Free Motion for Discovery - District Court of California - California

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1 RICHARD J. BOESEN California State Bar No. 056579 2 1230 Columbia Street, Suite 650 San Diego, California 92101 3 Telephone No. (619) 233-5121 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLEASE TAKE NOTICE that on Friday, February 17, 2004, at 1:30 p.m., or as soon thereafter as counsel may be heard, defendant, John W. Shuh, by and through his attorney, Richard J. Boesen , will ask this Court to enter an order granting the motions listed below. // // // // // // MOTIONS TO: v. JOHN W. SCHUH, Defendant. Plaintiff, UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE JANIS L. SAMMARTINO) UNITED STATES OF AMERICA, ) ) ) ) ) ) ) ) ) ) ) Criminal No. 08CR0682-JLS Date: April 18, 2008 Time: 1:30 p.m. NOTICE OF MOTIONS AND MOTIONS TO: 1) PRODUCE DISCOVERY; AND 2) FILE FURTHER MOTIONS. Attorney for Defendant John W. Schuh

KAREN P. HEWITT, UNITED STATES ATTORNEY, AND STEVE MILLER, ASSISTANT UNITED STATES ATTORNEY

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Defendant, John W. Shuh, by and through his attorney, Richard J. Boesen, pursuant to the

2 United States Constitution, the Federal Rules of Criminal Procedure, and all other applicable statutes, case 3 law and local rules, hereby moves this Court for an order: 4 5 6 (1) compelling the production of discovery; and (2) allowing the filing of further motions. These motions are based upon the instant motions and notice of motions, the attached

7 statement of facts and memorandum of points and authorities, and any and all other materials that may come 8 to this Court's attention at the time of the hearing on these motions. 9 10 11 Dated: March 27, 2008 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respectfully submitted, s/Richard J. Boesen RICHARD J. BOESEN Attorneys for Mr. Schuh

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1 RICHARD J. BOESEN California State Bar No. 056579 2 1230 Columbia Street, Suite 560 San Diego, California 92101 3 Telephone No. (619) 233-5121 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PRELIMINARY STATEMENT To date, Mr. Schuh has received limited discovery from the government. On March 13, 2008, an indictment was filed charging Mr. Schuh with violations of Title 18 United States Code, Sections 371; 1324 (a) (2) (B) (ii); 1324 (a) (1) (A) (ii) and (v) (I); 1324 (a) (2) (B) (ii); 1324 (a) (1) (A) (ii) and (v) (II); and 18 United States Code Section 2. I THE COURT SHOULD ORDER THE PRODUCTION OF DISCOVERY. Mr. Schuh makes the following discovery motion pursuant to Rule 12(b)(4) and Rule 16. This request is not limited to those items that the prosecutor has actual knowledge of, but rather includes all discovery listed below that is "in the possession, custody, or control of any federal agency participating in the same investigation of the defendant." United States v. Bryan, 868 F.2d 1032, 1036 (9th Cir.), cert. denied, 493 U.S. 858 (1989). 1 08CR0682 v. JOHN W. SCHUH, Defendant. UNITED STATES OF AMERICA, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) Criminal No. 08CR0682-JLS UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE JANIS L. SAMMARTINO) Attorney for Defendant John W. Shuh

STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTIONS

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(1) Statements. The government must disclose: (1) copies of any written or recorded

2 statements made by Mr. Schuh; (2) copies of any written record containing the substance of any statements 3 made by Mr. Schuh in response to interrogation by a known government agent; and (3) the substance of any 4 statements made by Mr. Schuh which the government intends to use, for any purpose, at trial. See Fed. R. 5 Crim. P. 16(a)(1)(A). 6 (2) The Defendant's Prior Record. Mr. Schuh requests disclosure of his prior record. See Fed.

7 R. Crim. P. 16(a)(1)(B). He also requests that the Court prohibit the use for criminal history purposes under 8 the United States Sentencing Guidelines of any prior convictions not produced pursuant to this request. 9 (3) Documents and Tangible Objects. Mr. Schuh requests the opportunity to inspect, copy,

10 and photograph all documents and tangible objects which are material to the defense or intended for use in 11 the government's case-in-chief or were obtained from or belong to him. See Fed. R. Crim. P. 16(a)(1)©. 12 (4) Reports of Scientific Tests or Examinations. Mr.Schuh requests the reports of all tests

13 and examinations which are material to the preparation of the defense or are intended for use by the 14 government at trial. See Fed. R. Crim. P. 16(a)(1)(D). 15 (5) Expert Witnesses. Mr. Schuh requests the name and qualifications of any person that the

16 government intends to call as an expert witness. See Fed. R. Crim. P. 16(a)(1)(E). In addition, Mr. Schuh 17 requests written summaries describing the bases and reasons for the expert's opinions. See id. 18 (6) Brady Material. Mr. Schuh requests all documents, statements, agents' reports, and

