Free Motion for Reciprocal Discovery - 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 [email protected] Attorneys for Plaintiff UNITED STATES OF AMERICA

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. DATE: TIME: 07CR3190-JAH January 14, 2008 8:30 p.m.

12 13 14 v. 15 16 17 18 19 20 Defendant. ____________________________ JOSE REYMUNDO CONTRERAS-HERNANDEZ, Plaintiff,

STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF GOVERNMENT'S MOTIONS FOR RECIPROCAL DISCOVERY AND TO COMPEL FINGERPRINT EXEMPLARS

COMES NOW, the plaintiff, UNITED STATES OF AMERICA, by and 21 through its counsel, KAREN P. HEWITT, United States Attorney, and 22 Peter J. Mazza, Assistant United States Attorney, hereby files the 23 attached statement of facts and memorandum of points and authorities 24 in support of Government's motion for reciprocal discovery and 25 fingerprint exemplars. 26 // 27 // 28

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I STATEMENT OF THE CASE On November 23, 2007, a federal grand jury in the Southern District of California returned a one-count Indictment charging Jose Reymundo Contreras-Hernandez ("Defendant") with Deported Alien Found in the United States, in violation of Title 8, United States Code, Section 1326. The Indictment further alleged that Defendant had been removed from the United States subsequent to October 28, 2005. II STATEMENT OF FACTS THE INSTANT OFFENSE

On October 27, 2007, United States Supervisory Border Patrol Agent Mark E. Nolan was conducting assigned patrol duties in the Campo Border Patrol Stations area of operations. At approximately

3:00 a.m., Agent Nolan responded to a seismic intrusion device located on a trail known to be used by illegal aliens to further their illegal entries into the United States. The seismic intrusion

device is located approximately nine miles east of the Tecate, California Port of Entry and approximately 13 miles north of the United States/Mexico international boundary. Upon arriving at the location of the seismic intrusion device, Agent Nolan observed fresh footprints headed in a north-bound

direction.

Agent Nolan followed the footprints north until he came

upon a group of ten individuals attempting to conceal themselves. Agent Nolan identified himself as an United States Border Patrol agent. He then questioned each individual regarding their

immigration status. All ten individuals, including Defendant, stated that they were citizens and nationals of Mexico without any documents 2

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to allow them to enter or remain in the United States legally. Defendant and the other nine individuals were taken into custody and transported to the Campo, California Border Patrol Station. At the station, Defendant's personal information was entered into immigration and criminal history databases. Defendant's

identity was confirmed, along with his criminal and immigration histories. At approximately 3:00 p.m., Agents informed Defendant of his Miranda rights. Defendant invoked those rights. No questions were

asked of Defendant. B. DEFENDANT'S IMMIGRATION HISTORY

Defendant is a citizen of Mexico who was physically removed from the United States through the San Ysidro, California Port of Entry to Mexico on September 27, 2007. C. DEFENDANT'S CRIMINAL HISTORY

Defendant was convicted of Solicitation to Commit Murder, in violation of California Penal Code Section 653F(B) by a California Superior Court in Santa Cruz, California on October 28, 2005. III GOVERNMENT'S MOTIONS A. MOTION 1.
FOR

RECIPROCAL DISCOVERY

RULE 16(b)

The United States, pursuant to Rule 16 of the Federal Rules of Criminal Procedure, requests that Defendant permit the United States to inspect, copy, and photograph any and all books, papers,

documents, photographs, tangible objects, or make copies of portions thereof, which are within the possession, custody or control of

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Defendant and which Defendant intends to introduce as evidence in his case-in-chief at trial. The United States further requests that it be permitted to inspect and copy or photograph any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with this case, which are in the possession or control of Defendant, which Defendant intends to introduce as evidence-in-chief at the trial, or which were prepared by a witness whom Defendant intends to call as a witness. Because the United States has complied with its obligations for delivery of reports of examinations, the United States is entitled to the items listed above under Rule 16(b)(1) of the Federal Rules of Criminal Procedure. The United

States also requests that the Court make such order as it deems necessary under Rules 16(d)(1) and (2) to ensure that the United States receives the discovery to which it is entitled. 2. RULE 26.2

Rule 26.2 of the Federal Rules of Criminal Procedure requires the production of prior statements of all witnesses, except a statement made by Defendant. This rule thus provides for the

reciprocal production of Jencks statements. The time frame established by the rule requires the statement to be provided after the witness has testified. To expedite trial

proceedings, the United States hereby requests that Defendant be ordered to supply all prior statements of defense witnesses by a reasonable date before trial to be set by the Court. Such an order

should include any form in which these statements are memorialized, including but not limited to, tape recordings, handwritten or typed notes and/or reports. 4

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B.

Motion to Compel Fingerprint Exemplars The Government requests that Defendant be ordered to make

himself available for fingerprint exemplars at a time and place convenient to the Government's fingerprint expert. See United States v. Kloepper, 725 F. Supp. 638, 640 (D. Mass. 1989) (the District Court has "inherent authority" to order a defendant to provide handwriting exemplars, fingerprints, and palmprints). Since the fingerprint exemplars are sought for the sole purpose of proving Defendant's identity, rather for than investigatory purposes, the Fourth Amendment is not implicated. The Ninth Circuit in United

States v. Ortiz-Hernandez, 427 F.3d 567, 576-79 (9th Cir. 2005), upheld the Government's ability to compel a defendant to submit to fingerprinting for purposes of identification at trial. See United

States v. Garcia-Beltran, 389 F.3d 864, 866-68 (9th Cir. 2004) (citing United States v. Parga-Rosas, 238 F.3d 1209, 1215 (9th Cir. 2001)). Furthermore, exemplars an order not requiring infringe Defendant on to provide Fifth

fingerprint

does

Defendant's

Amendment rights.

See Schmerber v. California, 384 U.S. 757, 770-71

(1966) (the Fifth Amendment privilege "offers no protection against compulsion to submit to fingerprinting"); Williams v. Schario, 93 F.3d 527, 529 absence of (8th Cir. 1996) (the taking of fingerprints in the Miranda warnings did not constitute testimonial

incrimination as proscribed by the Fifth Amendment). // // // // // 5

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IV CONCLUSION For the foregoing reasons, the United States requests that the Government's Motions be granted. DATED: December 28, 2007. Respectfully Submitted, KAREN P. HEWITT United States Attorney /s/ Peter J. Mazza PETER J. MAZZA Assistant U.S. Attorney [email protected]

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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 7 /s/ Peter J. Mazza PETER J. MAZZA 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 Defendant. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) Case No. 07CR3140-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 NOTICE OF MOTIONS AND MOTIONS FOR RECIPROCAL DISCOVERY AND TO COMPEL FINGERPRINT EXEMPLARS 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, Inc. I declare under penalty of perjury that the foregoing is true and correct. Executed on December 28, 2007.