Free Response in Opposition - District Court of California - California

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KAREN P. HEWITT United States Attorney PAUL S. COOK Assistant U. S. Attorney California Bar No. 79010 Federal Office Building 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-5687 [email protected] Attorneys for the United States of America UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 20 The United States of America, by its counsel, Karen P. Hewitt, 21 United States Attorney, and Paul S. Cook, Assistant United States 22 Attorney, hereby responds to and opposes Defendants' Motions: To 23 Compel Discovery and For Leave To File Further Motions. This response 24 and opposition is based upon the files and records of the case, 25 together with the attached statement of facts and memorandum of points 26 and authorities. 27 reciprocal discovery. 28 The Government also hereby files its motion for ) ) Plaintiff, ) ) v. ) ) ALEJANDRO GALAVIZ-MORENO, ) ) ) ) ) Defendant. ) ) ) ) ) ) ) ______________________________) UNITED STATES OF AMERICA, Criminal Case No. 07CR3273-W DATE: JANUARY 28, 2008 TIME: 2:00 p.m.

GOVERNMENT'S RESPONSE AND OPPOSITION TO DEFENDANT'S MOTIONS: (1) (2) TO COMPEL DISCOVERY; FOR LEAVE TO FILE FURTHER MOTIONS. TOGETHER WITH STATEMENT OF FACTS, MEMORANDUM OF POINTS AND AUTHORITIES AND GOVERNMENT'S MOTIONS FOR RECIPROCAL DISCOVERY

Case 3:07-cr-03273-W

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I STATEMENT OF FACTS On Friday, November 16, 2008, at 11:55 a.m., Defendant, a Lawful Permanent Resident, drove his Ford pick-up truck into the United States from Mexico at the Calexico West, California, Port of Entry. Defendant stated that he had owned the truck for approximately two months, although the officer noticed that the vehicle registration indicated he had registered the truck three days prior (11/13/07). Defendant was referred for secondary inspection. In Secondary, the

Defendant told an Officer that he lived in Mexicali, worked as a mechanic, bought the truck one week ago for $5200.00, and was going to put gas in it. A narcotic detector dog alerted to the front wall Defendant was escorted into the office while

of the pick-up's bed.

officers searched the truck. An x-ray revealed an anomaly in the area where the dog had alerted. Officers detected fresh, damp bondo Officers removed the plates and

holding access plates in place.

discovered 20 packages, weighing approximately 22.16 kilograms, of cocaine inside a non-factory compartment. ICE agents responded to the Port, searched the truck and at 4:00 conducted a video-taped interview of the Defendant. The

Defendant requested consular notification, which was done. Defendant was advised of his Miranda rights in Spanish and declined to speak to the Agents.

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II THE GOVERNMENT HAS AND WILL CONTINUE TO COMPLY WITH ITS DISCOVERY OBLIGATIONS The United States is aware of its discovery obligations, and will continue to comply with its obligations under Brady v. Maryland, 373 U.S. 83 (1963), the Jencks Act (18 U.S.C. §3500) and Rule 16 of the Federal Rules of Criminal Procedure. and will continue to comply with all discovery rules. The United States has provided Defendant with

69 pages of discovery which includes: agents' reports; photos of the car and drugs; copies of seized items; and Defendant's record (none). The Government will allow Defendant to inspect all tangible objects seized and will provide defendant with a copy of the DEA lab report when it receives it. The United States will provide Defendant with

notice of its intent to present evidence pursuant to Rule 404(b) three weeks before trial or as otherwise ordered by the Court. Government is unaware of any such evidence at this time. The

Regarding

certain specific requests made by the Defendant, the United States responds as follows: 1. The Evidence Seized and Preservation Government will preserve all evidence seized from the

Defendants, who in turn may make an appointment, at a mutually convenient time, to inspect and photograph the evidence (copies of items seized from the defendants have been provided in discovery). ICE has notified the United States Attorney's Office that it intends to destroy the seized drugs and may administratively forfeit the vehicle. If Defendants want the entire amount of the seized

marijuana preserved for re-testing or re-weighing, the Government 3
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would not oppose a Court Order to this effect, if Defendants seriously contest either the weight or that the substance seized is cocaine, otherwise there is no need to re-weigh or re-analyze. 2. Expert Witnesses

