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

Case 3:07-cr-03404-JLS

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Filed 01/17/2008

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KAREN P. HEWITT United States Attorney REBEKAH W. YOUNG Assistant U.S. Attorney California State Bar No. 214859 United States Attorney's Office 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-7179 E-mail: [email protected] Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ) ) Plaintiff, ) ) ) v. ) ) ) JESSE BENAVIDES. Jr, and ) JOSE FERNANDEZ-FERNANDEZ a.k.a. ) JOSE BECERRA-CASILLAS, ) ) Defendants. ) ) ____________________________________) UNITED STATES OF AMERICA Criminal Case No. 07CR3404-JLS GOVERNMENT'S MOTION FOR FINGERPRINT EXEMPLARS AND RECIPROCAL DISCOVERY TOGETHER WITH STATEMENT OF THE CASE AND MEMORANDUM OF POINTS AND AUTHORITIES Date: January 23, 2008 Time: 1:00 p.m. Court: The Hon. Janis L. Sammartino

COMES NOW the plaintiff, UNITED STATES OF AMERICA, by and through its counsel, Karen 19 P. Hewitt, United States Attorney, and Rebekah W. Young, Assistant United States Attorney, and 20 hereby files its Motion for Fingerprint Exemplars and Reciprocal Discovery. This Response is based 21 upon the files and records of the case together with the attached Statement of the Case and 22 Memorandum of Points and Authorities. 23 // 24 // 25 // 26 // 27 // 28

Case 3:07-cr-03404-JLS

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I STATEMENT OF THE CASE On December 19, 2007, a federal grand jury in the Southern District of California returned a nine-count Indictment charging defendant Jesse Benavides Jr. ("Benavides") and defendant Jose Fernandez-Fernandez ("Fernandez") with Bringing in Aliens for Financial Gain, in violation of 8 U.S.C. §1324(a)(2)(B)(ii) and Aiding and Abetting, in violation of 8 U.S.C. §2, as well as Transportation of Illegal Aliens Causing Serious Bodily Injury and Aiding and Abetting, in violation of 8 U.S.C. §1324(a)(1)(A)(ii) and (v)(II) and (a)(1)(B)(iii). These charges comprised counts 1 through 8 of the Indictment. In count 9 of the Indictment, Fernandez was further charged with Deported Alien Found in the United States, in violation of 8 U.S.C. §1326(a) and (b). On December 20, 2007, Benavides and Fernandez were arraigned on the Indictment and entered a plea of not guilty. II GOVERNMENT'S MOTION FOR FINGERPRINT EXEMPLARS Part of the Government's burden of proof in this case is to satisfy the jury that the defendant Fernandez is the same individual who was deported from the United States to Mexico. To make that showing, the Government will call an expert in fingerprint identification to testify that the Fernandez is in fact the individual whose fingerprints appear on the warrant of deportation or removal. The most efficient and conclusive manner of establishing this information is to permit the expert witness himself to take a set of Fernandez's fingerprints for comparison. Fernandez'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 Fernandez's Fifth Amendment right against self-incrimination. United States v. DePalma, 414 F.2d 394, 397 (9th Cir. 1969); Woods v. United States, 397 F.2d 156 (9th Cir. 1968); see also United States v. St. Onge, 676 F. Supp. 1041, 1043 (D. Mont. 1987). Thus, the Government respectfully requests that the Court order that Fernandez make himself available for fingerprinting by the Government's fingerprint expert.

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III GOVERNMENT'S MOTION FOR RECIPROCAL DISCOVERY All Evidence That Defendant Intends To Introduce In His Case-In-Chief The Government is entitled to reciprocal discovery under Rule 16(b)(1). Pursuant to Rule 16(b)(1), the Government requests that each defendant permit the Government to inspect, copy and photograph any and all books, papers, documents, photographs, tangible objects, or make copies or portions thereof, which are within the possession, custody, or control of each defendant and which each defendant intends to introduce as evidence in his case-in-chief at trial. The Government 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 and control of each defendant, which he intends to introduce as evidence-in-chief at the trial, or which were prepared by a witness whom either defendant intends to call as a witness. The Government also requests that the Court make such order as it deems necessary under Rules 16(d)(1) and (2) to ensure that the Government receives the reciprocal discovery to which it is entitled. B. Reciprocal Jencks ­ Statements By Defense Witnesses (Other Than Defendant) Rule 26.2 provides for the reciprocal production of Jencks material. Rule 26.2 requires production of the prior statements of all witnesses, except a statement made by a defendant. The time frame established by Rule 26.2 requires the statements to be provided to the Government after the witness has testified. However, to expedite trial proceedings, the Government hereby requests that each defendant be ordered to provide all prior statements of defense witnesses by a 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 reports. // // // // // 3 07CR3404-JLS

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IV CONCLUSION For the foregoing reasons, the Government respectfully requests that its motions for fingerprint exemplars and reciprocal discovery be granted.

Respectfully Submitted, KAREN P. HEWITT United States Attorney /s/ Rebekah W. Young REBEKAH W. YOUNG Assistant U.S. Attorney

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1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 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 5 07CR3404-JLS v. JESSE BENAVIDES. Jr, and JOSE FERNANDEZ-FERNANDEZ a.k.a. JOSE BECERRA-CASILLAS, Defendants. ___________________________________ IT IS HEREBY CERTIFIED THAT: I, REBEKAH W. YOUNG, 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 GOVERNMENT'S 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. Michael Messina Rosalyn Feral 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: None 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 17, 2008. /s/ Rebekah W. Young REBEKAH W. YOUNG Assistant U.S. Attorney Plaintiff, UNITED STATES OF AMERICA, ) Criminal Case No. 07CR3404-JLS ) ) ) ) ) ) ) CERTIFICATE OF SERVICE ) ) ) ) ) )