Free Motion to Preserve Evidence - District Court of California - California

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1 SHAFFY MOEEL

California State Bar No. 238732
2 FEDERAL DEFENDERS OF SAN DIEGO, INC.

225 Broadway, Suite 900
3 San Diego, CA 92101-5008

(619) 234-8467/Fax: (619) 687-2666
4 E-Mail: [email protected] 5 Attorneys for Mr. Ortega 6 7 8 9 10

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE M. JAMES LORENZ) ) ) Plaintiff, ) ) v. ) ) ISMAEL ORTEGA, ) ) Defendant. ) ______________________________________ ) CASE NO. 08CR0645-MJL DATE: TIME: August 25, 2008 2:00 p.m.

11 UNITED STATES OF AMERICA, 12 13 14 15 16 17 18 19 20

STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS

I. MOTION TO COMPEL DISCOVERY AND PRESERVE EVIDENCE Mr. Ortega moves for the production by the government of the following discovery and for the

21 preservation of evidence. This request is not limited to those items about which the prosecutor knows, but 22 includes all discovery listed below that is in the custody, control, care, or knowledge of any government 23 agency. See generally Kyles v. Whitley, 514 U.S. 419 (1995); United States v. Bryan, 868 F.2d 1032 24 (9th Cir. 1989). 25

1.

The Defendant's Statements. The government must disclose to Mr. Ortega all copies of any

26 written or recorded statements made by Mr. Ortega; the substance of any statements made by Mr. Ortega that 27 the government intends to offer in evidence at trial; any response by Mr. Ortega to interrogation; the 28 substance of any oral statements that the government intends to introduce at trial and any written summaries

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1 Mr. Ortega's oral statements contained in the handwritten notes of the government agent; any response to any 2 Miranda warnings that may have been given to Mr. Ortega; and any other statements by Mr. Ortega. FED. 3 R. CRIM. P. 16(a)(1)(A) and (B). The Advisory Committee Notes and the 1991 amendments to Rule 16 make 4 clear that the government must reveal all Mr. Ortega's statements, whether oral or written, regardless of 5 whether the government intends to make any use of those statements. 6

2.

Arrest Reports, Notes and Dispatch Tapes. Mr. Ortega also specifically requests that all

7 arrest reports, notes and dispatch or any other tapes that relate to the circumstances surrounding her arrest or 8 any questioning, if such reports have not already been produced in their entirety, be turned over to him. This 9 request includes, but is not limited to, any rough notes, records, reports, transcripts or other documents in 10 which statements of Mr. Ortega or any other discoverable material is contained. Mr. Ortega includes in this 11 request any redacted portions of the Report of Investigation ("ROI") and any subsequent ROIs that the case 12 agent or any other agent has written. This is all discoverable under FED. R. CRIM. P. 16(a)(1)(A) and (B) and 13 Brady v. Maryland, 373 U.S. 83 (1963). See also Loux v. United States, 389 F.2d 911 (9th Cir. 1968). Arrest 14 reports, investigator's notes, memos from arresting officers, dispatch tapes, sworn statements, and prosecution 15 reports pertaining to Mr. Ortega are available under FED. R. CRIM. P. 16(a)(1)(A) and (B), FED. R. CRIM. P. 16 26.2 and 12(I). Preservation of rough notes is requested, whether or not the government deems them 17 discoverable. 18

3.

Brady Material. Mr. Ortega requests all documents, statements, agents' reports, and tangible

19 evidence favorable to him on the issue of guilt and/or that affects the credibility of the government's case. 20 Impeachment and exculpatory evidence both fall within Brady's definition of evidence favorable to the 21 accused. United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 427 U.S. 97 (1976). 22

4.

Any Information That May Result in a Lower Sentence.

As discussed above, any

23 information that may result in a more favorable sentence must also be disclosed pursuant to Brady, 373 U.S. 24 83. The government must disclose any cooperation or attempted cooperation by Mr. Ortega, as well as any 25 information that could affect any base offense level or specific offense characteristic under Chapter Two of 26 the United States Sentencing Commission Guidelines Manual ("Guidelines"). Also included in this request 27 is any 28

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1

information

2 relevant to a Chapter Three adjustment, a determination of Mr. Ortega's criminal history, or any other 3 application of the Guidelines. 4

5.

The Defendant's Prior Record. Evidence of a prior record is available under FED. R. CRIM.

