cause. See id. at 20.4 Now, again, this emphasizes the difference between the function of the grand jury and the trial jury. You're all about probable cause. If you think that there's evidence out there that might cause you to say "well, I don't think probable cause exists," then it's incumbent upon you to hear that evidence as well. As I told you, in most instances, the U.S. Attorneys are duty-bound to present evidence that cuts against what they may be asking you to do if they're aware of that evidence. Id. (emphasis added). The district court later returned to the notion of the prosecutors and their duties, advising the grand jurors that they "can expect that the U.S. Attorneys that will appear in from of [them] will be candid, they'll be honest, and . . . they'll act in good faith in all matters presented to you." See id. at 27. These motions follow. II. MOTION TO COMPEL DISCOVERY AND PRESERVE EVIDENCE Ms. Ruiz moves for the production by the government of the following discovery and for the preservation of evidence. This request is not limited to those items about which the prosecutor knows, but

These instructions were provided in the midst of several comments that praised the United States attorney's office and prosecutors in general. 3 08cr1073-L

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includes all discovery listed below that is in the custody, control, care, or knowledge of any government agency. See generally Kyles v. Whitley, 514 U.S. 419 (1995); United States v. Bryan, 868 F.2d 1032 (9th Cir. 1989). 1. The Defendant's Statements. The government must disclose to Ms. Ruiz all copies of any

written or recorded statements made by Ms. Ruiz; the substance of any statements made by Ms. Ruiz that the government intends to offer in evidence at trial; any response by Ms. Ruiz to interrogation; the substance of any oral statements that the government intends to introduce at trial and any written summaries of Ms. Ruiz's oral statements contained in the handwritten notes of the government agent; any response to any Miranda warnings that may have been given to Ms. Ruiz; and any other statements by Ms. Ruiz. Fed. R. Crim. P. 16(a)(1)(A) and (B). The Advisory Committee Notes and the 1991 amendments to Rule 16 make clear that the government must reveal all Ms. Ruiz's statements, whether oral or written, regardless of whether the government intends to make any use of those statements. 2. Arrest Reports, Notes and Dispatch Tapes. Ms. Ruiz also specifically requests that all arrest

reports, notes and dispatch or any other tapes that relate to the circumstances surrounding her arrest or any questioning, if such reports have not already been produced in their entirety, be turned over to her. This request includes, but is not limited to, any rough notes, records, reports, transcripts or other documents in which statements of Ms. Ruiz or any other discoverable material is contained. Ms. Ruiz includes in this request any redacted portions of the Report of Investigation ("ROI") and any subsequent ROIs that the case agent or any other agent has written. This is all discoverable under Fed. R. Crim. P. 16(a)(1)(A) and (B) and Brady v. Maryland, 373 U.S. 83 (1963). See also Loux v. United States, 389 F.2d 911 (9th Cir. 1968). Arrest reports, investigator's notes, memos from arresting officers, dispatch tapes, sworn statements, and prosecution reports pertaining to Ms. Ruiz are available under Fed. R. Crim. P. 16(a)(1)(A) and (B), Fed. R. Crim. P. 26.2 and 12(I). Preservation of rough notes is requested, whether or not the government deems them discoverable. 3. Brady Material. Ms. Ruiz requests all documents, statements, agents' reports, and tangible

evidence favorable to him on the issue of guilt and/or that affects the credibility of the government's case. Impeachment and exculpatory evidence both fall within Brady's definition of evidence favorable to the accused. United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 427 U.S. 97 (1976). ///

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4.

Any Information That May Result in a Lower Sentence. As discussed above, any information

that may result in a more favorable sentence must also be disclosed pursuant to Brady, 373 U.S. 83. The government must disclose any cooperation or attempted cooperation by Ms. Ruiz, as well as any information that could affect any base offense level or specific offense characteristic under Chapter Two of the United States Sentencing Commission Guidelines Manual ("Guidelines"). Also included in this request is any information relevant to a Chapter Three adjustment, a determination of Ms. Ruiz's criminal history, or any other application of the Guidelines. 5. The Defendant's Prior Record. Evidence of a prior record is available under Fed. R. Crim.

P. 16(a)(1)(D). Ms. Ruiz specifically requests a complete copy of any criminal record. 6. Any Proposed 404(b) Evidence. Evidence of prior similar acts is discoverable under

Fed. R. Crim. P. 16(a)(1)(D) and Fed. R. Evid. 404(b) and 609. In addition, under Fed. R. Evid. 404(b), "upon request of the accused, the prosecution . . . shall provide reasonable notice in advance of trial . . . of the general nature . . .." of any evidence the government proposes to introduce under Fed. R. Evid. 404(b) at trial. Sufficient notice requires the government to "articulate precisely the evidential hypothesis by which a fact of consequence may be inferred from the other acts evidence." United States v. Mehrmanesh, 689 F.2d 822, 830 (9th Cir. 1982) (emphasis added; internal citations omitted); see also United States v. Brooke, 4 F.3d 1480, 1483 (9th Cir. 1993) (reaffirming Mehrmanesh and reversing convictions). This includes any "TECS" records (records of prior border crossings) that the government intends to introduce at trial, whether in its case-in-chief, impeachment, or rebuttal. Although there is nothing intrinsically improper about prior border crossings, they are nonetheless subject to 404(b), as they are "other acts" evidence that the government must produce before trial. United States v. Vega, 188 F.3d 1150, 11541155 (9th Cir. 1999). Ms. Ruiz requests that such notice be given three weeks before trial to give the defense time to adequately investigate and prepare for trial. 7. Evidence Seized. Evidence seized as a result of any search, either warrantless or with a

warrant, is discoverable under Fed. R. Crim. P. 16(a)(1)(E). 8. Request for Preservation of Evidence. The defense specifically requests that all dispatch

tapes or any other physical evidence that may be destroyed, lost, or otherwise put out of the possession, custody, or care of the government and that relate to the arrest or the events leading to the arrest in this case

