Free Response in Opposition - District Court of California - California

Case 3:07-cr-03239-JM

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KAREN P. HEWITT United States Attorney NICOLE ACTON JONES Assistant U.S. Attorney California State Bar No. 231929 United States Attorney's Office 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-5482 Email: [email protected] Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) ) LEONARDO SAN JUAN, JR., ) ) Defendants. ) ) ) ) ) ) ______________________________) Case No. 07CR3239-JM

DATE: January 11, 2008 TIME: 11:00 a.m. GOVERNMENT'S RESPONSE AND OPPOSITION TO DEFENDANT'S MOTION TO OBTAIN A BILL OF PARTICULARS TOGETHER WITH STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES AND GOVERNMENT'S MOTION FOR RECIPROCAL DISCOVERY

COMES NOW the plaintiff, UNITED STATES OF AMERICA, by and through its counsel, Karen P. Hewitt, United States Attorney, and Nicole Acton Jones, Assistant United States Attorney, and hereby files its response and opposition to Defendant's abovereferenced motion and the Government's Motion for Reciprocal Discovery. Said response is based upon the files and records of

this case, together with the attached statement of facts and memorandum of points and authorities. // // //

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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. II. STATEMENT OF FACTS On June 25, 2006, a cooperating citizen received information from an unidentified female that her boyfriend, an active duty Marine, was in possession of AK-47 machineguns that he had

brought back from his tours of duty in Iraq.

Agents with the

Naval Criminal Investigative Service conducted an investigation and identified the female as Christina Ramirez. On June 28, Ramirez

2006, agents interviewed Ramirez at her residence.

stated she leased the residence with her fiancé, Leonardo San Juan, Jr. A consent search of the apartment and its associated

garage revealed an AK-47 machinegun hidden in the garage. Testing of the firearm by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) revealed that the firearm was a functional, determined factory in fully-automatic that the AK-47. had In been addition, the ATF at a

machinegun and

manufactured on the

Bulgaria

additional

markings

weapon

indicated it had been issued to the Iraqi National Forces. A search of the National Firearms Registration and Transfer Record revealed no registration records or authorizations

allowing Defendant to possess a fully automatic weapon.

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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 1. Introduction A.

III. POINTS AND AUTHORITIES DEFENDANT'S MOTION FOR A BILL OF PARTICULARS SHOULD BE DENIED

Defendant seeks to obtain a Bill of Particulars but fails to explain how the Indictment is insufficient or specify what additional information is allegedly required. The Indictment

states that Defendant is being charged with possessing a fully automatic AK-47 machinegun, which had not been registered to Defendant in the National Firearms Registration and Transfer Record, in violation of 26 U.S.C. § 5861(d). The charge is

clear and specific and contains all of the "essential facts" of the offense charged. 1/ Fed.R.Crim.P. 7(c)(1). Defendant's

motion should be denied. 2. The Applicable Law

In determining whether a request for a Bill of Particulars should be granted, courts look initially to whether the

indictment is sufficient to inform the defendant of the charges against him and avoid unfair surprise or prejudice. See United

States v. Calabrese, 825 F.2d 1342, 1347 (9th Cir. 1987)(motion for Bill of Particulars denied when indictment sufficient to inform defendant of charges and no surprise or prejudice);

United States v. Mitchell,744 F.2d 701, 705 (9th Cir. 1984)(one of the purposes of a Bill of Particulars is to minimize the danger of unfair surprise at trial).
1/

"Generally, an indictment

The Government notes that it will be seeking a superceding indictment to correct a clerical error regarding the date alleged in the indictment. The correct date is on or about June 28, 2006. 3

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is sufficient if it sets forth the elements of the charged offense so as to ensure the right of the defendant not to be placed in double jeopardy and to be informed of the offense charged." United States v. Fernandez, 388 F.3d 1199, 1217 -1218

(9th Cir. 2004)(citations and quotations omitted). 3. A Bill of Particulars Is Neither Necessary Nor Required

The one-count indictment charges Defendant with possession of an unregistered firearm in violation of Title 26 U.S.C. § 5861(d). In order for Defendant to be found guilty of this

charge, the Government need only prove two elements: (1) that Defendant knowingly possessed the firearm and (2) the firearm was not registered and to Defendant Record. in the National Firearms on Model

Registration

Transfer

See

Committee

Criminal Jury Instructions - Ninth Circuit, Manual of Model Jury Instructions for the Ninth Circuit, §9.31 (West ed. 2003). term "firearm" is defined at 26 U.S.C. § 5845(a). The The

definition of "firearm" includes a "machinegun," 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." See 26 U.S.C. § 5845(b).

The Indictment in this case clearly states that Defendant willfully and unlawfully possessed a "fully automatic AK-47

machinegun, which had not been registered to defendant in the National Firearms Registration and Transfer Record." indictment not only sets forth the two elements Thus, the of offense

charged, the indictment also provides a clear description of the charged firearm.

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Moreover, "[f]ull discovery will obviate the need for a Bill of Particulars." United States v. Long, 706 F.2d 1044, 1054

(9th Cir. 1983); United States v. Clay, 476 F.2d 1211, 1215 (9th Cir. 1973)(full discovery will obviate the need for a bill of particulars); United States v. Mitchell, 744 F.2d 701, 705 (9th Cir. 1984) (no allegation that full discovery was not afforded pursuant to Rule 16). Here, the Government has already provided

a significant amount of discovery, and will provide all Rule 16 discovery and even Jencks statements prior to the trial in this matter. The Government has thus far provided Defendant with over 76 pages of discovery, and will provide any additional discovery on an ongoing of basis. witness The discovery produced of to date includes

reports

interviews,

copies

sworn

statements,

reports detailing the results of testing conducted by the ATF and the results of the National Firearms Act records checks. this case, Defendant has little, if any, chance of In

being

unfairly surprised at trial. In sum, the indictment sets out the essential facts of the crime charged with sufficient specificity for Defendant to, if appropriate, provides invoke the Double of Jeopardy charged Clause. offense It to also allow

sufficient

notice

the

Defendant to prepare for trial. provided, and the

Finally, the discovery already intent to provide further

Government's

discovery, including Jencks materials, prior to trial obviates any need for a Bill of Particulars in this case. motion should therefore be denied. // Defendant's

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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 For the foregoing

IV. MOTION FOR RECIPROCAL DISCOVERY The United States moves the Court to order Defendant provide all reciprocal discovery to which the United States is entitled under Rules 16(b) and 26.2. Rule 16(b)(2) requires Defendant to

disclose to the United States all exhibits and documents which Defendant "intends to introduce as evidence in chief at the trial" and a and written bases summary of the of names, anticipated defendant

testimony,

for

opinions

experts

the

intends to call at trial under Rules 702, 703, and 705 of the Federal Rules of Evidence. V. CONCLUSION reasons, the Government respectfully

requests that Defendant's motion for a bill of particulars be denied and that the Government's motion for reciprocal discovery be granted. DATED: January 3, 2008. Respectfully submitted, KAREN P. HEWITT United States Attorney s/Nicole Acton Jones NICOLE ACTON JONES Assistant U.S. Attorney

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

CERTIFICATE OF SERVICE

LEONARDO SAN JUAN, JR. Defendant.

IT IS HEREBY CERTIFIED THAT: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I declare under penalty of perjury that the foregoing is true and correct. Executed on January 3, 2008. s/Nicole Acton Jones NICOLE ACTON JONES E-mail: [email protected] I am not a party to the above-entitled action. I have caused service of Government's Response and Opposition and Motion for Reciprocal Discovery 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, 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.

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