5 P. 16(a)(1)(D). Mr. Ortega specifically requests a complete copy of any criminal record. 6

6.

Any Proposed 404(b) Evidence. Evidence of prior similar acts is discoverable under

7 FED. R. CRIM. P. 16(a)(1)(D) and FED. R. EVID. 404(b) and 609. In addition, under FED. R. EVID. 404(b), 8 "upon request of the accused, the prosecution . . . shall provide reasonable notice in advance of trial . . . of 9 the general nature . . .." of any evidence the government proposes to introduce under FED. R. EVID. 404(b) 10 at trial. Sufficient notice requires the government to "articulate precisely the evidential hypothesis by which 11 a fact of consequence may be inferred from the other acts evidence." United States v. Mehrmanesh, 689 F.2d 12 822, 830 (9th Cir. 1982) (emphasis added; internal citations omitted); see also United States v. Brooke, 4 F.3d 13 1480, 1483 (9th Cir. 1993) (reaffirming Mehrmanesh and reversing convictions). 14

This includes any "TECS" records (records of prior border crossings) that the government intends

15 to introduce at trial, whether in its case-in-chief, impeachment, or rebuttal. Although there is nothing 16 intrinsically improper about prior border crossings, they are nonetheless subject to 404(b), as they are "other 17 acts" evidence that the government must produce before trial. United States v. Vega, 188 F.3d 1150, 1154-55 18 (9th Cir. 1999). Mr. Ortega requests that such notice be given three weeks before trial to give the defense 19 time to adequately investigate and prepare for trial. 20

7.

Evidence Seized. Evidence seized as a result of any search, either warrantless or with a

21 warrant, is discoverable under FED. R. CRIM. P. 16(a)(1)(E). 22

8.

Request for Preservation of Evidence. The defense specifically requests that all dispatch

23 tapes or any other physical evidence that may be destroyed, lost, or otherwise put out of the possession, 24 custody, or care of the government and that relate to the arrest or the events leading to the arrest in this case 25 be preserved. This request includes, but is not limited to, any samples of narcotics used to run any scientific 26 tests, all narcotics, the results of any fingerprint analysis, the vehicle involved in the case, Mr. Ortega's 27 personal effects, and any evidence seized from Mr. Ortega or any third party. This request also includes any 28

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1 material or percipient witnesses who might be deported or otherwise likely to become unavailable (e.g., 2 undocumented aliens and transients). 3

It is requested that the prosecutor be ordered to question all the agencies and individuals involved

4 in the prosecution and investigation of this case to determine if such evidence exists, and if it does exist, to 5 inform those parties to preserve any such evidence. 6

9.

Henthorn Material. Mr. Ortega requests that the Assistant United States Attorney ("AUSA")

7 assigned to this case oversee (not personally conduct) a review of all personnel files of each agent involved 8 in the present case for impeachment material. See Kyles v. Whitley, 514 U.S. 419, 437-38 (1995) (holding 9 that "the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on 10 the government's behalf in the case, including the police"); United States v. Henthorn, 931 F.2d 29 (9th Cir. 11 1991). This request includes, but is not limited to, any complaints filed (by a member of the public, by 12 another agent, or any other person) against the agent, whether or not the investigating authority has taken any 13 action, as well as any matter for which a disciplinary review was undertaken, whether or not any disciplinary 14 action was ultimately recommended. Mr. Ortega further requests production of any such information at least 15 one week prior to the motion hearing and two weeks prior to trial. If the prosecutor is uncertain whether 16 certain information should be disclosed pursuant to this request, this information should be produced to the 17 Court in advance of the motion hearing and the trial for an in camera inspection. 18

10.

Tangible Objects. Mr. Ortega requests the opportunity to inspect, copy, and test, as

19 necessary, all other documents and tangible objects, including photographs, books, papers, documents, 20 alleged narcotics, fingerprint analyses, vehicles, or copies of portions thereof, that are material to the defense 21 or intended for use in the government's case-in-chief or were obtained from or belong to Mr. Ortega. 22 FED. R. CRIM. P. 16(a)(1)(E). Specifically, Mr. Ortega requests color copies of all photographs in the 23 government's possession of the alleged narcotics and the vehicle in which the narcotics were found. If the 24 prosecutor does not wish to make these copies, Mr. Ortega requests the opportunity to do so himself. 25

11.

