Free Motion for Miscellaneous Relief - District Court of California - California

Case 3:07-cr-03160-DMS

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Filed 12/19/2007

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1 GREGORY T. MURPHY

California State Bar No. 245505
2 FEDERAL DEFENDERS OF SAN DIEGO, INC.

225 Broadway, Suite 900
3 San Diego, CA 92101-5008

(619) 234-8467/Fax: (619) 687-2666
4 E-Mail: [email protected] 5 Attorneys for Miguel Angel Rosas-Leon 6 7 8 9 10

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE BARBARA L. MAJOR) ) ) Plaintiff, ) ) v. ) ) MIGUEL ANGEL ROSAS-LEON, ) ) Defendant. ) ________________________________________ ) Case No. 07CR3160-DMS STATEMENT OF FACTS AND M E M O R A N D U M O F P O IN T S A N D AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTIONS.

11 UNITED STATES OF AMERICA, 12 13 14 15 16 17

MIGUEL ANGEL ROSAS LEON moves this court for an order requiring the Bureau of Prisons to

18 permit him to telephone his witnesses without charge to him or the witnesses. Mr. Rosas-Leon does not 19 object to monitoring of these phone calls, but asks the Court order the Bureau of Prisons not to divulge to the 20 prosecution any recordings involving communications pertaining to his trial strategy. 21 22 23

I. FACTS Mr. Rosas-Leon is charged by indictment with violating 8 U.S.C. § 1326. On December 6, 2007,

24 this Court granted Mr. Rosas-Leon's request to proceed pro se. 25

Mr. Rosas-Leon is currently incarcerated at the Metropolitan Correctional Center (MCC). The

26 MCC requires that Mr. Rosas-Leon call his witnesses on the Inmate Telephone System, a system that 27 requires either payment by Mr. Rosas-Leon or his witness. In a declaration to the Court, Warnden Paula 28 Jarnecke avers that "there is no mechanism or procedure for permitting free telephone calls on the system

Case 3:07-cr-03160-DMS

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1 utilized by the inmates." The MCC does have phones capable of making free calls, which they have 2 made available to Mr. Rosas-Leon to make unmonitored contact with his standby attorneys. To date, the 3 MCC has not made arrangements to permit Mr. Rosas-Leon to use that system while monitored. 4 5 6

II. ARGUMENT The Sixth Amendment guarantees a defendant the right to represent himself in criminal

7 proceedings. Faretta v. California, 422 U.S. 806, 821 (1975). When a client is indigent, this right 8 includes access to resources necessary to competently present a defense. See Milton v. Morris, 767 F.2d 9 1443 (9th Cir.1985) (Holding that the right to self-representation necessarily includes and is premised 10 upon the right of the defendant to prepare a defense.). The ability to communicate with potential 11 witnesses is essential to effective self-representation. Id. ("An incarcerated defendant may not 12 meaningfully exercise his right to represent himself without access to law books, witnesses, or other tools 13 to prepare a defense."). Compare United States v. Sarno, 73 F.3d 1470, 1491-1492 (9th Cir.1995) (Sixth 14 Amendment satisfied when defendant permitted to "make monitored phone calls at all times, and. . . two 15 unmonitored calls per day"). 16

In this case, the Bureau of Prisons's policy deprives Mr. Rosas-Leon of access to his witnesses.

17 Specifically, the Bureau of Prisons refuses to permit Mr. Rosas-Leon either to make unmonitored phone 18 calls or to permit him to make monitored phone calls without charge. 19

Mr. Rosas-Leon respects the Bureau of Prison's safety interest in monitoring phone calls, and

20 does not object to the monitoring of his phone calls. He asks, however, that the Bureau make 21 arrangements for him to use the monitored system free of charge, or arrange for the monitoring of calls 22 made off the Inmate Telephone System system. While this may result in inconvenience to the institution 23 by requiring a modification of Bureau policy, that policy must bow to Mr. Rosas-Leon's constitutional 24 right to a fair trial. 25

Mr. Rosas-Leon also renews his request for a protective order preventing the Bureau of Prisons

26 from divulging to the prosecution any recordings involving communications pertaining to his trial 27 strategy. 28 / / /

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1 2 3 4 5 6 7 Dated: December 19, 2007 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

II. CONCLUSION For the foregoing reasons, Mr. Rosas-Leon asks the Court to grant his motions. Respectfully submitted,

/s/ Miguel Angel Rosas-Leon MIGUEL ANGEL ROSAS-LEON

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