Free Motion to Compel - District Court of California - California

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KAREN P. HEWITT United States Attorney LAWRENCE A. CASPER Assistant U.S. Attorney California State Bar No. 235110 Federal Office Building 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone/Fax Nos.: (619) 557-7455/235-2757 [email protected] Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Criminal Case No. District Judge: Courtroom: Date: Time: 08CR0083-WQH Hon. William Q. Hayes 4 (Fourth Floor) February 19, 2008 2:00 p.m.

UNITED STATES OF AMERICA, Plaintiff, v. JULIO RIVAS-GARCIA, Defendant.

UNITED STATES' RESPONSE AND OPPOSITION TO DEFENDANT'S MOTIONS TO: (1) COMPEL DISCOVERY; (2) PRESERVE EVIDENCE; (3) GIVE RULE 12.2(b) NOTICE; AND (4) FILE FURTHER MOTIONS; WITH STATEMENT OF FACTS, MEMORANDUM OF POINTS AND AUTHORITIES, AND GOVERNMENT'S MOTIONS: (1) TO COMPEL FINGERPRINT EXEMPLARS; and (2) FOR RECIPROCAL DISCOVERY

Plaintiff, the UNITED STATES OF AMERICA, by and through its counsel KAREN P. HEWITT, United States Attorney, and LAWRENCE A. CASPER, Assistant U.S. Attorney, hereby files its Response and Opposition (R&O) to the above-described motions of Defendant Julio RivasGarcia ("Defendant") and files its Motions For Examination Pursuant to Rule 12.2(c)(1)(B); to Compel Fingerprint Exemplars; and for Production of Reciprocal Discovery. This R&O is based upon the files and records of this case.

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

I STATEMENT OF FACTS Statement of the Case

On January 9, 2008, a federal grand jury handed up a one-count Indictment charging Defendant Julio Rivas-Garcia with being a deported alien found in the United States after deportation in violation of Title 8, United States Code, Section 1326. The indictment also alleged that Defendant was removed from the United States subsequent to June 28, 2004. Defendant entered a not guilty plea before Magistrate Judge Louis S. Papas on January 10, 2008. B. Statement of Facts 1. Arrest of Defendant

On December 23, 2007, Senior Patrol Agent Alex Markle was assigned to patrol duties in the Jamul, California area. At approximately 2:00 a.m. Agent Markle responded to a call from Sector Communications concerning possible illegal alien activity on Barrett Lake Road. That road is closed to the general public and only contains two residences on five miles of road; the road is locked to prevent public entry. This road is approximately 7 miles west of the Tecate, California Port of Entry and runs from two miles north of the International Boundary to eight miles north of the International Boundary between the United States and Mexico. This road is often used by individuals attempting to further their illegal entry into the United States. As Senior Patrol Agent Markle drove north on this road in an unmarked agency vehicle, he came upon one individual standing by the side of the road attempting to flag him down. Agent Markle stopped and the individual, later identified as Defendant Julio Rivas-Garcia, attempted to open the passenger door of the vehicle. Agent Markle, who was in uniform, exited the vehicle and walked around the front of the vehicle. When Defendant saw the agent's uniform in the headlights of the vehicle, he threw up his hands and stated "Ahhhh" and lauughed. Agent Markle laughed with him and asked whether Defendant was surprised to see him and Defendant acknowledged that he was surprised. Agent Markle identified himself as a Border Patrol Agent and questioned the Defendant concerning his citizenship. Defendant stated that he was a citizen and national of Mexico without valid immigration documents to enter or remain within the United States. Defendant stated 2 08CR0083-WQH

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that he was traveling to Santa Ana, California to find work and live with his sister. Defendant was placed under arrest and transported to the Border Patrol checkpoint in Dulzura, California. En route to the checkpoint, Defendant pleaded with the agent to release him, stating that he did not like Mexico and did not want to return there. The agent informed him that he could not do so. At the checkpoint, the Form I-826 (Administrative Rights and Request for Disposition) was served upon Defendant. He was subsequently transported to the Brown Field Station for processing. Defendant was fingerprinted and record checks performed; those checks revealed that Defendant had a criminal and immigration history. 2. Defendant's Post-Miranda Statement