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be preserved. This request includes, but is not limited to, any samples of narcotics used to run any scientific tests, all narcotics, the results of any fingerprint analysis, the vehicle involved in the case, Ms. Ruiz's personal effects, and any evidence seized from Ms. Ruiz or any third party. This request also includes any material or percipient witnesses who might be deported or otherwise likely to become unavailable (e.g. undocumented aliens and transients). It is requested that the prosecutor be ordered to question all the agencies and individuals involved in the prosecution and investigation of this case to determine if such evidence exists, and if it does exist, to inform those parties to preserve any such evidence. 9. Henthorn Material. Ms. Ruiz requests that the Assistant United States Attorney ("AUSA")

assigned to this case oversee (not personally conduct) a review of all personnel files of each agent involved in the present case for impeachment material. See Kyles v. Whitley, 514 U.S. 437, 438 (1995) (holding that "the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police"); United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991). This request includes, but is not limited to, any complaints filed (by a member of the public, by another agent, or any other person) against the agent, whether or not the investigating authority has taken any action, as well as any matter for which a disciplinary review was undertaken, whether or not any disciplinary action was ultimately recommended. Ms. Ruiz further requests production of any such information at least one week prior to the motion hearing and two weeks prior to trial. If the prosecutor is uncertain whether certain information should be disclosed pursuant to this request, this information should be produced to the Court in advance of the motion hearing and the trial for an in camera inspection. 10. Tangible Objects. Ms. Ruiz requests the opportunity to inspect, copy, and test, as necessary,

all other documents and tangible objects, including photographs, books, papers, documents, alleged narcotics, fingerprint analyses, vehicles, or copies of portions thereof, that are material to the defense or intended for use in the government's case-in-chief or were obtained from or belong to Ms. Ruiz. Fed. R. Crim. P. 16(a)(1)(E). Specifically, Ms. Ruiz requests color copies of all photographs in the government's possession of the alleged narcotics and the vehicle in which the narcotics were found. If the prosecutor does not wish to make these copies, Ms. Ruiz requests the opportunity to do so herself. ///

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11.

Expert Witnesses. Ms. Ruiz requests the name, qualifications, and a written summary of the

testimony of any person that the government intends to call as an expert witness during its case in chief. Fed. R. Crim. P. 16(a)(1)(G). This summary should include a description of the witness' opinion(s), as well as the bases and the reasons for the opinion(s). See United States v. Duvall, 272 F.3d 825 (7th Cir. 2001) (finding that government's written expert notice did not adequately summarize or describe police detective's testimony in drug prosecution where notice provided only a list of the general subject matters to be covered and failed to identify what opinion the expert would offer on those subjects). This request includes, but is not limited to, disclosure of the qualifications of any government witness who will testify that he understands and/or speaks Spanish or any other foreign language that may have been used during the course of an interview with Ms. Ruiz or any other witness. Ms. Ruiz requests the notice of expert testimony be provided at a minimum of three weeks prior to trial so that the defense can properly prepare to address and respond to this testimony, including obtaining its own expert and/or investigating the opinions, credentials of the government's expert and obtain a hearing in advance of trial to determine the admissibility of qualifications of any expert. See Kumho v. Carmichael Tire Co., 526 U.S. 137, 119 S. Ct. 1167, 1176 (1999) (trial judge is "gatekeeper" and must determine, reliability and relevancy of expert testimony and such determinations may require "special briefing or other proceedings"). 12. Impeachment Evidence. Ms. Ruiz requests any evidence that any prospective government

witness has engaged in any criminal act whether or not resulting in a conviction and whether any witness has made a statement favorable to Ms. Ruiz. See Fed. R. Evid. 608, 609 and 613. Such evidence is discoverable under Brady, 373 U.S. 83. See United States v. Strifler, 851 F.2d 1197 (9th Cir. 1988) (witness' prior record); Thomas v. United States, 343 F.2d 49 (9th Cir. 1965) (evidence that detracts from a witness' credibility). 13. Evidence of Criminal Investigation of Any Government Witness. Ms. Ruiz requests any

evidence that any prospective witness is under investigation by federal, state or local authorities for any criminal conduct. United States v. Chitty, 760 F.2d 425 (2d Cir. 1985). 14. Evidence of Bias or Motive to Lie. Ms. Ruiz requests any evidence that any prospective

government witness is biased or prejudiced against Ms. Ruiz, or has a motive to falsify or distort his or his testimony. Pennsylvania v. Ritchie, 480 U.S. 39 (1987); Strifler, 851 F.2d 1197.

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15.

Evidence Affecting Perception, Recollection, Ability to Communicate, or Veracity. Ms. Ruiz

requests any evidence, including any medical or psychiatric report or evaluation, tending to show that any prospective witness' ability to perceive, remember, communicate, or tell the truth is impaired; and any evidence that a witness has ever used narcotics or other controlled substance, or has ever been an alcoholic. Strifler, 851 F.2d 1197; Chavis v. North Carolina, 637 F.2d 213, 224 (4th Cir. 1980). 16. Witness Addresses. Ms. Ruiz requests the name and last known address of each prospective

government witness. See United States v. Napue, 834 F.2d 1311 (7th Cir. 1987); United States v. Tucker, 716 F.2d 576 (9th Cir. 1983) (failure to interview government witnesses by counsel is ineffective); United States v. Cook, 608 F.2d 1175, 1181 (9th Cir. 1979) (defense has equal right to talk to witnesses). Ms. Ruiz also requests the name and last known address of every witness to the crime or crimes charged (or any of the overt acts committed in furtherance thereof) who will not be called as a government witness. United States v. Cadet, 727 F.2d 1453 (9th Cir. 1984). 17. Name of Witnesses Favorable to the Defendant. Ms. Ruiz requests the name of any witness

who made any arguably favorable statement concerning Ms. Ruiz or who could not identify him or who was unsure of his identity or participation in the crime charged. Jackson v. Wainwright, 390 F.2d 288 (5th Cir. 1968); Chavis, 637 F.2d at 223; Jones v. Jago, 575 F.2d 1164, 1168 (6th Cir. 1978); Hudson v. Blackburn, 601 F.2d 785 (5th Cir. 1979), cert. denied, 444 U.S. 1086 (1980). 18. Statements Relevant to the Defense. Ms. Ruiz requests disclosure of any statement that may

be "relevant to any possible defense or contention" that he might assert. United States v. Bailleaux, 685 F.2d 1105 (9th Cir. 1982). This includes grand jury transcripts that are relevant to the defense motion to dismiss the indictment. 19. Jencks Act Material. Ms. Ruiz requests production in advance of the motion hearing or trial

of all material, including dispatch tapes, that the government must produce pursuant to the Jencks Act, 18 U.S.C. § 3500 and Fed. R. Crim. P. 26.2. A verbal acknowledgment that "rough" notes constitute an accurate account of the witness' interview is sufficient for the report or notes to qualify as a statement under section 3500(e)(1). Campbell v. United States, 373 U.S. 487, 490-92 (1963); see also United States v. Boshell, 952 F.2d 1101 (9th Cir. 1991) (holding that interview notes constitutes Jencks material when an agent reviews notes with the subject of the interview); see also United States v. Riley, 189 F.3d 802, 806-808 (9th Cir.

