Free Motion to Compel - 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 Emad Salahshoor 6 7 8 9 10

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE DANA M. SABRAW) ) ) Plaintiff, ) ) v. ) ) EMAD SALAHSHOOR, ) ) Defendant. ) ______________________________________ ) I. MOTION TO COMPEL DISCOVERY AND PRESERVE EVIDENCE Mr. Salahshoor moves for the production by the government of the following discovery and for the Case No. 08CR0101-DMS DATE: TIME: March 14, 2008 11:00 a.m.

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

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

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

1.

The Defendant's Statements. The government must disclose to Mr. Salahshoor all copies

25 of any written or recorded statements made by Mr. Salahshoor; the substance of any statements made by 26 Mr. Salahshoor that the government intends to offer in evidence at trial; any response by Mr. Salahshoor to 27 interrogation; the substance of any oral statements that the government intends to introduce at trial and any 28 written summaries of Mr. Salahshoor's oral statements contained in the handwritten notes of the government

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

2.

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

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

3.

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

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

4.

Any Information That May Result in a Lower Sentence.

As discussed above, any

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

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5.

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

2 P. 16(a)(1)(D). Mr. Salahshoor specifically requests a complete copy of any criminal record. 3

6.

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

4 FED. R. CRIM. P. 16(a)(1)(D) and FED. R. EVID. 404(b) and 609. In addition, under FED. R. EVID. 404(b), 5 "upon request of the accused, the prosecution . . . shall provide reasonable notice in advance of trial . . . of 6 the general nature . . .." of any evidence the government proposes to introduce under FED. R. EVID. 404(b) 7 at trial. Sufficient notice requires the government to "articulate precisely the evidential hypothesis by which 8 a fact of consequence may be inferred from the other acts evidence." United States v. Mehrmanesh, 689 F.2d 9 822, 830 (9th Cir. 1982) (emphasis added; internal citations omitted); see also United States v. Brooke, 4 F.3d 10 1480, 1483 (9th Cir. 1993) (reaffirming Mehrmanesh and reversing convictions). 11

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

12 to introduce at trial, whether in its case-in-chief, impeachment, or rebuttal. Although there is nothing 13 intrinsically improper about prior border crossings, they are nonetheless subject to 404(b), as they are "other 14 acts" evidence that the government must produce before trial. United States v. Vega, 188 F.3d 1150, 1154-55 15 (9th Cir. 1999). Mr. Salahshoor requests that such notice be given three weeks before trial to give the defense 16 time to adequately investigate and prepare for trial. 17

7.

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

18 warrant, is discoverable under FED. R. CRIM. P. 16(a)(1)(E). 19

8.

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

20 tapes or any other physical evidence that may be destroyed, lost, or otherwise put out of the possession, 21 custody, or care of the government and that relate to the arrest or the events leading to the arrest in this case 22 be preserved. This request includes, but is not limited to, any samples of narcotics used to run any scientific 23 tests, all narcotics, the results of any fingerprint analysis, the vehicle involved in the case, Mr. Salahshoor's 24 personal effects, and any evidence seized from Mr. Salahshoor or any third party. This request also includes 25 any material or percipient witnesses who might be deported or otherwise likely to become unavailable (e.g., 26 undocumented aliens and transients). 27 28

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

2 in the prosecution and investigation of this case to determine if such evidence exists, and if it does exist, to 3 inform those parties to preserve any such evidence. 4

9.

Henthorn Material. Mr. Salahshoor requests that the Assistant United States Attorney

5 ("AUSA") assigned to this case oversee (not personally conduct) a review of all personnel files of each agent 6 involved in the present case for impeachment material. See Kyles v. Whitley, 514 U.S. 419, 437-38 (1995) 7 (holding that "the individual prosecutor has a duty to learn of any favorable evidence known to the others 8 acting on the government's behalf in the case, including the police"); United States v. Henthorn, 931 F.2d 9 29 (9th Cir. 1991). This request includes, but is not limited to, any complaints filed (by a member of the 10 public, by another agent, or any other person) against the agent, whether or not the investigating authority 11 has taken any action, as well as any matter for which a disciplinary review was undertaken, whether or not 12 any disciplinary action was ultimately recommended. Mr. Salahshoor further requests production of any such 13 information at least one week prior to the motion hearing and two weeks prior to trial. If the prosecutor is 14 uncertain whether certain information should be disclosed pursuant to this request, this information should 15 be produced to the Court in advance of the motion hearing and the trial for an in camera inspection. 16

10.

