Free Motion to Compel - District Court of California - California

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1 ELLIS M. JOHNSTON III California State Bar No. 223664 2 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 3 San Diego, California 92101-5008 Telephone: (619) 234-8467 4 5 Attorneys for Mr. Rivas 6 7 8 9 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE WILLIAM Q. HAYES) ) ) ) ) ) ) ) ) ) ) I. STATEMENT OF FACTS The following statement of facts is based, in part, on materials received from the government. CASE NO. 08cr0083-WQH DATE: FEBRUARY 19, 2008 TIME: 2:00 PM MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTIONS

11 UNITED STATES OF AMERICA, 12 13 v. 14 JULIO RIVAS-GARCIA, 15 16 17 18 19 Defendant. Plaintiff,

20 Mr. Rivas does not accept this statement of facts as his own, and reserves the right to take a contrary position 21 at motion hearings and trial. Mr. Rivas reserves the right to challenge the truth and accuracy of these facts 22 in any subsequent pleadings or during any further proceedings. 23 Agents of the United States Border Patrol arrested Mr. Rivas on December 23, 2007, in the

24 Southern District of California. On January 9, 2008, Mr. Rivas was arraigned on an indictment alleging a 25 violation of 8 U.S.C. §1326, specifically being found in the United States after deportation. He pled not 26 guilty. These motions follow. 27 // 28 //

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II. MOTION TO COMPEL DISCOVERY/PRESERVE EVIDENCE Mr. Rivas moves for the production of the following discovery. This request is not limited to

4 those items that the prosecutor knows of, but rather includes all discovery listed below that is in the custody, 5 control, care, or knowledge of any "closely related investigative [or other] agencies." See United States v. 6 Bryan, 868 F.2d 1032 (9th Cir.), cert. denied, 493 U.S. 858 (1989). 7 (1) The Defendant's Statements. The Government must disclose to the defendant all copies

8 of any written or recorded statements made by the defendant; the substance of any statements made by the 9 defendant which the Government intends to offer in evidence at trial; any response by the defendant to 10 interrogation; the substance of any oral statements which the Government intends to introduce at trial and any 11 written summaries of the defendant's oral statements contained in the handwritten notes of the Government 12 agent; any response to any Miranda warnings which may have been given to the defendant; as well as any 13 other statements by the defendant. Fed. R. Crim. P. 16(a)(1)(A). The Advisory Committee Notes and the 14 1991 amendments to Rule 16 make clear that the Government must reveal all the defendant's statements, 15 whether oral or written, regardless of whether the government intends to make any use of those statements. 16 (2) Arrest Reports, Notes and Dispatch Tapes. The defendant also specifically requests the

17 Government to turn over all arrest reports, notes, dispatch or any other tapes, and TECS records that relate 18 to the circumstances surrounding his arrest or any questioning. This request includes, but is not limited to, 19 any rough notes, records, reports, transcripts or other documents in which statements of the defendant or any 20 other discoverable material is contained. Such material is discoverable under Fed. R. Crim. P. 16(a)(1)(A) 21 and Brady v. Maryland, 373 U.S. 83 (1963). The Government must produce arrest reports, investigator's 22 notes, memos from arresting officers, dispatch tapes, sworn statements, and prosecution reports pertaining 23 to the defendant. See Fed. R. Crim. P. 16(a)(1)(B) and (C), Fed. R. Crim. P. 26.2 and 12(I). 24 (3) Brady Material. The defendant requests all documents, statements, agents' reports, and

25 tangible evidence favorable to the defendant on the issue of guilt and/or which affects the credibility of the 26 Government's case. Under Brady, impeachment as well as exculpatory evidence falls within the definition 27 of evidence favorable to the accused. United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 28 427 U.S. 97 (1976).

