Free Motion to Take Deposition - District Court of California - California

Case 3:08-cr-00650-JM

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Filed 03/13/2008

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LINDA A. KING, SBN 087138 LAW OFFICES OF LINDA A. KING
2044 First Ave., Suite 200 San Diego, CA 92101-2079 (619) 233-8034 FAX (619) 233-4516

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Attorney for

Material witnesses

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

11 UNITED STATES OF AMERICA,
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vs. Plaintiff,

) Criminal Case No.: 08CR0650JM ) Magistrate Case No.: 08MJ0569
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POINTS AND AUTHORITIES IN SUPPORT OF MATERIAL WITNESS' MOTION FOR VIDEOTAPE DEPOSITION AND REQUEST FOR STATEMENT OF REASONS IN SUPPORT OF CUSTODY

15 MATTHEW CHARLES KENNEDY, et. al. ) ) DATE: March 25, 2008 Defendants. ) TIME: 9:30 am 16 ) HON.: NITA L. STORMES

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) )

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Material Witnesses, SIMON FELIX-COMPANA, DEMITRO SANTIAGO

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21 22 d through their counsel, Linda A. King, submit the following Memorandum of Points
ANTIAGO AND PEDRO SANTOS-PERALTA (hereafter "Material Witnesses") by

23 d Authorities in support of their motion to take their videotape deposition. 24 II
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Case 3:08-cr-00650-JM

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INTRODUCTION

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On or about February 27,2008 the Material Witnesses were detained by the

5 mmigration and Naturalization Service in connection with the arrest of Matthew Charles 6 ennedy, the defendant in the above-entitled case. The defendant has been charged with

7 llegally bringing in undocumented aliens in violation of 8 U. S. C. § 1324 and the

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aterial Witnesses, who were in the car with the defendant at the time of his arrest, have een detained as a Material Witnesses under 8 U.S.C. § 1227 (d). The Material Witnesses are being held at Metropolitan Correction Center. They re unable to locate anyone in this country to be their surety and post the bond, which ould allow for their release.
It is unnecessary to keep the Material Witnesses in the United States because their

estimony can be preserved through the use of videotape depositions.! The Material itnesses therefore request a court order that their testimony be preserved through the se of videotape deposition and, thereafter, that they be allowed to return to their family ·n Mexico.
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THE TESTIMONY OF THE MATERIAL WITNESS CAN BE
SECURED BY VIDEOTAPE DEPOSITION AND THERE IS NO
COMPELLING REASON TO KEEP HIM IN CUSTODY


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22 Title 18, section 3144 of the United States Code Provides: 23
No Material Witness may be detained ... if the

testimony of such witness can

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adequately be secured by deposition, and if further detention is not necessary to prevent a failure ofjustice.

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Case 3:08-cr-00650-JM

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4 5 xceptional circumstances, where the interests of justice will be denied, that a videotape
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eposition is not appropriate. See, Torres-Ruiz v. United States 120 F.3d 933 (9 th Cir.

While a witness may be detained for a reasonable period of time, the court must igilantly guard an undocumented alien's "overriding liberty interest" and schedule a ideotape deposition at the earliest possible time. See, Aguilar-Ayala v. Ruiz 973 F. 2d
11,419 (5 th Cir. 1992).
eposition of the Material Witness may be used at trial in criminal cases, so it is only in


7 1997) [citing Aguilar Ayala v. Ruiz 973 F.2d 411,413 (5 th Cir. 1992) see also 8 U.S.C.
8 § 1324 (d), Federal Rules of Evidence 804, and Federal Rules of Criminal Procedure 15. 9
efendant may be present at the videotape deposition and therefore have a full and fair ppOliunity to cross-examine the witness. The videotape provides sufficient indicia of eliability to afford the trier of fact a satisfactory basis for evaluation the truth of a statement. Dutton v. Evans 400 U.S. 74, 89 (1970). The government or defendant can effectuate the detention of the material witness upon a showing that (1) the material witness will, in all likelihood, be unavailable to testify for trial, and (2) that the use of deposition testimony will deny the defendant a fair trial and that live testimony would somehow be significantly ditTerent. See, AguilarAyala v. Ruiz 973 F.2d at 413 (5 th Cir. 1992), United States v. Humberto Rivera 859

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F.2d 1204, 1208 (4 th Cir. 1988). That would be a difficult burden in this case, however,

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because the Material Witnesses has indicated they are willing to return for trial if the 22 government makes arrangements for their legal re-entry into the country and provides

23 travel expenses.

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(King Decl. At para. 6).

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The government would undoubtedly take reasonable steps in this case, as it has in 26 other similar cases, to secure the witness's testimony at trial by personally subpoenaing the witness, providing travel costs, and arranging for legal re-entry of the alien. (See, 27 United States v. Eufracio-Torris 890 F.2d 266, 270 (1oth Cir. 1989) cert. Denied 494
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Case 3:08-cr-00650-JM

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.s. 1008 (1990) [government need not guarantee the witness will be available, only that

2 hey use food-faith efforts to secure their presence at trial]; see also, Ohio v. Roberts 448
.S. 56, 65 (1980) [so long as the government uses reasonable measures to secure a 3 itness at trial, a deposition is admissible over a defendant's Confrontation Classy and learsay objections]. 4 he Material Witnesses should not be detained because their testimony can be adequately

5 ecured by deposition. This is a very routine alien smuggling case. Based on interviews 6
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hich the Material Witnesses are competent to testify are straightforward. (King Decl.

ith the Material Witnesses and the report submitted by the arresting agency, the facts to

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t para. 5). Moreover, neither the Material Witnesses nor their counsel has been informed that he witness' detention is necessary to prevent a failure ofjustice. (King Decl. At para. 4). uite to the contrary, the witnesses have already spent a considerable time in jail and it is ery important that they be released as soon as possible so that they may be reunited with heir family in Mexico. (King Decl. At para. 3.) For these reasons, the Material Witnesses request that the court immediately orders the taking of their videotape depositions and that they thereafter are immediately retumed to their country of origin.

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III IF THE COURT DENIES THE MATERIAL WITNESS REQUEST TO TAKE HIS VIDEOTAPE DEPOSITION, HE MAY REQUEST THAT THE GOVERNMENT PROVIDE HIM WITH A STATEMENT OF REASONS WHY HE HAS TO REMAIN IN CUSTODY

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Where a witness has been held in custody for more than 10 days, the govemment

24 has an obligation to prepare a biweekly report stating the reasons why such witness 25 should not be released with or without the taking of a deposition. Fed Rules Crim. Proc., 26
Rule 46 (g).

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Case 3:08-cr-00650-JM

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The Material Witnesses are not aware of the any reasons why they should remain custody, but to the extent the government knows of any such reason, they hereby quest that the government provide them with a copy of a biweekly written report dicating these reasons. IV

CONCLUSION
For the forgoing reasons, the Material Witnesses respectfully request that the
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itnesses request that they immediately be provided with a statement of reasons why ley needs to remain in custody.

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