Free Motion for Discovery - District Court of California - California

Case 3:07-cr-03270-W

Document 21-2

Filed 01/22/2008

Page 1 of 9

1 ROBERT H. REXRODE, III California State Bar No. 230024 2 427 C Street, Suite 300 San Diego, California 92101 3 Telephone: (619) 233-3169, Ext. 13 Facsimile: (619) 684-3553 4 [email protected] 5 Attorneys for Mr. Cedeno-Martinez 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 (HONORABLE THOMAS J. WHELAN) 10 UNITED STATES OF AMERICA, 11 Plaintiff, 12 v. 13 MIGUEL CEDENO-MARTINEZ (1), 14 JONATHAN ASTORGA-MADRIGAL (2), 15 Defendants. 16 _________________________________ 17 18 19 ) ) ) ) ) ) ) ) ) ) ) I. FACTUAL HISTORY 1 On November 13, 2007, agents spotted a group of people running north from Mexico CASE NO. 07cr3270-TJW STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTIONS.

20 near the San Ysidro Port of Entry. An agent tracked these people and saw some of them 21 tumble into a minivan. Agents detained eight people. Agents later arrested Mr. Miguel 22 Cedeno-Martinez, who was sitting behind the wheel of the minivan, and Jonathan Astorga23 Madrigal, whom agents believe guided the people across the border. 24 On December 4, 2007, the government secured a six-count indictment against

25 Mr. Cedeno-Martinez and Mr. Astorga-Madrigal, alleging violations of 8 U.S.C. § 1324. 26 27 The following facts are based on information provided by the government. Mr. Cedeno28 Martinez does not admit their accuracy and reserves the right to challenge them.
1

Case 3:07-cr-03270-W

Document 21-2

Filed 01/22/2008

Page 2 of 9

1 2 3

II. MOTION COMPEL DISCOVERY Mr. Cedeno-Martinez requests the following discovery. His request is not limited to

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

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

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

21 of all physical evidence that may be destroyed, lost, or otherwise put out of the possession, 22 custody, or care of the government and which relate to the arrest or the events leading to the 23 arrest in this case. This request includes, but is not limited to, the results of any fingerprint 24 analysis, the defendant's personal effects, and any evidence seized from the defendant or any 25 third party. 26 (4) Defendant's Statements. The defendant requests disclosure and production of all

27 statements made by the defendant. This request includes, but is not limited to, the substance 28

2

07cr3720

Case 3:07-cr-03270-W

Document 21-2

Filed 01/22/2008

Page 3 of 9

1 of any oral statement made by the defendant, Fed. R. Crim. P. 16(a)(1)(A), and any written 2 or recorded statement made by the defendant. Fed. R. Crim. P. 16(a)(1)(B)(i)-(iii). 3 (5) Tangible Objects. The defendant seeks to inspect and copy as well as test, if

4 necessary, all other documents and tangible objects, including photographs, books, papers, 5 documents, alleged narcotics, fingerprint analyses, vehicles, or copies of portions thereof, 6 which are material to the defense or intended for use in the government's case-in-chief or 7 were obtained from or belong to the defendant. Fed. R. Crim. P. 16(a)(1)(E). 8 (6) Expert Witnesses. The defendant requests the name, qualifications, and a written

9 summary of the testimony of any person that the government intends to call as an expert 10 witness during its case in chief. Fed. R. Crim. P. 16(a)(1)(G). 11 (7) Witness Addresses. The defendant requests access to the government's witnesses.

12 Thus, counsel requests a witness list and contact phone numbers for each prospective 13 government witness. Counsel also requests the names and contact numbers for 14 witnesses to the crime or crimes charged (or any of the overt acts committed in furtherance 15 thereof) who will not be called as government witnesses. 16 (8) Jencks Act Material. Mr. Cedeno-Martinez requests production in advance of

17 trial of material discoverable under the Jencks Act, 18 U.S.C. § 3500. Advance production 18 will avoid needless delays at pretrial hearings and at trial. This request includes any "rough" 19 notes taken by the agents in this case. This request also includes production of transcripts 20 of the testimony of any witness before the grand jury. See 18 U.S.C. § 3500(e)(1)-(3). 21 (9) Informants and Cooperating Witnesses. Mr. Cedeno-Martinez requests disclosure

