Free Motion for Discovery - District Court of California - California

Case 3:08-cr-00727-WQH

Document 10

Filed 04/28/2008

Page 1 of 9

1 WILLIAM R. BURGENER State Bar Number 89508 2 1775 Hancock Street, Suite 285 San Diego, CA 92110 3 (619) 291-8565 4 5 Attorney for Defendant CHRISTIAN GUTIERREZ 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 08CR0727 NOTICE OF MOTION AND MOTION TO: 1) COMPEL DISCOVERY 2) LEAVE TO FILE FURTHER MOTIONS DATE: June 23, 2008 TIME: 2:00 PM JUDGE: Hon. Hayes

10 UNITED STATES OF AMERICA, 11 12 vs. 13 CHRISTIAN GUTIERREZ, 14 15 16 TO: 17 18 Defendant. Plaintiff,

KAREN P. HEWITT, UNITED STATES ATTORNEY, AND JAMES MELENDRES, ASSISTANT UNITED STATES ATTORNEY: PLEASE TAKE NOTICE that on June 23, 2008 or as soon thereafter as counsel may be

19 heard, the defendant, Christian Gutierrez, by and through his attorney William R. Burgener, will 20 21 MOTION 22 23 The defendant, Christian Gutierrez, by and through his attorney, William R. Burgener, ask this Court to issue an order granting the motions listed below.

24 asks this court pursuant to the Fifth and Sixth Amendments to the United States Constitution, 25 Federal Rules of Criminal Procedure 12 and 16, and all other applicable statutes, case law and 26 local rules, hereby moves this Court for an order to: 27 28 1

Case 3:08-cr-00727-WQH

Document 10

Filed 04/28/2008

Page 2 of 9

1 2 3 4

1) compel discovery; 2) leave to file further motions. Defendant 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 that the

5 6 prosecutor knows of, but rather includes all discovery listed below that is in the custody,

7 control, care, or knowledge of any government agency. See generally Kyles v. Whitley, 514 8 U.S. 419 (1995); United States v. Bryan, 868 F.2d 1032 (9th Cir. 1989). 9 (1) The Defendant's Statements. The Government must disclose to the defendant all

10 copies of any written or recorded statements made by the defendant; the substance of any 11 statements made by the defendant which the Government intends to offer in evidence at trial; 12 any response by the defendant to interrogation; the substance of any oral statements which the 13 14 Government intends to introduce at trial and any written summaries of the defendant's oral

15 statements contained in the handwritten notes of the Government agent; any response to any 16 Miranda warnings which may have been given to the defendant; as well as any other 17 statements by the defendant. Fed. R. Crim. P. 16(a)(1)(A) and (B). The Advisory Committee 18 19 the defendant's statements, whether oral or written, regardless of whether the government 20 21 22 intends to make any use of those statements. (2) Arrest Reports, Notes and Dispatch Tapes. The defense also specifically requests Notes and the 1991 amendments to Rule 16 make clear that the Government must reveal all

23 that all arrest reports, notes and dispatch or any other tapes that relate to the circumstances 24 surrounding his arrest or any questioning, if such reports have not already been produced in 25 their entirety, be turned over. This request includes, but is not limited to, any rough notes, 26 27 28 2 records, reports, transcripts or other documents in which statements of the defendant or any

Case 3:08-cr-00727-WQH

Document 10

Filed 04/28/2008

Page 3 of 9

1 other discoverable material is contained. Such material is discoverable under Fed. R. Crim. P. 2 16(a)(1)(A) and (B) and Brady v. Maryland, 373 U.S. 83 (1963). See also Loux v. 3 4 arresting officers, dispatch tapes, sworn statements, and prosecution reports pertaining to the 5 6 defendant are available under Fed. R. Crim. P. 16(a)(1)(B), Fed. R. Crim. P. 26.2, and Fed. R. United States, 389 F.2d 911 (9th Cir. 1968). Arrest reports, investigator's notes, memos from