Expert Witnesses. Mr. Ortega requests the name, qualifications, and a written summary of

26 the testimony of any person that the government intends to call as an expert witness during its case in chief. 27 FED. R. CRIM. P. 16(a)(1)(G). This summary should include a description of the witness' opinion(s), as well 28 as the bases and the reasons for the opinion(s). See United States v. Duvall, 272 F.3d 825 (7th Cir. 2001)

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1 (finding that government's written expert notice did not adequately summarize or describe police detective's 2 testimony in drug prosecution where notice provided only a list of the general subject matters to be covered 3 and failed to identify what opinion the expert would offer on those subjects). This request includes, but is 4 not limited to, disclosure of the qualifications of any government witness who will testify that he understands 5 and/or any other foreign language that may have been used during the course of an interview with Mr. Ortega 6 or any other witness. 7

Mr. Ortega requests the notice of expert testimony be provided at a minimum of three weeks prior

8 to trial so that the defense can properly prepare to address and respond to this testimony, including obtaining 9 its own expert and/or investigating the opinions, credentials of the government's expert and obtain a hearing 10 in advance of trial to determine the admissibility of qualifications of any expert. See Kumho Tire Co. v. 11 Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 1176 (1999) (trial judge is "gatekeeper" and must determine, 12 reliability and relevancy of expert testimony and such determinations may require "special briefing or other 13 proceedings"). 14

12.

Impeachment Evidence. Mr. Ortega requests any evidence that any prospective government

15 witness has engaged in any criminal act whether or not resulting in a conviction and whether any witness has 16 made a statement favorable to Mr. Ortega. See FED. R. EVID. 608, 609 and 613. Such evidence is 17 discoverable under Brady, 373 U.S. 83. See United States v. Strifler, 851 F.2d 1197 (9th Cir. 1988) (witness' 18 prior record); Thomas v. United States, 343 F.2d 49 (9th Cir. 1965) (evidence that detracts from a witness' 19 credibility). 20

13.

Evidence of Criminal Investigation of Any Government Witness. Mr. Ortega requests any

21 evidence that any prospective witness is under investigation by federal, state or local authorities for any 22 criminal conduct. United States v. Chitty, 760 F.2d 425 (2d Cir. 1985). 23

14.

Evidence of Bias or Motive to Lie. Mr. Ortega requests any evidence that any prospective

24 government witness is biased or prejudiced against Mr. Ortega, or has a motive to falsify or distort his or his 25 testimony. Pennsylvania v. Ritchie, 480 U.S. 39 (1987); Strifler, 851 F.2d 1197. 26

15.

Evidence Affecting Perception, Recollection, Ability to Communicate, or Veracity.

27 Mr. Ortega requests any evidence, including any medical or psychiatric report or evaluation, tending to show 28 that any prospective witness' ability to perceive, remember, communicate, or tell the truth is impaired; and

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1 any evidence that a witness has ever used narcotics or other controlled substance, or has ever been an 2 alcoholic. Strifler, 851 F.2d 1197; Chavis v. North Carolina, 637 F.2d 213, 224 (4th Cir. 1980). 3

16.

Witness Addresses. Mr. Ortega requests the name and last known address of each

4 prospective government witness. See United States v. Napue, 834 F.2d 1311 (7th Cir. 1987); United States 5 v. Tucker, 716 F.2d 576 (9th Cir. 1983) (failure to interview government witnesses by counsel is ineffective); 6 United States v. Cook, 608 F.2d 1175, 1181 (9th Cir. 1979) (defense has equal right to talk to witnesses). 7 Mr. Ortega also requests the name and last known address of every witness to the crime or crimes charged 8 (or any of the overt acts committed in furtherance thereof) who will not be called as a government witness. 9 United States v. Cadet, 727 F.2d 1453 (9th Cir. 1984). 10

17.

Name of Witnesses Favorable to the Defendant. Mr. Ortega requests the name of any witness

11 who made any arguably favorable statement concerning Mr. Ortega or who could not identify him or who 12 was unsure of his identity or participation in the crime charged. Jackson v. Wainwright, 390 F.2d 288 (5th 13 Cir. 1968); Chavis, 637 F.2d at 223; Jones v. Jago, 575 F.2d 1164, 1168 (6th Cir. 1978); Hudson v. 14 Blackburn, 601 F.2d 785 (5th Cir. 1979), cert. denied, 444 U.S. 1086 (1980). 15

18.

