Free Response in Opposition - District Court of California - California

Case 3:07-cr-03283-WQH

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KAREN P. HEWITT United States Attorney CHRISTOPHER P. TENORIO Assistant U.S. Attorney California State Bar No. 166022 880 Front Street, Suite 6293 San Diego, California 92101-8893 Telephone: (619) 557-7843 [email protected] Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) ) DIEGO RUBIO-GASTELUM, ) ) Defendant. ) ) ) ) ) ) ) ) Criminal Case No. DATE: TIME: 07CR3283-WQH

January 14, 2008 2:00 p.m.

GOVERNMENT'S RESPONSE AND OPPOSITION TO DEFENDANT'S MOTIONS TO: 1) COMPEL DISCOVERY; AND, 2) LEAVE TO FILE FURTHER MOTIONS TOGETHER WITH STATEMENT OF FACTS, 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 Christopher P. Tenorio, Assistant United States Attorney, and hereby files its response and opposition to Defendants' above-referenced motions. Said response is based upon the files and records of the case, together with the attached Statement of Facts and Memorandum of Points and Authorities. // // //

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I. STATEMENT OF FACTS On November 19, 2007, at approximately 3:30 a.m., Defendant Diego Rubio-Gastelum drove a white 1994 Nissan minivan to the Border Patrol Checkpoint near Pine Valley, California. At secondary inspection,

Border Patrol agents saw bundles of money through a small hole in the passenger-side sliding cargo door. A total of $250,280.00 was removed from the vehicle. Defendant was placed under arrest.

At approximately 6:31 a.m., Senior Patrol Agent Hiram Cuevas advised Defendant of his Miranda rights in Spanish. Defendant stated

that he understood his rights and agreed to answer question outside the presence of an attorney. The interview was videotaped.

Defendant stated he was hired by an unnamed person in Tijuana, Mexico to drive a vehicle to Phoenix, Arizona in exchange for $1,000. Defendant entered the United States on foot two days prior and picked up the Nissan near the border. A friend loaned him the Nissan. The following day, Defendant

Defendant spent the night in San Diego.

drove to Phoenix, where he delivered the van to an unidentified man, as instructed. The unidentified man told Defendant to wait in a movie theater while $10,000 would be hidden somewhere within the van. One

and a half hours later, Defendant retrieved the van and began driving back to Tijuana. Defendant admitted knowing a large amount of money

was within the van and that he did not intend to declare the money upon exiting the United States. // // // // 2
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II. POINTS AND AUTHORITIES THE GOVERNMENT WILL COMPLY WITH DISCOVERY OBLIGATIONS Except as described

Defendant Lopez moves to compel discovery.

below, the Court should deny Defendant's discovery requests. 1. Rule 16(a)(1)(A): Defendant's Statements

The Government has already disclosed all known written and statements of Defendant and the substance of oral statements made by Defendant in response to questions by government agents in this case. The Government will also provide a recorded videotaped statement of Defendant. 2. Arrest Reports, Notes and Dispatch Tapes

The Government at this time objects to the full production of the officers' handwritten or rough notes of interviews with prospective witnesses, or the production of any dispatch tapes or notes taken while listening to any dispatch tapes. The discovery of rough notes of an interviewing agent are only potentially discoverable under the Jencks Act or Rule 16, and may be preserved to permit the district court to potentially decide whether they become discoverable. United States v. Harris, 543 F.2d 1247,

1252-53 (9th Cir. 1976); but see United States v. Griffin, 659 F.2d 932, 940 (9th Cir. 1982) (holding that the Harris court "actually failed to reach the issue of whether Rule 16 requires the preservation and subsequent production of an agent's rough notes of an interview with [a] defendant."). Whether notes must be produced must be decided on a case-by-case basis after an examination of the relevant facts, but not where the substance of the notes have been preserved in a formal memorandum. United States v. Pisello, 877 F.2d 762, 768 (9th 3
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Cir. 1976), cited in United States v. Williams, 291 F.3d 1180, 1191 (9th Cir. 2002). Pre-trial production of rough notes of interviews with

prospective witnesses is generally not required. See 8 U.S.C. § 3500. If rough notes do exist, they may become discoverable if they constitute "statements" within the meaning of the Jencks Act. Notes

of investigators are "statements," only if they are (1) writings made by the witness are "signed or otherwise approved or adopted" by him, or (2) accounts which are "a substantially verbatim recital" of the witness's oral statements "recorded contemporaneously with the making of such oral statement." 18 U.S.C. § 3500(e); Griffin, 659 F.2d at 936. If such notes constitute "statements," then they are discoverable after the testimony of the person from whom the statement was obtained, where that person "signed or otherwise approved" the

statement (18 U.S.C. § 3500(e)(1)), or they are verbatim recitals of the interviewee's oral statements to the interviewing agent (18 U.S.C. § 3500(e)(2)). Id. at 937. The notes would not become discoverable

after the testimony of the interviewing agent because the "statement" does not represent the agent's own words. Id. at 938. Notes of

observations taken while on surveillance are also generally incomplete and not discoverable because they do not comprise a substantially verbatim narrative of the officer's assertions. United States v.