7 Crim. P. 12(h). Preservation of rough notes is requested, whether or not the government 8 deems them discoverable. 9 (3) Brady Material. Defendant requests all documents, statements, agents' reports,

10 and tangible evidence favorable to the defendant on the issue of guilt and/or which affects the 11 credibility of the government's case. Under Brady, impeachment as well as exculpatory 12 evidence falls within the definition of evidence favorable to the accused. United States v. 13 14 15 Bagley, 473 U.S. 667 (1985); United States v. Agurs, 427 U.S. 97 (1976). (4) Any Information That May Result in a Lower Sentence Under The Guidelines.

16 As discussed above, this information is discoverable under Brady v. Maryland, 373 U.S. 83 17 (1963). This request includes any cooperation or attempted cooperation by the defendant, as 18 19 characteristic under Chapter Two of the Guidelines. Also included in this request is any 20 21 22 23 information relevant to a Chapter Three adjustment, to a determination of the defendant's criminal history, or to any other application of the Guidelines. (5) Any Information That May Result in a Lower Sentence Under 18 U.S.C. § 3553. well as any information that could affect any base offense level or specific offense

24 After United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), the Guidelines are merely 25 advisory and federal sentencing is governed by 18 U.S.C. § 3553, which requires a judge to 26 27 28 3 consider "any information about the nature of the circumstances of the offense." 18 U.S.C.

Case 3:08-cr-00727-WQH

Document 10

Filed 04/28/2008

Page 4 of 9

1 § 3553(a)(1). This broad range of judicial discretion, combined with the mandate that "[n]o 2 limitation shall be placed on the information concerning the background, character, and 3 4 and consider for the purpose of imposing an appropriate sentence," 18 U.S.C. § 3661, means 5 6 that any information whatsoever may be "material ... to punishment," Brady, 373 U.S. at 87, conduct of a person convicted of an offense which a court of the United States may receive

7 whether or not the government deems it discoverable. 8 (6) The Defendant's Prior Record. Evidence of prior record is available under Fed. R.

9 Crim. P. 16(a)(1)(D). Counsel specifically requests that the copy be complete and legible. 10 11 under Fed. R. Crim. P. 16(a)(1)(E) and Fed. R. Evid. 404(b) and 609. In addition, under Fed. 12 R. Evid. 404(b), "upon request of the accused, the prosecution . . . shall provide reasonable 13 14 notice in advance of trial . . . of the general nature . . . ." of any evidence the government (7) Any Proposed 404(b) Evidence. Evidence of prior similar acts is discoverable

15 proposes to introduce under Fed. R. Evid. 404(b) at trial. The defendant requests that such 16 notice be given three weeks before trial in order to give the defense time to adequately 17 investigate and prepare for trial. 18 19 with a warrant, is discoverable under Fed. R. Crim. P. 16(a)(1)(E). 20 21 22 (9) 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 (8) Evidence Seized. Evidence seized as a result of any search, either warrantless or

23 of the possession, custody, or care of the government and which relate to the arrest or the 24 events leading to the arrest in this case be preserved. This request includes, but is not limited 25 to, the results of any fingerprint analysis, alleged narcotics, the defendant's personal effects, 26 27 28 4 the vehicle, and any other evidence seized from the defendant, or any third party. It is

Case 3:08-cr-00727-WQH

Document 10

Filed 04/28/2008

Page 5 of 9

1 requested that the government be ordered to question all the agencies and individuals involved 2 in the prosecution and investigation of this case to determine if such evidence exists, and if it 3 4 (10) Tangible Objects. The defense requests, under Fed. R. Crim. P. 16(a)(1)(E) the 5 6 opportunity to inspect and copy as well as test, if necessary, all other documents and tangible does exist, to inform those parties to preserve any such evidence.

