Free Motion for Miscellaneous Relief - District Court of California - California

Case 3:08-cr-00650-JM

Document 31

Filed 04/12/2008

Page 1 of 10

1 2 JOAN KERRY BADER California State Bar No. 172586 3 964 Fifth Avenue, Suite 214 San Diego, California 92101-6128 4 Telephone No. (619) 699-5995 Attorney for Defendant KENNEDY 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 (HONORABLE NITA L. STORMES) 8 UNITED STATES OF AMERICA, ) ) Criminal No. 08CR0650JTM 9 ) Plaintiff, ) 10 ) Date: April 15, 2008 ) 11 ) Time: 9:30 a.m. v. ) 12 ) NOTICE OF MOTION AND MATTHEW WILL KENNEDY, ) AND 13 ) MOTION IN OPPOSITION ) TO MOTION FOR VIDEO-TAPED 14 ) DEPOSITION OF MATERIAL Defendant. ) WITNESS 15 ) ___________________________________________) 16 17 TO: 18 19 20 KAREN HEWITT, UNITED STATES ATTORNEY, and STEVEN DESALVO, ASSISTANT UNITED STATES ATTORNEY, and JOHN ELLIS, ATTORNEY FOR DEFENDANT for LAWRENCE DOSS ; SHAUN KHOJAYAN, JR., ATTORNEY FOR DEFENDANT SANDRA BNI; LINDA KING for the MATERIAL WITNESSES

On Tuesday, April 15, 2008 at 9:30 a.m., or as soon thereafter

21 as counsel may be heard, defendant, William Kennedy, by and through 22 his attorney, Kerry Bader, will ask this Court to enter an order 23 granting the motions listed below, to oppose the motion for video24 taped deposition. 25 April 12, 2008 26 27 28 08cr0650JTM

/s/Joan Kerry Bader JOAN KERRY BADER

Case 3:08-cr-00650-JM

Document 31

Filed 04/12/2008

Page 2 of 10

1 2 3

MOTIONS Defendant, William Matt Kennedy, by and through his

4 attorney, Kerry Bader,

pursuant to the United States Constitution,

5 the Federal Rules of Criminal Procedure, and all other applicable 6 statutes, case law and local rules, hereby presents the following 7 motion, opposition to the motion for a video-taped deposition in 8 case number 08cr0650JTM. 9

This motion is based upon the notice of motions, the

10 statement of facts and memorandum of points and authorities, and any 11 and all other materials that may come to this Court's attention at 12 the time of the hearing on these motions. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted,

Dated: April 12, 2008

/s/Joan Kerry Bader JOAN KERRY BADER Attorney for Mr. Kennedy

2

08cr0650JTM

Case 3:08-cr-00650-JM

Document 31

Filed 04/12/2008

Page 3 of 10

1 2 JOAN KERRY BADER

California State Bar No. 172586 3 964 Fifth Avenue, Suite 214 San Diego, California 92101-6128 4 Telephone No. (619) 699-5995 Attorney for Defendant KENNEDY
5 6 7 8

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE NITA L. STORMES)

) Criminal No. 08CR0650JTM ) 10 Plaintiff, ) ) 11 v. ) ) 12 MATTHEW WILL KENNEDY, ) DEFENDANT'S MEMORANDUM OF POINTS ) AND AUTHORITIES 13 Defendant. ) ) 14 ) _____________________________ ) 15 I.
16 17 18 19 20 21 22 23 24 25 26 27 28

9

UNITED STATES OF AMERICA,

PRELIMINARY STATEMENT The Defendant, Mr. Kennedy has been charged with Title 8, USC section 1324(a)(2)(B)(ii), Harboring Illegal Aliens, 8 USC section 1324(a)(1)(A)(iii) and (v), Conspiracy , 18 USC section 371 and 18 USC section 2, Aiding and Abetting each of the substantive counts. Mr. Kennedy was arrested February 25, 2008 in a trailer in the Mountain Empire Campground by United States Border Patrol Agents, at about 6:30 in the morning. trailer. Sandra Bni was also in the

Lawrence Doss, the second defendant was arrested in a

vehicle near the entrance to the campground with four undocumented persons within the vehicle. According to the complaint the material witness did not
1 1 08cr0650JTM

Case 3:08-cr-00650-JM

Document 31

Filed 04/12/2008

Page 4 of 10

1 2 identify him as someone involved in their smuggling venture. 3 4 for

The attorney for the material witness has filed a motion a video-taped deposition of the three material witnesses,

5 citing, in part, that they are incarcerated and that they are the 6 sole

supporters

of

their

families

which

causes

them

extreme

7 hardship. 8

II. VIDEO-TAPED DEPOSITION

9 MR. KENNEDY RESPECTFULLY OPPOSES THE MATERIAL WITNESS' MOTION FOR 10 11 12 13 14 15 16

In this case the Material Witnesses have moved under 18 USC section 3144 for a video-taped deposition. Mr. Kennedy opposes

this motion as the material witnesses and they have no proven they are suffering extreme hardship and because the Material Witness statute is unconstitutional. III.

