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1 JOSEPH M. McMULLEN California State Bar No. 246757 2 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 3 San Diego, California 92101-5030 Telephone: (619) 234-8467 4 Facsimile: (619) 687-2666 Email: [email protected] 5 6 Attorneys for Mr. Smith-Baltiher 7 8 9 10 11 12 13 14 15 16 17 18 19 I. STATEMENT OF FACTS1 On June 4, 2007, Genaro Smith-Baltiher was arrested by the San Diego Police Department. He was v. GENARO SMITH-BALTIHER, Defendant. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE LARRY A. BURNS) UNITED STATES OF AMERICA, Plaintiff, STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTIONS Case No.: 07CR3161-LAB

20 referred to the custody of United States Immigration and Customs Enforcement officials, and on November 21 20, 2007, an indictment was filed charging him with being found in the United States after being excluded, 22 deported and removed to Mexico, in violation of 8 U.S.C. § 1326. 23 // 24 // 25 // 26 // 27 28 This statement of facts is based on the complaint and indictment filed by the government and the discovery provided by the government. Mr. Smith-Baltiher does not accept this statement as his own, and reserves the right to take a contrary position at motions and trial.
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II. MOTION TO COMPEL DISCOVERY/PRESERVE EVIDENCE Defendant moves for the production of the following discovery. This request is not limited to those

4 items that the prosecutor knows of, but rather includes all discovery listed below that is in the custody, control, 5 care, or knowledge of any "closely related investigative [or other] agencies." See United States v. Bryan, 868 6 F.2d 1032 (9th Cir. 1989). 7 (1) The Defendant's Statements. The government must disclose to the defendant all copies of any

8 written or recorded statements made by the defendant; the substance of any statements made by the defendant 9 which the government intends to offer in evidence at trial; any response by the defendant to interrogation; the 10 substance of any oral statements which the government intends to introduce at trial and any written summaries 11 of the defendant's oral statements contained in the handwritten notes of the government agent; any response 12 to any Miranda warnings which may have been given to the defendant; as well as any other statements by the 13 defendant. Fed. R. Crim. P. 16(a)(1)(A) and 16(a)(1)(B). The Advisory Committee Notes and the 1991 14 amendments to Rule 16 make clear that the Government must reveal all the defendant's statements, whether 15 oral or written, regardless of whether the government intends to make any use of those statements. See also 16 United States v. Bailleaux, 685 F.2d 1105, 1113-1114 (9th Cir. 1982). 17 (2) Arrest Reports, Notes and Dispatch Tapes. Defendant also specifically requests the government

18 to turn over all arrest reports, notes, dispatch or any other tapes, and TECS records that relate to the 19 circumstances surrounding the defendant's arrest and any questioning. This request includes, but is not 20 limited to, any rough notes, records, reports, transcripts or other documents in which statements of the 21 defendant or any other discoverable material is contained. Such material is discoverable under Fed. R. Crim. 22 P. 16(a)(1)(A), Fed. R. Crim. P. 16(a)(1)(B), and Brady v. Maryland, 373 U.S. 83 (1963). The government 23 must produce arrest reports, investigator's notes, memos from arresting officers, dispatch tapes, sworn 24 statements, and prosecution reports pertaining to the defendant. See Fed. R. Crim. P. 16(a)(1)(E), Fed. R. 25 Crim. P. 26.2, and United States v. Riley, 189 F.3d 802, 806-808 (9th Cir. 1999). Preservation of rough notes 26 is requested, whether or not the government deems them discoverable. 27 (3) Brady Material. The defendant requests all documents, statements, agents' reports, and tangible

28 evidence favorable to the defendant on the issue of guilt and/or which affects the credibility of the 2 07CR3161-LAB

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1 government's case. Under Brady, impeachment as well as exculpatory evidence falls within the definition 2 of evidence favorable to the accused. United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 3 427 U.S. 97 (1976). 4 (4) Any Information That May Result in a Lower Sentence Under The Guidelines. The government

5 must produce this information under Brady v. Maryland, 373 U.S. 83 (1963). 6 (5) The Defendant's Prior Record. The defendant requests disclosure of all alleged prior criminal

7 convictions and law enforcement contacts, if any. Fed. R. Crim. P. 16(a)(1)(D). 8 (6) Any Proposed 404(b) Evidence. To the extent that there is any such evidence, the government

9 must produce evidence of prior similar acts under Fed. R. Evid. 404(b) and "shall provide reasonable notice 10 in advance of trial . . . of the general nature" of any evidence the government proposes to introduce under Fed. 11 R. Evid. 404(b) at trial. See United States v. Vega, 188 F. 3d 1150, 1154-1155 (9th Cir. 1999). The

12 defendant requests that such notice be given three weeks before trial in order to give the defense time to 13 adequately investigate and prepare for trial. 14 (7) Evidence Seized. The defendant requests production of evidence seized as a result of any search,