At approximately 6:44 a.m., Defendant was interviewed. After stating that he was not under the influence of any drugs or medicine and that he was not currently ill, Defendatn stated that he had 12 years of schooling and read and spoke Spanish. Defendant was informed that he was being charged criminally and that his administrative rights no longer applied; this was explained several times until the Defendant understood. Defendant's Miranda rights were then read and he invoked his right to speak with an attorney. C. Defendant's Criminal History

Defendant has an extensive criminal history, including multiple prior immigration and other felonies, as well as numerous prior arrests. 6/28/04 (USDC-SDCA) 2/5/01 (USDC-SDCA) 3/22/00 (USDC -SDCA) 8 U.S.C. Sec. 1326 18 U.S.C. Sec. 911 18 U.S.C. Sec. 911 8 U.S.C. Sec. 1326 245(A)(1) PC-Force/ADW Not Firearm 4/18/89 (CAMC Santa Ana) 273.5 PC - Inflict Corporal Injury/spouse 15 mos jail/1 year s/r 10 mos jail/1 year s/r 6 mos jail/1 year s/r; 10 mos (probation revoked) 5 mos jail/1 year s/r 120 days jail/36 mos probation 365 days jail

22 23 24 25 26 27 28 3 6/19/97 (USDC-SDCA) 4/29/93 (CAJC Madera)

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9/14/87 (CAMC Santa Ana)

PC 245(A)(1) PCForce/ADW Not Firearm

365 days jail

5/14/87 (CAMC Santa Ana)

240 PC Assault

36 mos probation

10/26/79 (CAMC Santa Ana)

12031(A)PC-Carry Load Firearm: Public Pl

15 days/36 mos probation

9/25/79 (CAMC Santa Ana)

484/488 PC - Theft/Petty theft

10 days/36 mos probation

II ARGUMENT A. The Government Will Comply With All Discovery Obligations

The Government intends to continue full compliance with its discovery obligations under Brady v. Maryland, 373 U.S. 83 (1963), the Jencks Act (18 U.S.C. 3500), and Rule 16 of the Federal Rules of Criminal Procedure.1/ To date, the Government has provided 57 pages of discovery as well as two cassette tapes. The Government anticipates that all discovery issues can be resolved amicably and informally, and has addressed Defendant's specific requests below. (1) Defendant's Statements The Government recognizes its obligation under Rules 16(a)(1)(A) and 16(a)(1)(B) to provide to Defendant the substance of Defendant's oral statements and Defendant's written statements. The Government has produced all of the Defendant's statements that are known to the undersigned Assistant U.S. Attorney at this date. If the Government discovers additional oral

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Unless otherwise noted, all references to "Rules" refers to the Federal Rules of Criminal Procedure. 4 08CR0083-WQH

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or written statements that require disclosure under Rule 16(a)(1)(A) or Rule 16(a)(1)(B), such statements will be provided to Defendant. The Government has no objection to the preservation of the handwritten notes taken by any of the agents and officers. See United States v. Harris, 543 F.2d 1247, 1253 (9th Cir. 1976) (agents must preserve their original notes of interviews of an accused or prospective government witnesses). However, the Government objects to providing Defendant with a copy of the rough notes at this time. Rule 16(a)(1)(A) does not require disclosure of the rough notes where the content of those notes have been accurately reflected in a type-written report. See United States v. Brown, 303 F.3d 582, 590 (5th Cir. 2002); United States v. Coe, 220 F.3d 573, 583 (7th Cir. 2000) (Rule 16(a)(1)(A) does not require disclosure of an agent's notes even where there are "minor discrepancies" between the notes and a report). The Government is not required to produce rough notes pursuant to the Jencks Act, because the notes do not constitute "statements" (as defined 18 U.S.C. § 3500(e)) unless the notes (1) comprise both a substantially verbatim narrative of a witness' assertion, and (2) have been approved or adopted by the witness. United States v. Spencer, 618 F.2d 605, 606-07 (9th Cir. 1980). The rough notes in this case do not constitute "statements" in accordance with the Jencks Act. See United States v. Ramirez, 954 F.2d 1035, 1038-39 (5th Cir. 1992) (rough notes were not statements under the Jencks Act where notes were scattered and all the information contained in the notes was available in other forms). The notes are not Brady material because the notes do not present any material exculpatory information, or any evidence favorable to Defendant that is material to guilt or punishment. Brown, 303 F.3d at 595-96 (rough notes were not Brady material because the notes were neither favorable to the defense nor material to defendant's guilt or punishment); United States v. Ramos, 27 F.3d 65, 71 (3d Cir. 1994) (mere speculation that agents' rough notes contained Brady evidence was insufficient). If, during a future evidentiary hearing, certain rough notes become discoverable under Rule 16, the Jencks Act, or Brady, the notes in question will be provided to Defendant.