Statements Relevant to the Defense. Mr. Ortega requests disclosure of any statement that

16 may be "relevant to any possible defense or contention" that he might assert. United States v. Bailleaux, 17 685 F.2d 1105 (9th Cir. 1982). This includes grand jury transcripts that are relevant to the defense motion 18 to dismiss the indictment. 19

19.

Jencks Act Material. Mr. Ortega requests production in advance of the motion hearing or

20 trial of all material, including dispatch tapes, that the government must produce pursuant to the Jencks Act, 21 18 U.S.C. § 3500 and FED. R. CRIM. P. 26.2. A verbal acknowledgment that "rough" notes constitute an 22 accurate account of the witness' interview is sufficient for the report or notes to qualify as a statement under 23 section 3500(e)(1). Campbell v. United States, 373 U.S. 487, 490-92 (1963); see also United States v. 24 Boshell, 952 F.2d 1101 (9th Cir. 1991) (holding that interview notes constitutes Jencks material when an 25 agent reviews notes with the subject of the interview); see also United States v. Riley, 189 F.3d 802, 806-08 26 (9th Cir. 1999). Advance production will avoid the possibility of delay of the motion hearing or trial to allow 27 Mr. Ortega to investigate the Jencks material. Mr. Ortega requests pre-trial disclosure of such statements to 28

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1 avoid unnecessary recesses and delays and to allow defense counsel to prepare for, and use properly any 2 Jencks statements during cross-examination. 3

20.

Giglio Information. Pursuant to Giglio v. United States, 405 U.S. 150 (1972), Mr. Ortega

4 requests all statements and/or promises, expressed or implied, made to any government witnesses, in 5 exchange for their testimony in this case, and all other information that could arguably be used for the 6 impeachment of any government witnesses. 7

21.

Agreements Between the Government and Witnesses. Mr. Ortega requests discovery

8 regarding any express or implicit promise, understanding, offer of immunity, of past, present, or future 9 compensation, or any other kind of agreement or understanding, including any implicit understanding relating 10 to criminal or civil income tax, forfeiture or fine liability, between any prospective government witness and 11 the government (federal, state and/or local). This request also includes any discussion with a potential 12 witness about or advice concerning any immigration benefits, any contemplated prosecution, or any possible 13 plea bargain, even if no bargain was made or the advice not followed. 14

22.

Informants and Cooperating Witnesses. Mr. Ortega requests disclosure of the names and

15 addresses of all informants or cooperating witnesses used or to be used in this case, and in particular, 16 disclosure of any informant who was a percipient witness in this case or otherwise participated in the crime 17 charged against Mr. Ortega. The government must disclose the informant's identity and location, as well as 18 disclose the existence of any other percipient witness unknown or unknowable to the defense. Roviaro v. 19 United States, 353 U.S. 53, 61-62 (1957). The government must disclose any information derived from 20 informants that exculpates or tends to exculpate Mr. Ortega. 21

23.

Bias by Informants or Cooperating Witnesses. Mr. Ortega requests disclosure of any

22 information indicating bias on the part of any informant or cooperating witness. Giglio v. United States, 405 23 U.S. 150 (1972). Such information would include what, if any, inducements, favors, payments or threats were 24 made to the witness to secure cooperation with the authorities. 25

24.

Personnel Records of Government Officers Involved in the Arrest. Mr. Ortega requests all

26 citizen complaints and other related internal affairs documents involving any of the immigration officers or 27 other law enforcement officers who were involved in the investigation, arrest and interrogation of Mr. Ortega. 28

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1 See Pitchess v. Superior Court, 11 Cal. 3d 531, 539 (1974). Because of the sensitive nature of these 2 documents, defense counsel will be unable to procure them from any other source. 3

25.

Training of Relevant Law Enforcement Officers. Mr. Ortega requests copies of all written,

4 videotaped or otherwise recorded policies or training instructions or manuals issued by all law enforcement 5 agencies involved in the case (United States Customs Service, Border Patrol, INS, Department of 6 Homeland Security, etc.) to their employees regarding: (a) the handling of vehicles suspected to be 7 transporting contraband across the port of entry; (b) the referral to secondary inspection of persons within 8 those vehicles; (c) the detention of individuals within those vehicles; (d) the search of those vehicles and the 9 occupants of those vehicles, including the proper means of obtaining consent to search and what constitutes 10 consent to search; (e) the informing of suspects of their Constitutional rights; (f) the questioning of suspects 11 and witnesses. Mr. Ortega also requests all written or otherwise attainable information regarding the training 12 of Customs agents at ports of entry in California to detect or discover narcotics in vehicles entering the United 13 States, including any training offered to Border Patrol, INS, or officers of Homeland Security Department, 14 by the DEA or other law enforcement agencies or individuals. 15

26.