15 either warrantless or with a warrant. Fed. R. Crim. P. 16(a)(1)(D). 16 (8) Request for Preservation of Evidence. The defense specifically requests that all dispatch tapes

17 or any other physical evidence that may be destroyed, lost, or otherwise put out of the possession, custody or 18 care of the government and which relate to the arrest or the events leading to the arrest in this case be 19 preserved. 20 (9) Henthorn Material. The defendant requests that the Assistant United States Attorney ("AUSA")

21 assigned to this case oversee (not personally conduct) a review of all personnel files of each agent involved 22 in the present case, and produce to him any exculpatory information and impeachment material at least two 23 weeks prior to trial and one week prior to the motion hearing. See Kyles v. Whitley, 514 U.S. 437, 438 (1995) 24 (holding that "the individual prosecutor has a duty to learn of any favorable evidence known to the others 25 acting on the government's behalf in the case, including the police"); United States v. Henthorn, 931 F.2d 29 26 (9th Cir. 1991); see also United States v. Jennings, 960 F.2d 1488 (9th Cir. 1992) (AUSA may not be ordered 27 to personally conduct examination of records; appropriate government agency may review files and notify 28 AUSA of contents as long as AUSA makes the determination regarding material to be disclosed); United 3 07CR3161-LAB

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1 States v. Herring, 83 F.3d 1120 (9th Cir. 1996) (accord). In addition, the defendant requests that if the 2 government is uncertain whether certain information is to be turned over pursuant to this request, that it 3 produce such information to the Court in advance of the trial and the motion hearing for an in camera 4 inspection. 5 (10) Tangible Objects. The defendant requests the opportunity to inspect, copy, and test, as necessary,

6 all other documents and tangible objects, including photographs, books, papers, documents, alleged narcotics, 7 fingerprint analyses, vehicles, or copies of portions thereof, which are material to the defense or intended for 8 use in the government's case-in-chief or were obtained from or belong to the defendant. Fed. R. Crim. P. 9 16(a)(1)(E). Specifically, defendant requests copies of his immigration file as well as any recordings of 10 his alleged prior removal. 11 (11) Expert Witnesses. Defendant requests the name, qualifications, and a written summary of the

12 testimony of any person that the government intends to call as an expert witness during its case in chief. Fed. 13 R. Crim. P. 16(a)(1)(G). Defendant requests the notice of expert testimony be provided at a minimum of two 14 weeks prior to trial so that the defense can properly prepare to address and respond to this testimony, including 15 obtaining its own expert and/or investigating the opinions, credentials of the government's expert and a 16 hearing in advance of trial to determine the admissibility of qualifications of any expert. See Kumho v. 17 Carmichael Tire Co., 526 U.S. 137, 119 S.Ct. 1167, 1176 (1999) (trial judge is "gatekeeper" and must 18 determine, reliability and relevancy of expert testimony and such determinations may require "special briefing 19 or other proceedings"). 20 (12) Impeachment Evidence. The defendant requests any evidence that any prospective government

21 witness has engaged in any criminal act whether or not resulting in a conviction and whether any witness has 22 made a statement favorable to the defendant. See Fed. R. Evid. 608, 609 and 613; Brady v. Maryland, 373 23 U.S. 83 (1963); United States v. Strifler, 851 F.2d 1197, 1201-1202 (9th Cir. 1988); Thomas v. United States, 24 343 F.2d 49, 53-54 (9th Cir. 1965). 25 (13) Evidence of Criminal Investigation of Any Government Witness. The defendant requests any

26 evidence that any prospective witness is under investigation by federal, state or local authorities for any 27 criminal conduct. 28 // 4 07CR3161-LAB

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(14) Evidence of Bias or Motive to Lie. Defendant requests any evidence that any prospective

2 Government witness is biased or prejudiced against Defendant, or has a motive to falsify or distort his or her 3 testimony. Pennsylvania v. Ritchie, 480 U.S. 39, 57-58 (1987); United States v. Strifler, 851 F.2d 1197, 12014 1202 (9th Cir. 1988). 5 (15) Evidence Affecting Perception, Recollection, Ability to Communicate, or Truth Telling. The

6 defense requests any evidence, including any medical or psychiatric report or evaluation, that tends to show 7 that any prospective witness' ability to perceive, remember, communicate, or tell the truth is impaired, and 8 any evidence that a witness has ever used narcotics or other controlled substance, or has ever been an 9 alcoholic. See United States v. Strifler, 851 F.2d 1197, 1201-1202 (9th Cir. 1988). 10 (16) Witness Addresses. The defendant requests the name and last known address of each prospective

11 government witness. See United States v. Cook, 608 F.2d 1175, 1181 (9th Cir. 1979) (defense counsel has 12 equal right to talk to witnesses). The defendant also requests the name and last known address of every 13 witness to the crime or crimes charged (or any of the overt acts committed in furtherance thereof) who will 14 not be called as a government witness. United States v. Cadet, 727 F.2d 1453 (9th Cir. 1984). 15 (17) Name of Witnesses Favorable to the Defendant. The defendant requests the name of any witness

