Free Response in Opposition - District Court of California - California

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KAREN P. HEWITT United States Attorney PETER J. MAZZA Assistant U.S. Attorney California State Bar No. 239918 United States Attorney's Office 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-5528 / (619) 235-2757 (Fax) Email: [email protected] Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ) ) Plaintiff, ) ) v. ) ) ) ) HECTOR OROZCO-GONZALEZ, ) ) Defendant. ) ) ) ) ) ) ) ) ) _____________________________ ) UNITED STATES OF AMERICA, Case No. 07CR3476-JM Date: April 4, 2008 Time: 11:0 a.m. GOVERNMENT'S MOTION FOR FINGERPRINT EXEMPLARS AND GOVERNMENT'S RESPONSE AND OPPOSITION TO DEFENDANT'S MOTION TO: (1) (2) COMPEL DISCOVERY; AND LEAVE TO FILE FURTHER MOTIONS

TOGETHER WITH MEMORANDUM OF POINTS AND AUTHORITIES.

COMES NOW, the plaintiff, UNITED STATES OF AMERICA, by and through its counsel Karen P. Hewitt, United States Attorney, and Peter J. Mazza, Assistant U.S. Attorney, and hereby files its motion for fingerprint exemplars and its response and opposition to the motions filed on behalf of the above-captioned defendant. This

motion and response and opposition are based upon the files and records of this case. 07CR3476-JM

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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 INDICTMENT 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. At approximately 11:00 a.m., an individual

matching Defendant's description exited a residence located at 555 West California Avenue. The agents approached the individual and One of the agents The individual

identified themselves as Border Patrol agents.

questioned the individual regarding his identity. responded that he was Hector Orozco-Gonzalez.

In 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 07CR3476-JM 2

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rights.

Defendant acknowledged his rights and agreed to waive them Defendant

and speak with agents without the presence of an attorney. 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 In 2004 and 2006, he was In 1997 and 1996, Twice in

Defendant has seven prior convictions.

convicted of possession of a controlled substance.

he was convicted of petty theft with a prior conviction. 1995, Defendant was convicted of theft.

Also in 1995, Defendant was

convicted of being under the influence of a controlled substance. III POINTS AND AUTHORITIES A. DEFENDANT'S MOTION FOR DISCOVERY SHOULD BE DENIED EXCEPT AS PROVIDED BELOW The Government has and will continue to fully comply with its

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discovery obligations. To date, the Government has produced 162 pages of written discovery, three audio cassette tapes, and one dvd. The

discovery includes, inter alia: (1) reports generated at the time of arrest; (2) Defendant's A-File documents; (3) Defendant's deportation hearing tapes; (4) Defendant's rap sheet; and (5) a dvd of Defendant's post-arrest interview. The Government notes that it has not yet received Defendant's conviction documents from the California superior court. Once

received, the Government will discover those as well. 1. Statements of Defendants

The Government will fully comply with Federal Rule of Criminal Procedure 16(a)(1)(A) by providing defendant statements. 2. Arrest Reports, Notes, Dispatch Tapes

The Government has provided Defendant with incident and arrest reports. Defendants are not entitled to rough notes generally because they are not "statements" within the meaning of the Jencks Act unless they comprise both a substantially verbatim narrative of a witness's assertions and they have been approved or adopted by the witness. United States v. Bobadilla-Lopez, 954 F.2d 519 (9th Cir. 1992); United States v. Spencer, 618 F.2d 605 (9th Cir. 1980); see also United However, the

States v. Griffin, 659 F.2d 932 (9th Cir. 1981).

Government does not object to the preservation of rough notes, if any exist. 3. Brady Material

The Government will comply with its obligations under Brady v. Maryland, 373 U.S. 83 (1963) in providing information material to guilt or punishment. 07CR3476-JM 4

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4.

Information That May Result in a Lower Sentence

The Government is not aware of any such information. 5. Prior Criminal Record

The Government has provided Defendant with his known criminal record. 6. Federal Rules of Evidence 404(b) and 609

The Government has and will disclose the existence of any Rule 404(b) or 609 evidence, if any, prior to trial. continue to comply with its discovery The Government will regarding

obligations

defendant's prior arrests. "TECS" records. 7. The Evidence Seized Government will

Defendant is not generally entitled to

comply

with

Federal

Rule

of

Criminal

Procedure 16(a)(1)(E) 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 Government, and which is material to the preparation of Defendant's defense or are intended for use by the government as evidence in chief at trial, or were obtained from or belong to the defendants. The Government, 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. Preservation of Evidence

The Government will preserve the evidence in this case. 9. Henthorn Information

The United States will comply with the requirements of United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991). The prosecutor 07CR3476-JM 5