22 of the name(s), address(es), and location(s) of all informants or cooperating witnesses used 23 or to be used in this case, and in particular, disclosure of any informant who was a percipient 24 witness in this case or otherwise participated in the crime charged against Mr. Cedeno25 Martinez. Roviaro v. United States, 353 U.S. 52, 61-62 (1957). The government must 26 disclose any information derived from informants which exculpates or tends to exculpate Mr. 27 Cedeno-Martinez. Brady v. Maryland, 373 U.S. 83 (1963). The government must disclose 28 any information indicating bias on the part of any informant or cooperating witness. Id.

3

07cr3720

Case 3:07-cr-03270-W

Document 21-2

Filed 01/22/2008

Page 4 of 9

1 2 3

(10) Specific Discovery Requests a. request for access to a-files. Mr. Cedeno-Martinez requests access to the immigration, or "A-File," of the

4 material witnesses involved in this case. See Fed. R. Crim. P. 16 (1)(E)(i). 5 6 b. request for disclosure of co-defendant's statement. Mr. Cedeno-Martinez requests a copy of the videotape of his co-defendant's

7 statement to agents. Particularly given the government's allegation of aiding and abetting, 8 this is discoverable under Fed. R. Crim. P. 16 (1)(E)(i)-(ii). 9 10 c. information regarding the released material witnesses Mr. Cedeno-Martinez requests discovery and contact information regarding

11 the released material witnesses. As percipient witnesses, their identities are discoverable. 12 Cf. Roviaro v. United States, 353 U.S. 52, 61-62 (1957). Moreover, as the government is 13 responsible for putting these material witnesses beyond the reach of defense counsel, it is 14 incumbent on the government to provide information that may lead to the defense being able 15 to contact them. See Fed. R. Crim. P. 16 (1)(E)(i). 16 (11) Residual Request. Mr. Cedeno-Martinez intends by this discovery motion to

17 invoke his rights to discovery to the fullest extent possible under the Federal Rules of 18 Criminal Procedure and the Constitution and laws of the United States. 19 20 21 1. 22 Introduction Mr. Cedeno-Martinez moves to suppress statements made by to Agent Byfield on the III. MOTION TO SUPPRESS STATEMENTS

23 basis of a Miranda violation. The violation of Mr. Cedeno-Martinez's Miranda rights took 24 three forms.2 First, before advising Mr. Cedeno-Martinez of his rights under Miranda, 25 immigration officials had earlier advised him of his "administrative rights." Because these 26 27 28 The facts in this motion are from defense counsel's review of the video of M. CedenoMartinez's statement to agents. 4 07cr3720
2

Case 3:07-cr-03270-W

Document 21-2

Filed 01/22/2008

Page 5 of 9

1 administrative rights affirmatively advise a person that an attorney will not be provided for 2 them free of cost, the later Miranda warnings were confusing. 3 Second, although agents advised Mr. Cedeno-Maritinez of his right to contact the

4 Mexican Consulate, when Mr. Cedeno-Martinez requested to do so, agents told him that he 5 could do so after speaking with them. 6 Third, when advising Mr. Cedeno-Martinez of his rights under Miranda, agents

7 explained to Mr. Cedeno-Martinez that if he did not have the funds to hire a lawyer "one can 8 be assigned." This advisal falls short of the explicit requirement that agents make sure a 9 suspect make a knowing and voluntary waiver of their rights under Miranda. For these 10 reasons, both independently and combined, Mr. Cedeno-Martinez never knowingly and 11 voluntarily waived his Miranda rights. 12 2. 13 General legal principles "For inculpatory statements made by a defendant during custodial interrogation to be

14 admissible in evidence, the defendant's waiver of Miranda rights must be voluntary, 15 knowing, and intelligent." United States v. Garibay, 143 F.3d 534, 536 (9th Cir. 1998) 16 (internal quotation marks omitted). The government bears the burden of demonstrating a 17 waiver of a person's Miranda rights by a preponderance. Id. "The government's burden to 18 make such a showing is great, and the court will indulge every reasonable presumption 19 against waiver of fundamental constitutional rights." Id. (internal quotation marks omitted). 20 "What Miranda requires is meaningful advice to the unlettered and unlearned in