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1999). Advance production will avoid the possibility of delay of the motion hearing or trial to allow Ms. Ruiz to investigate the Jencks material. Ms. Ruiz requests pre-trial disclosure of such statements to avoid unnecessary recesses and delays and to allow defense counsel to prepare for, and use properly any Jencks statements during cross-examination. 20. Giglio Information. Pursuant to Giglio v. United States, 405 U.S. 150 (1972), Ms. Ruiz

requests all statements and/or promises, expressed or implied, made to any government witnesses, in exchange for their testimony in this case, and all other information that could arguably be used for the impeachment of any government witnesses. 21. Agreements Between the Government and Witnesses. Ms. Ruiz requests discovery regarding

any express or implicit promise, understanding, offer of immunity, of past, present, or future compensation, or any other kind of agreement or understanding, including any implicit understanding relating to criminal or civil income tax, forfeiture or fine liability, between any prospective government witness and the government (federal, state and/or local). This request also includes any discussion with a potential witness about or advice concerning any immigration benefits, any contemplated prosecution, or any possible plea bargain, even if no bargain was made or the advice not followed. 22. Informants and Cooperating Witnesses. Ms. Ruiz requests disclosure of the names and

addresses of all informants or cooperating witnesses used or to be used in this case, and in particular, disclosure of any informant who was a percipient witness in this case or otherwise participated in the crime charged against Ms. Ruiz. The government must disclose the informant's identity and location, as well as disclose the existence of any other percipient witness unknown or unknowable to the defense. Roviaro v. United States, 353 U.S. 52, 61-62 (1957). The government must disclose any information derived from informants that exculpates or tends to exculpate Ms. Ruiz. 23. Bias by Informants or Cooperating Witnesses. Ms. Ruiz requests disclosure of any

information indicating bias on the part of any informant or cooperating witness. Giglio, 405 U.S. 150. Such information would include what, if any, inducements, favors, payments or threats were made to the witness to secure cooperation with the authorities. 24. Personnel Records of Government Officers Involved in the Arrest. Ms. Ruiz requests all

citizen complaints and other related internal affairs documents involving any of the immigration officers or

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other law enforcement officers who were involved in the investigation, arrest and interrogation of Ms. Ruiz. See Pitchess v. Superior Court, 11 Cal. 3d 531, 539 (1974). Because of the sensitive nature of these documents, defense counsel will be unable to procure them from any other source. 25. Training of Relevant Law Enforcement Officers. Ms. Ruiz requests copies of all written,

videotaped or otherwise recorded policies or training instructions or manuals issued by all law enforcement agencies involved in the case (United States Customs Service, Border Patrol, INS, Department of Homeland Security, etc.) to their employees regarding: (a) the handling of vehicles suspected to be transporting contraband across the port of entry; (b) the referral to secondary inspection of persons within those vehicles; (c) the detention of individuals within those vehicles; (d) the search of those vehicles and the occupants of those vehicles, including the proper means of obtaining consent to search and what constitutes consent to search; (e) the informing of suspects of their Constitutional rights; (f) the questioning of suspects and witnesses. Ms. Ruiz also requests all written or otherwise attainable information regarding the training of Customs agents at ports of entry in California to detect or discover narcotics in vehicles entering the United States, including any training offered to Border Patrol, INS, or officers of Homeland Security Department, by the DEA or other law enforcement agencies or individuals. 26. Performance Goals and Policy Awards. Ms. Ruiz requests disclosure of information

regarding standards used for measuring, compensating or reprimanding the conduct of all law enforcement officers involved in the case (Customs, Border Patrol, INS, etc.) to the extent such information relates to the detection of contraband. This request specifically includes information concerning performance goals, policy awards, and the standards used by Customs for commending, demoting, or promoting agents for their performance at the port of entry and their success or failure to detect illegal narcotics in general. 27. Opportunity to Weigh, View and Photograph the Contraband. Ms. Ruiz hereby requests an

opportunity to view, photograph, and weigh the contraband allegedly confiscated in this case. A proposed order is attached. 28. DEA 7 Form. Ms. Ruiz requests a copy of the DEA 7 form that should indicate the alleged

weight and purity of the contraband in this case. 29. TECS Reports. Ms. Ruiz requests all TECS reports, including reports pertaining to all

vehicle border crossings pertaining to the vehicle used in this case and any vehicles pertaining to Mr.

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Velasquez and Ms. Ruiz. Any prior border crossings are considered "other acts" evidence that the government must produce before trial. Vega, 188 F.3d at 1154. Ms. Ruiz also requests all TECS reports related to her personal border crossings (in this car, on foot, or in another car). 30. Reports of Scientific Tests or Examinations. Pursuant to Fed. R. Crim. P. 16(a)(1)(F), Ms.