MR. KENNEDY RESPECTFULLY ASKS THE COURT TO DENY THE REQUEST FOR A VIDEO-TAPED DEPOSITION 17
18 19 20 21 22 23 A. 24

18 USC section 3144 states in pertinent part: ....No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice.... The Statute is Unconstitutional 18 USC section 3144 violates the Fifth Amendment's right

25 to Due Process for criminal defendants for the following reasons. 26

The Fifth Amendment guarantees that a defendant not be deprived of The

27 his life, liberty or property without due process of the law.

28 Sixth Amendment allows the defendant to be confronted with the

witnesses against him, and to have compulsory process for obtaining
2 2 08cr0650JTM

Case 3:08-cr-00650-JM

Document 31

Filed 04/12/2008

Page 5 of 10

1 2 witnesses in his favor, and to have the assistance of counsel for 3 his defense. 4 5 6

i.

18 Usc section 3144 violates Mr. Kennedy's Fifth Amendment rights

Section 3144 allows a witness to be deposed in a criminal

7 case, outside the presence of a judge or a jury, within the jury 8 trial, to confront witnesses, and to due process and fundamental 9 fairness.

The fact-finding procedure is tainted by the fact that

10 the witness is not sworn by a judge, and the witness is not viewed 11 in person by the jury; in other words, there is no unbiased person 12 or entity confines of the United States Attorney's office.

This

13 process violates the Constitution's guarantees of the right to a 14 presiding over these proceedings and the fact finders are prevented 15 from doing their job, which includes determining the credibility of 16 the witnesses which includes demeanor evidence as well as the right 17 to

see the witness confronted by the defendant at trial, the

18 constitution says nothing of the right to a deposition. 19

Furthermore, the government handles all of the procedural

20 matters and the deposition takes place in the government's offices, 21 which is an inappropriate forum for a trial to occur. 22

In addition, the witnesses were incarcerated and detained Since they were in the

23 by the government, the opposing party.

24 government's custody, which is a party to the case, the very party 25 that arrested them, and the very party that would admonish them to 26 come to trial, such a procedure allows for bias on the part of the 27 witnesses to testify in favor of the organization that was holding 28 them in custody and which at least appears to be the holder of the

keys to their liberty.
3 3 08cr0650JTM

Case 3:08-cr-00650-JM

Document 31

Filed 04/12/2008

Page 6 of 10

1 2 3 4 5 6 7 8 9

The witnesses should be sworn and heard before an unbiased fact-finder and judge, not by a party to the case, such as the government, in their offices. is to take place, should Furthermore, the proceedings, if it occur in a courtroom, not in the

prosecutor's offices. ii. 18 USC section 3144 violates Mr. Dotinga's Sixth Amendment rights and Fifth Amendment rights

The Sixth Amendment guarantees that the jury is permitted

10 to observe the demeanor of the witness, in order to assess the 11 witness' credibility. Maryland v. Craig, 497 U.S. 836, 851 (1989); 12 United States v. Sines, 761 F.2d 1434 (9th Cir. 1985). The effect 13 of a video-taped deposition results only in the witness' face being 14 shown to the jury, not to whom or where the witness is looking while 15 she is testifying. This is particularly important in this case 16 where identity of the defendants is at issue: imagine an 17 identification issue at trial where the chief witnesses are being 18 asked to identify the culprits and the jury is not allowed to see 19 anything happening in the courtroom except for a close-up on a video 20 monitor of the witness' face. 21

Also, the process, because it is not undertaken in a

22 courtroom, before a judge or jury, assures the witness will more 23 than likely respond in favor of the party that spoke with her first, 24 incarcerated her, and whose authority is paramount as it is the 25 government who is confining her, transporting her, swearing her and 26 appearing as if it is the party that determines if she will be 27 remain on bond or deported. These factors alone, or in combination, 28 can effect the witness' demeanor and/or testimony, so that it would 4 4 08cr0650JTM

Case 3:08-cr-00650-JM

Document 31

Filed 04/12/2008

Page 7 of 10

1 2 3 4 5 6 7

differ from the demeanor she would exhibit in a courtroom where the judge acts as a neutral referee who determines the law, and where there is a neutral fact-finder, the jury, who is not a party to the case. It should not be forgotten that the Sixth Amendment

specifically applies to "criminal prosecutions."

It guarantees

8 "confrontation" and a "public trial." These are not guarantees that 9 extend by order of the Constitution to civil cases where depositions 10 are commonplace.