21 language which [they] can comprehend and on which [they] can knowingly act. In order for 22 the warning to be valid, the combination or the wording of its warnings cannot be 23 affirmatively misleading. The warning must be clear and not susceptible to equivocation." 24 United States v. San Juan-Cruz, 314 F.3d 384, 387 (9th Cir. 2002) (internal quotation marks 25 and citations omitted) (brackets in original). 26 2. 27 San Juan-Cruz requires suppression To be valid, Miranda warnings must be clear and not confusing. San Juan-Cruz, 314

28 F.3d at 387. As the Ninth Circuit has held: "When one is told clearly that he or she does not

5

07cr3720

Case 3:07-cr-03270-W

Document 21-2

Filed 01/22/2008

Page 6 of 9

1 have the right to a lawyer free of cost and then subsequently advised, `[i]f you can't afford 2 a lawyer, one will be appointed for you,' it is confusing." Id. at 388. This is the situation 3 here. 4 As in San Juan-Cruz, before agents advised Mr. Cedeno-Martinez of his rights under

5 Miranda, agents had advised Mr. Cedeno-Martinez of his "administrative rights." These 6 "administrative rights" do not provide for appointed counsel, but rather affirmatively state 7 that a person is not entitled to appointed counsel. As was the case in San Juan-Cruz, because 8 of the earlier "administrative rights" warning, the later Miranda warnings were not 9 sufficiently clear to provide a clear advisal of Mr. Cedeno-Martinez's rights under Miranda. 10 See San Juan-Cruz, 314 F.3d at 387-90. 11 Although agents did advise Mr. Cedeno-Martinez that his "administrative rights" no

12 longer applied before questioning him, there is nothing in the agent's advisal to indicate that 13 Mr. Cedeno-Martinez understood that the earlier warning that he did not have the right to an 14 appointed attorney no longer applied. In San Juan-Cruz, the Ninth Circuit did note that the 15 officer there "could have rectified the situation easily by clarifying his statements or advising 16 San Juan to disregard the Administrative Rights in favor of those that were read to him under 17 Miranda . . . ." San Juan-Cruz, 314 F.3d at 398. Here, however, agents did neither. 18 Rather, in a display of oblique bureaucratic speak, an agent asked whether he

19 understood "more or less" that his earlier administrative rights no longer applied and that 20 Mr. Cedeno-Martinez was not going to be given a voluntary return to Mexico. From this it 21 is at least equally likely that Mr. Cedeno-Martinez understood that his rights regarding a 22 voluntary return, not his rights at an immigration hearing, no longer applied. Notably, agents 23 never told Mr. Cedeno-Martinez to "disregard" the "administrative rights" earlier read to him 24 "in favor of those" under Miranda. See San Juan-Cruz, 314 F.3d at 398. The agents' 25 retraction of Mr. Cedeno-Martinez's "administrative rights" did not act to fully inform 26 Mr. Cedeno-Martinez "what the nature of his rights was under the Fifth Amendment." Id. 27 // 28 //

6

07cr3720

Case 3:07-cr-03270-W

Document 21-2

Filed 01/22/2008

Page 7 of 9

1 3. 2

Agents violated Mr. Cedeno-Martinez's right to contact the Mexican Consulate Immediately following this confusing retraction of Mr. Cedeno-Martinez's

3 administrative rights, agents advised Mr. Cedeno-Martinez of his right to contact the 4 Mexican Consulate. Despite Mr. Cedeno-Martinez's request to do so, agents tell

5 Mr. Cedeno-Martinez that he can call the consulate when the agents get a chance. This 6 chance apparently did not arise until after agents interrogated Mr. Cedeno-Martinez. 7 Under the Vienna Convention, Mr. Cedeno-Martinez had a right to have agents notify United States v. LomberaHere, agents informed

8 the Mexican Consulate, "without delay," of his arrest.