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(2)

Arrest reports, notes, dispatch tapes

The Government has provided Defendant with all known reports related to Defendant's arrest in this case that are available at this time. The Government will continue to comply with its obligation to provide to Defendant all reports subject to Rule 16. As previously noted, the Government has no objection to the preservation of the agents' handwritten notes, but objects to providing Defendant with a copy of the rough notes at this time because the notes are not subject to disclosure under Rule 16, the Jencks Act, or Brady. The United States will provide dispatch tapes, if any, relating to the Defendant's arrest in this case. (3) Brady Material

The Government has and will continue to perform its duty under Brady to disclose material exculpatory information or evidence favorable to Defendant when such evidence is material to guilt or punishment. The Government recognizes that its obligation under Brady covers not only exculpatory evidence, but also evidence that could be used to impeach witnesses who testify on behalf of the United States. See Giglio v. United States, 405 U.S. 150, 154 (1972); United States v. Bagley, 473 U.S. 667, 676-77 (1985). This obligation also extends to evidence that was not requested by the defense. Bagley, 473 U.S. at 682; United States v. Agurs, 427 U.S. 97, 107-10 (1976). "Evidence is material, and must be disclosed (pursuant to Brady), `if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Carriger v. Stewart, 132 F.3d 463, 479 (9th Cir. 1997) (en banc). The final determination of materiality is based on the "suppressed evidence considered collectively, not item by item." Kyles v. Whitley, 514 U.S. 419, 436-37 (1995). Brady does not, however, mandate that the Government open all of its files for discovery. See United States v. Henke, 222 F.3d 633, 642-44 (9th Cir. 2000)(per curiam). Under Brady, the Government is not required to provide: (1) neutral, irrelevant, speculative, or inculpatory evidence (see United States v. Smith, 282 F.3d 758, 770 (9th Cir. 2002)); (2) evidence available to the defendant from other sources (see United States v. Bracy, 67 F.3d 1421, 1428-29 (9th Cir. 1995)); (3) evidence that the defendant already possesses (see United States v. Mikaelian, 168 6 08CR0083-WQH

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F.3d 380, 389-90 (9th Cir. 1999), amended by 180 F.3d 1091 (9th Cir. 1999)); or (4) evidence that the undersigned Assistant U.S. Attorney could not reasonably be imputed to have knowledge or control over. (see United States v. Hanson, 262 F.3d 1217, 1234-35 (11th Cir. 2001)). Nor does Brady require the Government "to create exculpatory evidence that does not exist," United States v. Sukumolahan, 610 F.2d 685, 687 (9th Cir. 1980), but only requires that the Government "supply a defendant with exculpatory information of which it is aware." United States v. Flores, 540 F.2d 432, 438 (9th Cir. 1976). (4) Sentencing Information

The United States is not obligated under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny to furnish a defendant with information which he already knows. United States v. Taylor, 802 F.2d 1108, 1118 n.5 (9th Cir. 1986). Brady is a rule of disclosure, and therefore, there can be no violation of Brady if the evidence is already known to the defendant. In such case, the United States has not suppressed the evidence and consequently has no Brady obligation. See United States v. Gaggi, 811 F.2d 47, 59 (2d Cir. 1987). But even assuming Defendant does not already possess the information about factors which might affect his guideline range, the United States would not be required to provide information bearing on Defendant's mitigation of punishment until after Defendant's conviction or plea of guilty and prior to his sentencing date. See United States v. Juvenile Male, 864 F.2d 641, 647 (9th Cir. 1988) ("No [Brady] violation occurs if the evidence is disclosed to the defendant at a time when the disclosure remains in value."). Accordingly, Defendant's demand for this information is premature. (5) Defendant's Prior Record

