Free Motion for Discovery - District Court of California - California

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BRIAN P. FUNK ESQ. CSB NO. 110462 964 Fifth Avenue #214 San Diego, CA 92101 (6l9) 233-4076 Attorney for Defendant,

UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COMES NOW the Defendant , PATRICIA ENRIQUEZ-LOMELI Brian P. Funk, will move this Court to compel discovery. // / , by and through her counsel, TO: KAREN HEWITT UNITED STATES ATTORNEY : AUSA DUGLAS KEEHN UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) ) vs. ) ) ) PATRICIA ENRIQUEZ-LOMELI ) ) Defendant. ) ) Crim No. 08CR0720-L MOTIONS FOR DISCOVERY

DATE : 04-14-08 TIME: 2:00 pm

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Dated: APRIL 1, 2008 16 17 18 19 20 21 22 23 24 25 26 27 28 08CR0720-L /s/ Brian P. Funk BRIAN P. FUNK Attorney for Defendant Respectfully submitted, This motion is based on the instant Motions, Notice of Motions, the attached Statement of Facts and Memorandum of Points and Authorities, the files and records in the above-entitled case, and any and all other evidence which may be brought to this Court's attention prior to or at the time of the hearing on these motions. To compel discovery: MOTION PATRICIA ENRIQUEZ-LOMELI , by and through her counsel and pursuant to the Fifth and Sixth Amendments to the United States Constitution and the provisions of Rule 16 of the Federal Rules of Criminal Procedure hereby brings the following motion:

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BRIAN P. FUNK ESQ. CSB NO. 110462 964 Fifth Avenue #214 San Diego, CA 92101 (6l9) 233-4076 Attorney for Defendant,

UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 16 17 18 STATEMENT OF THE CASE 19 PATRICIA ENRIQUEZ-LOMELI was arrested NOV. 5, 2007 by Chula Vista Police. It is alleged 20 She had been removed on September 30 ,2005 Prior to that removal She had been living here as 21 a Legal Permanent resident. On February 20,2008 the complaint in this case was filed. The 22 Standard 48 month offer of three entries was not possible due to defendants alleged single re-entry 23 24 I 25 MOTION FOR DISCOVERY 26 PATRICIA ENRIQUEZ-LOMELI hereby requests discovery and preservation of the 27 following items pursuant to the Fifth and Sixth Amendments to the U.S. Constitution, Rule 16 of 28 08CR0720-L UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) ) vs. ) ) ) PATRICIA ENRIQUEZ-LOMELI ) ) Defendant. ) ) Crim No. 08CR0720-L POINTS AND AUTHORITIES Compel Discovery

DATE : 04-14-08 TIME: 2:00 pm

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the Federal Rules of Criminal Procedure, and Brady v. Maryland, 373 U.S. 83 (1963). As of this date PATRICIA ENRIQUEZ-LOMELI has received 124 pages of discovery in the above case.

The items which

requests are set forth as follows:

1. All reports by government agents generated as a result of this case including, but not limited to, crime reports, "tips", arrest reports, search warrants, and affidavits in support of search warrants. specifically requests all documents and reports concerning this prosecution, including but not limited to all reports generated during this investigation. "A" file info, NCIC (criminal records) Reports on witnesses ,defendant , all records of any medical condition of either defendant OR witnesses.

2. A list of all witnesses the government intends to call during its case-in-chief, including telephone numbers of the witnesses and their present whereabouts. Although a defendant in a criminal case does not have the right to demand a list of witnesses, a federal district court possesses, in the exercise of its inherent power to promote the proper administration of justice, the authority to require the government to disclose a list of witnesses to be called at trial. United States v. Leichtfuss, 331 F.Supp. 723 (N.D. Ill. 1971). In Leichtfuss, the district court ordered the government to provide defense counsel with a list of government witnesses thirty days prior to trial. In the instant case, disclosure of the names and addresses of government witnesses would facilitate prompt and effective cross-examination and foster stipulations to some testimony. Production of the government's witness list would also enable this Court to determine the approximate length of the trial.

3.

