Free Motion to Quash - District Court of California - California

Case 3:07-cr-03190-JAH

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KAREN P. HEWITT United States Attorney PETER J. MAZZA Assistant U.S. Attorney California State Bar No. 239918 Federal Office Building 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-5528 Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, ) ) ) ) ) ) ) ) ) ) ) ) ) ) I INTRODUCTION AND FACTUAL BACKGROUND On May 8, 2008, Defendant Jose Raymundo Contreras-Hernandez, through his attorney, caused a Rule 17 subpoena for oral testimony to be served on Border Patrol Agent Sergio Narvaez. The subpoena, a copy of which is attached as Exhibit 1, requires Agent Narvaez to appear before this Court at 9:00 a.m. on May 13, 2008 at Defendant's trial. The subpoena does not contain any information Case No. 07cr3190-JAH DATE: May 13, 2008 TIME: 1:00 p.m. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH SUBPOENA

11 12 13 14 15 Defendant. 16 17 18 19 20 21 22 23 24 25 26 27 28 v. JOSE RAYMUNDO CONTRERAS-HERNANDEZ, Plaintiff,

that is being sought from Agent Navaez. The subpoena was accompanied by a letter from Defendant's counsel, attached as Exhibit 2. The May 8, 2008 letter seeks

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Agent Narvaez's testimony pursuant to 6 C.F.R. § 5.42 et. seq. and 28 C.F.R. § 16.23. sought to be The letter states that the trial testimony from Agent Narvaez "regarding [his]

elicited

involvement in the subject case."

Furthermore, it states that

"[t]he nature and relevance of your testimony is obvious since you were the officer at the primary inspection area on the day of Mr. Contreras-Hernandez's arrest." Other than the letter, the

subpoena was not accompanied by an affidavit nor any other statement detailing the nature and relevance of the testimony sought from Agent Narvaez. The United States therefore respectfully moves the Court to quash the aforementioned subpoena because the Defendant has made no threshold showing of the relevance of this information as is required by Rule 17 of the Federal Rules of Criminal Procedure. II ARGUMENT 1. The Subpoena Should be Quashed Because Defendant Has Made No Showing That The Testimony Is Relevant And Material The United States moves to quash the subpoena that was served

19 on Agent Narvaez as the subpoena fails to satisfy Federal Rule of 20 Criminal Procedure 17(b), which states, in pertinent part, that he 21 Court shall issue a subpoena "upon a satisfactory showing that . 22 . . the presence of the witness is necessary for an adequate 23 defense." 24 questions 25 enforcement of Rule 17 subpoenas. 26 U.S. 27 28 2 683 (1976). Evidence which is not relevant is not United States v. Nixon, 418 that the Court must confront when considering Relevance, admissibility and specificity are threshold

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admissible.

Fed. R. Evid. 402.

In order for evidence to be

relevant, it must be probative of the matter it is offered to prove. Fed. R. Evid. 401.

The burden of establishing the need for a witness falls on the party seeking compulsory process under Rule 17. See United

States v. Sims, 637 F.2d 625, 629 (9th Cir. 1980) (holding that trial court may refuse to issue sought subpoena is where request or is

untimely, defendant

where fails

information to make a

cumulative, showing of

where A

sufficient

need).

defendant who seeks the issuance of a Rule 17 subpoena bears the burden must establish that the testimony is "both material and favorable to his defense." United States v. Valenzuela-Bernal,

458 U.S. 858, 867, 873 (1982); United States v. Guzman, 852 F.2d 1117, 1122 (9th Cir. 1988). be used by a defendant Rule 17 is not a discovery device to go on a fishing expedition for

to

information that might inure to his or her benefit. United States v. Rinchack, 820 F.2d 1557, 1566-67 (11th Cir. 1987). Defendant has made no legal showing of the relevance and materiality of the testimony sought from Agent Narvaez. The only

mention of the testimony's relevance is in the letter that accompanied the subpoena from defense counsel that states: "The nature and relevance of your testimony is obvious since you were the officer at the primary inspection area on the day Mr. of Contreras-Hernandez's arrest." (Exh. 2.) Agent Narvaez was not

a percipient witness who was not involved in the apprehension of Defendant. Furthermore, as this case involved an alien

apprehension in the mountains north of the Tecate, California, it 3

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did not take place at a port of entry or internal checkpoint, and thus, did not involve a primary inspection area. Agent Narvaez

worked at the Campo Border Patrol Station on October 27, 2007 as a processing agent, not as an "officer at primary inspection." Unless and until the required showing of relevance and materiality is made to the satisfaction of the Court, Defendant is without right to subpoena Agent Narvaez for testimony under Fed. R. Crim. P. 17. Accordingly, the subpoena should be quashed

because Defendant has failed to demonstrate that Agent Narvaez's testimony "is necessary for an adequate defense." P. 17(b). III CONCLUSION For the reasons stated above, the Court should quash the subpoena of Agent Narvaez. DATED: May 13, 2008 Respectfully submitted, KAREN P. HEWITT United States Attorney s/ Peter J. Mazza PETER J. MAZZA Assistant U.S. Attorney Fed. R. Crim.

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1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 4 5 6 7 8 Defendant. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 /s/ Peter J. Mazza PETER J. MAZZA Inc. I declare under penalty of perjury that the foregoing is true and correct. Executed on May 13, 2008. IT IS HEREBY CERTIFIED THAT: I, PETER J. MAZZA, am a citizen of the United States and am at least eighteen years of age. My business address is 880 Front v. JOSE REYMUNDO CONTRERAS-HERNANDEZ, UNITED STATES OF AMERICA, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) Case No. 07CR3190-JAH

CERTIFICATE OF SERVICE

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 MOTION TO QUASH SUBPOENA 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. Candis Mitchell, Esq., Federal Defenders of San Diego,

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