Ruiz requests disclosure and the opportunity to inspect, copy, and photograph the results and reports of all tests, examinations, and experiments conducted upon the evidence in this case, including, but not limited to, any fingerprint testing done upon any evidence seized in this case, that is within the possession, custody, or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government, and that are material to the preparation of the defense or are intended for use by the government as evidence in chief at the trial. 31. Narcotics Detector Dog Information. Ms. Ruiz moves for production of all discoverable

information about any Narcotics Detector Dogs (NDDs) used in this case, including information regarding: (a) the qualifications of the NDDs and their handlers, (b) the training and experience of the NDDs and their handlers, (c) the government's procedures regarding the treatment, training and rewarding of the NDDs, (d) a detailed description of the exact method the NDDs in this case used to indicate an "alert" to contraband, and (e) the location of the NDD and the vehicle when the NDD alerted, and (f) the NDD's reliability. 32. Residual Request. Ms. Ruiz intends by this discovery motion to invoke her rights to

discovery to the fullest extent possible under the Federal Rules of Criminal Procedure and the Constitution and laws of the United States. This request specifically includes all subsections of Rule 16. Ms. Ruiz requests that the government provide her and her attorney with the above requested material at least three weeks before trial. III. MOTION TO PRESERVE AND RE-WEIGH EVIDENCE Ms. Ruiz requests that this Court issue an order for the U.S. Government and its agents to preserve the narcotic evidence in this case and to permit the defense attorney and his agents to re-weigh it without the packaging. Ms. Ruiz also requests the opportunity to view and photograph all physical evidence seized, including personal effects, items found in the car, and the car itself. For the Court's convenience, a proposed order is attached at the end of these motions.

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IV. MOTION TO SUPPRESS STATEMENTS A. Introduction. The government bears the burden of demonstrating that a defendant's statement is voluntary and that Miranda warnings were given prior to a custodial interrogation. United States v. Harrison, 34 F.3d 886, 890 (9th Cir. 1994); see also United States v. Dickerson, 530 U.S. 428, 439-41 (2000) (discussing constitutional underpinnings of Miranda v. Arizona, 384 U.S. 436, 444 (1966) and the need to safeguard "precious Fifth Amendment rights"); see also 18 U.S.C. § 3501. Unless and until the government meets this high burden in this case, all of Ms. Ruiz's statements must be suppressed. B. The Government Must Demonstrate Compliance with Miranda in This Case. 1. Miranda Warnings Must Precede Custodial Interrogation.

The prosecution may not use statements, whether exculpatory or inculpatory, stemming from a custodial interrogation of Ms. Ruiz unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 444 (1966)5. Custodial interrogation is questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Id. See Orozco v. Texas, 394 U.S. 324, 327 (1969). Once a person is in custody, Miranda warnings must be given prior to any interrogation. See United States v. Estrada-Lucas, 651 F.2d 1261, 1265 (9th Cir. 1980). Those warnings must advise the defendant of each of his or her "critical" rights. United States v. Bland, 908 F.2d 471, 474 (9th Cir.1990). In order for the warning to be valid, the combination or the wording of its warnings cannot be affirmatively misleading. United States v. San Juan Cruz, 314 F.3d 384, 387 (9th Cir. 2003). The warning must be clear and not susceptible to equivocation. Id. (vacating illegal entry conviction where defendant was advised of his administrative rights from an I-826 form and later advised of his Miranda rights). If a defendant indicates that he wishes to remain silent or requests counsel, the interrogation must cease. Miranda, 384 U.S. at 474;

In Dickerson v. United States, 530 U.S. 428, 120 S. Ct. 2326 (2000), the Supreme Court held that Miranda rights are no longer merely prophylactic, but are of constitutional dimension. Id. at 2336 ("we conclude that Miranda announced a constitutional rule"). 12 08cr1073-L

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see also Edwards v. Arizona, 451 U.S. 484 (1981). Unless and until the government shows that the agents properly administered the Miranda warnings, the government cannot use evidence obtained as a result of any custodial interrogation that occurred after Ms. Ruiz's arrest. Miranda, 384 U.S. at 479. 2. The Government Must Demonstrate That Any Alleged Waiver of Ms. Ruiz's Rights Was Voluntary, Knowing, and Intelligent.

When interrogation occurs without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant intelligently and voluntarily waived her privilege against self-incrimination and her right to retained or appointed counsel. Miranda, 384 U.S. at 475. It is undisputed that, to be effective, a waiver of the right to remain silent and the right to counsel must be made knowingly, intelligently, and voluntarily. Schneckloth, 412 U.S. 218. To satisfy this burden, the prosecution must introduce evidence sufficient to establish "that under the `totality of the circumstances,' the defendant was aware of `the nature of the right being abandoned and the consequences of the decision to abandon it." United States v. Garibay, 143 F.3d 534, 536 (9th Cir. 1998) (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). The Ninth Circuit has stated that "[t]here is a presumption against waiver." Garibay, 143 F.3d at 536. The standard of proof for a waiver of these constitutional rights is high. Miranda, 384 U.S. at 475. See United States v. Heldt, 745 F.2d 1275, 1277 (9th Cir. 1984) (the burden on the government is great, the court must indulge every reasonable presumption against waiver of fundamental constitutional rights). Finally, it should be noted that, since Miranda rests on a constitutional foundation, see Dickerson v. United States, 530 U.S. 428, 438 (2000), no law or local court rule relieves the government of its burden to prove that Ms. Ruiz voluntarily waived the Miranda protections. Miranda, 384 U.S. 475. The validity of the waiver depends upon the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. Edwards v. Arizona, 451 U.S. 477, 472 (1981); Johnson v. Zerbst, 304 U.S. 458, 464 (1983). See also United States v. Heldt, 745 F.2d at 1277; United States v. McCrary, 643 F.2d 323, 328-29 (9th Cir. 1981). In Derrick v. Peterson, 924 F.2d 813 (9th Cir. 1990), the Ninth Circuit confirmed that the issue of the validity of a Miranda waiver requires a two prong analysis: the waiver must be both (1) voluntary, and (2) knowing and intelligent. Id. at 820. The voluntariness prong of this analysis "is equivalent to the voluntariness inquiry under the [Fifth] Amendment . . .." Id. The second prong, requiring that the waiver be "knowing and intelligent,"