Therefore, these guarantees, which carry far more material witnesses should be

11 weight, should be upheld and the

12 ordered to testify at trial, as it is the accused whose liberty is 13 at stake. 14 15 16 17

iii. The Statute is unconstitutional because it is vague and because it unlawfully permits the government to place a witness beyond the reach of a subpoena As it appears from the electronic filings in this matter

18 that the following issue may be moot, as it appears the material 19 witnesses have secured their release by posting a bond, the argument 20 is made to preserve the record: 21

18 USC section 3144 allows the release of a material

22 witness "if further detention is not necessary to prevent a failure 23 of justice." 24 For one, it is completely unclear from the statute itself 25 what constitutes a "failure of justice." The Ninth Circuit has held 26 that continued detention of material witnesses who are the sole 27 supporters of their families constitutes a "failure of justice." 28 Torres-Ruiz v. District Court, 120 F.3d 933, 935 (9th Cir. 1997). 5 5 08cr0650JTM

Case 3:08-cr-00650-JM

Document 31

Filed 04/12/2008

Page 8 of 10

1 2 3 4 5 6 7

Because of the vague standard set forth within the statute, the Constitutionality of the statute fails. Furthermore, if there is any potential "failure of justice" that results from the deposition process, it is a failure of justice enacted upon the criminal defendant, for all the reasons listed above, including the right of the defendant to have the jury assess

8 the witness, his or her demeanor, and his or her credibility before 9 a neutral judge and jury, not in the confines of the United States 10 Attorney's office. 11 by

Such a criminal proceeding was not anticipated the Constitution that a witness would be

the

writers

of

12 confronted

by the accused in the prosecutor's

office, in the

13 prosecutor's custody. 14 (9th Cir. 2002).

See also: Manimbao v. Ashcroft, 329 F.3d 655

In the context of deportation proceedings, the

15 Ninth Circuit has held that credibility findings are best left to 16 Immigration Judges, not appellate bodies, because of judge's ability 17 to

observe

demeanor

evidence,

and

to

distill

interpreting

18 inconsistencies and the dynamics of an interview, and to determine 19 matters of misinterpretation, confusion or true inconsistencies. 20 Likewise, a jury, which holds the Constitutional right to do so, 21 should be permitted to make these judgment calls which are not so 22 easily made from a video of a witness who is being taped in the 23 confines of the prosecuting party. 24 Secondly, a "failure of

justice"

is

not

necessarily

25 committed by the continued confinement of a witness who could be 26 released upon a lower bond or on her own recognizance. The bond now 27 for material witnesses in the context of 8 USC section 1324 28 proceedings is $5000.00. This is potentially prohibitive to many 6 6 08cr0650JTM

Case 3:08-cr-00650-JM

Document 31

Filed 04/12/2008

Page 9 of 10

1 2 3 4 5 6 7

material

witnesses.

Indeed,

many

material

witness

attorneys

consistently argue that their clients cannot meet such a bond. The "failure of justice" can be easily remedied if the bonds were lowered or if a person was to be released on her own recognizance. A Global Positioning Device could also be utilized.

The risk of flight is very minimal, considering that this particular

8 material witness has affirmatively attempted to enter the country 9 at least four times since April, 2006, and she clearly wishes to be 10 here in the United States.

In addition, she advised arresting

11 offices she has friends with whom she plans to live in Los Angeles. 12 By setting such a high bond, the system is designed for a material 13 witness to declare that he or she cannot meet the bond and the 14 defendant must suffer the consequences. 15

In this particular case, the material witness declares she The at

16 will suffer a failure of justice because she is incarcerated. 17 Material Witness' testimony and presence, however, is crucial

18 trial because no one in this case has made a confession, and the 19 Material Witness does not identify any of the defendants as a 20 smuggler, or the person she was going to pay. She is the defense's 21 most important witness. This is exonerating evidence, which is 22 "material and favorable" for all three of the defendants. To lose 23 this witness's testimony to a video, where demeanor evidence is non24 existent and where the deposition is further tainted by the forum 25 in which it takes place, causes a travesty of justice for these 26 three defendants who are looking at years in prison, in contrast to 27 the minimal hardship of allowing this woman to be released on her 28 own recognizance. 7 7 08cr0650JTM

Case 3:08-cr-00650-JM

Document 31

Filed 04/12/2008

Page 10 of 10

1 2 3 4 5 6 7

Finally, upon release of a material witness, after a deposition, the government, by deporting the witness, places the witness beyond the subpoena power of the defendant, in total

violation of the Defendant's Sixth Amendment rights. The government is allowed to bootstrap the "unavailability" of the witness, which of course, is unconstitutional. U.S. Const. Sixth Amend.; Crawford

8 v. Washington, 541 U.S. 36 (2004). 9 10 11 12 13 14

IV. CONCLUSION

For all of the above-mentioned reasons, this Court should rule that 18 USC section 3144 is unconstitutional on its face and

15 as applied and the material witness should be released. 16 17 18 19 20 21 22 23 24 25 26 H:\JKB\MOTN\2008\Kennedy.WPD 27 28

Respectfully submitted,

Dated:

April 12, 2008

/s/Joan Kerry Bader JOAN KERRY BADER Attorney for Mr. Kennedy

8 8

08cr0650JTM