All statements made by PATRICIA ENRIQUEZ-LOMELI

or witnesses.

This item calls for discovery of all statements made by PATRICIA ENRIQUEZ-LOMELI , any Witness. , including the original of the alleged witness statements , all notes and rough

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notes whether oral, written or recorded, which are in the possession, custody or control of the government or which, by the exercise of due diligence, may become available to the government which have not already been produced by the government. Rule 16(a)(1)(A) clearly authorizes production of such discovery. This item calls for discovery of all statements of defendant, regardless to whom the statement was made. It also calls for handwritten notes taken by or at the request of government agents concerning such statements. By the very terms of Rule 16(a)(1)(A), the defendant has the absolute right to inspect and copy written or recorded statements made by him to "government agents." The term "government agents" includes employees and agents in the established legal sense of the customs or the INS and all those acting in concert with them. This rule has been interpreted to

mandate discovery of the written summary of a defendant's oral statements contained in the handwritten notes of a government agent. Loux v. United States, 389 F.2d 911 (9th Cir. 1968). If the statement of the defendant is summarized in the notes of the U.S. Attorney, it is still discoverable pursuant to Rule 16(a)(1)(A) and is not shielded by the Work Product Rule.

4.

All books, papers, documents, photographs, tape recordings, video tapes, and

tangible objects which are presently in the possession, custody, or control of the government and which are material to the preparation of the defense of defendant or intended for use as evidence by the government in its case-in-chief. Rule 16(a)(1)(C) provides authority for production of documents called for in item # 4. In United States v. Countryside Farms, Inc., 428 F. Supp. 1150 (D. Utah 1977), the court made an interpretation as to what is included in the meaning of Rule 16(a)(1)(C) and concluded "... documents which will be relied on or referred to in any way by any witnesses called by the government during its case-in-chief" are to be produced. Thus all documents and reports which may be relied upon or referred to in any way by any witness are discoverable under Rule 16(a)(1)(C). 5. Government files and records concerning witnesses.

The defense requests disclosure of any and all personnel files for persons to be called as

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government witnesses, informants in this case, and the defendant, together with the existence of any and all federal, state, and local government files for these individuals. Included in this request is identification of all official or unofficial internal affairs or public integrity investigation files relating to or connected with each witness who was, or is, a law enforcement officer. The defense is entitled to have access to government files in order to ascertain whether there is information within such files which could be of an impeaching nature with regard to each witness to be called, including lay witnesses and government agents. United States v. Deutsch, 475 F.2d 55 (5th Cir. 1973). In United States v. Morell, 524 F.2d 550 (2nd Cir. 1975), the Second Circuit held that defense counsel were entitled to impeachment information in the confidential file of an informant witness. Personnel files, internal investigation files, state and local government files all should be disclosed to the defense with regard to each witness to be called for the government, including law enforcement agents, all informants, and the defendant. If the government resists production of these documents, then each file should be specifically identified so that the appropriate motions or legal process can be addressed to them prior to the time of trial. 6. All transcripts of grand jury proceedings in this investigation.

The decision as to whether disclosure of grand jury transcripts should be ordered is within the discretion of the trial court. United States v. Marshall, 526 F.2d 1349 (9th Cir. 1975). The test used to determine whether disclosure of such transcripts should be ordered is Whether the party seeking disclosure has demonstrated a "particularized need" which outweighs the general policy of secrecy of grand jury proceedings. Pittsburgh Plate Glass Company v. United States, 360 U.S. 395 (1959). In Dennis v. United States, 384 U.S. 855 (1966), the Supreme Court set forth the underlying basis for requiring disclosure of grand jury testimony: In a variety of circumstances, the lower Federal Courts, have made Grand Jury testimony available to defendants. These developments are entirely consonant with the growing realization that disclosure rather than suppression of relevant materials ordinarily promotes the proper administration of criminal 08CR0720-L

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1 2 3 4 5 Id., at p. 870.

justice.