Performance Goals and Policy Awards. Mr. Ortega requests disclosure of information

16 regarding standards used for measuring, compensating or reprimanding the conduct of all law enforcement 17 officers involved in the case (Customs, Border Patrol, INS, etc.) to the extent such information relates to the 18 detection of contraband. This request specifically includes information concerning performance goals, policy 19 awards, and the standards used by Customs for commending, demoting, or promoting agents for their 20 performance at the port of entry and their success or failure to detect illegal narcotics in general. 21

27.

Opportunity to Weigh, View and Photograph the Contraband. Mr. Ortega hereby requests

22 an opportunity to view, photograph, and weigh the contraband allegedly confiscated in this case. 23

28.

DEA 7 Form. Mr. Ortega requests a copy of the DEA-7 form that should indicate the alleged

24 weight and purity of the contraband in this case. 25

29.

TECS Reports. Mr. Ortega requests all TECS reports, including reports pertaining to all

26 vehicle border crossings pertaining to the vehicle used in this case and any vehicles pertaining to Mr. Ortega. 27 Any prior border crossings are considered "other acts" evidence that the government must produce 28

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1 before trial. Vega, 188 F.3d at 1154. Mr. Ortega also requests all TECS reports related to his personal 2 border crossings (in this car, on foot, or in another car). 3

30.

Reports of Scientific Tests or Examinations. Pursuant to FED. R. CRIM. P. 16(a)(1)(F),

4 Mr. Ortega requests all information regarding all tests and examinations conducted upon the evidence in this 5 case, including, but not limited to, any fingerprint testing done upon any evidence seized in this case, that is 6 within the possession, custody, or control of the government, the existence of which is known, or by the 7 exercise of due diligence may become known, to the attorney for the government, and that are material to the 8 preparation of the defense or are intended for use by the government as evidence in chief at the trial. 9

31.

Narcotics Detector Dog Information. Mr. Ortega moves for production of all discoverable

10 information about any Narcotics Detector Dogs (NDDs) used in this case, including information regarding: 11 (a) the qualifications of the NDDs and their handlers, (b) the training and experience of the NDDs and their 12 handlers, (c) the government's procedures regarding the treatment, training and rewarding of the NDDs, 13 (d) a detailed description of the exact method the NDDs in this case used to indicate an "alert" to contraband, 14 and (e) the location of the NDD and the vehicle when the NDD alerted, and (f) the NDD's reliability. 15

32.

Residual Request. Mr. Ortega intends by this discovery motion to invoke his rights to

16 discovery to the fullest extent possible under the Federal Rules of Criminal Procedure and the Constitution 17 and laws of the United States. This request specifically includes all subsections of Rule 16. 18

Mr. Ortega requests that the government provide him and his attorney with the above requested

19 material at least three weeks before trial. 20 21 22

II. MOTION FOR LEAVE TO FILE FURTHER MOTIONS Defense counsel for Mr. Ortega has received only 37 pages of discovery and one DVD. She believes

23 that discovery is not yet complete. Furthermore, defense counsel has not yet had an opportunity to examine 24 and re-weigh the drugs at issue in this case or to view the vehicle seized and Mr. Ortega's personal effects. 25 Mr. Ortega respectfully requests leave to file further motions based on information obtained through the 26 discovery process or as the need arises. 27 // 28 //

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1 2 3 4 5 6 DATED: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

III. CONCLUSION For the foregoing reasons, Mr. Ortega respectfully requests that the Court grant the above motions. Respectfully submitted,

July 28, 2008

/s/ Shaffy Moeel SHAFFY MOEEL Federal Defenders of San Diego, Inc. Attorneys for Ortega

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1 2

CERTIFICATE OF SERVICE Counsel for Defendant certifies that the foregoing pleading is true and accurate to the best of her information

3 and belief, and that a copy of the foregoing document has been served this day upon: 4 Paul Cook

[email protected]; [email protected]
5 6 Dated: July 28, 2008 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

/s/ Shaffy Moeel SHAFFY MOEEL Federal Defenders of San Diego, Inc. 225 Broadway, Suite 900 San Diego, CA 92101-5030 (619) 234-8467 (tel) (619) 687-2666 (fax) e-mail: [email protected]

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