Free Motion for Discovery - District Court of California - California

Case 3:08-cr-00081-IEG

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Filed 01/14/2008

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1 ROBERT H. REXRODE, III California State Bar No. 230024 2 427 C Street, Suite 300 San Diego, California 92101 3 Telephone: (619) 233-3169, Ext. 13 Facsimile: (619) 684-3553 4 [email protected] 5 Attorneys for Mr. Cesar Hernandez-Guillen 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 (HONORABLE IRMA E. GONZALEZ) 10 UNITED STATES OF AMERICA, 11 Plaintiff, 12 v. 13 CESAR HERNANDEZ-GUILLEN, 14 15 16 17 18 Defendant. _________________________________ ) ) ) ) ) ) ) ) ) ) I. FACTUAL & PROCEDURAL HISTORY1 On November 7, 2007, immigration officers arrested Mr. Hernandez-Guillen just east of the CASE NO. 08cr0081-IEG STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTIONS.

19 Otasy Mesa Port of Entry. They did so suspecting that Mr. Hernandez-Guillen was in the country 20 illegally. When first contacted by agents, Mr. Hernandez-Guillen gave inculpatory statements to 21 agents. Later, during a formal interrogation, Mr. Hernandez-Guillen again made inculpatory 22 statements to agents. 23 With previous counsel, Mr. Hernandez-Guillen agreed to waive indictment and was

24 ultimately arraigned on an information in Case No. 07cr3287-IEG. After requesting and receiving 25 26 27 The following facts are based on information provided by the government. Mr. Hernandez28 Guillen does not admit their accuracy and reserves the right to challenge them.
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1 new counsel, Mr. Hernandez-Guillen informed the government that he would not be pleading to the 2 information in Case No. 07cr3287-IEG.2 3 On January 9, 2008, before the January 2007 Grand Jury, the government indicted

4 Mr. Hernandez-Guillen on one count of attempted re-entry following deportation, in violation of 8 5 U.S.C. § 1326. Mr. Hernandez-Guillen has yet to be arraigned on this indictment. Anticipating re6 appointment in this case, however, defense counsel files these motions. 7 8 9 II. MOTION COMPEL DISCOVERY Mr. Hernandez-Guillen requests the following discovery. His request is not limited to those

10 items that the prosecutor knows of. It includes all discovery listed below that is in the custody, 11 control, care, or knowledge of any "closely related investigative [or other] agencies." See United 12 States v. Bryan, 868 F.2d 1032 (9th Cir. 1989). 13 (1) Brady Information. The defendant requests all documents, statements, agents' reports,

14 and tangible evidence favorable to the defendant on the issue of guilt and/or which affects the 15 credibility of the government's case. Under Brady v. Maryland, 373 U.S. 83 (1963), impeachment 16 as well as exculpatory evidence falls within the definition of evidence favorable to the accused. 17 United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 427 U.S. 97 (1976). 18 (2) Any Proposed 404(b) Evidence. The government must produce evidence of prior similar

19 acts under Fed. R. Crim. P. 16(a)(1) and Fed. R. Evid. 404(b) and any prior convictions which would 20 be used to impeach as noted in Fed. R. Crim. P. 609. In addition, under Fed. R. Evid. 404(b), "upon 21 request of the accused, the prosecution . . . shall provide reasonable notice in advance of trial . . . of 22 the general nature" of any evidence the government proposes to introduce under Fed. R. Evid. 404(b) 23 at trial. The defendant requests notice two weeks before trial to give the defense time to investigate 24 and prepare for trial. 25 (3) Request for Preservation of Evidence. The defendant requests the preservation of all

26 physical evidence that may be destroyed, lost, or otherwise put out of the possession, custody, or care 27 28 Magistrate Judge Bencivengo appointed present counsel in Case No. 07cr3287-IEG on December 20, 2007. 2 08cr0081
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1 of the government and which relate to the arrest or the events leading to the arrest in this case. This 2 request includes, but is not limited to, the results of any fingerprint analysis, the defendant's personal 3 effects, and any evidence seized from the defendant or any third party. 4 (4) Defendant's Statements. The defendant requests disclosure and production of all

5 statements made by the defendant. This request includes, but is not limited to, the substance of any 6 oral statement made by the defendant, Fed. R. Crim. P. 16(a)(1)(A), and any written or recorded 7 statement made by the defendant. Fed. R. Crim. P. 16(a)(1)(B)(i)-(iii). 8 (5) Tangible Objects. The defendant seeks to inspect and copy as well as test, if necessary,

9 all other documents and tangible objects, including photographs, books, papers, documents, alleged 10 narcotics, fingerprint analyses, vehicles, or copies of portions thereof, which are material to the 11 defense or intended for use in the government's case-in-chief or were obtained from or belong to the 12 defendant. Fed. R. Crim. P. 16(a)(1)(E). This request specifically incorporates a request for a 13 copy of Mr. Hernandez-Guillen's "A-File" and any tapes of any deportation hearing involving 14 Mr. Hernandez-Guillen. 15 (6) Expert Witnesses. The defendant requests the name, qualifications, and a written

16 summary of the testimony of any person that the government intends to call as an expert witness 17 during its case in chief. Fed. R. Crim. P. 16(a)(1)(G). 18 (7) Witness Addresses. The defendant requests access to the government's witnesses. Thus,

19 counsel requests a witness list and contact phone numbers for each prospective government witness. 20 Counsel also requests the names and contact numbers for 21 witnesses to the crime or crimes charged (or any of the overt acts committed in furtherance thereof) 22 who will not be called as government witnesses. 23 (8) Jencks Act Material. Mr. Hernandez-Guillen requests production in advance of trial of

24 material discoverable under the Jencks Act, 18 U.S.C. § 3500. Advance production will avoid 25 needless delays at pretrial hearings and at trial. This request includes any "rough" notes taken by the 26 agents in this case. This request also includes production of transcripts of the testimony of any 27 witness before the grand jury. See 18 U.S.C. § 3500(e)(1)-(3). 28 3 08cr0081

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(9) Informants and Cooperating Witnesses. Mr. Hernandez-Guillen requests disclosure of

2 the name(s), address(es), and location(s) of all informants or cooperating witnesses used or to be 3 used in this case, and in particular, disclosure of any informant who was a percipient witness in this 4 case or otherwise participated in the crime charged against Mr. Hernandez-Guillen. Roviaro v. 5 United States, 353 U.S. 52, 61-62 (1957). The government must disclose any information derived 6 from informants which exculpates or tends to exculpate Mr. Hernandez-Guillen. Brady v. Maryland, 7 373 U.S. 83 (1963). The government must disclose any information indicating bias on the part of 8 any informant or cooperating witness. Id. 9 (10) Residual Request. Mr. Hernandez-Guillen intends by this discovery motion to invoke

10 his rights to discovery to the fullest extent possible under the Federal Rules of Criminal Procedure 11 and the Constitution and laws of the United States. 12 13 14 III. MOTION FOR LEAVE TO FILE FURTHER MOTIONS Mr. Hernandez-Guillen has received eighty pages of discovery. He requests leave to file

15 further motions if necessary. 16 17 18 19 20 Dated: January 14, 2008 21 22 23 24 25 26 27 28 4 08cr0081 IV. CONCLUSION Mr. Hernandez-Guillen requests this Court grant his motions. Respectfully submitted, /s/ Robert H. Rexrode ROBERT H. REXRODE, III Attorney for Mr. Hernandez-Guillen [email protected]