19 tangible evidence favorable to the defendant on the issue of guilt or punishment. See Brady v. Maryland, 373 20 U.S. 83 (1963). Impeachment evidence falls within the definition of evidence favorable to the accused, and 21 therefore Mr. Schuh requests disclosure of any impeachment evidence concerning any of the government's 22 potential witnesses, including prior convictions and other evidence of criminal conduct. See United States 23 v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 427 U.S. 97 (1976). In addition, Mr. Schuh requests 24 any evidence tending to show that a prospective government witness: (I) is biased or prejudiced against the 25 defendant; (ii) has a motive to falsify or distort his or her testimony; (iii) is unable to perceive, remember, 26 communicate, or tell the truth; or (iv) has used narcotics or other controlled substances, or has been an 27 alcoholic. 28 (7) Request for Preservation of Evidence. Mr. Schuh specifically requests the preservation 2 08CR0682

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1 of all physical or documentary evidence that may be destroyed, lost, or otherwise put out of the possession, 2 custody, or care of the government and which relate to the arrest or the events leading to the arrest in this case. 3 (8) Any Proposed 404(b) Evidence. "[U]pon request of the accused, the prosecution . . . shall

4 provide reasonable notice in advance of trial . . . of the general nature" of any evidence the government 5 proposes to introduce under Rule 404(b). Fed. R. Evid. 404(b). Mr. Schuh requests such notice immediately 6 in order to allow for adequate trial preparation. 7 (9) Henthorn Material. Mr. Schuh requests that the prosecutor review the personnel files of

8 the officers involved in his arrest, and those who will testify, and produce to him any exculpatory information 9 at least two weeks prior to trial and one week prior to the motion hearing. See United States v. Henthorn, 931 10 F.2d 29 (9th Cir. 1991). In addition, he requests that if the government is uncertain whether certain 11 information is to be turned over pursuant to this request, that it produce such information to the Court in 12 advance of the trial and the motion hearing for an in camera inspection. 13 (10) Jencks Act Material. Mr. Schuh requests production in advance of trial of all material

14 discoverable pursuant to the Jencks Act, 18 U.S.C. § 3500. Advance production will avoid needless delays 15 at pretrial hearings and at trial. In addition, Jencks statements must be produced at a suppression hearing. See 16 Fed. R. Crim. P. 12(I) and 26.2(g). Mr. Schuh requests production of such material before any suppression 17 hearing in order to avoid delay at the hearing, as would be permitted pursuant to Rule 26.2(d). 18 (11) Informants and Cooperating Witnesses. Mr. Schuh requests disclosure of the names and

19 addresses of all informants or cooperating witnesses used or to be used in this case. The government must 20 disclose the informant's identity and location, as well as disclose the existence of any other percipient witness 21 unknown or unknowable to the defense. Roviaro v. United States, 353 U.S. 52, 61-62 (1957). Mr. Schuh also 22 requests disclosure of any information indicating bias on the part of any informant or cooperating witness. 23 Giglio v. United States, 405 U.S. 150 (1972). Such information would include what, if any, inducements, 24 favors, payments or threats were made to the witness to secure cooperation with the authorities. 25 (12) Residual Request. Mr. Schuh intends by this discovery motion to invoke his rights to

26 discovery to the fullest extent possible under the Federal Rules of Criminal Procedure and the Constitution 27 and laws of the United States. Mr. Schuh requests that the government provide him and his attorney with the 28 above requested material sufficiently in advance of trial. 3 08CR0682

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II. THE COURT SHOULD SET ANOTHER MOTION HEARING DATE. Mr. Schuh anticipates filing several other motions, including motions to dismiss the

4 indictment based on constitutional errors. He obviously anticipates that numerous issues will arise when he 5 reviews that discovery. 6 7 8 motions. 9 10 11 Dated: March 27, 2008. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respectfully submitted, s/Richard J. Boesen RICHARD J. BOESEN Attorney for Defendant John W. Schuh CONCLUSION For the foregoing reasons, Mr. Schuh respectfully requests that the Court grant the above

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PROOF OF SERVICE

IT IS HEREBY CERTIFIED THAT:

I, Richard J. Boesen, am a citizen of the United States and am at least eighteen years of age. My

6 business address is 1230 Columbia Street, Suite 650, San Diego, California 92101. 7 8 I am not a party to the above- entitled action. I have caused service of the DEFENDANT'S

9 MOTION FOR DISCOVERY AND LEAVE TO FILE FURTHER MOTIONS on the following parties 10 by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which 11 electronically notifies them. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 s/ Richard J. Boesen RICHARD J. BOESEN Attorney at Law I declare under penalty of perjury that the foregoing is true and correct. Executed on March 27, 2008. 1. [email protected]

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