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mandates an inquiry into whether "the waiver [was] made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it." Id. at 820-21 (quoting Colorado v. Spring, 479 U.S. 564, 573 (1987)). This inquiry requires that the Court determine whether "the requisite level of comprehension" existed before the purported waiver may be upheld. Id. Thus, "[o]nly if the `totality of the circumstances surrounding the interrogation' reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived." Id. (quoting Colorado v. Spring, 479 U.S. at 573) (emphasis in original) (citations omitted)). The government bears the burden of demonstrating a meaningful Miranda waiver by a preponderance of the evidence. Colorado v. Connelly, 479 U.S. 157, 168 (1986). Moreover, this Court must "indulge every reasonable presumption against waiver of fundamental constitutional rights." Schell v. Witek, 218 F.3d 1017, 1024 (9th Cir. 2000) (en banc) (citations omitted). Unless and until the prosecution meets its burden of demonstrating through evidence that adequate Miranda warnings were given and that Ms. Ruiz knowingly and intelligently waived his rights, Ms. Ruiz's statements must be suppressed. Miranda, 384 U.S. at 479. C. The Government Bears the Burden of Proving Ms. Ruiz's Statements Were Made Voluntarily. A defendant in a criminal case is deprived of due process of law if the conviction is founded upon an involuntary confession. Arizona v. Fulminante, 499 U.S. 279 (1991); Jackson v. Denno, 378 U.S. 368, 387 (1964). This is so even when the procedural safeguards of Miranda have been satisfied. Id. The government bears the burden of proving by a preponderance of the evidence that a confession is voluntary. Lego v. Twomey, 404 U.S. 477, 483 (1972). In order to be voluntary, a statement must be the product of a rational intellect and free will. Blackburn v. Alabama, 361 U.S. 199, 208 (1960). In determining whether a defendant's will was overborne in a particular case, the totality of the circumstances must be considered. Schneckloth, 412 U.S. at 226. Some factors taken into account have included the youth of the accused, his lack of education, his low intelligence, the lack of any advice to the accused of his constitutional rights, the length of the detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep. Id. ///

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A confession is deemed involuntary whether coerced by physical intimidation or psychological pressure. Townsend v. Sain, 372 U.S. 293, 307 (1962). "The test is whether the confession was extracted by any sort of threats or violence, [or] obtained by any direct or implied promises, however slight, [or] by the exertion of any improper influence.'" Hutto v. Ross, 429 U.S. 28, 30 (1976) (quoting Bram v. United States, 168 U.S. 532, 542-43 (1897)). See also United States v. Tingle, 658 F.2d 1332, 1335 (9th Cir. 1981). Until the government meets its burden of showing all statements of Ms. Ruiz that it intends to use at trial were voluntary, his statements must be suppressed as involuntary. 18 U.S.C. § 3501(a). D. A Suspect Whose Statements Were Made Because of Threats ­ Specifically About Family ­ from the Interrogating Agents Has Not Voluntarily Waived her Miranda Rights, Nor Are the Statements Themselves Voluntarily Made. "When law enforcement officers deliberately prey upon the maternal instinct and inculcate fear in a mother that she will not see her child in order to elicit `cooperation,' they exert the `improper influence' proscribed by Malloy." Tingle, 658 F.2d at 1336. In Tingle, the Ninth Circuit held coercive "the warnings that a lengthy prison term could be imposed, that Tingle had a lot at stake, that Tingle's cooperation would be communicated to the prosecutor, that her failure to cooperate would be similarly communicated, and that she might not see her two-year-old child for awhile ..." Id. at 1336. Thus, threats concerning one's children are considered particularly coercive. See id; see also United States v. Moreno, 891 F.2d 247, 249 (9th Cir. 1989). Here, looking at the totality of the circumstances, Ms. Ruiz's statements and her "waiver" were obtained via coercive tactics. Agents repeatedly told Ms. Ruiz she was lying. They used curse words. They told her that her "story" was one of the most "ridiculous" they had ever heard. They told her she was going to prison. They told her that she was going to lose custody of her son, after having recently regained it. Agents made reference to Ms. Ruiz losing her son for the purposes of overbearing her will and eliciting a confession. E. This Court Must Conduct An Evidentiary Hearing to Determine the Voluntariness of Ms. Ruiz's Statements. This Court must make a factual determination as to whether a confession was voluntarily given prior to its admission into evidence. 18 U.S.C. § 3501(a). Where a factual determination is required, courts are obligated by Federal Rule of Criminal Procedure 12 to make factual findings. See United States v. Prieto-

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Villa, 910 F.2d 601, 606-10 (9th Cir. 1990). Because "`suppression hearings are often as important as the trial itself,'" id. at 609-10 (quoting Waller v. Georgia, 467 U.S. 39, 46 (1984)), these findings should be supported by evidence, not merely an unsubstantiated recitation of purported evidence in a prosecutor's responsive pleading. Under section 3501(b), this Court must consider "all the circumstances surrounding the giving of the confession," including: (1) the time elapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment, (2) whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession, (3) whether or not such defendant was advised or knew that he was not required to make any statement and that any such statement could be used against him, (4) whether or not such defendant had been advised prior to questioning of his right to the assistance of counsel, and (5) whether or not such defendant was without the assistance of counsel when questioned and when giving such confession. 18 U.S.C. § 3501(b) ("section 3501(b)"). Without the presentation of evidence, this Court cannot adequately consider these statutorily mandated factors and other important factors bearing on voluntariness. Accordingly, Ms. Ruiz requests that this Court conduct an evidentiary hearing pursuant to 18 U.S.C. § 3501(a), to determine, outside the presence of the jury, whether any statements made by Ms. Ruiz were voluntary. V. APPRENDI V. NEW JERSEY AND BLAKELY V. WASHINGTON REQUIRE THAT THIS COURT DISMISS THE INDICTMENT BECAUSE 21 U.S.C. §§ 952 AND 960 ARE UNCONSTITUTIONAL Simply stated, Ms. Ruiz's Apprendi and Blakely challenge to 21 U.S.C. §§ 952 and 960 is that Congress plainly intended the facts that determine the maximum sentence, drug type and quantity, to be sentencing factors, not elements. See, e.g., United States v. Sanchez, 269 F.3d 1250, 1268 (11th Cir. 2001) (en banc). Because that allocation conflicts with the requirements of the Fifth and Sixth Amendments as set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 124 S. Ct. 2531 (2004), the statutes are unconstitutional. Moreover, because courts cannot disturb Congress' choice of fact-finder, see United States v. Jackson, 390 U.S. 570, 576 (1968) (courts cannot "return to the [jury] the ultimate duty that Congress deliberately placed in other hands"), the statute cannot be saved. In United States v. Buckland, 289 F.3d 558 (9th Cir. 2002) (en banc) (holding 21 U.S.C. § 841 constitutional), and United States v. Mendoza-Paz, 286 F.3d 1104 (9th Cir. 2002) (holding 21 U.S.C. § 960

