Free Trial Brief - District Court of California - California

Case 3:07-cr-03239-JM

Document 25

Filed 05/27/2008

Page 1 of 12

1 2 3 4 5 6 7 8 9 10 11 12

KAREN P. HEWITT United States Attorney NICOLE ACTON JONES TARA MCGRATH Assistant U.S. Attorneys California State Bar Nos. 231929, 254209 Federal Office Building 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-5482/6920 [email protected] [email protected] Attorneys for Plaintiff United States of America

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, ) ) ) ) ) ) ) ) ) ) ) ) ) Criminal Case No. 07CR3239-JM

13 Plaintiff, 14 v. 15 LEONARDO SAN JUAN, JR., 16 17 18 19 20 Defendant.

GOVERNMENT'S TRIAL MEMORANDUM Date: Time: Honorable: June 2, 2008 9:00 a.m. Jeffrey T. Miller

COMES NOW the plaintiff, United States of America, by and 21 through its counsel, Karen P. Hewitt, United States Attorney, 22 and Nicole Acton Jones and Tara McGrath, Assistant United 23 States Attorneys, respectfully submits the following Trial 24 Memorandum. 25 // 26 // 27 // 28 //

Case 3:07-cr-03239-JM

Document 25

Filed 05/27/2008

Page 2 of 12

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 of A. INDICTMENT

I STATEMENT OF THE CASE

On November 29, 2007, a grand jury returned a one-count Indictment against defendant Leonardo San Juan, Jr., charging him with possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d). On December 5, 2007, Defendant was arraigned on the Indictment and entered a plea of not guilty. On February 15, 2008, Defendant was arraigned on a one-count superseding Indictment and entered a plea of not guilty. B. TRIAL STATUS

Trial is scheduled for Monday, June 2, 2008, at 9:00 a.m. before the Honorable Jeffrey T. Miller. The United States

anticipates that its case-in-chief will last one to two days. C. STATUS OF COUNSEL

Defendant is represented by retained counsel, Joseph H. Low IV. D. CUSTODY STATUS is out of custody on a $25,000 personal

Defendant

appearance bond. E. INTERPRETER

The United States does not need an interpreter for any of its witnesses. F. JURY WAIVER

Defendant has not waived trial by jury. G. PRETRIAL MOTIONS

On December 21, 2007, Defendant filed a motion for a bill particulars. The Government 2 filed its response and

07CR3239-JM

Case 3:07-cr-03239-JM

Document 25

Filed 05/27/2008

Page 3 of 12

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

opposition to this motion January 3, 2008.

On January 4,

2008, the Government filed a motion for reciprocal discovery. At the motion hearing on February 15, 2008, the Court denied Defendant's motion for a bill of particulars and deferred ruling on the Government's motion for reciprocal discovery. Motions in limine are scheduled to be heard on May 30, 2008. The Government has filed motions in limine to 1) admit

statements by Ramirez; 2) admit statements by defendant 3) allow video of AK-47; 4) preclude inflammatory tesitmony and 5) preapprove voir dire questions. The Government has also

filed a motion to permit the Government to bring the firearm into the Courthouse. H. STIPULATIONS

The Government and Defendant have not entered into any stipulations. I. The DISCOVERY United States has complied and will continue to

comply with its discovery obligations.

Defendant has provided

the names of some potential witnesses, but has not provided reciprocal discovery regarding exhibits or documents to be used at trial or expert disclosures. II. STATEMENT OF FACTS On June 25, 2006, Captain Glenn Davis, United States Marine Corps Reserve, was working at the Iron Sights gun range when a then unidentified female came to the range to learn how to shoot her boyfriend's .45 caliber semi-automatic handgun for protection. Captain Davis attempted to teach her how to 3
07CR3239-JM

Case 3:07-cr-03239-JM

Document 25

Filed 05/27/2008

Page 4 of 12

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

use the gun, but the female had difficulty with the weapon's slide and safety. Captain Davis asked the female if she had The female responded that

anything else, meaning another gun. she had AK's in her garage.