16 who made an arguably favorable statement concerning the defendant or who could not identify him or who 17 was unsure of his identity, or participation in the crime charged. 18 (18) Statements Relevant to the Defense. The defendant requests disclosure of any statement relevant

19 to any possible defense or contention that he might assert. United States v. Bailleaux, 685 F.2d 1105 (9th Cir. 20 1982). This includes all statements by percipient witnesses. 21 (19) Jencks Act Material. The defendant requests production in advance of trial of all material,

22 including dispatch tapes, which the government must produce pursuant to the Jencks Act, 18 U.S.C. § 3500 23 and Fed. R. Crim. P. 26.2. Advance production will avoid the possibility of delay at trial to allow the 24 defendant to investigate the Jencks material. A verbal acknowledgment that "rough" notes constitute an 25 accurate account of the witness' interview is sufficient for the report or notes to qualify as a statement under 26 section 3500(e)(1). Campbell v. United States, 373 U.S. 487, 490-92 (1963). In United States v. Boshell, 952 27 F.2d 1101 (9th Cir. 1991) the Ninth Circuit held that when an agent goes over interview notes with the subject 28 of the interview the notes are then subject to the Jencks Act. See also United States v. Riley, 189 F.3d 802, 5 07CR3161-LAB

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1 806-808 (9th Cir. 1999). Defendant requests pre-trial disclosure of such statements to avoid unnecessary 2 recesses and delays for defense counsel to properly use any Jencks statements and prepare for cross3 examination. 4 (20) Giglio Information & Agreements Between the Government and Witnesses. Pursuant to Giglio

5 v. United States, 405 U.S. 150 (1972), the defendant requests all statements and/or promises, express or 6 implied, made to any witness, in exchange for their testimony in this case, and all other information which 7 could be used for impeachment. 8 (21) Agreements Between the Government and Witnesses. The defendant requests discovery

9 regarding any express or implicit promise, understanding, offer of immunity, of past, present, or future 10 compensation, or any other kind of agreement or understanding, including any implicit understanding relating 11 to criminal or civil income tax, forfeiture or fine liability, between any prospective government witness and 12 the government (federal, state and/or local). This request also includes any discussion with a potential witness 13 about or advice concerning any contemplated prosecution, or any possible plea bargain, even if no bargain 14 was made, or the advice not followed. 15 (22) Informants and Cooperating Witnesses. The defendant requests disclosure of the names and

16 addresses of all informants or cooperating witnesses used or to be used in this case, and in particular, 17 disclosure of any informant who was a percipient witness in this case or otherwise participated in the crime 18 charged against the defendant. The government must disclose the informant's identity and location, as well 19 as disclose the existence of any other percipient witness unknown or unknowable to the defense. Roviaro v. 20 United States, 353 U.S. 52, 61-62 (1957). The government must disclose any information derived from 21 informants which exculpates or tends to exculpate the defendant. 22 (23) Bias by Informants or Cooperating Witnesses. The defendant requests disclosure of any

23 information indicating bias on the part of any informant or cooperating witness. Giglio v. United States, 24 405 U.S. 150 (1972). Such information would include what, if any, inducements, favors, payments or threats 25 were made to the witness to secure cooperation with the authorities. 26 (24) Personnel Records of Government Officers Involved in the Arrest. Defendant requests all citizen

27 complaints and other related internal affairs documents involving any of the immigration officers or other law 28 enforcement officers who were involved in the investigation, arrest and interrogation of Defendant. See 6 07CR3161-LAB

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1 Pitchess v. Superior Court, 11 Cal. 3d 531, 539 (1974). Because of the sensitive nature of these documents, 2 defense counsel will be unable to procure them from any other source. 3 (25) Training of Relevant Law Enforcement Officers. Defendant requests copies of all written,

4 videotaped or otherwise recorded policies or training instructions or manuals issued by all law enforcement 5 agencies involved in the case (United States Customs Service, Border Patrol, DHS, Imperial Beach Sheriff's 6 Department, etc.) to their employees regarding: (1) the informing of suspects of their Constitutional rights; 7 (2) the questioning of suspects and witnesses. 8 (26) Residual Request. The defendant intends by this discovery motion to invoke his rights to

9 discovery to the fullest extent possible under the Federal Rules of Criminal Procedure and the Constitution 10 and laws of the United States. The defendant requests that the government provide him and his attorney with 11 the above requested material sufficiently in advance of trial to avoid unnecessary delay prior to cross12 examination. 13 cross-examination. 14 III.