7 objects, including photographs, books, papers, documents, photographs of buildings or places 8 or copies of portions thereof which are material to the defense or intended for use in the 9 government's case-in-chief or were obtained from or belong to the defendant. 10 11 prospective government witness is biased or prejudiced against the defendant, or has a motive 12 to falsify or distort his or her testimony. Pennsylvania v. Ritchie, 480 U.S. 39 (1987); 13 14 15 United States v. Strifler, 851 F.2d 1197 (9th Cir. 1988). (12) Impeachment evidence. Defendant requests any evidence that any prospective (11) Evidence of Bias or Motive to Lie. The defense requests any evidence that any

16 government witness has engaged in any criminal act whether or not resulting in a conviction 17 and whether any witness has made a statement favorable to the defendant. See Fed. R. Evid. 18 19 States v. Strifler, 851 F.2d 1197 (9th Cir. 1988) (witness' prior record); Thomas v. United 20 21 22 States, 343 F.2d 49 (9th Cir. 1965) (evidence that detracts from a witness' credibility). (13) Evidence of Criminal Investigation of Any Government Witness. The defense 608, 609 and 613. Such evidence is discoverable under Brady v. Maryland. See United

23 requests any evidence that any prospective witness is under investigation by federal, state or 24 local authorities for any criminal conduct. United States v. Chitty, 760 F.2d 425 (2d Cir. 25 1985). 26 27 28 5 (14) Evidence Affecting Perception, Recollection, Ability to Communicate.

Case 3:08-cr-00727-WQH

Document 10

Filed 04/28/2008

Page 6 of 9

1 Defendant requests any evidence, including any medical or psychiatric report or evaluation, 2 tending to show that any prospective witness's ability to perceive, remember, communicate, or 3 4 controlled substance, or has ever been an alcoholic. United States v. Strifler, 851 F.2d 1197 5 6 7 (9th Cir. 1988); Chavis v. North Carolina, 637 F.2d 213, 224 (4th Cir. 1980). (15) Witness Addresses. The defense requests the name and last known address of tell the truth is impaired; and any evidence that a witness has ever used narcotics or other

8 each prospective government witness. See United States v. Napue, 834 F.2d 1311 (7th Cir. 9 1987); United States v. Tucker, 716 F.2d 576 (9th Cir. 1983) (failure to interview government 10 witnesses by counsel is ineffective); United States v. Cook, 608 F.2d 1175, 1181 (9th Cir. 11 1979), overruled on other grounds by Luce v. United States, 469 U.S. 38 (1984) (defense has 12 equal right to talk to witnesses). The defendant also requests the name and last known 13 14 address of every witness to the crime or crimes charged (or any of the overt acts committed in

15 furtherance thereof) who will not be called as a government witness. United States v. Cadet, 16 727 F.2d 1453 (9th Cir. 1984). 17 18 19 could not identify him or who was unsure of his identity, or participation in the crime 20 21 22 charged. Jackson v. Wainwright, 390 F.2d 288 (5th Cir. 1968); Chavis v. North Carolina, 637 F.2d 213, 223 (4th Cir. 1980); Jones v. Jago, 575 F.2d 1164, 1168 (6th Cir. 1978); Hudson v. (16) Name of Witnesses Favorable to the Defendant. The defense requests the name of any witness who made any arguably favorable statement concerning the defendant or who

23 Blackburn, 601 F.2d 785 (5th Cir. 1979). 24 (17) Statements Relevant to the Defense. The defense requests disclosure of any

25 statement that may be "relevant to any possible defense or contention" that he might assert. 26 27 28 6 United States v. Bailleaux, 685 F.2d 1105 (9th Cir. 1982). This would include Grand Jury

Case 3:08-cr-00727-WQH

Document 10

Filed 04/28/2008

Page 7 of 9

1 transcripts which are relevant to the defense motion to dismiss the indictment. 2 3 4 including dispatch tapes. A verbal acknowledgment that "rough" notes constitute an accurate 5 6 account of the witness' interview is sufficient for the report or notes to qualify as a statement (18) Jencks Act Material. The defense requests all material to which defendant is entitled pursuant to the Jencks Act, 18 U.S.C. § 3500, reasonably in advance of trial,