After the female left the gun

range, Captain Davis contacted law enforcement. Agents with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and the Naval Criminal Investigative Service (NCIS) conducted an investigation and, by tracing 911 calls, identified the female as Christina Ramirez. On June 28, 2006, Ramirez

ATF Agent Schmidt talked to Ramirez at her residence.

stated she leased the residence with her fiancé, Leonardo San Juan, Jr. (the Defendant). A consent search of the apartment

and its associated garage revealed an AK-47 machinegun in a plastic container in the back of the garage, hidden beneath military clothing and gear bearing Defendant San Juan's name. On or about June 29, 2006, Agent Schmidt received a

voicemail message from Defendant San Juan stating that he knew guns were taken from his house and inquiring as to what was going on. Tedla. Agent Schmidt relayed the message to NCIS Agent

On June 29, 2006, Agent Tedla spoke over the telephone

with Defendant San Juan, who stated that he knew his weapons were taken the previous day from his house and he wanted to know what was going on. Testing of the weapon found in Defendant's garage by ATF Firearms Enforcement Officer Michael Knapp revealed that the firearm was a functional, fully-automatic AK-47. In addition,

Knapp determined that the machinegun had been manufactured at

4

07CR3239-JM

Case 3:07-cr-03239-JM

Document 25

Filed 05/27/2008

Page 5 of 12

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

a factory in Bulgaria and additional markings on the weapon indicated it had been issued to the Iraqi National Forces. A search of the National no Firearms Registration records and or

Transfer

Record

revealed

registration

authorizations allowing Defendant to possess a fully automatic weapon. III PERTINENT LAW Title 26, U.S.C., Section 5861(d), provides that it is unlawful for any person to receive or possess a firearm which is not registered to him in the National Firearms

Registration and Transfer Record. The definition of firearm in 26 U.S.C. § 5845(a) includes "machineguns," which in turn is defined as "any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual

reloading, by a single function of the trigger." To establish a violation of Section 5861(d), the

Government must prove beyond a reasonable doubt that: (1) the defendant knowingly possessed the firearm; and (2) the firearm was not registered to the defendant in the National Firearms Registration and

Transfer Record. The government must prove that the defendant knew of those features which brought the firearm within the scope of the statute. See Staples v. United States, 511 U.S. 600, 619 (1994) ("to obtain a conviction, the Government should have 5
07CR3239-JM

Case 3:07-cr-03239-JM

Document 25

Filed 05/27/2008

Page 6 of 12

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

been required to prove that petitioner knew of the features of his AR-15 that brought it within the scope of the Act"). See also United States v. Gergen, 172 F.3d 719, 724 (9th Cir. 1999). Thus, in this case the Government must prove that

Defendant knew of the firearm's capability to fire in an automatic mode. See United States v. Smith, 217 F.3d 746,

750-51 (9th Cir. 2000). IV WITNESSES The Government reserves the right to add, omit,

substitute or change the order of witnesses.

Presently, the

Government intends to call the following witnesses during its case-in-chief: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. Captain Bradley Fultz, USMC Sergeant Dirk Myers, USMC Gunnery Sergeant Justin Sisario, USMC Chief Warrant Officer 3 Jesus De la Trinadad, USMC Staff Sergeant Michael Wold, USMC Captain Glenn Davis, USMCR John Schmidt, ATF Alex Tedla, NCIS Michael Knapp, ATF Matt Beals, ATF V EXHIBIT LIST The Government will provide a final exhibit list on the morning of trial. Presently, the Government intends to offer

into evidence the following: 6
07CR3239-JM

Case 3:07-cr-03239-JM

Document 25

Filed 05/27/2008

Page 7 of 12

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

1. 2. 3. 4. 5. 6. 7.

Lease Consent to Search Form Photographs of garage AK-47 Receipt and Inventory SDG&E Utility documents Certified copy of National Firearms Registry search results

8.

Video of AK-47 VI PROPOSED VOIR DIRE

1.

Does

anyone

have

strong

feelings

regarding

the

Bureau of Alcohol, Tobacco, Firearms and Explosives, i.e. ATF? 2. Is anyone a member of any organizations, groups or clubs that advocate for or against the possession or use of firearms? 3. 4. 5. 6. Does anyone have strong feelings about gun laws? Does anyone believe that gun laws are too harsh? Does anyone have experience with machineguns? What does a person who illegally possesses an

automatic machine gun look like? 7. Does everyone agree that any preconceived ideas of what a person who illegally possesses a machine gun looks like should not be considered when evaluating the facts in this case? 8. Does anyone have a strong opinion either in support of or in opposition to the war in Iraq? 7
07CR3239-JM

Case 3:07-cr-03239-JM

Document 25

Filed 05/27/2008

Page 8 of 12

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 9.