In our adversary system for determining guilt or innocence, it is rarely justifiable for the prosecution to have exclusive access to a storehouse of relevant fact. Exceptions to this are justifiable only by the clearest and most compelling considerations. (Emphasis added) Id., at. pp. 873.

6 Once the grand jury has completed its work, with indictments having been brought, then the 7 reason for secrecy of its testimony becomes even less compelling and disclosure should be more 8 readily granted. State of Illinois v. Sarbaugh, 552 F.2d 768 (7th Cir. 1977). 9 In United States v. Scony-Vacuum Oil Company, 310 U.S. 150 (1940), the Supreme Court 10 distinctly stated: 11 12 13 14 15 16 17 18 19 20 21 22 23 24 The above requested discovery should be promptly disclosed to the defense to avoid delay 25 at the time of trial and to allow an opportunity to evaluate, and possibly conduct further investigation 26 if such statements establish that this is necessary and to allow the defense to adequately prepare for 27 cross-examination of government witnesses. See, Fed. R. Evid. 801(d)(1)(A). 28 08CR0720-L 7. RULE 12 (D)( 2) Notice of all evidence which the government intends to use in its case-in-chief which may arguably be subject to a pre-trial motion to suppress. Id., at 234. Thus, the burden on the move- ant to show a particularized need is also lessened when the Grand Jury has completed its work. Counsel for the defense is entitled to disclosure of grand jury transcripts of witnesses testifying at trial. Disclosure ordered during trial comes too late to be effective to the defense and causes needless interruptions and delays of the trial in that cross-examination cannot be fully planned until after a careful review of the Grand Jury transcripts and other Jencks Act Material. Here, as overt acts are alleged, grand jury information is critical in assessing the need for motions on the indictment. But after the Grand Jury's functions are ended, disclosure is wholly proper where the interests of justice require it.

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Under United States v. Miller, 771 F.2d 1219, 1232 (9th Cir. 1985); United States v. Dupuy, 760 F.2d 1492, 1502 (9th Cir. 1985); United States v. Harris, 543 F.2d 1247 (9th Cir. 1976), and Fed. R. Crim. P. 12(I), also moves the court to order the government to produce, in camera if required, any raw notes made by the assistant United States attorney and/or investigative officers of all witness interviews. Should the government be unable to comply because of the destruction of such notes, this could be grounds for sanctions such as dismissal of the indictment or striking of the testimony of any witness to whom such notes relate. United States v. Harris, supra, 543 F.2d at 12511252; United States v. Johnson, 521 F.2d 1318 (9th Cir. 1975); United States v. Well, 572 F.2d 1383 (9th Cir. 1978).

8. EXPERT WITNESSES - Fed. R. Crim. P. 16(a)(1)(E) 8. PATRICIA ENRIQUEZ-LOMELI requests disclosure of the identity of any expert

witnesses whom the United States intends to use. Pursuant to Fed. R. Crim. P. 16(a)(1)(E), a written summary of the opinions and the bases therefore, as well as the witness' qualifications, is requested.

The defense also requests that this Court make a continuing discovery order and that the government be compelled to produce materials responsive to items contained in this motion as they become available. CONCLUSION For all the foregoing reasons, counsel for PATRICIA ENRIQUEZ-LOMELI requests that this court grant motion to compel discovery.

Dated:April 2, 2008 Respectfully submitted,

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1 2 3 4 5 6 7 8 BRIAN P. FUNK ESQ. CSB NO. 110462 964 Fifth Avenue #214 San Diego, CA 92101 (6l9) 233-4076 Attorney for Defendant,

S/a Brian P. Funk Attorney for Defendant

UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 08CR0720-L I Brian P. Funk, Electronically served the Notice of Motion and Motion to compel discovery on US ATTORNEY . 880 FRONT STREET ROOM 6293 SAN DIEGO CA. 92101 AND all other parties UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) ) vs. ) ) ) PATRICIA ENRIQUEZ-LOMELI ) ) Defendant. ) ) Crim No. 08CR0720-L PROOF OF SERVICE

DATE : 4-14-07 TIME: 2:00 pm

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April 2, 2008

s/a Brian P. Funk

08CR0720-L

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