Free Motion for Reciprocal Discovery - District Court of California - California

Case 3:07-cr-03476-JM

Document 16-2

Filed 05/11/2008

Page 1 of 7

1 2 3 4 5 6 7 8 9 10 11

KAREN P. HEWITT United States Attorney PETER J. MAZZA Assistant U.S. Attorney California State Bar No. 239918 Federal Office Building 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-5528 [email protected] Attorneys for Plaintiff UNITED STATES OF AMERICA

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, ) ) ) Plaintiff, ) ) ) v. ) ) ) HECTOR OROZCO-GONZALEZ, ) ) ) Defendant. ) ) ____________________________ ) CASE NO. DATE: TIME: 07CR3476-JM May 16, 2008 1:30 p.m.

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF GOVERNMENT'S MOTIONS FOR RECIPROCAL DISCOVERY AND TO COMPEL FINGERPRINT EXEMPLARS

COMES NOW, the plaintiff, UNITED STATES OF AMERICA, by and through its counsel, KAREN P. HEWITT, United States Attorney, and Peter J. Mazza, Assistant United States Attorney, hereby files the attached statement of facts and memorandum of points and authorities in support of Government's motion for reciprocal discovery and fingerprint exemplars. // // //

Case 3:07-cr-03476-JM

Document 16-2

Filed 05/11/2008

Page 2 of 7

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 THE CASE On December 21, 2007, a federal grand jury in the Southern District of California returned a one-count Indictment charging Hector Orozco-Gonzalez ("Defendant") with Deported Alien Found in the United States, in violation of Title 8, United States Code, Section 1326. The Indictment further alleged that Defendant had been removed from the United States subsequent to July 3, 2006. II STATEMENT OF FACTS THE INSTANT OFFENSE

On November 27, 2007, three United States Border Patrol agents assigned to the Smuggling Interdiction Group, Criminal Alien Squad were performing surveillance in the area of 555 West California Avenue in Vista, California. individual matching Defendant's At approximately 11:00 a.m., an description exited a residence

located at 555 West California Avenue.

The agents approached the One The In

individual and identified themselves as Border Patrol agents. of the agents questioned the individual regarding his identity. individual responded that he was Hector Orozco-Gonzalez.

response to further questioning, Defendant admitted that he was a Mexican citizen without any legal right to enter or remain in the United States. Agents then placed Defendant under arrest and

transported him to the Vista Border Patrol Station for further processing. At the station, agents confirmed Defendant's identity, as well as his immigration and criminal histories. At approximately 1:15

p.m., Border Patrol Agent Cacho advised Defendant of his Miranda 2

Case 3:07-cr-03476-JM

Document 16-2

Filed 05/11/2008

Page 3 of 7

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

rights.

Defendant acknowledged his rights and agreed to waive them

and speak with agents without the presence of an attorney. Defendant stated that he is a citizen and national of Mexico. He admitted that he was illegally present in the United States without any documents to allow him to enter or remain legally in the United States. Defendant further admitted that he had not previously applied for permission to legally enter the United States. Defendant further

admitted that he illegally reentered the United States approximately four days prior to his arrest on November 23, 2007. He stated that

he crossed the United States-Mexico international boundary east of San Ysidro, California. He stated that he illegally reentered the

United States under his own free will. B. DEFENDANT'S IMMIGRATION HISTORY

Defendant is a citizen of Mexico who was physically removed from the United States to Mexico on May 9, 2005. Defendant was again

removed from the United States to Mexico on February 12, 2007. C. DEFENDANT'S CRIMINAL HISTORY

Defendant has seven prior convictions. In 2004 and 2006, he was convicted of possession of a controlled substance. In 1997 and 1996, he was convicted of petty theft with a prior conviction. 1995, Defendant was convicted of theft. Twice in

Also in 1995, Defendant was

convicted of being under the influence of a controlled substance. III GOVERNMENT'S MOTIONS A. MOTION 1.
FOR

RECIPROCAL DISCOVERY

RULE 16(b)

The United States, pursuant to Rule 16 of the Federal Rules of Criminal Procedure, requests that Defendant permit the United 3

Case 3:07-cr-03476-JM

Document 16-2

Filed 05/11/2008

Page 4 of 7

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

States to inspect, copy, and photograph any and all books, papers, documents, photographs, tangible objects, or make copies of 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 United States 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 made in connection with this case, which are in the possession or control of Defendant, which Defendant 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. Because the

United States has complied with its obligations for delivery of reports of examinations, the United States is entitled to the items listed above under Rule 16(b)(1) of the Federal Rules of Criminal Procedure. The United States also requests that the

Court make such order as it deems necessary under Rules 16(d)(1) and (2) to ensure that the United States receives the discovery to which it is entitled. 2. RULE 26.2

Rule 26.2 of the Federal Rules of Criminal Procedure requires the production of prior statements of all witnesses, except a statement made by Defendant. This rule thus provides for the

reciprocal production of Jencks statements. The time frame established by the rule requires the statement to be provided after the witness has testified. To expedite trial

proceedings, the United States hereby requests that Defendant be ordered to supply all prior statements of defense witnesses by a 4

Case 3:07-cr-03476-JM

Document 16-2

Filed 05/11/2008

Page 5 of 7

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

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/or reports. B. Motion to Compel Fingerprint Exemplars The 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). Since 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. The Ninth

Circuit in United States v. Ortiz-Hernandez, 427 F.3d 567, 576-79 (9th Cir. 2005), upheld the Government's ability to compel a defendant to submit to fingerprinting for purposes of identification at trial. 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). 5

Case 3:07-cr-03476-JM

Document 16-2

Filed 05/11/2008

Page 6 of 7

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

IV CONCLUSION For the foregoing reasons, the United States requests that the Government's Motions be granted. DATED: May 11, 2008 (originally filed March 28, 2008). Respectfully Submitted, KAREN P. HEWITT United States Attorney /s/ Peter J. Mazza PETER J. MAZZA Assistant U.S. Attorney [email protected]

6

Case 3:07-cr-03476-JM

Document 16-2

Filed 05/11/2008

Page 7 of 7

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 7 /s/ Peter J. Mazza PETER J. MAZZA v. HECTOR OROZCO-GONZALEZ, Defendant. IT IS HEREBY CERTIFIED THAT: I, PETER J. MAZZA, am a citizen of the United States and am at least eighteen years of age. My business address is 880 Front UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, ) ) ) ) ) ) ) ) ) ) Case No. 07CR3476-JM

CERTIFICATE OF SERVICE

Street, Room 6293, San Diego, California 92101-8893. I am not a party to the above-entitled action. I have caused

service of GOVERNMENT'S NOTICE OF MOTIONS AND MOTIONS FOR RECIPROCAL DISCOVERY AND TO COMPEL FINGERPRINT EXEMPLARS on the following parties by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically notifies them. 1. Carey Gorden, Esq., Federal Defenders of San Diego, Inc. I declare under penalty of perjury that the foregoing is true and correct. Executed on May 11, 2008 (service of motions originally served on March 28, 2008).