Free Motion for Discovery - District Court of California - California

Case 3:07-cr-03419-WQH

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WENDY S. GERBOTH California Bar No. 167687 964 Fifth Avenue, Suite 214 San Diego, California 92101 Facsimile: (619) 699-5967 Telephone: (619) 699-5969 [email protected]

5 Attorneys for Defendant Huante-Hernandez 6 7 8 9 10 11 12 UNITED STATES OF AMERICA, 13 Plaintiff, 14 v. 15 16 17 Defendant. 18 19 20 21 22 23 24 25 26 27 28 I. STATEM ENT OF FACTS Dalia Huante-Hernandez is currently charged in a two count information with two counts of violating 8 U.S..C. § 1325. She anticipates the government will file a superseding indictment charging her with one count of violating 8 U.S.C. § 1326 in connection with her entry into the United States on or about November 9, 2007. Defense counsel has received approximately 90 pages of discovery. II. M OTION TO COM PEL DISCOVERY In order to both preserve the defendant's rights and assist the government in making full DALIA HUANTE-HERNANDEZ, ) ) ) ) ) ) ) ) ) ) ) ) Criminal Case No. 07-CR-3419-WQH Date: February 19, 2008 Time: 2:00 p.m. DEFENDANT'S STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF HER MOTIONS
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE WILLIAM Q. HAYES)

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and complete disclosure as required by law, Ms. Huante lodges the following specific discovery requests pursuant to Fed. R. Crim. P. 16: (1) All written or oral statements made by the defendant. This request includes, but is not limited to, any rough notes, records, reports, transcripts or other documents in which statements of the defendant are contained and in the possession of the United States or allied state law enforcement agency. It also includes the substance of any oral statements regardless of whether the government intends to introduce at trial. These are discoverable under Fed. R. Crim. P. 16(a)(1)(A) and Brady v. Maryland, 373 U.S. 83 (1963). The defendant also requests any response to any Miranda warnings which may have been given to him, whether oral or written. See United States v. McElroy, 697 F.2d 459 (2d Cir. 1982); (2) All documents, statements, agents' reports, and tangible evidence favorable to the

12 defendant on the issue of guilt or punishment, or which affects the credibility of the 13 government's case. This evidence must be produced pursuant to Brady v. Maryland, 373 U.S. 14 83 (1963), and United States v. Agurs, 427 U.S. 97 (1976) immediately upon discovery by the 15 government. The defendant specifically requests post-arrest statements ; 16 (3) All evidence, documents, records of judgments and convictions, photographs

17 and tangible evidence, and information pertaining to any prior arrests and convictions or prior 18 bad acts. Evidence of prior record is available under Fed. R. Crim. P. 16(a)(1)(B). Evidence of 19 prior similar acts is discoverable under Fed. R. Crim. P. 16(a)(1)(C) and Fed. R. Evid. 404(b) 20 and 609. 21 (4) All evidence seized as a result of any search or arrest, with or without a warrant, in

22 this case. The defendant requests disclosure of all evidence obtained as a result of these 23 searches which generated evidence which will be used by, or which lead to the discovery of 24 evidence to be used by the government at trial. This discovery is available under Fed. R. Crim. 25 P. 12(d) and 16(a)(1)(C); 26 (5) All arrest reports, investigator's notes, memos from arresting officers, sworn

27 statements, and prosecution reports pertaining to the investigation which resulted in the arrest of 28 the defendant. These may be available under Fed. R. Crim. P. 16(a)(1)(B) and (C), Fed. R.
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1 Crim. P. 26.2 and 12(i); 2 (6) The defendant requests that the government to review all files on all agents involved

3 in the present case for impeachment material. Given the fact that such impeachment evidence 4 is often secreted in various different files, he requests that the government not limit its search 5 solely to personnel files. This is required under United States v. Henthorn, 930 F.2d 920 (9th 6 Cir. 1991); 7 (7) All other documents and tangible objects, including photographs, books, papers,

8 documents, photographs, or building or places or copies of portions thereof which are material 9 to the defendant's defense or intended for use in the government's case-in-chief or were obtained 10 from or belong to the defendant. These materials are available under Rule 16(a)(1)(C); 11 (8) Any express or implicit promise, understanding, offer of immunity, of past, present,

