Free Motion for Discovery - District Court of California - California

Case 3:08-cr-00712-L

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KAREN P. HEWITT United States Attorney DAVID D. LESHNER Assistant U.S. Attorney Federal Office Building 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-7163 [email protected] Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT

8 SOUTHERN DISTRICT OF CALIFORNIA 9 UNITED STATES OF AMERICA, 10 Plaintiff, 11 v. 12 CARLOS LOPEZ-GARCIA, 13 Defendant. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COMES NOW the plaintiff, UNITED STATES OF AMERICA, by and through its counsel, Karen P. Hewitt, United States Attorney, and David D. Leshner, Assistant United States Attorney, and hereby files its Motions for Fingerprint Exemplars and Reciprocal Discovery in the above-referenced case. Said motions are based upon the files and records of this case together with the attached memorandum of points and authorities. /// /// /// /// /// /// /// ) ) ) ) ) ) ) ) ) ) ) ) ) Criminal Case No. 08-CR-0712-L DATE: TIME: April 14, 2008 2:00 p.m.

UNITED STATES' NOTICE OF MOTIONS AND MOTIONS FOR: (1) (2) FINGERPRINT EXEMPLARS RECIPROCAL DISCOVERY

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MEMORANDUM OF POINTS AND AUTHORITIES I STATEMENT OF THE CASE On March 12, 2008, defendant Carlos Lopez-Garcia was arraigned on a one-count indictment charging him with a violation of Title 8, United States Code, Sections 1326(a) and (b). Defendant entered a plea of not guilty. II STATEMENT OF FACTS Defendant's Apprehension On February 13, 2008, Border Patrol Agent J. Saracco observed Defendant walking on Highway 86 near Westmorland, California. Agent Saracco pulled over in his vehicle and engaged in a consensual conversation with Defendant on the side of the road. During that conversation, Defendant stated that he was a citizen of Mexico and that he had no documents allowing him to lawfully enter or remain in the United States. Defendant further represented that he had entered the United States illegally on foot near the Tecate, CA Port of Entry in January 2008. Based on this information, Agent Saracco arrested Defendant and transported him to the Border Patrol Highway 86 Checkpoint for processing. Defendant received Miranda warnings and agreed to make a statement. According to Defendant, he is a Mexican citizen with no entitlement be in the United States. Defendant further admitted that he previously had been ordered deported by an Immigration Judge and that he had returned to the United States to find work. B. Defendant's Immigration History Defendant is a citizen of Mexico. On April 16, 1993, he was removed from the United States to Mexico pursuant to an Order of an Immigration Judge. Defendant also was removed from the United States to Mexico on January 8, 1998. /// /// /// 2

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C.

Defendant's Criminal History On or about November 13, 1995, Defendant was convicted in Orange County Superior Court

of First Degree Robbery, Second Degree Robbery and Assault with a Deadly Weapon, in violation of Penal Code §§ 211 and 245(a)(1). Defendant was sentenced to a total term of 5 years imprisonment. III UNITED STATES' MOTIONS A. Motion For Fingerprint Exemplars The Government requests that the Court order Defendant to make himself available for fingerprinting by the Government's fingerprint expert. See United States v. Ortiz-Hernandez, 427 F.3d 567, 576-77 (9th Cir. 2005) (Government may have defendant fingerprinted and use criminal and immigration records in Section 1326 prosecution). Identifying physical characteristics, including fingerprints, are not testimonial in nature, and the collection and use of such evidence would not violate Defendant's Fifth Amendment right against self-incrimination. United States v. DePalma, 414 F.2d 394, 397 (9th Cir. 1969). See also Schmerber v. California, 384 U.S. 757, 761 (1966) (withdrawal of blood is not testimonial). B. Motion For Reciprocal Discovery The Government has and will continue to fully comply with its discovery obligations. To date, the Government has provided Defendant with 49 pages of discovery and one DVD, including reports of his arrest, his rap sheet, and copies of immigration and conviction documents. The Government moves the Court to order Defendant to provide all reciprocal discovery to which the United States is entitled under Federal Rules of Criminal Procedure 16(b) and 26.2. Specifically, Rule 16(b)(1) requires Defendant to disclose to the United States all exhibits, documents and reports of testing or examination which Defendant intends to use in his case-in-chief at trial and a written summary of the names, anticipated testimony, and bases for opinions of experts the defendant intends to call at trial under Rules 702, 703, and 705 of the Federal Rules of Evidence. /// /// 3

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IV CONCLUSION For the foregoing reasons, the Government respectfully requests that the Court grant its motions.

Respectfully submitted, Karen P. Hewitt United States Attorney s/ David D. Leshner DAVID D. LESHNER Assistant U.S. Attorney

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, ) ) ) ) ) ) ) ) ) ) Case No. 08-CR-0712-L

CERTIFICATE OF SERVICE

IT IS HEREBY CERTIFIED THAT: I, DAVID D. LESHNER, am a citizen of the United States and am at least eighteen years of age. My business address is 880 Front Street, Room 6293, San Diego, California 92101-8893. I am not a party to the above-entitled action. I have caused service of UNITED STATES NOTICE OF MOTIONS AND MOTIONS FOR FINGERPRINT EXEMPLARS AND RECIPROCAL DISCOVERY on the following parties by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically notifies them. Paul Turner, Esq.

I declare under penalty of perjury that the foregoing is true and correct. Executed on March 25, 2008.

/s/ David D. Leshner DAVID D. LESHNER

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