The United States has already provided Defendant with a copy of any criminal record in accordance with Federal Rule of Criminal Procedure 16(a)(1)(D). (6) Proposed 404(b) and 609 Evidence

Should the United States seek to introduce any similar act evidence pursuant to Federal Rules of Evidence 404(b) or 609(b), the United States will provide Defendant with notice of its proposed use of such evidence and information about such bad act at or before the time the 7 08CR0083-WQH

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United States' trial memorandum is filed. The United States reserves the right to introduce as prior act evidence any conviction, arrest or prior act that is disclosed to the defense in discovery. (7) Evidence Seized

The United States has complied and will continue to comply with Rule 16(a)(1)(C) in allowing Defendant an opportunity, upon reasonable notice, to examine, copy and inspect physical evidence which is within the possession, custody or control of the United States, and which is material to the preparation of Defendant's defense or are intended for use by the United States as evidence in chief at trial, or were obtained from or belong to Defendant, including photographs. The United States, however, need not produce rebuttal evidence in advance of trial. United States v. Givens, 767 F.2d 574, 584 (9th Cir. 1984), cert. denied, 474 U.S. 953 (1985). (8) Request for Preservation of Evidence

After issuance of a an order from the Court, the United States will preserve all evidence to which Defendant is entitled to pursuant to the relevant discovery rules. However, the United States objects to Defendant's blanket request to preserve all physical evidence. The United States has complied and will continue to comply with Rule 16(a)(1)(C) in allowing Defendant an opportunity, upon reasonable notice, to examine, copy and inspect physical evidence which is within his possession, custody or control of the United States, and which is material to the preparation of Defendant's defense or are intended for use by the United States as evidence in chief at trial, or were obtained from or belong to Defendant, including photographs. The United States has made the evidence available to Defendant and Defendant's investigators and will comply with any request for inspection. (9) Tangible Objects

The Government has complied and will continue to comply with Rule 16(a)(1)(E) in allowing Defendant an opportunity, upon reasonable notice, to examine, inspect, and copy all tangible objects seized that are within its possession, custody, or control, and that are either material to the preparation of Defendant's defense, or are intended for use by the Government as evidence during its case-in-chief at trial, or were obtained from or belong to Defendant. The 8 08CR0083-WQH

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Government need not, however, produce rebuttal evidence in advance of trial. United States v. Givens, 767 F.2d 574, 584 (9th Cir. 1984). (10) Evidence of Bias or Motive To Lie

The United States is unaware of any evidence indicating that a prospective witness is biased or prejudiced against Defendant. The United States is also unaware of any evidence that prospective witnesses have a motive to falsify or distort testimony. (11) Impeachment Evidence

The Government recognizes its obligation under Brady and Giglio to provide evidence that could be used to impeach Government witnesses including material information regarding demonstrable bias or motive to lie. (12) Evidence of Criminal Investigation of Any Government Witness

Defendants are not entitled to any evidence that a prospective witness is under criminal investigation by federal, state, or local authorities. "[T]he criminal records of such [Government] witnesses are not discoverable." United States v. Taylor, 542 F.2d 1023, 1026 (8th Cir. 1976); United States v. Riley, 657 F.2d 1377, 1389 (8th Cir. 1981) (holding that since criminal records of prosecution witnesses are not discoverable under Rule 16, rap sheets are not either); cf. United States v. Rinn, 586 F.2d 113, 118-19 (9th Cir. 1978) (noting in dicta that "[i]t has been said that the Government has no discovery obligation under Fed. R. Crim. P. 16(a)(1)(C) to supply a defendant with the criminal records of the Government's intended witnesses.") (citing Taylor, 542 F.2d at 1026). The Government will, however, provide the conviction record, if any, which could be used to impeach witnesses the Government intends to call in its case-in-chief. When disclosing such information, disclosure need only extend to witnesses the United States intends to call in its case-in-chief. United States v. Gering, 716 F.2d 615, 621 (9th Cir. 1983); United States v. Angelini, 607 F.2d 1305, 1309 (9th Cir. 1979).

