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

Case 3:07-cr-03469-H

Document 7-2

Filed 01/14/2008

Page 1 of 3

1 2 3 4 5 6 7 8 9 10

KAREN P. HEWITT United States Attorney WILLIAM A. HALL, JR. Assistant U.S. Attorney California State Bar No. 253403 United States Attorney's Office 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-7046/(619) 235-2757 (Fax) Email: [email protected] Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, ) ) ) ) ) ) ) ) ) ) ) I STATEMENT OF THE CASE The Defendant, Luis Armando Prado-Franquez (hereinafter "Defendant"), was charged by a grand jury on December 27, 2007, with violating 8 U.S.C. §§ 1326(a) and (b), deported alien found in the United States. Defendant was arraigned on the Indictment the same day, and entered a plea of not guilty. II STATEMENT OF FACTS Defendant was apprehended on October 21, 2007, by a Border Patrol Agent ("BPA") in Jamul, California, during the Harris Fire wildfire. There, at approximately 5:30 p.m. that day, a BPA responded to an evaluation on four individuals in San Diego Sheriff's custody at the Criminal Case No. 07CR3469-H DATE: January 28, 2008 TIME: 2:00 p.m. Before Honorable Marilyn L. Huff UNITED STATES' STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES

11 Plaintiff, 12 v. 13 MARIO BARRON-GALVAN, 14 Defendant(s). 15 16 17 18 19 20 21 22 23 24 25 26 27 28

2

Case 3:07-cr-03469-H

Document 7-2

Filed 01/14/2008

Page 2 of 3

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

intersection of Honey Springs Road and Mother Grundy Truck Trail. The BPA identified himself and individually questioned the four individuals, one of which was Defendant, concerning their citizenship. There, Defendant admitted that he was a citizen of Mexico with no documents entitling him to enter or remain in the United States. Defendant was transported to the Brown Field Border Patrol Station's processing center. At the center, BPAs used Defendant's fingerprints to perform a computerized check of Defendant's criminal and immigration history. B. DEFENDANT'S CRIMINAL AND IMMIGRATION HISTORY Preliminary criminal history reports show that Defendant has felony convictions in California. Defendant was convicted in 1999 in Tulare of Assault with a Deadly Weapon, in violation of Cal. PC § 245(A)(1); he was sentenced to probation, and later sentenced to one year of incarceration on a probation violation. Defendant was convicted in 2001 in Tulare of Domestic Violence with Corporal Injury, in violation of Cal. PC § 273.5(a), and Assault with a Deadly Weapon, in violation of Cal. PC § 245(A)(1); he was sentenced four years' incarceration. Defendant was also convicted in this District in 1995 of misdemeanor and felony illegal entry, in violation of 8 U.S.C. § 1325; he was sentenced to two years' incarceration. Defendant's was last removed to Mexico on April 12, 2007. III UNITED STATES' MOTIONS A. 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). Defendant's fingerprints are not testimonial evidence. See Schmerber v. California, 384 U.S. 757 (1966). Using identifying physical characteristics, such as fingerprints, does not violate Defendant's Fifth Amendment right against

3

07CR3469-H

Case 3:07-cr-03469-H

Document 7-2

Filed 01/14/2008

Page 3 of 3

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

self-incrimination. United States v. DePalma, 414 F.2d 394, 397 (9th Cir. 1969); see also United States v. St. Onge, 676 F. Supp. 1041, 1043 (D. Mont. 1987). B. RECIPROCAL DISCOVERY To date, the United States has provided Defendant with 55 pages of discovery, including reports of his arrest, his rap sheet, and copies of immigration and conviction documents, and one DVD. The United States also agrees to schedule an A-file viewing at a time that is mutually convenient for defense counsel and the United States' case agent. 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. IV CONCLUSION For the foregoing reasons, the government respectfully requests that its motions be granted.

DATED: January 14, 2008. Respectfully submitted, KAREN P. HEWITT United States Attorney s/ William A. Hall, Jr. WILLIAM A. HALL, JR. Assistant United States Attorney

4

07CR3469-H