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constitutional), the Ninth Circuit Court of Appeals (the "Court") rejected this constitutional challenge by concluding that §§ 841 and 960 are sufficiently ambiguous to permit application of the doctrine of constitutional doubt.6 See Buckland, 289 F.3d at 564-68; Mendoza-Paz, 286 F.3d at 1109-10. However, the Supreme Court's subsequent opinion in United States v. Harris, 122 S. Ct. 2406 (2002), indicates that the Court's opinions in both Buckland and Mendoza-Paz were wrongly analyzed and decided. "It is already well established that where a Supreme Court decision has effectively undermined prior Ninth Circuit precedent, [this Court is] free to reexamine those earlier cases to determine their continuing validity." United States v. Maybusher, 735 F.2d 366, 371 n. 1 (9th Cir. 1984) (9th Cir. 1984) (citation and quotation omitted). To begin, the Buckland panel relied solely on its view that § 841 did not explicitly state that judges were to determine drug type and quantity by a preponderance of the evidence. See Buckland, 289 F.3d at 565 ("[s]ection 841 is most striking for what it does not say"); accord Mendoza-Paz, 286 F.3d at 1110; but see Harris, 122 S. Ct. at 2411 ("[t]he statute does not say in so many words whether brandishing is an element or a sentencing factor, but the structure of the prohibition suggests it is the latter"). Accordingly, in an effort to save the statutes, the Court felt free to backtrack on countless decisions holding that Congress clearly intended drug type and quantity to be sentencing factors decided by a trial judge. See, e.g., United States v. Lopez-Martinez, 725 F.2d 471, 475 (9th Cir. 1984) ("Under the statute, the violation is importing or possessing a controlled substance. The difference between narcotic and non-narcotic controlled substances is material only as to the applicable penalty") (emphasis added); accord United States v. Johnson, 130 F.3d 1420, 1428 (10th Cir. 1997) (affirming jury instruction that said only "controlled substance"); United States v. Lucien, 61 F.3d 366, 373 (5th Cir. 1995) ("The identity of the controlled substance as cocaine base is not an element of the offense proscribed in the first sentence of section 844(a); nor is it an element of the distribution offense denounced in section 841(a)(1)"); United States v. Williams, 876 F.2d 1521, 1251 (11th Cir. 1989) ("The nature and quantity of the controlled substance are relevant only to sentencing and do not constitute elements of a lesser included offense"). ///

By nonetheless raising this challenge here, Ms. Ruiz asks this Court to decline to follow Ninth Circuit precedent so clearly in conflict with binding precedent of the Supreme Court. Furthermore, Ms. Ruiz specifically preserves this issue for future review. 17 08cr1073-L

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The Buckland panel found support for its view that the lack of an explicit statement as to burden of proof and allocation between judge and jury was "dispositive," id. at 565, in United States v. Brough, 243 F.3d 1078 (7th Cir. 2001), and United States v. Cernobyl, 255 F.3d 1215 (10th Cir. 2001). The panels in Brough and Cernobyl, like the Buckland panels itself, perform no statutory analysis beyond observing that § 841 does not explicitly allocate the issues of type and quantity to the judge to determine by a preponderance of the evidence.7 See Brough, 243 F.3d at 1079; Cernobyl, 255 F.3d at 1219. Relying on these cases, the Court in Buckland concluded "the emphasis on the statutory divide between `elements' in § 841(a) and `penalties' in § 841(b) is . . . unavailing." 289 F.3d at 565. In Harris, the Supreme Court rejects Buckland's approach, noting, at the outset, that application of traditional canons of statutory construction to determine whether Congress intended facts to be elements or sentencing factors is the "threshold question." Harris, 122 S. Ct. at 2411. Therefore, contrary to the view expressed in Buckland that "[t]he days of semantical hair splitting between `elements of the offense' and `sentencing factors' . . . are over," Buckland, 289 F.3d at 566, the Supreme Court reaffirmed the viability of the statutory construction approach that it has followed since 1998. See Harris, 122 S. Ct. 2406; accord Carter v. United States, 530 U.S. 255, 273 (2000); Castillo v. United States, 530 U.S. 120, 123 (2000); Jones v. United States, 526 U.S. 227 (1999); Almendarez-Torres, 523 U.S. at 238. The type of statutory analysis undertaken in Harris, as well as in Castillo, Jones and Almendarez-Torres, makes clear that Congress intended drug type and quantity to be sentencing factors. See, e.g., United States v. Promise, 255 F.3d 150, 170-77 (4th Cir. 2001) (Luttig, J., concurring) (analyzing section 841 and collecting cases). Post-Apprendi, the Court has not performed that analysis, however, because of Buckland's erroneous view that its "day" had come and one. As the Court's pre-Apprendi precedent makes clear, that analysis compels concluding that Congress intended drug type and quantity to be sentencing factors.8 ///