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(13)

Evidence Affecting Perception, Recollection, Ability to Communicate, or Truth Telling

The United States is unaware of any evidence indicating that a prospective witness has a 3 problem with perception, recollection, communication, or truth-telling. The United States 4 recognizes its obligation under Brady and Giglio to provide material evidence that could be used 5 to impeach Government witnesses including material information related to perception, 6 recollection or ability to communicate. The Government objects to providing any evidence that 7 a witness has ever used narcotics or other controlled substances, or has ever been an alcoholic 8 because such information is not discoverable under Rule 16, Brady, Giglio, Henthorn, or any 9 other Constitutional or statutory disclosure provision. 10 (14) 11 The Government has already provided Defendant with the reports containing the names 12 of the agents involved in the apprehension and interviews of Defendant. A defendant in a non13 capital case, however, has no right to discover the identity of prospective Government witnesses 14 prior to trial. See Weatherford v. Bursey, 429 U.S. 545, 559 (1977); United States v. Dishner, 15 974 F.2d 1502, 1522 (9th Cir 1992) (citing United States v. Steel, 759 F.2d 706, 709 (9th Cir. 16 1985)); United States v. Hicks, 103 F.23d 837, 841 (9th Cir. 1996). Nevertheless, in its trial 17 memorandum, the Government will provide Defendant with a list of all witnesses whom it 18 intends to call in its case-in-chief, although delivery of such a witness list is not required. See 19 United States v. Discher, 960 F.2d 870 (9th Cir. 1992); United States v. Mills, 810 F.2d 907, 910 20 (9th Cir. 1987). 21 The Government objects to any request that the Government provide a list of every 22 witness to the crimes charged who will not be called as a Government witness. "There is no 23 statutory basis for granting such broad requests," and a request for the names and addresses of 24 witnesses who will not be called at trial "far exceed[s] the parameters of Rule 16(a)(1)(C)." 25 United States v. Hsin-Yung, 97 F. Supp.2d 24, 36 (D. D.C. 2000) (quoting United States v. 26 Boffa, 513 F. Supp. 444, 502 (D. Del. 1980)). The Government is not required to produce all 27 possible information and evidence regarding any speculative defense claimed by Defendant. 28 10 08CR0083-WQH Witness Addresses

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Wood v. Bartholomew, 516 U.S. 1, 6-8 (1995) (per curiam) (holding that inadmissible materials that are not likely to lead to the discovery of admissible exculpatory evidence are not subject to disclosure under Brady). (15) Names of Witnesses Favorable to the Defendant

As stated earlier, the Government will continue to comply with its obligations under Brady and its progeny. At the present time, the Government is not aware of any witnesses who have made an arguably favorable statement concerning the defendant. (16) Statements Relevant to the Defense

The United States will comply with all of its discovery obligations. However, "the prosecution does not have a constitutional duty to disclose every bit of information that might affect the jury's decision; it need only disclose information favorable to the defense that meets the appropriate standard of materiality." Gardner, 611 F.2d at 774-775 (citation omitted). (17) Jencks Act Material

The Jencks Act, 18 U.S.C. § 3500, requires that, after a Government witness has testified on direct examination, the Government must give the Defendant any "statement" (as defined by the Jencks Act) in the Government's possession that was made by the witness relating to the subject matter to which the witness testified. 18 U.S.C. § 3500(b). A "statement" under the Jencks Act is (1) a written statement made by the witness and signed or otherwise adopted or approved by him, (2) a substantially verbatim, contemporaneously recorded transcription of the witness's oral statement, or (3) a statement by the witness before a grand jury. 18 U.S.C. § 3500(e). If notes are read back to a witness to see whether or not the government agent correctly understood what the witness was saying, that act constitutes "adoption by the witness" for purposes of the Jencks Act. United States v. Boshell, 952 F.2d 1101, 1105 (9th Cir. 1991) (citing Goldberg v. United States, 425 U.S. 94, 98 (1976)). While the Government is only required to produce all Jencks Act material after the witness testifies, the Government plans to provide most (if not all) Jencks Act material well in advance of trial to avoid any needless delays.