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

17 necessary, all other documents and tangible objects, including photographs, books, papers, documents, 18 alleged narcotics, fingerprint analyses, vehicles, or copies of portions thereof, that are material to the defense 19 or intended for use in the government's case-in-chief or were obtained from or belong to Mr. Salahshoor. 20 FED. R. CRIM. P. 16(a)(1)(E). Specifically, Mr. Salahshoor requests color copies of all photographs in the 21 government's possession of the alleged narcotics and the vehicle in which the narcotics were found. If the 22 prosecutor does not wish to make these copies, Mr. Salahshoor requests the opportunity to do so himself. 23

11.

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

24 of the testimony of any person that the government intends to call as an expert witness during its case in chief. 25 FED. R. CRIM. P. 16(a)(1)(G). This summary should include a description of the witness' opinion(s), as well 26 as the bases and the reasons for the opinion(s). See United States v. Duvall, 272 F.3d 825 (7th Cir. 2001) 27 (finding that government's written expert notice did not adequately summarize or describe police detective's 28 testimony in drug prosecution where notice provided only a list of the general subject matters to be covered

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1 and failed to identify what opinion the expert would offer on those subjects). This request includes, but is 2 not limited to, disclosure of the qualifications of any government witness who will testify that he understands 3 and/or any other foreign language that may have been used during the course of an interview with 4 Mr. Salahshoor or any other witness. 5

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

6 prior to trial so that the defense can properly prepare to address and respond to this testimony, including 7 obtaining its own expert and/or investigating the opinions, credentials of the government's expert and obtain 8 a hearing in advance of trial to determine the admissibility of qualifications of any expert. See Kumho Tire 9 Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 1176 (1999) (trial judge is "gatekeeper" and must 10 determine, reliability and relevancy of expert testimony and such determinations may require "special briefing 11 or other proceedings"). 12

12.

Impeachment Evidence. Mr. Salahshoor requests any evidence that any prospective

13 government witness has engaged in any criminal act whether or not resulting in a conviction and whether any 14 witness has made a statement favorable to Mr. Salahshoor. See FED. R. EVID. 608, 609 and 613. Such 15 evidence is discoverable under Brady, 373 U.S. 83. See United States v. Strifler, 851 F.2d 1197 (9th Cir. 16 1988) (witness' prior record); Thomas v. United States, 343 F.2d 49 (9th Cir. 1965) (evidence that detracts 17 from a witness' credibility). 18

13.

Evidence of Criminal Investigation of Any Government Witness. Mr. Salahshoor requests

19 any evidence that any prospective witness is under investigation by federal, state or local authorities for any 20 criminal conduct. United States v. Chitty, 760 F.2d 425 (2d Cir. 1985). 21

14.

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

22 prospective government witness is biased or prejudiced against Mr. Salahshoor, or has a motive to falsify or 23 distort his or his testimony. Pennsylvania v. Ritchie, 480 U.S. 39 (1987); Strifler, 851 F.2d 1197. 24

15.

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

25 Mr. Salahshoor requests any evidence, including any medical or psychiatric report or evaluation, tending to 26 show that any prospective witness' ability to perceive, remember, communicate, or tell the truth is impaired; 27 and any evidence that a witness has ever used narcotics or other controlled substance, or has ever been an 28 alcoholic. Strifler, 851 F.2d 1197; Chavis v. North Carolina, 637 F.2d 213, 224 (4th Cir. 1980).

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16.

