Free Response in Opposition - District Court of California - California

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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. ) ) ) VICTOR SERRANO, ) ) Defendant. ) ) ) ) ____________________________________) UNITED STATES OF AMERICA Criminal Case No. 07CR3277-BTM GOVERNMENT'S RESPONSE IN OPPOSITION TO DEFENDANT'S MOTION FOR DISCOVERY TOGETHER WITH STATEMENT OF THE CASE AND MEMORANDUM OF POINTS AND AUTHORITIES Date: January 18, 2008 Time: 1:30 p.m. Court: The Hon. Barry Ted Moskowitz

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 Response in Opposition to Defendant's Motion for Discovery and for Leave for File 21 Further Motions. The Government's Response is based upon the files and records of the case together 22 with the attached Statement of the Case, Statement of Facts, and Memorandum of Points and 23 Authorities. 24 // 25 // 26 // 27 // 28 //

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I STATEMENT OF THE CASE On December 5, 2007, a federal grand jury in the Southern District of California returned a twocount Indictment charging defendant Victor Serrano ("Defendant") with Attempted Entry After Deportation, in violation of 8 U.S.C. §1326(a) and (b) and Misuse of Passport, in violation of 18 U.S.C. §1544. On December 6, 2007, Defendant was arraigned on the Indictment and entered a plea of not guilty. On January 6, 2008, the Government filed its motion for fingerprint exemplars and reciprocal discovery. On January 8, 2008, Defendant filed a motion for discovery. II STATEMENT OF FACTS On November 20, 2007, at approximately 6:45 a.m., Defendant presented himself to a Customs and Border Protection (CBP) Officer at the pedestrian lanes at the San Ysidro Port of Entry to apply for admission into the United States. Defendant identified himself with a United States passport bearing passport number 039565491 and bearing the name "Marco Antonio Cruz." The date of birth listed on the passport was March 15, 1982, and the place of birth was listed as California. The passport also bore a photograph that did not resemble Defendant. The officer recognized the discrepancy and Defendant was referred to secondary inspection. During his time at secondary, Defendant admitted that his true name was Victor Serrano and that his date of birth was August 12, 1977 and his place of birth was Guanajuato, Mexico. He also admitted that he was a citizen of Mexico, and was not a United States citizen. Fingerprint checks revealed that Defendant had a prior criminal conviction for violating California Penal Code §261.5(c) (statutory rape). (The Government has since determined that Defendant's victim was 13 at the time of the offense and that Defendant was more than 10 years older than his victim at the time. Indeed, Defendant was initially charged with violating California Penal Code §288(a) -- Lewd and Lascivious Acts with Child Under 14 -- but later pled out to the § 261.5(c) charge and received 180 days in jail and 5 years probation.) Record checks also revealed that Defendant had been formally removed from the United States to Mexico on August 31, 2007. Based on the above, Defendant was detained in the secondary inspection area at the San Ysidro Port of Entry.

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At approximately 4:15 p.m., Special Agent Richard Escott of the U.S. State Department was notified by Customs and Border Protection regarding Defendant's apprehension. Agent Escott checked the State Department's U.S. Passport database and determined that passport number 039565491 had not yet been reported lost or stolen. At approximately 5:30 p.m., Defendant was retrieved from a seating area in the secondary inspection area and was brought to an upstairs interview room. Agent Escott was assisted by CBP Officer Pederson who served as translator, and obtained consent from Defendant to have his interview videotaped. Defendant was read his Miranda warning in Spanish and provided a written copy of the warnings. He stated that he understood and waived his right to counsel. During his subsequent interview, Defendant again admitted that his true name was Victor Serrano, that his date of birth was August 12, 1977 and that his place of birth was Guanajuato, Mexico. Defendant also stated that he was a citizen of Mexico and not a citizen of the United States, and said that he has never applied for a U.S. Visa or attempted to legally enter the United States. Defendant admitted to having paid 1000 pesos to a man in Tijuana for the U.S. passport. Agent Escott asked Defendant if he'd asked where the passport had came from, and Defendant replied in Spanish, "Truthfully, I didn't care where it came from." Defendant stated that he then used the passport, knowing that it was not his and that it was a violation of U.S. law to apply for entry to the United States. He also said that he knew it was a violation of U.S. law to apply for entry into the United States by falsely claiming to be a U.S. citizen. Defendant also admitted that he had a felony conviction in California, that he was currently on probation, and that he'd been recently removed from the United States to Mexico. Defendant stated that he knew that it was a violation of U.S. law to return to the United States after having been removed and the knew that committing these acts was a violation of the terms of his probation. Defendant made a sworn written statement admitting to the facts of the case. Defendant claimed that he was attempting illegal entry into the United States for the sole purpose of retrieving some clothes from his friend's house in the Los Angeles area.