This approach misapplies constitutional doubt analysis, which takes place "after, and not before, [a statute's] complexities are unraveled." Almendarez-Torres v. United States, 523 U.S. 224, 238 (1998). In fact, in Buckland the government conceded that Congress intended drug type and quantity to be sentencing factors and that the statute was not subject to a contrary interpretation. Buckland, 289 F.3d at 564; accord id. at 586 (Tashima, J., dissenting). 18 08cr1073-L
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Perhaps most tellingly, Harris specifically rejects the notion that underlies Buckland, as well as Brough and Cernobyl, that pre-Apprendi statutory interpretation cases have been "stripped" of "precedential value" by "Apprendi's reading of the Due Process Clause." Buckland, 289 F.3d at 567; but see Sanchez, 269 F.3d at 1268 (observing that "[f]undamentally, Apprendi did not announce any new principles of statutory construction," and holding that "`Congress decided that the elements of a § 841 offense do not include the weight of the drugs'"); Buckland, 289 F.3d at 586 (Tashima, J., dissenting) (same). Harris teaches that the canon of constitutional doubt does not "embrace a dynamic view of statutory interpretation, under which the text might mean one thing when enacted yet another if the prevailing view of the Constitution changed." 122 S. Ct. at 2413. But that is precisely what Buckland, Brough and Cernobyl do: each of those decisions rejects, without explanation, the pre-Apprendi statutory interpretation of section 841. See, e.g., United States v. Nordby, 225 F.3d 1053, 1058 (9th Cir. 2000) ("existing precedent in this circuit plainly states that Congress did not intend drug quantity to be an element of the crime under 21 U.S.C. §§ 841 and 846") (citations omitted); United States v. Jackson, 207 F.3d 910, 920 (7th Cir.), vacated, 121 S. Ct. 376 (2000), judgment reinstated, 236 F.3d 886 (7th Cir. 2001) ("[i]t is apparent that Congress intended the type and quantity of the drugs distributed by a defendant convicted under section 841(a) to be determined at sentencing"); United States v. Jones, 194 F.3d 1178, 1185-86 (1999), vacated, 530 U.S. 1271 (2000), rev'd, 235 F.3d 1231, 1236 (10th Cir. 2000) ("Because Congressional intent is evident from the plain language of the statute, the doctrine of constitutional doubt, and in particular the constitutional doubt articulated in Jones, [526 U.S. 227,] does not apply"); see also United States v. Grimaldo, 214 F.3d 967, 972 (8th Cir. 2000) ("[t]he structure and plain language of [section 841] leave no doubt that drug quantity is a sentencing factor").9 Thus, Buckland, like Brough and Cernobyl, simply adopted a new "meaning" of section 841 because "the prevailing view of the Constitution changed." Harris, 122 S. Ct. at 2413. Harris precludes this approach. Id. In short, the approach taken in Buckland and Mendoza-Paz has been thoroughly repudiated by Harris. The Ninth Circuit must now assess the constitutionality of 21 U.S.C. §§ 841, 952, and 960 under Apprendi

Although the Buckland majority insists that it was "the judiciary, not Congress, which allocated the responsibility for determining drug quantity under §841 to the courts," 289 F.3d at 567, Jackson, Jones, and Grimaldo make clear that it was Congressional intent, not judicial fiat, that dictated that allocation. 19 08cr1073-L

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in light of the statutory construction set forth by the Supreme Court in Harris, Carter, Castillo, Jones and Almendarez-Torrez. As the Court's pre-Apprendi cases show, an honest assessment reveals that these statutes are facially unconstitutional. VI. IF THIS COURT UPHOLDS THE CONSTITUTIONALITY OF THE STATUTE, THE INDICTMENT MUST NEVERTHELESS BE DISMISSED BECAUSE THE GRAND JURY WAS NOT ASKED TO FIND THAT MS. RUIZ KNEW THE TYPE AND QUANTITY OF NARCOTIC THAT WAS INVOLVED IN THIS OFFENSE If this Court reinterprets the type and quantity of controlled substance to be offense elements or the "functional equivalent" of offense elements that have to be alleged in the indictment, this Court must find that the statute's mens rea is equally applicable to these new "elements." See United States v. X-Citement Video, Inc., 513 U.S. 64 (1994); but see United States v. Carranza, 289 F.3d 634 (9th Cir. 2002). Not only must the indictment allege the type and quantity of "controlled substance" involved in the offense, the indictment must allege that the defendant knew the type and quantity involved. And, regardless of what this Court considers the elements of his alleged offense, Mr. has a right to a Grand Jury determination on each one. See United States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir. 1999) ("The Fifth Amendment . . . requires that a defendant be convicted only on charges considered and found by a grand jury."); see also id. (reversing because the Ninth Circuit could "only guess whether the grand jury received evidence of, and actually passed on, Du Bo's intent.") (emphasis added). Thus, assuming that this Court upholds the constitutionality of section 841, the grand jury should have found that Ms. Ruiz knew that approximately 50.62 kilograms of marijuana were involved in this offense. Because the grand jury made no such finding, this Court should dismiss the indictment. VII.

THE INDICTMENT SHOULD BE DISMISSED BECAUSE JUDGE BURNS'S INSTRUCTIONS AS A WHOLE PROVIDED TO THE JANUARY 2007 GRAND JURY RUN 24 AFOUL OF BOTH NAVARRO-VARGAS AND WILLIAMS AND VIOLATE THE FIFTH AMENDMENT BY DEPRIVING MS. RUIZ OF THE TRADITIONAL FUNCTIONING OF THE 25 GRAND JURY
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A.

Introduction. The indictment in the instant case was returned by the January 2007 grand jury. That grand jury was

instructed by the Honorable Larry A. Burns, United States District Court Judge on January 11, 2007. See

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Reporter's Partial Transcript of the Proceedings, dated January 11, 2007, a copy of which is attached hereto as Exhibit A. Judge Burns's instructions to the impaneled grand jury deviate from the instructions at issue in the major Ninth Circuit cases challenging a form grand jury instruction previously given in this district in several ways.10 These instructions compounded Judge Burns's erroneous instructions and comments to prospective grand jurors during voir dire of the grand jury panel, which immediately preceded the instructions at Ex. A. See Reporter's Transcript of Proceedings, dated January 11, 2007, a copy of which is attached hereto as Exhibit B.11 1. Judge Burns Instructed Grand Jurors That Their Singular Duty Is to Determine Whether or Not Probable Cause Exists and That They Have No Right to Decline to Indict When the Probable Cause Standard Is Satisfied.