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(18)

Giglio Information

As stated previously, the United States will comply with its obligations pursuant to Brady v. Maryland, 373 U.S. 83 (1963), the Jencks Act, United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991), and Giglio v. United States, 405 U.S. 150 (1972). (19) Agreements Between the Government and Witnesses

There are none. (20) Informants and Cooperating Witnesses

If the Government determines that there is a confidential informant who has information that is "relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause," the Government will either disclose the identity of the informant or submit the informant's identity to the Court for an in-chambers inspection. See Roviaro v. United States, 353 U.S. 53, 60-61 (1957) (emphasis added); United States v. Ramirez-Rangel, 103 F.3d 1501, 1505 (9th Cir. 1997) (same). (21) Bias by Informants/Cooperating Witnesses

The United States is unaware of any evidence indicating that a prospective witness is biased or prejudiced against Defendant. The United States is also unaware of any evidence that prospective witnesses have a motive to falsify or distort testimony. (22) Government Examination of Law Enforcement Personnel Files

The Government will comply with United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991) and request that all federal agencies involved in the criminal investigation and prosecution review the personnel files of the federal law enforcement inspectors, officers, and special agents whom the Government intends to call at trial and disclose information favorable to the defense that meets the appropriate standard of materiality. United States v. Booth, 309 F.3d 566, 574 (9th Cir. 2002)(citing United States v. Jennings, 960 F.2d 1488, 1489 (9th Cir. 1992). If the undersigned Assistant U.S. Attorney is uncertain whether certain incriminating information in the personnel files is "material," the information will be submitted to the Court for an in camera inspection and review. (23) Expert Summaries 12 08CR0083-WQH

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The Government will comply with Rule 16(a)(1)(G) and provide Defendant with a written summary of any expert testimony that the Government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial. This summary shall include the expert witnesses' qualifications, the expert witnesses opinions, the bases, and reasons for those opinions. (24) Residual Request

The Government will comply with all of its discovery obligations, but objects to the broad and unspecified nature of Defendant's residual discovery request. B. Defendant's Notice of Mental Defense and Expert Testimony Regarding Mental Condition

The Defendant in this case is charged with a 1326 "found in" offense; that offense is a general intent crime. See United States v. Salazar-Gonzalez, 458 F.3d 851, 855-56 (9th Cir. 2006). Accordingly, testimony regarding diminished capacity would have no relevance to this case and should not be permitted. Nevertheless, the United States understands that this Defendant has apparently been previously found incompetent; accordingly, the United States urges the Court to consider ordering a competency examination pursuant to 12.2(c)(1)(A) and 18 U.S.C. Section 4241. The Government Does Not Oppose Leave To File Further Motions So Long As They Are Based on New Evidence

The Government does not object to the granting of leave to file further motions as long as the order applies equally to both parties and any additional defense motions are based on newly discovered evidence or discovery provided by the Government subsequent to the instant motion.

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III GOVERNMENT MOTIONS Government Motion For Fingerprint Exemplars

