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

Case 3:08-cr-00611-JM

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Filed 03/16/2008

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1 MARILYN B. GUNNER, ESQ. SB# 149540 P.O. Box 605 2 La Mesa, Ca. 91944-0605 Telephone: (619) 461-8716 3 Fax: (619) 461-6795 4 Attorney for Material Witnesses 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 8 UNITED STATES OF AMERICA, 9 10 v. Plaintiff, ) ) ) ) ) ) ) ) ) ) ) Criminal Case No. 08cr0611 JM Magistrate No: 08mj8148 PCL NOTICE OF MOTION; MOTION FOR VIDEOTAPE DEPOSITION AND RELEASE OF MATERIAL WITNESSES Hearing Date: February 1,2008 Time: 1:30 p.m. Judge: Lewis

11 SERGIO ANGEL DIAZ (1), JASMINE MARIE AYALA (2), 12 Defendants. 13 14

TO KAREN P. HEWITT,UNITED STATES ATTORNEY, ALESSANDRA P. SERANO,

15 ASSISTANT UNITED STATES ATTORNEY, BRIAN J. WHITE, ATTORNEY FOR 16 DEFENDANT SERGIO ANGEL DIAZ, and SHAUN KHOYAYAN, ATTORNEY FOR

17 DEFENDANT JASMINE MARIE AYALA: 18 PLEASE TAKE NOTICE that on February 1, 2008 at 1:30 p.m.,

19 counsel will move this court for an order to take the deposition of 20 Material Witnesses ADOLFO VARGAS-GUTIERREZ, ("MR. VARGAS"), JESUS 21 ANTONIO VILLANUEVA-GUTIERREZ, (" MR. VILLANUEVA"), and JOSE LUIS 22 ESTRADA-VASQUEZ 23 Witnesses". 24 25 The Material Witnesses, MOTION through their counsel, MARILYN B. ("MR. ESTRADA"), collectively the "Material

26 GUNNER, and pursuant to Fed. R. Crim. P. Rule 15, 8 U.S.C. Section 27 1324 (d), 18 U.S.C. Section 3144, and 18 U.S.C. Section 3142, hereby 28 move this court for an order to take their deposition by videotape.
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1

In support of this request, the Material Witnesses submit the

2 following Memorandum of Points and Authorities in Support of Motion 3 for Videotape here Deposition as and Release A" and of Material Witnesses, herein by

4 identified

"Attachment

incorporated

5 reference, the records in the above-entitled case and all matters 6 submitted to the court prior to the determination of this motion. 7 8 Dated: March 16, 2008 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
US
V.

S/ MARILYN B. GUNNER Attorney for Material Witnesses E-MAIL: [email protected]

DIAZ

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1 US v. DIAZ, et.al. 08mj8148 PCL; 08cr0611 JM 2 3 ATTACHMENT A MOTION FOR

4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF VIDEOTAPE DEPOSITION AND RELEASE OF MATERIAL WITNESSES 5 6 7 STATEMENT OF FACTS

The Material Witnesses were detained on February 16, 2008.

They

8 were found inside a travel trailer driven by Defendant DIAZ, along 9 with 10 others who were determined to be here illegally. 10 AYALA was a passenger in the trailer driven by DIAZ. 11 On March 4, 2008, both Defendants were Indicted on three counts Defendant

12 of violation of Title 18, U.S.C. § 1324(a)(1)(A)(ii) and (v)(II) 13 Transportation of Illegal Aliens and Aiding and Abetting. 14 As of the date of this motion, none of these Material Witnesses

15 have been able to find someone who will sign a bond on their behalf. 16 Ongoing efforts are being made to find sureties. 17 this Motion, the 18 MR. As of the date of

Witnesses will have been in custody nearly 6 weeks. In Mexico,

VARGAS has no prospects of obtaining a surety.

19 he supports his Mother who is ill.