After repeatedly emphasizing to the grand jurors that probable cause determination was their sole responsibility, see Ex. B at 3, 3-4, 5,12 Judge Burns instructed the grand jurors that they were forbidden "from judg[ing] the wisdom of the criminal laws enacted by Congress; that is, whether or not there should be a federal law or should not be a federal law designating certain activity [as] criminal is not up to you." See id. at 8. The instructions go beyond that, however, and tell the grand jurors that, should "you disagree with that judgment made by Congress, then your option is not to say 'well, I'm going to vote against indicting even though I think that the evidence is sufficient' or 'I'm going to vote in favor of even though the evidence may be insufficient.'" See id. at 8-9. Thus, the instruction flatly bars the grand jury from declining to indict because the grand jurors disagree with a proposed prosecution. Immediately before limiting the grand jurors' powers in the way just described, Judge Burns referred to an instance in the grand juror selection process in which he excused three potential jurors. See id. at 8. ///

See, e.g., United States v. Cortez-Rivera, 454 F.3d 1038 (9th Cir. 2006); United States v. Navarro-Vargas, 408 F.3d 1184 (9th Cir.) (en banc), cert. denied, 126 S. Ct. 736 (2005) (NavarroVargas II); United States v. Navarro-Vargas, 367 F.3d 896 (9th Cir. 2004)(Navarro-Vargas I); United States v. Marcucci, 299 F.3d 1156 (9th Cir. 2002) (per curiam). The transcript of the voir dire indicates that grand jurors were shown a video presentation on the role of the grand jury. Mr. De Leon requests that the video presentation be produced. See United States v. Alter, 482 F.2d 1016, 1029 n.21 (9th Cir. 1973) ("[t]he proceedings before the grand jury are secret, but the ground rules by which the grand jury conducts those proceedings are not.").
12 11

10

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I've gone over this with a couple of people. You understood from the questions and answers that a couple of people were excused, I think three in this case, because they could not adhere to the principle that I'm about to tell you. Id. That "principle" was Judge Burns's discussion of the grand jurors' inability to give effect to their disagreement with Congress. See id. at 8-9. Thus, Judge Burns not only instructed the grand jurors on his view of their discretion; he enforced that view on pain of being excused from service as a grand juror. Examination of the recently disclosed voir dire transcript, which contains additional instructions and commentary in the form of the give and take between Judge Burns and various prospective grand jurors, reveals how Judge Burns's emphasis of the singular duty is to determine whether or not probable cause exists and his statement that grand jurors they cannot judge the wisdom of the criminal laws enacted by Congress merely compounded an erroneous series of instructions already given to the grand jury venire. In one of his earliest substantive remarks, Judge Burns makes clear that the grand jury's sole function is probable cause determination. [T]he grand jury is determining really two factors: "do we have a reasonable belief that a crime was committed? And second, do we have a reasonable belief that the person that they propose that we indict committed the crime?" If the answer is "yes" to both of those, then the case should move forward. If the answer to either of the questions is "no," then the grand jury should not hesitate and not indict. See Ex. C at 8. In this passage, Judge Burns twice uses the term "should" in a context makes clear that the term is employed to convey instruction: "should" cannot reasonably be read to mean optional when it addresses the obligation not to indict when the grand jury has no "reasonable belief that a crime was committed" or if it has no "reasonable belief that the person that they propose that we indict committed the crime." Equally revealing are Judge Burns's interactions with two potential grand jurors who indicated that, in some unknown set of circumstances, they might decline to indict even where there was probable cause. Because of the redactions of the grand jurors' names, Mr. De Leon will refer to them by occupation. One is a retired clinical social worker (hereinafter CSW), and the other is a real estate agent (hereinafter REA). The CSW indicated a view that no drugs should be considered illegal and that some drug prosecutions were not an effective use of resources. See id. at 16. The CSW was also troubled by certain unspecified immigration cases. See id. ///

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Judge Burns made no effort to determine what sorts of drug and immigration cases troubled the CSW. He never inquired as to whether the CSW was at all troubled by the sorts of cases actually filed in this district, such as drug smuggling cases and cases involving reentry after deportation and alien smuggling. Rather, he provided instructions suggesting that, in any event, any scruples CSW may have possessed were simply not capable of expression in the context of grand jury service. Now, the question is can you fairly evaluate [drug cases and immigration cases]? Just as the defendant is ultimately entitled to a fair trial and the person that's accused is entitled to a fair appraisal of the evidence of the case that's in front of you, so, too, is the United States entitled to a fair judgment. If there's probable cause, then the case should go forward. I wouldn't want you to say, "well, yeah, there's probable cause, but I still don't like what our government is doing. I disagree with these laws, so I'm not going to vote for it to go forward." If that is your frame of mind, the probably you shouldn't serve. Only you can tell me that. See id. at 16-17 (emphasis added). Thus, without any sort of context whatsoever, Judge Burns let the grand juror know that he would not want him or her to decline to indict in an individual case where the grand juror "[didn't] like what our government is doing," see id. at 17, but in which there was probable cause. See id. Such a case "should go forward." See id. Given that blanket proscription on grand juror discretion, made manifest by Judge Burns's use of the pronoun "I", the CSW indicated that it "would be difficult to support a charge even if [the CSW] thought the evidence warranted it." See id. Again, Judge Burns's question provided no context; he inquired regarding "a case," a term presumably just as applicable to possession of a small amount of medical marijuana as kilogram quantities of methamphetamine for distribution. Any grand juror listening to this exchange could only conclude that there was no case in which Judge Burns would permit them to vote "no bill" in the face of a showing probable cause. Just in case there may have been a grand juror that did not understand his or her inability to exercise anything like prosecutorial discretion, Judge Burns drove the point home in his exchange with REA. REA first advised Judge Burns of a concern regarding the "disparity between state and federal law" regarding "medical marijuana." See id. at 24. Judge Burns first sought to address REA's concerns about medical marijuana by stating that grand jurors, like trial jurors, are simply forbidden from taking penalty considerations into account. Well, those things -- the consequences of your determination shouldn't concern you in the sense that penalties or punishment, things like that -- we tell trial jurors, of course, that they cannot consider the punishment or the consequence that Congress has set for these things. We'd ask you to also abide by that. We want you to make a business-like decision of whether there was a probable cause. . . . 23 08cr1073-L

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Id. at 24-25. Having stated that REA was to "abide" by the instruction given to trial jurors, Judge Burns went on to suggest that REA recuse him or herself from medical marijuana cases. See id. at 25. In response to further questioning, REA disclosed REA's belief "that drugs should be legal." See id. That disclosure prompted Judge Burns to begin a discussion that ultimately led to an instruction that a grand juror is oblig