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assigned to the case, however, is under no obligation to personally examine the personnel files of testifying agents. v. Jennings, 960 F.2d 1488 (9th Cir. 1992). 10. Tangible Evidence See United States

The Government will comply with Fed.R.Crim.P. 16(a)(1)(E) in providing Defendant an opportunity to inspect and copy the evidence. 11. Expert Witnesses

The Government will comply with Rule 16(a)(1)(G) pertaining to expert witnesses. 12. Evidence of Bias or Motive to Lie

As stated above, the Government will comply with its obligations under Brady and Giglio. or other motivation to The Government knows of no bias, prejudice testify falsely or impairments of its

witnesses, but will make appropriate disclosures if such information should become known. See Napue v. Illinois, 360 U.S. 264 (1959);

Mooney v. Holohan, 294 U.S. 103 (1935). 13. Impeachment Evidence

As noted above, the Government will comply with its obligations under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). However, under Brady, and United States v. Agurs, 427 U.S. 97 (1976), the Government must only disclose exculpatory evidence within its possession that is material to the issue of guilt or punishment. See also United States v. Gardner, 611 F.2d 770, 774 (9th Cir. 1980). Defendants are not entitled to all evidence which is or may be

favorable to the accused or which pertains to the credibility of the Government's case. Gardner, 611 F.2d at 774-775. 07CR3476-JM 6

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Defendant requests the Government provide the criminal record of witnesses the Government intends to call and any information relating to a criminal investigation of a witness. Although the Government

will provide conviction records, if any, which could be used to impeach a witness, the Government is under no obligation to turn over the criminal records of all witnesses. United States v. Taylor, 542

F.2d 1023, 1026 (8th Cir. 1976), cert. denied, 429 U.S. 1074 (1977). When disclosing such information, disclosure need only extend to witnesses the Government 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). The Government will turn over evidence within its possession which could be used to properly impeach a witness who has been called to testify. Defendants are not entitled, however, to any and all

evidence that a prospective witness is under investigation by federal, state or local authorities for misconduct. 14. Evidence of Criminal Investigation of Any Government Witness

Defendant cites no authority in this Circuit or under the Federal Rules for this request. 15. Evidence Affecting Perception, Recollection, Ability to Communicate, or Veracity

The Government will turn over evidence within its possession which could be used to properly impeach a witness who has been called to testify. 16. Witness Addresses

While the Government may supply a tentative witness list with its trial memorandum, it objects to providing home addresses. See United 07CR3476-JM 7

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States v. Sukumolachan, 610 F.2d 685, 688 (9th Cir. 1980), and United States v. Conder, 423 F.2d 904, 910 (9th Cir. 1970) (addressing defendant's request for the addresses of actual Government witnesses). A request for the home addresses and telephone numbers of Government witnesses is tantamount to a request for a witness list and, in a noncapital case, there is no legal requirement that the Government supply defendant with a list of the witnesses it expects to call at trial. United States v. Thompson, 493 F.2d 305, 309 (9th Cir. 1974), cert. denied, 419 U.S. 835 (1974); United States v. Glass, 421 F.2d 832, 833 (9th Cir. 1969).1 The Ninth Circuit addressed this issue in United States v. Jones, 612 F.2d 453 (9th Cir. 1979), cert. denied, 445 U.S. 966 (1980). In

Jones, the court made it clear that, absent a showing of necessity by the defense, there should be no pretrial disclosure of the identity of Government witnesses. Id. at 455. Several other Ninth Circuit See, e.g., United States v.

cases have reached the same conclusion.

Armstrong, 621 F.2d 951, 1954 (9th Cir. 1980); United States v. Sukumolachan, 610 F.2d at 687; United States v. Paseur, 501 F.2d 966, 972 (9th Cir. 1974) ("A defendant is not entitled as a matter of right

Even in a capital case, the defendant is only entitled to receive a list of witnesses three days prior to commencement of trial. 18 U.S.C. § 3432. See also United States v. Richter, 488 F.2d 170 (9th Cir. 1973)(holding that defendant must make an affirmative showing as to need and reasonableness of such discovery). Likewise, agreements with witnesses need not be turned over prior to the testimony of the witness, United States v. Rinn, 586 F.2d 1113 (9th Cir. 1978), and there is no obligation to turn over the criminal records of all witnesses. United States v. Taylor, 542 F.2d 1023, 1026 (8th Cir. 1976); United States v. Egger, 509 F.2d 745 (9th Cir.), cert. denied, 423 U.S. 842 (1975); United States v. Cosby, 500 F.2d 405 (9th Cir. 1974). 07CR3476-JM 8

