Free Motion for Fingerprint Exemplars - District Court of California - California

Case 3:07-cr-03215-BTM

Document 6-2

Filed 12/28/2007

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KAREN P. HEWITT United States Attorney WILLIAM A. HALL, JR. Assistant U.S. Attorney California State Bar No. 253403 United States Attorney's Office 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-7046/(619) 235-2757 (Fax) Email: [email protected] Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, ) ) ) ) ) ) ) ) ) ) ) I STATEMENT OF THE CASE The Defendant, Juan Vasquez-Villa (hereinafter "Defendant"), was charged by a grand jury on November 9, 2007, with violating 8 U.S.C. § 1326, deported alien found in the United States. Defendant was arraigned on the Indictment on November 13, 2007, and entered a plea of not guilty. II STATEMENT OF FACTS Defendant was apprehended on August 23, 2007, by Special Agents from U.S. Immigration and Customs Enforcement ("ICE") at the South Bay Detention Facility in Chula Vista, California. There, Defendant was released into ICE custody. Criminal Case No. 07CR3215-BTM DATE: January 11, 2007 TIME: 1:30 p.m. Before Honorable Barry Ted Moskowitz UNITED STATES' STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES

11 Plaintiff, 12 v. 13 RICARDO SANCHEZ-LOPEZ, 14 Defendant(s). 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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Case 3:07-cr-03215-BTM

Document 6-2

Filed 12/28/2007

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Defendant was transported to ICE's Office of Investigations in San Diego, California. At the center, BPAs used Defendant's fingerprints to perform a computerized check of Defendant's criminal and immigration history. In a post-Miranda statement, Defendant stated that he was a citizen of Mexico with no documents entitling him to enter or remain in the United States. He also admitted that he entered the United States by walking through the Calexico, California Port of Entry utilizing another's documents B. DEFENDANT'S CRIMINAL AND IMMIGRATION HISTORY Preliminary criminal history reports show that Defendant has at least two felony convictions in California. In 1996, Defendant was convicted in Los Angeles of Sexual Battery by Restraint, in violation of Cal. PC § 243.4(A); he was sentenced to 2 years' incarceration. In 2007, he was convicted in San Diego of Failure to Register as a Sex Offender, in violation of Cal. PC § 290(G)(2); he was sentenced to 365 days' incarceration, followed by three years of probation. Defendant's was last removed to Mexico on August 3, 2006. III UNITED STATES' MOTIONS FINGERPRINT EXEMPLARS The United States requests that the Court order that Defendant make himself available for fingerprinting by the United States' fingerprint expert. See United States v. Ortiz-Hernandez, 427 F.3d 567, 576-77 (9th Cir. 2005) (government may have defendant fingerprinted and use criminal and immigration records in Section 1326 prosecution). Defendant's fingerprints are not testimonial evidence. See Schmerber v. California, 384 U.S. 757 (1966). Using identifying physical characteristics, such as fingerprints, does not violate Defendant's Fifth Amendment right against self-incrimination. United States v. DePalma, 414 F.2d 394, 397 (9th Cir. 1969); see also United States v. St. Onge, 676 F. Supp. 1041, 1043 (D. Mont. 1987). // //

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07CR3215-BTM

Case 3:07-cr-03215-BTM

Document 6-2

Filed 12/28/2007

Page 3 of 3

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B.

RECIPROCAL DISCOVERY To date, the United States has provided Defendant with 56 pages of discovery and one

videotape, including reports of his arrest, his rap sheet, and copies of immigration and conviction documents. The United States also agrees to schedule an A-file viewing at a time that is mutually convenient for defense counsel and the United States' case agent. The government moves the Court to order Defendant to 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 written summary of the names, anticipated testimony, and bases for opinions of experts the defendant intends to call at trial under Rules 702, 703, and 705 of the Federal Rules of Evidence. IV CONCLUSION For the foregoing reasons, the government respectfully requests that its motions be granted.

DATED: December 28, 2007. Respectfully submitted, KAREN P. HEWITT United States Attorney s/ William A. Hall, Jr. WILLIAM A. HALL, JR. Assistant United States Attorney

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