Free Motion for Fingerprint Exemplars - District Court of California - California

Case 3:08-cr-00015-IEG

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Filed 01/22/2008

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KAREN P. HEWITT United States Attorney REBECCA S. KANTER Assistant U.S. Attorney California State Bar No. 230257 United States Attorney's Office 880 Front Street, Room 6293 San Diego, California 92101-8893 Phone: (619) 557-6747 Fax: (619) 235-4716 E-mail: [email protected] Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT

10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 13 14 15 16 17 18 19 20 COMES NOW the plaintiff, UNITED STATES OF AMERICA, by and through its counsel, 21 United States Attorney, Karen P. Hewitt, and Assistant U.S. Attorney Rebecca S. Kanter, and hereby 22 files its Motion for Fingerprint Exemplars and Reciprocal Discovery in the above-referenced case. This 23 Motion is based upon the files and records of this case, together with the attached Statement of Facts 24 and Memorandum of Points and Authorities. 25 // 26 // 27 // 28 // Criminal Case No. 08cr0015-IEG UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) ) LUIS ALBERTO HERNANDEZ) VENEGAS, ) ) Defendant. ) ) ) ) ) ) Criminal Case No. 08cr0015-IEG GOVERNMENT'S MOTION FOR: (1) FINGERPRINT EXEMPLARS (2) RECIPROCAL DISCOVERY TOGETHER WITH STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES Date: January 28, 2008 Time: 2:00 p.m. Court: The Hon. Irma E. Gonzalez

Case 3:08-cr-00015-IEG

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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. A. Defendant's Apprehension

I STATEMENT OF FACTS

On December 3, 2007, at approximately 1:10 a.m., a seismic sensor alerted on the southwest of Worm Farm, approximately four miles west of the San Ysidro Port of Entry and one mile north of the United States/Mexico international border. At approximately 6:30 a.m., after searching for approximately five hours, Border Patrol Agent Lee A. Miller found Jorge Alberto Hernandez-Venegas ("Defendant") attempting to conceal himself in dense brush. Agent Miller identified himself as a Border Patrol Agent and questioned the subject as to his citizenship. Defendant admitted to being a citizen and national of Mexico illegally present in the United States. Defendant was transported to the Imperial Beach Border Patrol Station for processing. B. Defendant's Criminal and Immigration Record Defendant's adult criminal record reveals felony convictions in March, 2003, for Making Terrorist Threats, in violation of California Penal Code Section 422 with an enhancement under Penal Code Section 186.22(b)(1) for Commission of Felony for Benefit of a Street Gang. He also sustained a conviction in December, 2005, for Second Degree Burglary, in violation of California Penal Code Section 459. Defendant was removed on November 10, 2004 pursuant to a Final Administrative Removal Order, and again on November 26, 2007. II UNITED STATES' MOTIONS FINGERPRINT EXEMPLARS The United States requests that the Court order that Defendant make himself available for fingerprinting by the United States' fingerprint expert. See United States v. Ortiz-Hernandez, 427 F.3d 567, 576-77 (9th Cir. 2005) (Government may have defendant fingerprinted and use criminal and immigration records in Section 1326 prosecution). The privilege against self-incrimination only applies to testimonial evidence. See Schmerber v. California, 384 U.S. 757, 761 (1966) (withdrawal of blood is not testimonial). Identifying physical characteristics, including fingerprints, are not testimonial in 2 Criminal Case No. 08cr0015-IEG

Case 3:08-cr-00015-IEG

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nature and the collection and use of such evidence does not violate Defendant's Fifth Amendment right against self-incrimination. United States v. DePalma, 414 F.2d 394, 397 (9th Cir. 1969). B. RECIPROCAL DISCOVERY The Government has and will continue to fully comply with its discovery obligations. On December 13, 2007, the Government produced 57 pages of discovery for Defendant which included the reports from the Border Patrol Agents, summaries of the statements made by Defendant, documentation regarding Defendant's criminal history and conviction documents. On January 15, 2008, the

Government produced an additional 21 pages of discovery pertaining to Defendant's immigration history, which Defendant picked up the same day. Furthermore, the Government will request that the arresting agency preserve any evidence the Government intends to introduce in its case-in-chief or that may be material to the defense. The Government moves the Court to order Defendant to provide all reciprocal discovery to which the United States is entitled under Rules 16(b) and 26.2. Rule 16(b)(2) requires Defendant to disclose to the United States all exhibits and documents which Defendant "intends to introduce as evidence in chief at the trial" and a written summary of the names, anticipated testimony, and bases for opinions of experts the defendant intends to call at trial under Rules 702, 703, and 705 of the Federal Rules of Evidence. III CONCLUSION For the foregoing reasons, the Government requests that the Court grant the Government's motion for reciprocal discovery and compelling the Defendant to provide a fingerprint exemplar. DATED: January 22, 2008.

Respectfully submitted, KAREN P. HEWITT United States Attorney /s/Rebecca Kanter REBECCA S. KANTER Assistant United States Attorney Attorneys for Plaintiff United States of America

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Criminal Case No. 08cr0015-IEG

Case 3:08-cr-00015-IEG

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Filed 01/22/2008

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 None 20 21 22 23 24 25 26 27 28 4 Criminal Case No. 08cr0015-IEG the last known address, at which place there is delivery service of mail from the United States Postal Service. I declare under penalty of perjury that the foregoing is true and correct. Executed on January 22, 2008. /s/ Rebecca Kanter REBECCA S. KANTER IT IS HEREBY CERTIFIED THAT: I, REBECCA S. KANTER, 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. I am not a party to the above-entitled action. I have caused service of MOTION FOR FINGERPRINT EXEMPLARS AND RECIPROCAL DISCOVERY on the following parties by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically notifies them. Timothy R. Garrison 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: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ) Criminal Case No. 08cr0015-IEG ) Plaintiff, ) ) CERTIFICATE OF SERVICE v. ) ) LUIS ALBERTO HERNANDEZ) VENEGAS, ) ) Defendant. ) UNITED STATES OF AMERICA,