The Government will notify Defendant of its expert witnesses, such as the DEA chemist and drug value expert, and will comply with Fed. R. Crim. P. 16(a)(1)(G). 3. Informant Information

The Government, at this time, is unaware of an informants in this case. 4. Henthorn Material

The Government will review the requested personnel files of all federal law enforcement individuals who will be called as witnesses in this case for Brady material. The Government will request that

counsel for the appropriate federal agency conduct such review. See United States v. Jennings, 960 F.2d 1488, 1492 (9th Cir. 1992). Pursuant to United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991) and United States v. Cadet, 727 F.2d 1452 (9th Cir. 1984), the United States agrees to "disclose information favorable to the defense that meets the appropriate standard of materiality ..." Cadet, 727 F.2d at 1467, 1468. uncertain about the Further, if counsel for the United States is materiality of the information within its

possession in such personnel files, the information will be submitted to the Court for in camera inspection and review. 5. At Criminal Investigation of Any Government Witnesses this time, the Government is unaware of any criminal

involvement by any prospective government witness, or that any witness 4
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is under investigation.

Defendant's reliance on United States v.

Chitty, 760 F.2d 425 (2nd Cir. 1985), in support of these requests is misplaced. In Chitty, the Second Circuit held that such information

was discoverable where the Government witness had been told he was under investigation and thus had a motive to testify favorably for the Government. Id. at 428.

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). 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. A defendant is not entitled, however, to any and all

evidence that a prospective witness is under investigation by federal, state or local authorities for misconduct. 6. Bias and Prejudice Of Prospective Witnesses

The Government is unaware that any information demonstrating that a witness is biased or prejudiced against Defendant.

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III LEAVE TO FILE FURTHER MOTIONS The Government has no objection to this motion. IV THE GOVERNMENT'S MOTION FOR RECIPROCAL DISCOVERY SHOULD BE GRANTED The discovery provided to Defendant, at his request, includes

7 documents and objects which are discoverable under Rule 16(a)(1)(E). 8 Consequently, 9 defendant any books, papers, documents, data, photographs, tangible 10 objects, buildings or places, or copies or portions of any of these 11 items that are in Defendant's possession, custody or control and which 12 Defendant intends to use in the Defendant's case-in-chief. 13 16(b)(1)(A), Fed. R. Crim. P.. 14 Fed. R. Crim. P. 26.2 requires the production of prior statements 15 of all witnesses, except Defendant's. 16 the reciprocal production of Jencks statements. 17 established by the rule requires the statement to be provided after 18 the witness has testified, as in the Jencks Act. 19 United States hereby requests that Defendant be ordered to supply all 20 prior statements of defense witnesses by a reasonable date before 21 trial to be set by the Court. 22 these statements are memorialized in, including but not limited to, 23 tape recordings, handwritten or typed notes or reports. 24 25 26 27 28 6
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the

Government

is

entitled

to

discover

from

the

See Rule

The new rule thus provides for The time frame

Therefore, the

This order should include any form

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V CONCLUSION reasons, the Government be denied, respectfully except where

Defendant's

motions

unopposed, and the Government's motion for reciprocal discovery be granted. Date: January 22, 2008. Respectfully submitted, KAREN P. HEWITT United States Attorney s/Paul S. Cook PAUL S. COOK Assistant United States Attorney

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, v. ALEJANDRO GALAVIZ-MORENO, Defendant. ) ) ) ) ) ) ) ) ) ) Case No. 07cr3273-W

CERTIFICATE OF SERVICE

IT IS HEREBY CERTIFIED THAT: 9 10 11 12 13 14 1. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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I, Paul S. Cook, 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 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. John C. Ellis, Jr.

I declare under penalty of perjury that the foregoing is true and correct. Executed on January 22, 2008. s/Paul S. Cook PAUL S. COOK