Bobadilla-Lopez, 954 F.2d 519, 521-522 (9th Cir. 1992); United States v. Spencer, 618 F.2d 605, 606-07 (9th Cir. 1980). If such rough notes exist in this case of interviews with potential witnesses, they would also remain undiscoverable under Rule 16 unless they have been adopted verbatim by the interviewed witness 4
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or are otherwise discoverable pursuant to Brady.

See e.g., United A statement

States v. Friedman, 593 F.2d 109, 119 (9th Cir. 1979).

of a government witness is discoverable pursuant to Rule 16 only to the extent that its production is compelled by the Jencks Act. Id.

at 120; United States v. Walk, 533 F.2d 417, 419 (9th Cir. 1975). Further, although Rule 16(a)(1) allows for the discovery of a written or recorded statement made by the defendant, notes of an investigator which incorporate the statements of a witness, which in turn contain oral "statements" allegedly attributable to the

defendant, are not discoverable except as permitted by the Jencks Act. Walk, 533 F.2d at 418. Further, Rule 16(a)(1)(A) does not require the discovery of a defendant's oral statements unless they are made in response to interrogation by a person the defendant knows to be a federal agent. Cir. 1986). United States v. Hoffman, 794 F.2d 1429, 1432 (9th

Notes of voluntary oral statements by the defendant, Id.

therefore, are not discoverable. 3.

Rule 16, and Brady: For All Purposes, Including Sentencing

The Government is well aware of, and will fully perform, its duty under, Brady v. Maryland, 373 U.S. 83 (1963), and United States v. Agurs, 427 U.S. 97 (1976). Accordingly, the Government will disclose

exculpatory evidence within its possession that is material to the issue of guilt or punishment. Defendant is not entitled to all

evidence known or believed to exist which is, or may be, favorable to the accused, or which pertains to the credibility of the Government's case. As the Ninth Circuit Court of Appeals stated in United States

v. Gardner, 611 F.2d 770 (9th Cir. 1980): [T]he prosecution does not have a constitutional duty to 5
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disclose every bit of information that might affect the jury's decision; it need only disclose information favorable to the defense that meets the appropriate standard of materiality. Id. at 774-75 (citations omitted). See also United States v.

4 Sukumolachan, 610 F.2d 685, 687 (9th Cir. 1980) (the Government is not 5 required to create non-existent exculpatory material); United States 6 v. Flores, 540 F.2d 432, 438 (9th Cir. 1976) (Brady does not create 7 any pretrial discovery privileges not contained in the Federal Rules 8 of Criminal Procedure). 9 The Government is unaware of any Brady material beyond that 10 discussed 11 available. 12 involvement 13 prospective government witness is under investigation. 14 4. 15 16 The Government has already provided the Defendant with arrest 17 reports, judgment and conviction documents for prior offenses, and 18 other evidence of prior bad acts pursuant to Rules 16(a)(1)(A), (B) 19 and (C). 20 bad acts, and will address such evidence and its intentions in motions 21 in limine to be filed separately according to the Court's scheduling 22 orders. 23 5. 24 25 In accordance with obligations under Rule 16(a)(1)(C) and 16(c), 26 the Government will permit the Defendant to inspect and copy or 27 photograph 28 6
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above, The by

and

will

produce is

such

material unaware

if

it

becomes criminal that any

Government any

presently

of

any or

prospective

government

witness,

Rule 16(a)(1)(A), (B) and (C) and Fed. R. Evid. 404(b): Prior Arrests, Convictions Or Bad Acts

The Government reserves the right to introduce such prior

Rule 16(a)(1)(C): Documents and Tangible Evidence and Evidence Seized

all

books,

papers,

documents,

photographs,

tangible

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objects, buildings, or places, or portions thereof, which are within or may come within the possession, custody, or control of the Government, and which are material to the preparation of the

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 Defendant. 6. Expert Witness Notice Will Be Provided

The Government will meet obligations pursuant to Fed. R. Crim. P. 16(a)(1)(E) to disclose information regarding expert witnesses. The Government will produce details regarding the nature of the expert's testimony, and the qualifications of the expert when a trial date is scheduled and any expert is obtained. 7. Evidence of Bias, Motive to Lie, Impeachment or Criminal Investigations Regarding Government Witnesses.