15 THE INDICTMENT SHOULD BE DISMISSED BECAUSE JUDGE BURNS'S INSTRUCTIONS AS A WHOLE PROVIDED TO THE JANUARY 2007 GRAND JURY RUN AFOUL OF BOTH 16 NAVARRO-VARGAS AND WILLIAMS AND VIOLATE THE FIFTH AMENDMENT BY DEPRIVING MR. SMITH-BALTIHER OF THE TRADITIONAL FUNCTIONING OF THE GRAND JURY 17 18 A. 19 Introduction. The indictment in the instant case was returned by the January 2007 grand jury. That grand jury was

20 instructed by the Honorable Larry A. Burns, United States District Court Judge on January 11, 2007. See 21 Reporter's Transcript of the Proceedings, dated January 11, 2007, a copy of which is attached hereto as 22 Exhibit A. Judge Burns's instructions to the impaneled grand jury deviate from the instructions at issue in 23 the major Ninth Circuit cases challenging a form grand jury instruction previously given in this district in 24 several ways.2 These instructions compounded Judge Burns's erroneous instructions and comments to 25 26 27 28 See, e.g., United States v. Cortez-Rivera, 454 F.3d 1038 (9th Cir. 2006); United States v. Navarro-Vargas, 408 F.3d 1184 (9th Cir.) (en banc), cert. denied, 126 S. Ct. 736 (2005) (Navarro-Vargas II); United States v. Navarro-Vargas, 367 F.3d 896 (9th Cir. 2004)(NavarroVargas I); United States v. Marcucci, 299 F.3d 1156 (9th Cir. 2002) (per curiam). 7 07CR3161-LAB
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1 prospective grand jurors during voir dire of the grand jury panel, which immediately preceded the instructions 2 at Ex. A. See Reporter's Transcript of Proceedings, dated January 11, 2007, a copy of which is attached 3 hereto as Exhibit B.3 4 5 6 7 After repeatedly emphasizing to the grand jurors that probable cause determination was their sole 1. Judge Burns Instructed Grand Jurors That Their Singular Duty Is to Determine Whether or Not Probable Cause Exists and That They Have No Right to Decline to Indict When the Probable Cause Standard Is Satisfied.

8 responsibility, see Ex. A at 3, 3-4, 5,4 Judge Burns instructed the grand jurors that they were forbidden "from 9 judg[ing] the wisdom of the criminal laws enacted by Congress; that is, whether or not there should be a 10 federal law or should not be a federal law designating certain activity [as] criminal is not up to you." See id. 11 at 8. The instructions go beyond that, however, and tell the grand jurors that, should "you disagree with that 12 judgment made by Congress, then your option is not to say `well, I'm going to vote against indicting even 13 though I think that the evidence is sufficient' or `I'm going to vote in favor of even though the evidence may 14 be insufficient.'" See id. at 8-9. Thus, the instruction flatly bars the grand jury from declining to indict 15 because the grand jurors disagree with a proposed prosecution. 16 Immediately before limiting the grand jurors' powers in the way just described, Judge Burns referred

17 to an instance in the grand juror selection process in which he excused three potential jurors. See id. at 8. 18 19 20 21 Id. That "principle" was Judge Burns's discussion of the grand jurors' inability to give effect to their 22 disagreement with Congress. See id. at 8-9. Thus, Judge Burns not only instructed the grand jurors on his 23 24 25 26 27 28 The transcript of the voir dire indicates that grand jurors were shown a video presentation on the role of the grand jury. Mr. Smith-Baltiher requests that the video presentation be produced. See United States v. Alter, 482 F.2d 1016, 1029 n.21 (9th Cir. 1973) ("[t]he proceedings before the grand jury are secret, but the ground rules by which the grand jury conducts those proceedings are not.").
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I've gone over this with a couple of people. You understood from the questions and answers that a couple of people were excused, I think three in this case, because they could not adhere to the principle that I'm about to tell you.

See also id. at 20 ("You're all about probable cause."). 8 07CR3161-LAB

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1 view of their discretion; he enforced that view on pain of being excused from service as a grand juror. 2 Examination of the voir dire transcript, which contains additional instructions and commentary in the

3 form of the give and take between Judge Burns and various prospective grand jurors, reveals Judge Burns's 4 emphasis on the singular duty to determine whether or not probable cause exists, and his statement that grand 5 jurors cannot judge the wisdom of the criminal laws enacted by Congress merely compounded an erroneous 6 series of instructions already given to the grand jury venire. In one of his earliest substantive remarks, Judge 7 Burns makes clear that the grand jury's sole function is probable cause determination. 8 9 10 11 [T]he grand jury is determining really two factors: "do we have a reasonable belief that a crime was committed? And second, do we have a reasonable belief that the person that they propose that we indict committed the crime?" If the answer is "yes" to both of those, then the case should move forward. If the answer to either of the questions is "no," then the grand jury should not hesitate and not indict.