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III DEFENDANT'S DISCOVERY MOTION The initial 53 pages of discovery provided in this case included reports of Defendant's arrest, Defendant's rap sheet, and copies of Defendant's immigration and conviction documents. Defendant has also been provided with a copy of the DVD from his post-Miranda interview and the audiotapes from his removal hearing before an Immigration Judge. Finally, Defendant has been provided with

additional discovery documenting his prior felony conviction. The Government will also schedule an A-File viewing at Defendant's convenience. Additional discovery requests are discussed below. (1) Brady Material The Government has and will continue to perform its duty under Brady v. Maryland, 373 U.S. 83 (1963) to disclose material exculpatory information or evidence favorable to Defendant when such evidence is material to guilt or punishment. The Government recognizes that its obligation under Brady covers not only exculpatory evidence, but also evidence that could be used to impeach witnesses who testify on behalf of the United States. See Giglio v. United States, 405 U.S. 150, 154 (1972); United States v. Bagley, 473 U.S. 667, 676-77 (1985). This obligation also extends to evidence that was not requested by the defense. Bagley, 473 U.S. at 682; United States v. Agurs, 427 U.S. 97, 107-10 (1976). "Evidence is material, and must be disclosed (pursuant to Brady), 'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Carriger v. Stewart, 132 F.3d 463, 479 (9th Cir. 1997) (en banc). The final determination of materiality is based on the "suppressed evidence considered collectively, not item by item." Kyles v. Whitley, 514 U.S. 419, 436-37 (1995). Brady does not, however, mandate that the Government open all of its files for discovery. See United States v. Henke, 222 F.3d 633, 642-44 (9th Cir. 2000) (per curiam). Under Brady, the United States is not required to provide: (1) neutral, irrelevant, speculative, or inculpatory evidence (see United States v. Smith, 282 F.3d 758, 770 (9th Cir. 2002)); (2) evidence available to the defendant from other sources (see United States v. Bracy, 67 F.3d 1421, 1428-29 (9th Cir. 1995)); (3) evidence that the defendant already possesses (see United States v. Mikaelian, 168 F.3d 380-389-90 (9th Cir. 1999) amended by 180 F.3d 1091 (9th Cir. 1999)); or (4) evidence that the undersigned Assistant U.S. Attorney could not reasonably be imputed to have knowledge or control 4 07CR3277-BTM

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over. See United States v. Hanson, 262 F.3d 1217, 1234-35 (11th Cir. 2001).

Brady does not require

the Government "to create exculpatory evidence that does not exist," United States v. Sukumolahan, 610 F.2d 685, 687 (9th Cir. 1980), but only requires that it "supply a defendant with exculpatory information of which it is aware." United States v. Flores, 540 F.2d 432, 438 (9th Cir. 1976). (2) Any Proposed 404(b) Evidence The Government will disclose in advance of trial the general nature of any "other bad acts" evidence that the United States intends to introduce at trial pursuant to Fed. R. Evid. 404(b). Evidence should not be treated as "other bad acts" evidence under Fed. R. Evid. 404(b) when the evidence concerning the other bad acts and the evidence concerning the crime charged are "inextricably intertwined." United States v. Soliman, 812 F.2d 277, 279 (9th Cir. 1987). (3) Request for Preservation of Evidence The Constitution requires the Government to preserve evidence "that might be expected to play a significant role in the suspect's defense." California v. Trombetta, 467 U.S. 479, 488 (1984). To require preservation by the Government, such evidence must (1) "possess an exculpatory value that was apparent before the evidence was destroyed," and (2) "be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Id. at 489; see also Cooper v. Calderon, 255 F.3d 1104, 1113-14 (9th Cir. 2001). The Government has made every effort to preserve evidence it deems to be relevant and material to this case. Any failure to gather and preserve evidence, however, would not violate due process absent bad faith by the Government that results in actual prejudice to the Defendant. See Illinois v. Fisher, 540 U.S.1174 (2004) (per curiam); Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988); United States v. Rivera-Relle, 322 F.3d 670 (9th Cir. 2003); Downs v. Hoyt, 232 F.3d 1031, 1037-38 (9th Cir. 2000). (4) Defendant's Statements The Government recognizes its obligation, under Rules 16(a)(1)(A) and 16(a)(1)(B), to provide to Defendant the substance of Defendant's oral statements and Defendant's written statements. (Unless otherwise noted, all references to "Rules" refers to the Federal Rules of Criminal Procedure.) The Government has produced all of the Defendant's statements that are known to the undersigned Assistant