He has equivalent to a 6th grade

20 education, and was coming to the United States to work, in order to 21 help support her. Requiring him to stay in custody constitutes a

22 severe economic and emotional hardship for him and his family. 23 MR. VILLANUEVA recently lost his Mother, and is working to He has equivalent to a 9th

24 support his elderly father in Mexico. 25 grade education.

Requiring him to stay in custody also creates an

26 economic and emotional hardship for his father, who depends on him. 27 MR. ESTRADA supports 3 children in Mexico, ages 11 months, 4

28 years and 6 years, and has equivalent of a 9th grade education.
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1 Keeping him in custody while the case is pending constitutes severe 2 economic and emotional hardship for his children. 3 Besides the economic and emotional hardship, each Material

4 Witnesses' loss of freedom from being incarcerated, while not charged 5 with any crime, constitutes extraordinary circumstances which require 6 granting this Motion to achieve their release. 7 8 9 THE TESTIMONY OF THE MATERIAL WITNESSES CAN BE SECURED BY VIDEOTAPE DEPOSITIONS AND THERE IS NO COMPELLING REASON TO KEEP THEM IN CUSTODY. Depositions of material witnesses may be used at trial in

10 criminal cases, so it is only in exceptional circumstances, where the 11 interests of justice will be denied, that a videotape deposition is 12 not appropriate. [See IIRIRA § 219 (admissibility of videotape

13 depositions); see also, United States v. King 552 F.2d 933 (9th Cir. 14 1976)(cert. denied, 430 U.S. 966).] The defendant, who is ordered to

15 be present with his counsel at the videotape depositions, has a full 16 and fair opportunity to cross-examine the witnesses. The videotape

17 provides sufficient indicia of reliability to afford the trier of fact 18 a satisfactory basis for evaluating the truth of a statement. [Dutton 19 v. Evans, 400 U.S. 74,89 (1970).] 20 The burden is on the objecting party to show that the use of the

21 deposition testimony will deny the defendant a fair trial and that the 22 live testimony would somehow be significantly different then that 23 taken at the deposition. [United States v. Humberto Rivera, 859 F.2d 24 1294, 1208 (4th Cir. 1988).] 25 In Torres-Ruiz v. United States, 120 F.3d. 933,(9th Cir.

26 1997), the Ninth Circuit mandated the use of videotape depositions 27 when the Material Witnesses' testimony can be adequately secured by 28 deposition and further detention is not necessary to prevent the
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1 failure of justice. (emphasis added; see 18 U.S.C. § 3144) In 2 Torres-Ruiz, a routine alien smuggling case, the witnesses were 3 sole support of their families in Mexico, and their continued 4 incarceration constituted a hardship on them and their families in 5 Mexico, who depended on them for support. The Torres-Ruiz Court

6 clarified that denial of a motion to videotape the witness' 7 testimony is limited to situations in which a "failure of justice" 8 would occur because the deposition would not serve as an adequate 9 substitute for the witness' live testimony. 10 As of the date of this Motion, the Material Witnesses have

11 been in custody almost two months, although not charged with a 12 crime. Continued incarceration constitutes severe economic and

13 emotional hardship for them and their families who depend on them 14 for financial support. It is not necessary to continue to detain

15 them, because no failure of justice would occur by videotaping 16 their testimony. Their testimony can be adequately secured by

17 granting this Motion, and there has been no showing that the 18 deposition testimony would be different from the live testimony. 19 Further, they are subject to the subpoena power of this Court. 20 Therefore, it is requested the Court grant this Motion and

21 order the videotape depositions of the Material Witnesses to occur 22 forthwith. The Material Witnesses also request the Court order

23 their immediate release upon conclusion of the depositions. 24 25 DATED: March 16, 2008 26 27 28
US
V.

S/ MARILYN B. GUNNER Attorney for Material Witnesses, E-MAIL: [email protected]

DIAZ

ET . AL .

M OT . FOR V IDEOTAPE D EPO .

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