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(4) Any Information That May Result in a Lower Sentence Under The Guidelines. The

2 Government must produce this information under Brady v. Maryland, 373 U.S. 83 (1963). This request 3 includes any cooperation or attempted cooperation by the defendant as well as any information that could 4 affect any base offense level or specific offense characteristic under Chapter Two of the Guidelines. The 5 defendant also requests any information relevant to a Chapter Three adjustment, a determination of the 6 defendant's criminal history, and information relevant to any other application of the Guidelines. 7 (5) The Defendant's Prior Record. The defendant requests disclosure of his prior record. Fed.

8 R. Crim. P. 16(a)(1)(B). 9 (6) Any Proposed 404(b) Evidence. The government must produce evidence of prior similar

10 acts under Fed. R. Crim. P. 16(a)(1)(C) and Fed. R. Evid. 404(b) and 609. In addition, under Rule 404(b), 11 "upon request of the accused, the prosecution . . . shall provide reasonable notice in advance of trial . . . of the 12 general nature . . ." of any evidence the government proposes to introduce under Fed. R. Evid. 404(B) at trial. 13 The defendant requests that such notice be given three (3) weeks before trial in order to give the defense time 14 to adequately investigate and prepare for trial. 15 (7) Evidence Seized. The defendant requests production of evidence seized as a result of any

16 search, either warrantless or with a warrant. Fed. R. Crim. P. 16(a)(1)(C). 17 (8) Request for Preservation of Evidence. The defendant specifically requests the preservation

18 of all dispatch tapes or any other physical evidence that may be destroyed, lost, or otherwise put out of the 19 possession, custody, or care of the Government and which relate to the arrest or the events leading to the arrest 20 in this case. 21 (9) Tangible Objects. The defendant requests the opportunity to inspect and copy as well as

22 test, if necessary, all other documents and tangible objects, including photographs, books, papers, documents, 23 fingerprint analyses, vehicles, or copies of portions thereof, which are material to the defense or intended for 24 use in the Government's case-in-chief or were obtained from or belong to the defendant. Fed. R. Crim. P. 25 16(a)(2)(C). Specifically, the defendant requests to view the A-File. 26 (10) Evidence of Bias or Motive to Lie. The defendant requests any evidence that any

27 prospective Government witness is biased or prejudiced against the defendant, or has a motive to falsify or 28 distort his or her testimony.

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(11) Impeachment Evidence. The defendant requests any evidence that any prospective

2 Government witness has engaged in any criminal act whether or not resulting in a conviction and whether any 3 witness has made a statement favorable to the defendant. See Fed R. Evid. 608, 609 and 613; Brady v. 4 Maryland, supra. 5 (12) Evidence of Criminal Investigation of Any Government Witness. The defendant requests

6 any evidence that any prospective witness is under investigation by federal, state or local authorities for any 7 criminal conduct. 8 (13) Evidence Affecting Perception, Recollection, Ability to Communicate, or Truth Telling.

9 The defense requests any evidence, including any medical or psychiatric report or evaluation, that tends to 10 show that any prospective witness' ability to perceive, remember, communicate, or tell the truth is impaired, 11 and any evidence that a witness has ever used narcotics or other controlled substance, or has ever been an 12 alcoholic. 13 (14) Witness Addresses. The defendant requests the name and last known address of each

14 prospective Government witness. The defendant also requests the name and last known address of every 15 witness to the crime or crimes charged (or any of the overt acts committed in furtherance thereof) who will 16 not be called as a Government witness. 17 (15) Name of Witnesses Favorable to the Defendant. The defendant requests the name of any

18 witness who made an arguably favorable statement concerning the defendant or who could not identify him 19 or who was unsure of his identity, or participation in the crime charged. 20 (16) Statements Relevant to the Defense. The defendant requests disclosure of any statement

21 relevant to any possible defense or contention that he might assert. 22 (17) Jencks Act Material. The defendant requests production in advance of trial of all

23 material, including dispatch tapes, which the government must produce pursuant to the Jencks Act, 18 U.S.C. 24 § 3500. Advance production will avoid the possibility of delay at the request of defendant to investigate the 25 Jencks material. A verbal acknowledgment that "rough" notes constitute an accurate account of the witness' 26 interview is sufficient for the report or notes to qualify as a statement under § 3500(e)(1). Campbell v. United 27 States, 373 U.S. 487, 490-92 (1963). In United States v. Boshell, 952 F.2d 1101 (9th Cir. 1991) the Ninth 28 //