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U.S. Attorney at this date. If the Government discovers additional oral or written statements that require disclosure under Rule 16(a)(1)(A) or Rule 16(a)(1)(B), such statements will be promptly provided. (5) Tangible Objects The Government has complied and will continue to comply with Rule 16(a)(1)(E) in allowing Defendant an opportunity, upon reasonable notice, to examine, inspect, and copy tangible objects that are within its possession, custody, or control, and that is either material to the preparation of Defendant's defense, or is intended for use by the Government as evidence during its case-in-chief at trial, or was obtained from or belongs to Defendant. The Government need not, however, produce rebuttal evidence in advance of trial. United States v. Givens, 767 F.2d 574, 584 (9th Cir. 1984). As noted above, the Government will schedule an A-File viewing at Defendant's convenience. (6) Expert Witnesses The Government will disclose to Defendant the name, qualifications, and a written summary of testimony of any expert the Government intends to use during its case-in-chief at trial pursuant to Fed. R. Evid. 702, 703, or 705. (7) Witness Addresses The Government has already provided Defendant with the reports containing the names, work addresses, and telephone numbers of the inspectors, officers and special agents whom asked questions of Defendant. In its trial memorandum, the Government will provide Defendant with a list of all witnesses whom it intends to call in its case-in-chief, although delivery of such a witness list is not required. See United States v. Discher, 960 F.2d 870 (9th Cir. 1992); United States v. Mills, 810 F.2d 907, 910 (9th Cir. 1987). The Government strenuously objects to providing the home addresses or the home or personal cellular telephone numbers to Defendant. In non-capital cases, the Government is not even required to disclose the names of its witnesses prior to trial. United States v. Dishner, 974 F.2d 1502, 1522 (9th Cir 1992); (citing United States v. Steel, 759 F.2d 706, 709 (9th Cir. 1985)); United States v. Hicks, 103 F.23d 837, 841 (9th Cir. 1996); see also United States v. Bejasa, 904 F.2d 137 (2d Cir. 1990) (holding that United States did not improperly deny defendant access to government witnesses whose telephone numbers and addresses the government refused to provide because defendant

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knew the identities of the government witnesses and presumably knew their telephone numbers or could have contacted them through the exercise of due diligence). (8) Jencks Act Material Rule 26.2 incorporates the Jencks Act, 18 U.S.C. §3500, into the Federal Rules of Criminal Procedure. The Jencks Act requires that, after a Government witness has testified on direct examination, the Government must give the Defendant any "statement" (as defined by the Jencks Act) in the Government's possession that was made by the witness relating to the subject matter to which the witness testified. 18 U.S.C. §3500(b). For purposes of the Jencks Act, a "statement" is (1) a written statement made by the witness and signed or otherwise adopted or approved by her, (2) a substantially verbatim, contemporaneously recorded transcription of the witness's oral statement, or (3) a statement by the witness before a grand jury. 18 U.S.C. §3500(e). If notes are read back to a witness to see whether or not the government agent correctly understood what the witness was saying, that act constitutes "adoption by the witness" for purposes of the Jencks Act. United States v. Boshell, 952 F.2d 1101, 1105 (9th Cir. 1991) (citing Goldberg v. United States, 425 U.S. 94, 98 (1976)). Jencks will be complied with at the time of trial. (9) Informants and Cooperating Witnesses At this time, the Government is not aware of any confidential informants or cooperating witnesses involved in this case. The Government must generally disclose the identity of informants where (1) the informant is a material witness, or (2) the informant's testimony is crucial to the defense. Roviaro v. United States, 353 U.S. 53, 59 (1957). If there is a confidential informant involved in this case, the Court may, in some circumstances, be required to conduct an in-chambers inspection to determine whether disclosure of the informant's identity is required under Roviaro. See United States v. Ramirez-Rangel, 103 F.3d 1501, 1508 (9th Cir. 1997). If the Government determines there is a confidential informant somehow involved in this case, it will either disclose the identity of the informant or submit the informant's identity to the Court for an in-chambers inspection. (10) Residual Request The Government has already complied with Defendant's residual request for prompt compliance with Defendant's discovery requests. 7 07CR3277-BTM

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III DEFENDANT'S MOTION FOR LEAVE TO FILE FURTHER MOTIONS The Government does not oppose Defendant's request for leave to file further motions, as long as such motions are based on discovery not yet received by Defendant.

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

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA, Plaintiff,

Defendant. ___________________________________ IT IS HEREBY CERTIFIED THAT:

) Criminal Case No. 07CR3277-BTM ) ) ) ) ) ) ) CERTIFICATE OF SERVICE ) ) ) )

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 RESPONSE IN OPPOSITION TO DEFENDANT'S MOTION FOR 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. Zandra Lopez 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 14, 2008. /s/ Rebekah W. Young REBEKAH W. YOUNG Assistant U.S. Attorney

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