12 See Ex. B at 8. In this passage, Judge Burns twice uses the term "should" in a context makes clear that the 13 term is employed to convey instruction: "should" cannot reasonably be read to mean optional when it 14 addresses the obligation not to indict when the grand jury has no "reasonable belief that a crime was 15 committed" or if it has no "reasonable belief that the person that they propose that we indict committed the 16 crime." 17 Equally revealing are Judge Burns's interactions with two potential grand jurors who indicated that,

18 in some unknown set of circumstances, they might decline to indict even where there was probable cause. 19 Because of the redactions of the grand jurors' names, Mr. Smith-Baltiher will refer to them by occupation. 20 One is a retired clinical social worker (hereinafter CSW), and the other is a real estate agent (hereinafter 21 REA). The CSW indicated a view that no drugs should be considered illegal and that some drug prosecutions 22 were not an effective use of resources. See id. at 16. The CSW was also troubled by certain unspecified 23 immigration cases. See id. 24 Judge Burns made no effort to determine what sorts of drug and immigration cases troubled the CSW.

25 He never inquired as to whether the CSW was at all troubled by the sorts of cases actually filed in this district, 26 such as drug smuggling cases and cases involving reentry after deportation and alien smuggling. Rather, he 27 provided instructions suggesting that, in any event, any scruples CSW may have possessed were simply not 28 capable of expression in the context of grand jury service. 9 07CR3161-LAB

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Now, the question is can you fairly evaluate [drug cases and immigration cases]? Just as the defendant is ultimately entitled to a fair trial and the person that's accused is entitled to a fair appraisal of the evidence of the case that's in front of you, so, too, is the United States entitled to a fair judgment. If there's probable cause, then the case should go forward. I wouldn't want you to say, "well, yeah, there's probable cause, but I still don't like what our government is doing. I disagree with these laws, so I'm not going to vote for it to go forward." If that is your frame of mind, the probably you shouldn't serve. Only you can tell me that.

6 See id. at 16-17 (emphasis added). Thus, without any sort of context whatsoever, Judge Burns let the grand 7 juror know that he would not want him or her to decline to indict in an individual case where the grand juror 8 "[didn't] like what our government is doing," see id. at 17, but in which there was probable cause. See id. 9 Such a case "should go forward." See id. Given that blanket proscription on grand juror discretion, made 10 manifest by Judge Burns's use of the pronoun "I", the CSW indicated that it "would be difficult to support 11 a charge even if [the CSW] thought the evidence warranted it." See id. Again, Judge Burns's question 12 provided no context; he inquired regarding "a case," a term presumably just as applicable to possession of a 13 small amount of medical marijuana as kilogram quantities of methamphetamine for distribution. Any grand 14 juror listening to this exchange could only conclude that there was no case in which Judge Burns would permit 15 them to vote "no bill" in the face of a showing probable cause. 16 Just in case there may have been a grand juror that did not understand his or her inability to exercise

17 anything like prosecutorial discretion, Judge Burns drove the point home in his exchange with REA. REA 18 first advised Judge Burns of a concern regarding the "disparity between state and federal law" regarding 19 "medical marijuana." See id. at 24. Judge Burns first sought to address REA's concerns about medical 20 marijuana by stating that grand jurors, like trial jurors, are simply forbidden from taking penalty 21 considerations into account. 22 23 24 25 26 Id. at 24-25. Having stated that REA was to "abide" by the instruction given to trial jurors, Judge Burns went 27 on to suggest that REA recuse him or herself from medical marijuana cases. See id. at 25. 28 In response to further questioning, REA disclosed REA's belief "that drugs should be legal." See id. 10 07CR3161-LAB Well, those things -- the consequences of your determination shouldn't concern you in the sense that penalties or punishment, things like that -- we tell trial jurors, of course, that they cannot consider the punishment or the consequence that Congress has set for these things. We'd ask you to also abide by that. We want you to make a business-like decision of whether there was a probable cause. . . .

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1 That disclosure prompted Judge Burns to begin a discussion that ultimately led to an instruction that a grand 2 juror is obligated to vote to indict if there is probable cause. 3 4 5 6 7 8 9 10 I can tell you sometimes I don't agree with some of the legal decisions that are indicated that I have to make. But my alternative is to vote for someone different, vote for someone that supports the policies I support and get the law changed. It's not for me to say, "well, I don't like it. So I'm not going to follow it here." You'd have a similar obligation as a grand juror even though you might have to grit your teeth on some cases. Philosophically, if you were a member of congress, you'd vote against, for example, criminalizing marijuana. I don't know if that's it, but you'd vote against criminalizing some drugs. That's not what your prerogative is here. You're prerogative instead is to act like a judge and say, "all right. This is what I've to deal with objectively. Does it seem to me that a crime was committed? Yes. Does it seem to me that this person's involved? It does." And then your obligation, if you find those to be true, would be to vote in favor of the case going forward.