Tthe Government requests that Defendant be ordered to make himself available for fingerprint exemplars at a time and place convenient to the Government's fingerprint expert. See United States v. Kloepper, 725 F. Supp. 638, 640 (D. Mass. 1989) (the District Court has "inherent authority" to order a defendant to provide handwriting exemplars, fingerprints, and palmprints). Because the fingerprint exemplars are sought for the sole purpose of proving Defendant's identity, rather for than investigatory purposes, the Fourth Amendment is not implicated. See United States v. Garcia-Beltran, 389 F.3d 864, 866-68 (9th Cir. 2004) (citing United States v. Parga-Rosas, 238 F.3d 1209, 1215 (9th Cir. 2001)). Furthermore, an order requiring Defendant to provide fingerprint exemplars does not infringe on Defendant's Fifth Amendment rights. See Schmerber v. California, 384 U.S. 757, 770-71 (1966) (the Fifth Amendment privilege "offers no protection against compulsion to submit to fingerprinting"); Williams v. Schario, 93 F.3d 527, 529 (8th Cir. 1996) (the taking of fingerprints in the absence of Miranda warnings did not constitute testimonial incrimination as proscribed by the Fifth Amendment). B. Government's Motion to Compel Reciprocal Discovery 1. All Evidence That Defendant Intends to Introduce in His Case-In-Chief Since the Government will honor Defendant's request for disclosure under Rule 16(a)(1)(E), the Government is entitled to reciprocal discovery under Rule 16(b)(1). Pursuant to Rule 16(b)(1), requests that Defendant permit the Government to inspect, copy and photograph any and all books, papers, documents, photographs, tangible objects, or make copies or portions thereof, which are within the possession, custody, or control of Defendant and which Defendant intends to introduce as evidence in his case-in-chief at trial. The Government further requests that it be permitted to inspect and copy or photograph any results or reports of physical or mental examinations and of scientific tests or experiments

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made in connection with this case, which are in the possession and control of Defendant, which he intends to introduce as evidence-in-chief at the trial, or which were prepared by a witness whom Defendant intends to call as a witness. The Government also requests that the Court make such order as it deems necessary under Rules 16(d)(1) and (2) to ensure that the Government receives the reciprocal discovery to which it is entitled. 2. Reciprocal Jencks ­ Statements By Defense Witnesses

Rule 26.2 provides for the reciprocal production of Jencks material. Rule 26.2 requires production of the prior statements of all witnesses, except a statement made by Defendant. The time frame established by Rule 26.2 requires the statements to be provided to the Government after the witness has testified. However, to expedite trial proceedings, the Government hereby requests that Defendant be ordered to provide all prior statements of defense witnesses by a reasonable date before trial to be set by the Court. Such an order should include any form in which these statements are memorialized, including but not limited to, tape recordings, handwritten or typed notes and reports. IV CONCLUSION For the foregoing reasons, the United States requests that the Court deny Defendant's motions and grant the United States' motion for reciprocal discovery. Dated: February 15, 2008 Respectfully submitted, KAREN P. HEWITT United States Attorney

s/Lawrence A. Casper

LAWRENCE A. CASPER Assistant U.S. Attorney

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1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 UNITED STATES OF AMERICA, 4 Plaintiff, 5 v. 6 JULIO RIVAS-GARCIA, 7 Defendant. 8 9 10 11 I am not a party to the above-entitled action. I have caused service of 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 08CR0083-WQH I declare under penalty of perjury that the foregoing is true and correct. Executed on February 15, 2008 the last known address, at which place there is delivery service of mail from the United States Postal Service. on the following parties by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically notifies them. Ellis M. Johnston, III, Esq. Federal Defenders of San Diego, Inc. I hereby certify that I have caused to be mailed the foregoing, by the United States Postal Service, to the following non-ECF participants on this case: 1. None 1. TOGETHER WITH STATEMENT OF FACTS, MEMORANDUM OF POINTS AND AUTHORITIES, AND GOVERNMENT'S MOTIONS TO: (1) COMPEL FINGERPRINT EXEMPLARS; AND (2) COMPEL PRODUCTION OF RECIPROCAL DISCOVERY. UNITED STATES' RESPONSE AND OPPOSITION TO DEFENDANT'S MOTIONS TO: (1) COMPEL DISCOVERY; (2) GIVE RULE 12.2(B) NOTICE AND (4) GRANT LEAVE TO FILE FURTHER MOTIONS IT IS HEREBY CERTIFIED THAT: I, Lawrence A. Casper, am a citizen of the United States and am at least eighteen years of age. My business address is 880 Front Street, Room 6293, San Diego, California 92101-8893. ) ) ) ) ) ) ) ) ) ) Criminal Case No. 08CR0083-WQH

CERTIFICATE OF SERVICE

s/ Lawrence A. Casper
LAWRENCE A. CASPER