1

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to the name and address of any witness."). 17. Name of Witnesses Favorable to Mr. Contreras-Hernandez

As noted above, the Government will to continue to comply with its obligations pursuant to Brady. 18. Statements Relevant to Defense

As noted above, the Government will comply with its obligations pursuant to Rule 16. 19. Jencks Act

The Government will comply with its obligations pursuant to the Jencks Act. 20. Giglio Material

The Government will comply with its obligations pursuant to Giglio, 405 U.S. 150. 21. Agreements Between the Government and Witnesses

Counsel for the Government is unaware of any such agreements. 22. Informants/Cooperating Witnesses

Counsel for the Government is unaware of any informant or cooperating witness in this case. 23. Bias by Informants/Cooperating Witnesses

Counsel for the Government is unaware of any informants or cooperating witnesses. 24. Scientific and Other Information

The Government will comply with its obligations pursuant to Rule 16(a)(1)(D). 25. A-File Review and Residual Request

The Defendant has already viewed his A-File. // 07CR3476-JM 9

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B.

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

3 further motions as long as the order applies equally to both parties 4 and any additional defense motions are based on newly discovered 5 evidence or discovery provided by the Government subsequent to the 6 instant motion. 7 C. 8 The Government requests that Defendant be ordered to make himself 9 available for fingerprint exemplars at a time and place convenient to 10 the Government's fingerprint expert. 11 725 F. Supp. 638, 640 (D. Mass. 1989) (the District Court has 12 "inherent authority" to order a defendant to provide handwriting 13 exemplars, 14 exemplars are sought for the sole purpose of proving Defendant's 15 identity, rather for than investigatory purposes, the Fourth Amendment 16 is not implicated. 17 Hernandez, 18 Government's ability to compel a defendant to submit to fingerprinting 19 for purposes of identification at trial. 20 Garcia-Beltran, 389 F.3d 864, 866-68 (9th Cir. 2004) (citing United 21 States 22 Furthermore, an order requiring Defendant to provide fingerprint 23 exemplars does not infringe on Defendant's Fifth Amendment rights. 24 See Schmerber v. California, 384 U.S. 757, 770-71 (1966) (the Fifth 25 Amendment privilege "offers no protection against compulsion to submit 26 to fingerprinting"); Williams v. Schario, 93 F.3d 527, 529 27 28 10 07CR3476-JM (8th Cir. v. Parga-Rosas, 238 F.3d 1209, 1215 (9th Cir. 2001)). See United States v. 427 F.3d 567, 576-79 (9th Cir. 2005), upheld the The Ninth Circuit in United States v. Ortizfingerprints, and palmprints). Since the fingerprint See United States v. Kloepper, GOVERNMENT'S MOTION TO COMPEL FINGERPRINT EXEMPLARS

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1996) (the taking of fingerprints in the absence of Miranda warnings did not constitute testimonial incrimination as proscribed by the Fifth Amendment). VI CONCLUSION For the foregoing reasons, the United States requests that the Court deny Defendant's motions, except where unopposed, and grant the Government's motion for fingerprint exemplars. DATED: March 28, 2008

Respectfully submitted, KAREN P. HEWITT United States Attorney /s/ Peter J. Mazza ________________________ PETER J. MAZZA Assistant United States Attorney Attorneys for Plaintiff United States of America Email: [email protected]

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1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 4 5 6 7 8 9 IT IS HEREBY CERTIFIED THAT: 10 I, PETER J. MAZZA, am a citizen of the United States and am at 11 least eighteen years of age. 12 Street, Room 6293, San Diego, California 92101-8893. 13 I am not a party to the above-entitled action. 14 service of GOVERNMENT'S RESPONSE AND OPPOSITION TO DEFENDANT'S 15 MOTIONS AND GOVERNMENT'S MOTION FOR FINGERPRINT EXEMPLARS on the 16 following parties by electronically filing the foregoing with the 17 Clerk of the District Court using its ECF System, which 18 electronically notifies them. 19 1. Carey Gorden, Esq., Federal Defenders of San Diego, Inc. 20 I declare under penalty of perjury that the foregoing is true 21 and correct. 22 Executed on March 28, 2008. 23 24 25 26 27 28 12 07CR3476-JM /s/ Peter J. Mazza PETER J. MAZZA I have caused My business address is 880 Front v. HECTOR OROZCO-GONZALEZ, Defendant. UNITED STATES OF AMERICA, Plaintiff, ) ) ) ) ) ) ) ) ) ) Case No. 07CR3476-JM

CERTIFICATE OF SERVICE