12 or future compensation, or any other kind of agreement or understanding between any 13 prospective government witness and the government (federal, state and local), including any 14 implicit understanding relating to criminal or civil income tax, forfeiture or fine liability. United 15 States v. Shaffer, 789 F.2d 682 (9th Cir. 1986); United States v. Risken, 788 F. 2d 1361 (8th 16 Cir. 1986); United States v. Luc Levasseur, 826 F.2d 158 (1st Cir. 1987). This request also 17 includes any discussion with a potential witness about or advice concerning any contemplated 18 prosecution, or any possible plea bargain, even if no bargain was made, or the advice not 19 followed. Brown v. Duggen, 831 F.2d 1546, 1558 (11th Cir. 1986) (evidence that witness 20 sought plea bargain is to be disclosed, even if no deal struck); Haber v. Wainwright, 756 F.2d 21 1520, 1524 (11th Cir. 1985); 22 (9) Any evidence that any prospective government witness is biased or prejudiced against

23 the defendant, has a motive to falsify or distort his or her testimony or is prejudiced against 24 Latinos. Pennsylvania v. Ritchie, 480 S.Ct. 39 (1989); United States v. Strifler, 851 F.2d 1192 25 (9th Cir. 1988); 26 (10) Any evidence that any prospective government witness has engaged in any criminal

27 act whether or not resulting in a conviction. See Rule 608(b), Federal Rules of Evidence and 28 Brady;
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(11) Any evidence that any prospective witness is under investigation by federal, state or

2 local authorities for any criminal conduct, United States v. Chitty, 760 F.2d 425 (2d Cir.), cert. 3 denied, 474 U.S. 945 (1985); 4 (12) Any evidence, including any medical or psychiatric report or evaluation, tending to

5 show that any prospective witness's ability to perceive, remember, communicate, or tell the truth 6 is impaired; and any evidence that a witness has ever used narcotics or other controlled 7 substance, or has ever been an alcoholic. United States v. Strifler, 851 F.2d 1197 (9th Cir. July 8 11, 1988); Chavis v. North Carolina, 637 F.2d 213, 224 (4th Cir. 1980); 9 (13) the name and last known address of each prospective government witness. See

10 United States v. Napue, 834 F.2d 1311 (7th Cir. 1987); United States v. Tucker, 716 F.2d 583 11 (9th Cir. 1983) (failure to interview government witnesses by counsel is ineffective); United 12 States v. Cook, 608 F.2d 1175, 1181 (9th Cir. 1979) (defense has equal right to talk to 13 witnesses); 14 (14) The name and last known address of every witness to the crime or crimes charged

15 (or any of the overt acts committed in furtherance thereof) who will not be called as a 16 government witness. United States v. Cadet, 727 F.2d 1469 (9th Cir. 1984); 17 (15) The name, address and telephone number of each percipient witness to the crimes

18 charged, regardless of whether the government intends to call such witness at trial, or for any 19 other proceeding; 20 (16) The name of any witness who made an arguably favorable statement concerning the

21 defendant or who could not identify him or who was uncertain of his identity, or participation in 22 the crime charged. Jackson v. Wainwright, 390 F.2d 288 (5th Cir. 1968); Chavis v. North 23 Carolina, 637 F.2d 213, 223 (4th Cir. 1980); James v. Jago, 575 F.2d 1164, 1168 (6th Cir. 24 1978); Hudson v. Blackburn, 601 F.2d 785 (5th Cir. 1975); 25 (17) The defendant requests a transcript of the grand jury testimony and rough notes of

26 witnesses expected to testify at the motions hearing. The defendant will be requesting all 27 material available pursuant to Fed. R. Crim. P. 12(i), 26.2 and 18 U.S.C. § 3500 at every 28 opportunity, and where the material is not disclosed in advance, will also request whatever
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1 amount of time is necessary for the defense to properly make use of or other wise investigate 2 the material disclosed; 3 (18) Disclosure of all scientific evidence, including all reports of examinations and tests,

4 and disclosure of all expert testimony, in compliance with Fed. R. Crim. P., 16(a)(1)(d) and (e). 5 In particular, the government's attention is drawn to the requirement that all expert testimony 6 must be disclosed in advance, along with discovery of the basis and reasons for the expert's 7 opinion, and his or her qualifications as an expert; 8 (19) Residual Request: the defendant intends by this discovery motion to invoke his

9 rights to discovery to the fullest extent possible under the Federal Rules of Criminal Procedure 10 and the Constitution and laws of the United States. 11 12 13 III. M OTION FOR LEAVE TO FILE FURTHER MOTIONS The defendant requests that the Court grant him leave to file further motions after the

14 discovery process has been completed. 15 16 17 IV. CONCLUSION Based upon the foregoing, the defendant respectfully requests that this Court grant his

18 motions. 19 20 21 Date: February 7, 2008 22 23 24 25 26 27 28
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Respectfully submitted,

/s/ Wendy S. Gerboth WENDY S. GERBOTH Attorneys for Ms. Huante