A.

For those who answered yes, what is your position?

B.

Will that position have an impact on how you evaluate the testimony of military

witnesses in this case? C. For those of you who expressed a strong opinion in support of the war in Iraq, will that opinion impact your ability to

impartially evaluate the evidence presented against the Defendant who has served in Iraq? Is anyone currently serving in the military or a veteran of any military service branch? A. For those of you who answered yes, did you serve in a war? B. For those of you who served in a war, did you bring home any mementoes or items from the war belonging to the enemy for example a flag, personal item or weapon? C. D. If so, where is that item now? For those of you who answered yes regarding military service, did you ever serve as jury member on a court-martial or as a jury member on an administrative processing

board hearing? E. What was the nature of the case or

administrative board hearing? F. What was the outcome of that proceeding? 8
07CR3239-JM

Case 3:07-cr-03239-JM

Document 25

Filed 05/27/2008

Page 9 of 12

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 13. 12. 11. 10.

G.

Did anyone ever serve as the adjudicating officer on a Non-Judicial Punishment

proceeding? H. I. What was the nature of the NJP proceeding? What was the outcome of that proceeding?

Does anyone have a close family member, for example a parent, spouse, sibling or child who is currently serving in the military or a Veteran? A. For those of you who answered yes, did that family member serve in a war? B. For those of you who have a family member who served in a war, did that person bring home any item he or she obtained while

serving overseas such as a a flag, personal item or weapon or a similar memento? C. D. What was brought home? Where is the item now?

Does everyone understand that as a juror your duty is to apply the law regardless of whether you

disagree with it? Does everyone understand that as a juror you are not to consider prejudice, pity or sympathy in deciding whether the Defendant is guilty or not guilty? Does anyone think that, regardless of the strength of the evidence, they will have trouble deciding whether the Defendant is guilty or not guilty?

9

07CR3239-JM

Case 3:07-cr-03239-JM

Document 25

Filed 05/27/2008

Page 10 of 12

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 // // // // // // // // // //

14.

The Defendant is wearing a military uniform today, what impact will that have on your decision in this case?

15.

Does anyone believe that a defendant who has served his or her country should be given special

treatment? 16. Does anyone believe that military service members should not be subject to civilian laws? 17. Does everyone agree that all citizens, regardless of their military service to this country, must abide by the law? 18. Will the fact that the Defendant served in Iraq

impact your evaluation of the facts in this case? 19. Does anyone think they cannot decide whether a

person is guilty or not guilty? 20. Does anyone have religious or moral beliefs which will make it difficult for them to make a decision strictly based on the law and facts of this case?

10

07CR3239-JM

Case 3:07-cr-03239-JM

Document 25

Filed 05/27/2008

Page 11 of 12

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

VII JURY INSTRUCTIONS The United States will submit proposed jury instructions under separate cover. The United States reserves the right to

submit additional instructions at the Fed. R. Crim. P. 30 conference. DATED: May 27, 2008. Respectfully submitted, KAREN P. HEWITT United States Attorney /s/ Nicole Acton Jones NICOLE ACTON JONES Assistant U.S. Attorney TARA MCGRATH Assistant U.S. Attorney

11

07CR3239-JM

Case 3:07-cr-03239-JM

Document 25

Filed 05/27/2008

Page 12 of 12

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 v.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

LEONARDO SAN JUAN, JR., Defendant. __________________________ IT IS HEREBY CERTIFIED THAT:

) Criminal Case No07CR3239-JM ) ) ) ) ) ) ) CERTIFICATE OF SERVICE ) ) ) )

I, NICOLE ACTON JONES, 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 TRIAL MEMORANDUM on the following parties by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically notifies them. 1. Joseph H. Low IV

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 May 27, 2008. /s/ Nicole Acton Jones NICOLE ACTON JONES Assistant U.S. Attorney

12

07CR3239-JM