Free Motion for Discovery - District Court of California - California

Case 3:07-cr-03277-BTM

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1 ZANDRA L. LOPEZ California Bar No. 216567 2 427 C Street, suite 300 San Diego, Ca. 92101 3 619.233.3169, ext. 17 fax: 619.684.3522 4 [email protected] 5 Attorney for Mr. Victor Serrano 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 (HONORABLE BARRY T. MOSKOWITZ) 11 12 UNITED STATES OF AMERICA, 13 Plaintiff, 14 v. 15 VICTOR SERRANO 16 Defendant. 17 18 19 I. 20 21 On November 20, 2007, Mr. Serrano was arrested on suspicion of illegal reentry 22 into the United States. 23 On December 5, 2007, the government secured an indictment against Mr. Serrano. 24 In this two count indictment, the government has charged Mr. Serrano with being a 25 deported alien attempting to enter the United States in violation of 8 U.S.C. Section 26 27 Facts referred to in this memorandum are based on information provided by the government. 28 Mr. Serrano does not admit their accuracy and reserves the right to challenge them.
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CASE NO. 07cr3277-BTM DATE: TIME: January 18, 2008 1:30 p.m.

STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS __________________________________

STATEMENT OF FACTS 1

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1 1326(a) and (b) and with misuse of a passport in violation of 18 U.S.C. Section 1544. 2 3 4 II. MOTION TO COMPEL DISCOVERY/PRESERVE EVIDENCE Mr. Serrano requests the following discovery. His request is not limited to those

5 items of which the prosecutor is aware. It includes all discovery listed below that is in the 6 custody, control, care, or knowledge of any "closely related investigative [or other] 7 agencies." See United States v. Bryan, 868 F.2d 1032 (9th Cir. 1989). 8 (1) Brady Information. The defendant requests all documents, statements, agents'

9 reports, and tangible evidence favorable to the defendant on the issue of guilt and/or 10 which affects the credibility of the government's case. Under Brady v. Maryland, 373 11 U.S. 83 (1963), impeachment as well as exculpatory evidence falls within the definition 12 of evidence favorable to the accused. United States v. Bagley, 473 U.S. 667 (1985); 13 United States v. Agurs, 427 U.S. 97 (1976). 14 (2) Any Proposed 404(b) Evidence. The government must produce evidence of

15 prior similar acts under Fed. R. Crim. P. 16(a)(1) and Fed. R. Evid. 404(b) and any prior 16 convictions which would be used to impeach as noted in Fed. R. Crim. P. 609. In 17 addition, under Fed. R. Evid. 404(b), "upon request of the accused, the prosecution . . . 18 shall provide reasonable notice in advance of trial . . . of the general nature" of any 19 evidence the government proposes to introduce under Fed. R. Evid. 404(b) at trial. The 20 defendant requests notice two weeks before trial to give the defense time to investigate 21 and prepare for trial. 22 (3) Request for Preservation of Evidence. The defendant requests the preservation

23 of all physical evidence that may be destroyed, lost, or otherwise put out of the 24 possession, custody, or care of the government and which relate to the arrest or the events 25 leading to the arrest in this case. This request includes, but is not limited to, the results of 26 any fingerprint analysis, the defendant's personal effects, and any evidence seized from 27 28 2 07cr3277

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1 the defendant or any third party. 2 (4) Defendant's Statements. The defendant requests disclosure and production of

3 all statements made by the defendant. This request includes, but is not limited to, the 4 substance of any oral statement made by the defendant, Fed. R. Crim. P. 16(a)(1)(A), and 5 any written or recorded statement made by the defendant. Fed. R. Crim. P. 6 16(a)(1)(B)(i)-(iii). 7 (5) Tangible Objects. The defendant seeks to inspect and copy as well as test, if

8 necessary, all other documents and tangible objects, including photographs, books, 9 papers, documents, fingerprint analyses, vehicles, or copies of portions thereof, which are 10 material to the defense or intended for use in the government's case-in-chief or were 11 obtained from or belong to the defendant. Fed. R. Crim. P. 16(a)(1)(E). 12 (6) Expert Witnesses. The defendant requests the name, qualifications, and a

13 written summary of the testimony of any person that the government intends to call as an 14 expert witness during its case in chief. Fed. R. Crim. P. 16(a)(1)(G). 15 (7) Witness Addresses. The defendant requests access to the government's

16 witnesses. Counsel requests a witness list and contact phone numbers for each 17 prospective government witness. Counsel also requests the names and contact numbers 18 for witnesses to the crime or crimes charged (or any of the overt acts committed in 19 furtherance thereof) who will not be called as government witnesses. 20 (8) Jencks Act Material. The defendant requests production in advance of trial of

21 material discoverable under the Jencks Act, 18 U.S.C. § 3500. Advance production will 22 avoid needless delays at pretrial hearings and at trial. This request includes any "rough" 23 notes taken by the agents in this case. This request also includes production of transcripts 24 of the testimony of any witness before the grand jury. See 18 U.S.C. § 3500(e)(1)-(3). 25 (9) Informants and Cooperating Witnesses. The defendant requests disclosure of

26 the name(s), address(es), and location(s) of all informants or cooperating witnesses used 27 28 3 07cr3277

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1 or to be used in this case, and in particular, disclosure of any informant who was a 2 percipient witness in this case or otherwise participated in the crime charged. Roviaro v. 3 United States, 353 U.S. 52, 61-62 (1957). The government must disclose any information 4 derived from informants which exculpates or tends to exculpate the defendant. Brady v. 5 Maryland, 373 U.S. 83 (1963). The government must disclose any information indicating 6 bias on the part of any informant or cooperating witness. Id. 7 (10) Specific Request: Mr. Serrano specifically requests the opportunity to view his own

8 "A-File" and any documents relating to his alleged deportation and/or removal from the United 9 States. 10 (11) Residual Request. The defendant intends by this discovery motion to invoke

11 his rights to discovery to the fullest extent possible under the Federal Rules of Criminal 12 Procedure and the Constitution and laws of the United States. 13 14 15 III. LEAVE TO FILE FURTHER MOTIONS As new information surfaces ­ via further discovery provided by government,

16 defense investigation, or an order of this court ­ the defense may need to file further 17 motions, or to supplement existing motions. Defense counsel requests leave to file 18 further motions. 19 20 21 22 23 24 //s// Zandra L. Lopez 25 Dated: January 7, 2008 26 27 28 4 07cr3277 ZANDRA L. LOPEZ Attorney for Mr. Serrano Respectfully submitted, IV. CONCLUSION Mr. Serrano requests that this Court grant his motions.