11 Id. at 26-27 (emphasis added). Thus, the grand juror's duty is to conduct a simple two part test, which, if both 12 questions are answered in the affirmative, lead to an "obligation" to indict. 13 Having set forth the duty to indict, and being advised that REA was "uncomfortable" with that

14 paradigm, Judge Burns then set about to ensure that there was no chance of a deviation from the obligation 15 to indict in every case in which there was probable cause. 16 17 18 19 The Court: Do you think you'd be inclined to let people go in drug cases even though you were convinced there was probable cause they committed a drug offense? REA: It would depend on the case. The Court: Is there a chance that you would do that? REA: Yes. The Court: I appreciate your answers. I'll excuse you at this time.

20 Id. at 27. Two aspects of this exchange are crucial. First, REA plainly does not intend to act solely on his 21 political belief in decriminalization -- whether he or she would indict "depend[s] on the case," see id., as it 22 should. Because REA's vote "depend[s] on the case," see id., it is necessarily true that REA would vote to 23 indict in some (perhaps many or even nearly all) cases in which there was probable cause. Again, Judge Burns 24 made no effort to explore REA's views; he did not ascertain what sorts of cases would prompt REA to 25 hesitate. The message is clear: it does not matter what type of case might prompt REA's reluctance to indict 26 27 28 11 07CR3161-LAB

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1 because, once the two part test is satisfied, the "obligation" is "to vote in favor of the case going forward."5 2 See id. at 27. That is why even the "chance," see id., that a grand juror might not vote to indict was too great 3 a risk to run. 4 5 6 In addition to his instructions on the authority to choose not to indict, Judge Burns also assured the 2. The Instructions Posit a Non-Existent Prosecutorial Duty to Offer Exculpatory Evidence.

7 grand jurors that prosecutors would present to them evidence that tended to undercut probable cause. See Ex. 8 A at 20.6 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This point is underscored by Judge Burns's explanation to the Grand Jury that a magistrate judge will have determined the existence of probable cause "in most circumstances" before it has been presented with any evidence. See Ex. A at 6. This instruction created an imprimatur of finding probable cause in each case because had a magistrate judge not so found, the case likely would not have been presented to the Grand Jury for indictment at all. The Grand Jury was informed that it merely was redundant to the magistrate court "in most circumstances." See id. This instruction made the grand jury more inclined to indict irrespective of the evidence presented. These instructions were provided in the midst of several comments that praised the United States attorney's office and prosecutors in general. Judge Burns advised the grand jurors that they "can expect that the U.S. Attorneys that will appear in from of [them] will be candid, they'll be honest, and . . . they'll act in good faith in all matters presented to you." See Ex. A at 27. The instructions delivered during voir dire go even further. In addressing a prospective grand juror who revealed "a strong bias for the U.S. Attorney, whatever cases they might bring," see Ex. B at 38, Judge Burns affirmatively endorsed the prospective juror's view of the U.S. Attorney's office, even while purporting to discourage it: "frankly, I agree with the things you are saying. They make sense to me." See id. at 43. See also id. at 40 ("You were saying that you give a presumption of good faith to the U.S. Attorney and assume, quite logically, that they're not about the business of trying to indict innocent people or people that they believe to be innocent or the evidence doesn't substantiate the charges against."). Judge Burns's discussion of his once having been a prosecutor before the Grand Jury compounded the error inherent in his praising of the government attorneys. See Ex. A at 9-10. Judge Burns's instructions implied that as a prior prosecutor and current "jury liaison judge," see id. at 8, he would not allow the government attorneys to act inappropriately or to present cases for indictment where no probable cause existed. In addition, while Judge Burns instructed the Grand Jury that it had the power to question witnesses, Judge Burns's instructions also told the Grand Jury that it should "be deferential to the U.S. Attorney if there is an instance where the U.S. Attorney thinks a question ought not to be asked." See Ex. A at 12. As the dissent in Navarro-Vargas pointed out, "the grand jury's independence is diluted by [such an] instruction, which encourages deference to prosecutors." Navarro-Vargas, 408 F.3d at 1215. The judge's admonition that his statement was only "advice," 12 07CR3161-LAB
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Now, again, this emphasizes the difference between the function of the grand jury and the trial jury. You're all about probable cause. If you think that there's evidence out there that might cause you to say "well, I don't think probable cause exists," then it's incumbent upon you to hear that evidence as well. As I told you, in most instances, the U.S. Attorneys are duty-bound to present evidence that cuts against what they may be asking you to do if they're aware of that evidence. Id. (emphasis added).

6 The antecedent to this instruction is also found in the voir dire. After advising the grand jurors that 7 "the presentation of evidence to the grand jury is necessarily one-sided," see Ex. B at 14, Judge Burns 8 gratuitously added that "[his] experience is that the prosecutors don't play hide-the-ball. If there's something 9 adverse or that cuts against the charge, you'll be informed of that. They have a duty to do that." See id. Thus, 10 Judge Burns unequivocally advised the grand jurors that the government would present any evidence that was 11 "adverse" or "that cuts against the charge." See id. 12 B. 13 14 The Ninth Circuit has, over vigorous dissents, rejected challenges to various instructions given to 15 grand jurors in the Southern District of California. See Navarro-Vargas II, 408 F.3d 1184. While the Ninth 16 Circuit has thus far (narrowly) rejected such challenges, it has, in the course of adopting a highly formalistic 17 18 the defendants in those cases. The district court's instructions cannot be reconciled with the role of the grand 19 jury as set forth in Navarro-Vargas II. Taken together, the voir dire of and instructions given to the January 20 2007 Grand Jury, go far beyond those at issue in Navarro-Vargas, taking a giant leap in the direction of a 21 bureaucratic, deferential grand jury, focused solely upon probable cause determinations and utterly unable to 22 23 24 25 26 27 28 see Ex A at 12, does not cure the error as courts regularly presume grand jurors follow instructions provided to them by the court. See id. at 1202, n.23 ("We must presume that grand jurors will follow instructions because, in fact, we are prohibited from examining jurors to verify whether they understood the instruction as given and then followed it."). See Navarro-Vargas II, 408 F.3d at 1210-11 (Hawkins, J., dissenting) (criticizing the majority because "[t]he instruction's use of the word `should' is most likely to be understood as imposing an inflexible `duty or obligation' on grand jurors, and thus to circumscribe the grand jury's constitutional independence."). 13 07CR3161-LAB
7

Navarro-Vargas Establishes Limits on the Ability of Judges to Constrain the Powers of the Grand Jury, Which Judge Burns Far Exceeded in His Instructions as a Whole During Impanelment.

approach7 to the problems posed by the instructions, endorsed many of the substantive arguments raised by

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1 exercise any quasi-prosecutorial discretion. That is not the institution the Framers envisioned. See United 2 States v. Williams, 504 U.S. 36, 49 (1992). 3 For instance, with respect to the grand jury's relationship with the prosecution, the Navarro-Vargas

4 II majority acknowledges that the two institutions perform similar functions: "`the public prosecutor, in 5 deciding whether a particular prosecution shall be instituted or followed up, performs much the same function 6 as a grand jury.'" Navarro-Vargas II, 408 F.3d at 1200 (quoting Butz v. Economou, 438 U.S. 478, 510 7 (1978)). Accord United States v. Navarro-Vargas, 367 F.3d 896, 900 (9th Cir. 2004) (Navarro-Vargas 8 I)(Kozinski, J., dissenting) (The grand jury's discretion in this regard "is most accurately described as 9 prosecutorial."). See also Navarro-Vargas II, 408 F.3d at 1213 (Hawkins, J., dissenting). It recognizes that 10 the prosecutor is not obligated to proceed on any indictment or presentment returned by a grand jury, id., but 11 also that "the grand jury has no obligation to prepare a presentment or to return an indictment drafted by the 12 prosecutor." Id. See Niki Kuckes, The Democratic Prosecutor: Explaining the Constitutional Function of 13 the Federal Grand Jury, 94 Geo. L.J. 1265, 1302 (2006) (the grand jury's discretion not to indict was 14 "`arguably . . . the most important attribute of grand jury review from the perspective of those who insisted 15 that a grand jury clause be included in the Bill of Rights'") (quoting Wayne LaFave et al., Criminal Procedure 16 § 15.2(g) (2d ed. 1999)). 17 Indeed, the Navarro-Vargas II majority agrees that the grand jury possesses all the attributes set forth

18 in Vasquez v. Hillery, 474 U.S. 254 (1986). See id. 19 20 21 22 23 Id. (quoting Vasquez, 474 U.S. at 263). The Supreme Court has itself reaffirmed Vasquez's description of 24 the grand jury's attributes in Campbell v. Louisiana, 523 U.S. 392 (1998), noting that the grand jury "controls 25 not only the initial decision to indict, but also significant questions such as how many counts to charge and 26 whether to charge a greater or lesser offense, including the important decision whether to charge a capital 27 crime." Id. at 399 (citing Vasquez, 474 U.S. at 263). Judge Hawkins notes that the Navarro-Vargas II 28 majority accepts the major premise of Vasquez: "the majority agrees that a grand jury has the power to refuse 14 07CR3161-LAB The grand jury thus determines not only whether probable cause exists, but also whether to "charge a greater offense or a lesser offense; numerous counts or a single count; and perhaps most significant of all, a capital offense or a non-capital offense -- all on the basis of the same facts. And, significantly, the grand jury may refuse to return an indictment even "`where a conviction can be obtained.'"

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1 to indict someone even when the prosecutor has established probable cause that this individual has committed 2 a crime." See id. at 1214 (Hawkins, J. dissenting). Accord Navarro-Vargas I, 367 F.3d at 899 (Kozinski, J., 3 dissenting); United States v. Marcucci, 299 F.3d 1156, 1166-73 (9th Cir. 2002) (per curiam) (Hawkins, J., 4 dissenting). In short, the grand jurors' prerogative not to indict enjoys strong support in the Ninth Circuit. 5 But not in Judge Burns's instructions. 6 C. 7 8 The Navarro-Vargas II majority found that the instruction in that case "leave[s] room for the grand Judge Burns's Instructions Forbid the Exercise of Grand Jury Discretion Established in Both Vasquez and Navarro-Vargas II.

9 jury to dismiss even if it finds probable cause," 408 F.3d at 1205, adopting the analysis in its previous decision 10 in Marcucci. Marcucci reasoned that the instructions do not mandate that grand jurors indict upon every 11 finding of probable cause because the term "should" may mean "what is probable or expected." 299 F.3d at 12 1164 (citation omitted). That reading of the term "should" makes no sense in context, as Judge Hawkins ably 13 pointed out. See Navarro-Vargas II, 408 F.3d at 1210-11 (Hawkins, J., dissenting) ("The instruction's use 14 of the word `should' is most likely to be understood as imposing an inflexible `duty or obligation' on grand 15 jurors, and thus to circumscribe the grand jury's constitutional independence."). See also id. ("The `word' 16 should is used to express a duty [or] obligation.") (quoting The Oxford American Diction and Language Guide 17 1579 (1999) (brackets in original)). 18 The debate about what the word "should" means is irrelevant here; the instructions here make no such

19 fine distinction. The grand jury instructions make it painfully clear that grand jurors simply may not choose 20 not to indict in the event of what appears to them to be an unfair application of the law: should "you disagree 21 with that judgment made by Congress, then your option is not to say `well, I'm going to vote against indicting 22 even though I think that the evidence is sufficient'...." See Ex. A at 8-9. Thus, the instruction flatly bars the 23 grand jury from declining to indict because they disagree with a proposed prosecution. No grand juror would 24 read this language as instructing, or even allowing, him or her to assess "the need to indict." Vasquez, 474 25 U.S. at 264. 26 While Judge Burns used the word "should" instead of "shall" during voir dire with respect to whether

27 an indictment was required if probable cause existed, see Ex. B at 4, 8, n context, it is clear that he could only 28 mean "should" in the obligatory sense. For example, when addressing a prospective juror, Judge Burns not 15 07CR3161-LAB

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1 only told the jurors that they "should" indict if there is probable cause, he told them that if there is not 2 probable cause, "then the grand jury should hesitate and not indict." See id. at 8. At least in context, it would 3 strain credulity to suggest that Judge Burns was using "should" for the purpose of "leaving room for the grand 4 jury to [indict] even if it finds [no] probable cause." See Navarro-Vargas, 408 F.3d at 1205. Clearly he was 5 not. 6 The full passage cited above effectively eliminates any possibility that Judge Burns intended the

7 Navarro-Vargas spin on the word "should." 8 9 10 11 [T]he grand jury is determining really two factors: "do we have a reasonable belief that a crime was committed? And second, do we have a reasonable belief that the person that they propose that we indict committed the crime?" If the answer is "yes" to both of those, then the case should move forward. If the answer to either of the questions is "no," then the grand jury should not hesitate and not indict.

12 See Ex. B at 8. Of the two sentences containing the word `should," the latter of the two essentially states that 13 if there is no probable cause, you should not indict. Judge Burns could not possibly have intended to "leav[e] 14 room for the grand jury to [indict] even if it finds [no] probable cause." See Navarro-Vargas, 408 F.3d at 15 1205 (citing Marcucci, 299 F.3d at 1159). That would contravene the grand jury's historic role of protecting 16 the innocent. See, e.g., United States v. Calandra, 414 U.S. 338, 343 (1974) (The grand jury's

17 "responsibilities continue to include both the determination whether there is probable cause and the protection 18 of citizens against unfounded criminal prosecutions.") (citation omitted). 19 By the same token, if Judge Burns said that "the case should move forward" if there is probable cause,

20 but intended to "leav[e] room for the grand jury to dismiss even if it finds probable cause," see Navarro21 Vargas, 408 F.3d at 1205 (citing Marcucci, 299 F.3d at 1159), then he would have to have intended two 22 different meanings of the word "should" in the space of two consecutive sentences. That could not have been 23 his intent. But even if it were, no grand jury could ever have had that understanding.8 Jurors are not presumed 24 to be capable of sorting through internally contradictory instructions. See generally United States v. Lewis, 25 26 27 28 This argument does not turn on Mr. Smith-Baltiher's view that the NavarroVargas/Marcucci reading of the word "should" in the model instructions is wildly implausible. Rather, it turns on the context in which the word is employed by Judge Burns in his unique instructions, context which eliminates the Navarro-Vargas/Marcucci reading as a possibility. 16 07CR3161-LAB
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1 67 F.3d 225, 234 (9th Cir. 1995) ("where two instructions conflict, a reviewing court cannot presume that the 2 jury followed the correct one") (citation, internal quotations and brackets omitted). 3 Lest there be any room for ambiguity, on no less than four occasions, