Free Motion for Discovery - District Court of California - California

Case 3:07-cr-03208-BEN

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GERALD T. McFADDEN (SBN 87446) Attorney at Law 2366 Front Street San Diego, CA 92101 (619) 338-0507 E-mail: [email protected] Attorney for Defendant RAUL ARREOLA-MONTES

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HON. ROGER T. BENITEZ) UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) ) RAUL ARREOLA-MONTES, ) ) Defendant. ) ______________________________) Crim. Case No. 07CR3208-BEN STATEMENT OF FACTS AND POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS

NCD: January 22, 2008 at 2:00 p.m.

I. STATEMENT OF FACTS The defendant, RAUL ARREOLA-MONTES, is charged with being an alien who was found in the United States on September 2, 2007, after having been deported, in violation of 8 U.S.C. § 1326. The defense has recently reviewed the defendant's "A" file. Extensive discovery has become available at the same time motions are due. The defense requests leave to file substantive motions after review of discovery and investigation. II. POINTS AND AUTHORITIES A. DISCOVERY.

On November 14, 2007, defense counsel made a written request for discovery which is attached hereto. The defense requests that the discovery requested on November 14, 2007, be provided and that this Court enter appropriate orders under F.R.Cr.P. 16. Rule 16 proscribes the

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minimum amount of discovery to which the parties are entitled. This Court has the power to order broader discovery; including the identity of the witnesses. United States v. Cadet, 727 F.2d 1453, 1468-1469 (9th Cir. 1984); United States v. Sims, 637 F.2d 625, 629 (9th Cir. 1980); United States v. Armstrong, 621 F.2d 951, 954-55 (9th Cir. 1980); United States v. Richter, 488 F.2d 170, 173-75 (9th Cir. 1973). The defense further requests that government agent rough notes be preserved and made available at the time of the pretrial motion hearing. The defense requests that this Court order the disclosure of the Grand Jury transcripts in this case pursuant to F.R.Cr.P. 6(e)(3)(C)(i), its supervisory power, and the common-law right of access to public records. This request involves two separate categories of disclosure. First, the defense requests a transcript of the Court's instructions or explanation regarding the law governing the cases to the Grand Jury and any prosecution explanations of the law to the grand jury. The transcript of the instructions does not implicate any of the reasons underlying the general rule of secrecy of Grand Jury proceedings. Douglas Oil Co. of Cal. v. Petrol Stops Etc., 441 U.S. 211, 218-19, 99 S.Ct. 1667, 1672-73 (1979); 8 Moore's Federal Practice ¶6.05(1). A need for secrecy of this aspect of the transcript or Grand Jury proceeding itself is nonexistent. As the concept of particularized need is a balance of the need for secrecy and the need for disclosure, 8 Moore's Federal Practice ¶6.05(3), and there is no secrecy need to weigh here, disclosure should be granted. Moreover, since this aspect of the Grand Jury proceeding and transcript does not presently implicate any of the purposes or reasons involved in the doctrine of Grand Jury secrecy, this Defendant has a common-law right of access to this aspect of the proceedings which may not be denied absent specific and substantial reasons for a refusal of access. Such reasons for refusal do not exist here. See, In Re special Grand Jury (For Anchorage, Alaska), 674 F.2d 778 (1982). There is no secrecy interest here and such transcripts should be produced, United States v. Alter, 482 F.2d 1016, 1029 n.21 (9th Cir. 1973). In United States v. Alter, supra, involving the appeal from a civil contempt adjudication stemming from a refusal to answer questions by a federal grand jury, the Ninth Circuit stated:

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"Alter was entitled to know the content of the court's charges to the grand jury. The proceedings before the grand jury are secret, but the ground rules by which the grand jury conducts those proceedings are not. E.g., U.S. Judicial Conference Committee on the Operation of the Jury System, Handbook for Federal Grand Jurors 10 (1971)." Finally, such transcripts could bear upon potential defense motions to dismiss. It is of course possible that the Court instruction (apart from any instructions by government counsel which are also requested) may be the same or similar to that involved in United States v. Navarro-Vargas, 408 F.3d 1184 (9th Cir. 2005) (en banc), cert. denied, (2005). But, there have been material variations in this instruction in practice. And even if not, there are issues arising from such an instruction that were not resolved in the Navarro-Vargas decision. Second, defense requests the transcript of the testimony of witnesses before the Grand Jury. There is of course no question that the defense is entitled to the transcript of the Grand Jury testimony of a witness after such a witness's direct examination at trial. Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840 (1966). Most of the reasons for the secrecy of Grand Jury proceedings do not exist at all after the indictment has been disclosed. To the extent that any reason for secrecy is still applicable at this stage, it does not outweigh a defendant's right and interest in adequate preparation for trial after the indictment has been disclosed and the defendant brought before the Court ­ at least insofar as access to the transcript of testimony before the Grand Jury by an individual who will be a government witness at trial. B. LEAVE TO FILE FURTHER PRETRIAL MOTIONS AND FURTHER HEARING

The defense requests leave to file further pretrial motions and a further hearing date as the facts are further developed and the defense has had the opportunity to review additional discovery. III. CONCLUSION For these reasons and any further reasons which come to this Court's attention prior to or

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at the time of the hearing of these motions, counsel respectfully requests that this Court grant these motions. Respectfully submitted,

Dated: January 8, 2008

s/Gerald T. McFadden GERALD T. McFADDEN, Attorney for Defendant RAUL ARREOLA-MONTES E-mail: [email protected]

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