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1 Circuit held that when an agent goes over interview notes with the subject of the interview the notes are then 2 subject to the Jencks Act. 3 (18) Giglio Information. Pursuant to Giglio v. United States, 405 U.S. 150 (1972), the

4 defendant requests all statements and/or promises, express or implied, made to any Government witnesses, 5 in exchange for their testimony in this case, and all other information which could arguably be used for the 6 impeachment of any Government witnesses. 7 (19) Agreements Between the Government and Witnesses. The defendant 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 contemplated prosecution, or any possible plea bargain, even if no 13 bargain was made, or the advice not followed. 14 (20) Informants and Cooperating Witnesses. The defendant requests disclosure of the names

15 and 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. Rivas. 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 which exculpates or tends to exculpate the defendant. 21 (21) Bias by Informants or Cooperating Witnesses. The defendant 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 (22) Government Examination of Law Enforcement Personnel Files. Mr. Rivas requests that

26 the Government examine the personnel files and any other files within its custody, care or control, or which 27 could be obtained by the government, for all testifying witnesses, including testifying officers. Mr. Rivas 28 requests that these files be reviewed by the Government attorney for evidence of perjurious conduct or other

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1 like dishonesty, or any other material relevant to impeachment, or any information that is exculpatory, 2 pursuant to its duty under United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991). The obligation to examine 3 files arises by virtue of the defense making a demand for their review: the Ninth Circuit in Henthorn remanded 4 for in camera review of the agents' files because the government failed to examine the files of agents who 5 testified at trial. This Court should therefore order the Government to review all such files for all testifying 6 witnesses and turn over any material relevant to impeachment or that is exculpatory to Mr. Rivas prior to trial. 7 Mr. Rivas specifically requests that the prosecutor, not the law enforcement officers, review the files in this 8 case. The duty to review the files, under Henthorn, should be the prosecutor's. Only the prosecutor has the 9 legal knowledge and ethical obligations to fully comply with this request. 10 (23) Expert Summaries. Defendant requests written summaries of all expert testimony that

11 the government intends to present under Federal Rules of Evidence 702, 703 or 705 during its case in chief, 12 written summaries of the bases for each expert's opinion, and written summaries of the experts' qualifications. 13 Fed. R. Crim. P. 16(a)(1)(E). This request includes, but is not limited to, fingerprint expert testimony. 14 (24) Residual Request. Mr. Rivas 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. Mr. Rivas 17 requests that the Government provide him and his attorney with the above requested material sufficiently in 18 advance of trial to avoid unnecessary delay prior to cross-examination. 19 20 21 22 It is anticipated at this time that should this case proceed to trial, the defense will call an expert III. NOTICE OF MENTAL DEFENSE AND EXPERT TESTIMONY OF DEFENDANT'S MENTAL CONDITION

23 to testify regarding Mr. Rivas's mental condition at the time of his arrest. As more information is received, 24 it will be turned over to the government, but at this time this will serve as notice pursuant to Federal Rules 25 of Criminal Procedure, Rule 12.2(b). 26 // 27 // 28 //

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IV. REQUEST FOR LEAVE TO FILE FURTHER MOTIONS Mr. Rivas and defense counsel have not received ANY discovery in this case. As new

4 information comes to light, the defense may find it necessary to file further motions. Therefore, defense 5 counsel requests the opportunity to file further motions for these reasons. 6 7 8 9 motions. 10 11 12 Dated: February 7, 2008 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respectfully submitted, s/ Ellis M. Johnston, III ELLIS M. JOHNSTON III Federal Defenders of San Diego, Inc. Attorneys for Mr. Rivas-Garcia V. CONCLUSION For the reasons stated above, Mr. Rivas respectfully requests that this Court grant the foregoing

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