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

2 prospective government witness. See United States v. Napue, 834 F.2d 1311 (7th Cir. 1987); United States 3 v. Tucker, 716 F.2d 576 (9th Cir. 1983) (failure to interview government witnesses by counsel is ineffective); 4 United States v. Cook, 608 F.2d 1175, 1181 (9th Cir. 1979) (defense has equal right to talk to witnesses). 5 Mr. Salahshoor also requests the name and last known address of every witness to the crime or crimes 6 charged (or any of the overt acts committed in furtherance thereof) who will not be called as a government 7 witness. United States v. Cadet, 727 F.2d 1453 (9th Cir. 1984). 8

17.

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

9 witness who made any arguably favorable statement concerning Mr. Salahshoor or who could not identify 10 him or who was unsure of his identity or participation in the crime charged. Jackson v. Wainwright, 390 F.2d 11 288 (5th Cir. 1968); Chavis, 637 F.2d at 223; Jones v. Jago, 575 F.2d 1164, 1168 (6th Cir. 1978); Hudson v. 12 Blackburn, 601 F.2d 785 (5th Cir. 1979), cert. denied, 444 U.S. 1086 (1980). 13

18.

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

14 that may be "relevant to any possible defense or contention" that he might assert. United States v. Bailleaux, 15 685 F.2d 1105 (9th Cir. 1982). This includes grand jury transcripts that are relevant to the defense motion 16 to dismiss the indictment. 17

19.

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

18 or trial of all material, including dispatch tapes, that the government must produce pursuant to the Jencks Act, 19 18 U.S.C. § 3500 and FED. R. CRIM. P. 26.2. A verbal acknowledgment that "rough" notes constitute an 20 accurate account of the witness' interview is sufficient for the report or notes to qualify as a statement under 21 section 3500(e)(1). Campbell v. United States, 373 U.S. 487, 490-92 (1963); see also United States v. 22 Boshell, 952 F.2d 1101 (9th Cir. 1991) (holding that interview notes constitutes Jencks material when an 23 agent reviews notes with the subject of the interview); see also United States v. Riley, 189 F.3d 802, 806-08 24 (9th Cir. 1999). Advance production will avoid the possibility of delay of the motion hearing or trial to allow 25 Mr. Salahshoor to investigate the Jencks material. Mr. Salahshoor requests pre-trial disclosure of such 26 statements to avoid unnecessary recesses and delays and to allow defense counsel to prepare for, and use 27 properly any Jencks statements during cross-examination. 28

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20.

Giglio Information.

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

2 Mr. Salahshoor requests all statements and/or promises, expressed or implied, made to any government 3 witnesses, in exchange for their testimony in this case, and all other information that could arguably be used 4 for the impeachment of any government witnesses. 5

21.

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

6 regarding any express or implicit promise, understanding, offer of immunity, of past, present, or future 7 compensation, or any other kind of agreement or understanding, including any implicit understanding relating 8 to criminal or civil income tax, forfeiture or fine liability, between any prospective government witness and 9 the government (federal, state and/or local). This request also includes any discussion with a potential 10 witness about or advice concerning any immigration benefits, any contemplated prosecution, or any possible 11 plea bargain, even if no bargain was made or the advice not followed. 12

22.

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

13 addresses of all informants or cooperating witnesses used or to be used in this case, and in particular, 14 disclosure of any informant who was a percipient witness in this case or otherwise participated in the crime 15 charged against Mr. Salahshoor. The government must disclose the informant's identity and location, as well 16 as disclose the existence of any other percipient witness unknown or unknowable to the defense. Roviaro v. 17 United States, 353 U.S. 53, 61-62 (1957). The government must disclose any information derived from 18 informants that exculpates or tends to exculpate Mr. Salahshoor. 19

23.

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

20 information indicating bias on the part of any informant or cooperating witness. Giglio v. United States, 405 21 U.S. 150 (1972). Such information would include what, if any, inducements, favors, payments or threats were 22 made to the witness to secure cooperation with the authorities. 23

24.