7 under § 3500(e)(1). Campbell v. United States, 373 U.S. 487, 490-92 (1963). 8 (19) Giglio Information. Pursuant to Giglio v. United States, 405 U.S. 150 (1972),

9 the defendant requests all statements and/or promises, expressed or implied, made to any 10 government witnesses, in exchange for their testimony in this case, and all other information 11 which could arguably be used for the impeachment of any government witnesses. 12 (20) Reports of Scientific Tests or Examinations. Pursuant to Fed. R. Crim. P. 13 14 16(a)(1)(F), the defendant requests disclosure and the opportunity to inspect, copy, and

15 photograph the results and reports of all tests, examinations, and experiments conducted upon 16 the evidence in this case, including, but not limited to, any fingerprint testing done upon any 17 evidence seized in this case, that is within the possession, custody, or control of the 18 19 known, to the attorney for the government, and that are material to the preparation of the 20 21 22 defense or are intended for use by the government as evidence in chief at the trial. (21) Henthorn Material. The defendant requests that the prosecutor review the government, the existence of which is known, or by the exercise of due diligence may become

23 personnel files of the officers involved in his arrest, and those who will testify, and produce to 24 him any exculpatory information at least two weeks prior to trial and one week prior to the 25 motion hearing. This includes all citizen complaints and other related internal affairs 26 27 28 7 documents involving any of the immigration officers or other law enforcement officers who

Case 3:08-cr-00727-WQH

Document 10

Filed 04/28/2008

Page 8 of 9

1 were involved in the investigation, arrest and interrogation of defendant. See United States v. 2 Henthorn, 931 F.2d 29 (9th Cir. 1991). In addition, he requests that if the government is 3 4 produce such information to the Court in advance of the trial and the motion hearing for an in 5 6 7 camera inspection. (22) Informants and Cooperating Witnesses. The defense requests disclosure of the uncertain whether certain information is to be turned over pursuant to this request, that it

8 names and addresses of any informants or cooperating witnesses used or to be used in this 9 case. The government must disclose the informant's identity and location, as well as disclose 10 the existence of any other percipient witness unknown or unknowable to the defense. Roviaro 11 v. United States, 353 U.S. 53, 61-62 (1957). The defense also requests disclosure of any 12 information indicating bias on the part of any informant or cooperating witness. Giglio v. 13 14 United States, 405 U.S. 150 (1972). Such information would include what, if any,

15 inducements, favors, payments, or threats were made to the witness to secure cooperation 16 with the authorities. 17 18 19 including a description of the witnesses' opinions, the bases and the reasons for those 20 21 22 opinions, and the witnesses' qualifications. (24) Residual Request. The defense intends by this discovery motion to invoke his (23) Expert Witnesses. Pursuant to Fed. R. Crim. P. 16(a)(1)(G), the defendant requests a written summary of the expert testimony that the government intends to use at trial,

23 rights to discovery to the fullest extent possible under the Federal Rules of Criminal 24 Procedure and the Constitution and laws of the United States. This request specifically 25 includes all subsections of Rule 16. Defendant requests that the government provide him and 26 27 28 8 his attorney with the above requested material sufficiently in advance of trial.

Case 3:08-cr-00727-WQH

Document 10

Filed 04/28/2008

Page 9 of 9

1

These motions are based upon the instant motions and notice of motions, the attached

2 memorandum of points and authorities, the files and records in the above-captioned matter, and 3 4 of these motions. 5 6 7 8 Dated: April 28, 2008 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 s/William R. Burgener WILLIAM R. BURGENER Attorney for Defendant CHRISTIAN GUTIERREZ Respectfully submitted, any and all other materials that may come to this Court's attention prior to or during the hearing