The Government is unaware of any evidence indicating that a prospective Defendant. government witness is biased or prejudiced against

The Government is also unaware of any evidence that

prospective witnesses have a motive to falsify or distort testimony. The Government is aware of, and will comply with, its obligations regarding impeachment evidence pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and United States v. Agurs, 427 U.S. 97 (1976). 8. The The Defendant Is Not Entitled to Witness Addresses objects to Defendant's request for witness

Government

addresses.

Defendant may obtain access to witnesses through the

Government if the witnesses are not represented by counsel. // // // 7
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9.

The Government Is Unaware of Favorable Defense Witnesses

The Government is unaware of any witness who made a favorable statement concerning the Defendant, or of any statement that may be favorable to Defendant's defense, which have not already been provided in discovery. 10. The Government Will Comply With Giglio

The Government has not made any promises, express or implied, to any government witnesses in exchange for their testimony in this case. Therefore, the Government is currently unaware of any discoverable impeachment information pursuant to Giglio v. United States, 405 U.S. 150 (1972). 11. Jencks Act

Consistent with the Jencks Act, 18 U.S.C. § 3500, the Defendant is not entitled to disclosure of witness statements prior to the witness testifying on direct examination at trial. The Government

must produce these statements only after the witness testifies on direct examination. United States v. Taylor, 802 F.2d 1108, 1118 (9th Cir. 1986); United States v. Mills, 641 F.2d 785, 790 (9th Cir.). Indeed, even material believed to be exculpatory and, therefore, subject to disclosure under the Brady doctrine, if contained in a witness statement subject to the Jencks Act, need not be revealed until such time as the witness statement is disclosed under the Act. See United States v. Bernard, 623 F.2d 551, 556 (9th Cir. 1979). The Government reserves the right to withhold the statements of particular witnesses until after they testify. However,

notwithstanding any statements the Government deems necessary to withhold, the Government will disclose witness statements prior to 8
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trial in as timely a manner as practicable, provided defense counsel has complied with his obligations under Rules 12.1, 12.2, 16 and 26.2 of the Federal Rules of Criminal Procedure, and provided that defense counsel submitted all reciprocal discovery and "reverse Jencks" statements. The Government will comply with its Rule 26.2 obligation to produce for the Defendant's examination statements of witnesses in the Government's possession after, or shortly before, such witnesses testify on direct examination. The Government objects to the

Defendant's request that such statements be produced at this time. Similarly, if Rule 12(i) becomes relevant pursuant to suppression proceedings, the Government will comply with obligations to produce statements in accordance with Rule 26.1. The Government objects to Defendant's request for handwritten I213 forms to the extent, if any exist, the identical information has been provided in the typewritten versions provided. 12. The Residual Request objects to Defendant's broad, unarticulated

Government

"residual" discovery request.

The Government will otherwise comply

with its continuing discovery obligations. 13. Preserve Evidence

The Government does not object to Defendant's motion to preserve evidence to the extent it covers evidence within the Government's possession and discoverable pursuant to Federal Rule of Criminal Procedure 16. The Government objects, however, to Defendant's blanket request to preserve unspecified evidence. // // 9
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B.

LEAVE TO FILE FURTHER MOTIONS IS UNNECESSARY Although the

Defendant moves for leave to file further motions.

Government does not oppose in principle Defendant's request to file further motions, the Government would oppose the filing of any further substantive motions to be heard at a motions in limine hearing. If

the defendant foresees the need to file further substantive motions, the Government respectfully requests that the defendant request, and the Court set, a separate date for an additional motion hearing, and that any motions in limine and trial not be set until the conclusion of such hearing. III. CONCLUSION Based on the foregoing, the Court should deny Defendants' abovelisted motions. DATED: December 19, 2007

Respectfully KAREN P. HEWITT United States Attorney CHRISTOPHER P. TENORIO Assistant U.S. Attorney

s/Christopher P. Tenorio

10

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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 IT IS HEREBY CERTIFIED that: I, CHRISTOPHER P. TENORIO, 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 ) ) Plaintiff, ) ) v. ) ) DIEGO RUBIO-GASTELUM, ) ) Defendant. ) ) UNITED STATES OF AMERICA, Criminal Case No. 07CR3283-WQH

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 RESPONSE AND OPPOSITION TO DEFENDANT'S MOTIONS on the following party by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically notifies them: J. KERRY BADER, ESQ. I declare under penalty of perjury that the foregoing is true and correct. Executed on December 19, 2007 Respectfully submitted, CHRISTOPHER P. TENORIO Assistant U.S. Attorney
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s/Christopher P. Tenorio