9 Camorlinga, 206 F.3d 882, 884 (9th Cir. 2000) (en banc).

10 Mr. Cedeno-Martinez of his rights to speak to the Mexican Consulate, but when Mr. Cedeno11 Martinez tries to exercise his rights agents do not immediately, as required by the treaty, call 12 the consulate. Rather, agents specifically tell Mr. Cedeno-Martinez they will call the 13 consulate when they have the time, and continue to interrogate Mr. Cedeno-Martinez. 14 Indeed, according to a report provided by the government in discovery, it was not until about 15 five hours after Mr. Cedeno-Martinez's request to speak with a consular official that agents 16 actually respected that request. Of course, by that time, agents had long ago finished 17 interrogating Mr. Cedeno-Martinez. 18 Although suppression of statements is not, under Ninth Circuit law, a remedy for a

19 violation of the Vienna Convention's right to speak with a consular official, see Lombera20 Camorlinga, 206 F.3d at 889 (en banc), the agents' violation of Mr. Cedeno-Martinez's 21 consular rights is nonetheless relevant here.3 It was after this violation that agents gained a 22 putative waiver from Mr. Cedeno-Martinez of his rights under Miranda. The agents' 23 disregard for Mr. Cedeno-Martinez's request to speak with a consular official is a 24 circumstance the Court should take into consideration when deciding whether Mr. Cedeno25 Martinez knowingly and voluntarily waived his rights under Miranda. See Garibay, 143 26 27
3 Mr. Cedeno-Martinez does believe that suppression should be the remedy for such a 28 violation, but recognizes this Court is bound by United States v. Lombera-Camorlinga, 206 F.3d 882 (9th Cir. 2000) (en banc).

7

07cr3720

Case 3:07-cr-03270-W

Document 21-2

Filed 01/22/2008

Page 8 of 9

1 F.3d at 535 ("In reviewing the totality of circumstances in which Garibay was interrogated, 2 it is clear that he was not aware of the nature of the constitutional rights he was waiving, and 3 that the district court clearly erred in finding that he knowingly and intelligently waived his 4 Miranda rights."). 5 For a man in Mr. Cedeno-Martinez's position--a man with no criminal record and a

6 Fifth grade education--the agents telling him that he had a right to speak with someone, and 7 then not honoring that request, would be quite confusing. Mr. Cedeno-Martinez's request 8 to speak with someone indicates his hesitancy of deal with the agents without some type of 9 counsel, c.f. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), the agents' refusal to 10 promptly honor his request is a factor this Court must consider. 11 4. 12 The Miranda rights given were insufficient Compounding the problems with the agents "retraction" of Mr. Cedeno-Martinez's

13 administrative rights, and the agents not fulfilling their obligation to immediately contact a 14 consular representative, the agents' actual Miranda warnings were confusing. 15 In a rapid recitation of rights under Miranda, agents inform Mr. Cedeno-Martinez that

16 if he cannot afford an attorney, one will be assigned to him. An agent then instructs 17 Mr. Cedeno-Martinez to put his initials on a form to indicate that he understands his rights. 18 Coming as this does after the agents' earlier actions, there is no fair assurance that 19 Mr. Cedeno-Martinez did indeed understand that an attorney would be appointed to him at 20 no charge immediately if he requested. 21 5. 22 Conclusion For the reasons discussed above, both independently and combined, Mr. Cedeno-

23 Martinez never knowingly and voluntarily waived his Miranda rights. Because he did not, 24 the government may not use those statements made by him. See Garibay, 143 F.3d at 536. 25 26 27 IV. MOTION FOR LEAVE TO FILE FURTHER MOTIONS Mr. Cedeno-Martinez has received 194 pages of discovery. He requests leave to file

28 further motions if necessary.

8

07cr3720

Case 3:07-cr-03270-W

Document 21-2

Filed 01/22/2008

Page 9 of 9

1 2 3 4 5 6 Dated: January 22, 2008 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

V. CONCLUSION Mr. Cedeno-Martinez requests this Court grant his motions. Respectfully submitted,

/s/ Robert H. Rexrode ROBERT H. REXRODE, III Attorney for Mr. Cedeno-Martinez [email protected]

9

07cr3720