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

24 all citizen complaints and other related internal affairs documents involving any of the immigration officers 25 or other law enforcement officers who were involved in the investigation, arrest and interrogation of 26 Mr. Salahshoor. See Pitchess v. Superior Court, 11 Cal. 3d 531, 539 (1974). Because of the sensitive nature 27 of these documents, defense counsel will be unable to procure them from any other source. 28

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25.

Training of Relevant Law Enforcement Officers. Mr. Salahshoor requests copies of all

2 written, videotaped or otherwise recorded policies or training instructions or manuals issued by all law 3 enforcement agencies involved in the case (United States Customs Service, Border Patrol, INS, Department 4 of Homeland Security, etc.) to their employees regarding: (a) the handling of vehicles suspected to be 5 transporting contraband across the port of entry; (b) the referral to secondary inspection of persons within 6 those vehicles; (c) the detention of individuals within those vehicles; (d) the search of those vehicles and the 7 occupants of those vehicles, including the proper means of obtaining consent to search and what constitutes 8 consent to search; (e) the informing of suspects of their Constitutional rights; (f) the questioning of suspects 9 and witnesses. Mr. Salahshoor also requests all written or otherwise attainable information regarding the 10 training of Customs agents at ports of entry in California to detect or discover narcotics in vehicles entering 11 the United States, including any training offered to Border Patrol, INS, or officers of Homeland Security 12 Department, by the DEA or other law enforcement agencies or individuals. 13

26.

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

14 regarding standards used for measuring, compensating or reprimanding the conduct of all law enforcement 15 officers involved in the case (Customs, Border Patrol, INS, etc.) to the extent such information relates to the 16 detection of contraband. This request specifically includes information concerning performance goals, policy 17 awards, and the standards used by Customs for commending, demoting, or promoting agents for their 18 performance at the port of entry and their success or failure to detect illegal narcotics in general. 19

27.

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

20 requests an opportunity to view, photograph, and weigh the contraband allegedly confiscated in this case. 21

28.

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

22 alleged weight and purity of the contraband in this case. 23

29.

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

24 all vehicle border crossings pertaining to the vehicle used in this case and any vehicles pertaining to 25 Mr. Salahshoor. Any prior border crossings are considered "other acts" evidence that the government 26 must produce before trial. Vega, 188 F.3d at 1154. Mr. Salahshoor also requests all TECS reports related 27 to his personal border crossings (in this car, on foot, or in another car). 28

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30.

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

2 Mr. Salahshoor requests all information regarding all tests and examinations conducted upon the evidence 3 in this case, including, but not limited to, any fingerprint testing done upon any evidence seized in this case, 4 that is within the possession, custody, or control of the government, the existence of which is known, or by 5 the exercise of due diligence may become known, to the attorney for the government, and that are material 6 to the preparation of the defense or are intended for use by the government as evidence in chief at the trial. 7

31.

Narcotics Detector Dog Information.

Mr. Salahshoor moves for production of all

8 discoverable information about any Narcotics Detector Dogs (NDDs) used in this case, including information 9 regarding: (a) the qualifications of the NDDs and their handlers, (b) the training and experience of the NDDs 10 and their handlers, (c) the government's procedures regarding the treatment, training and rewarding of the 11 NDDs, (d) a detailed description of the exact method the NDDs in this case used to indicate an "alert" to 12 contraband, and (e) the location of the NDD and the vehicle when the NDD alerted, and (f) the NDD's 13 reliability. 14

32.

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

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

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

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

II. MOTION FOR LEAVE TO FILE FURTHER MOTIONS Defense counsel for Mr. Salahshoor has received only 50 pages of discovery. She believes that

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

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1 2 3 4 motions. 5 6 7 DATED: 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. Salahshoor respectfully requests that the Court grant the above

Respectfully submitted,

March 7, 2008

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

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

3 information and belief, and that a copy of the foregoing document has been served this day upon: 4 Marc Conover 5 6

Assistant United States Attorney

U S Attorney CR 7 [email protected]
8 Dated: March 7, 2008 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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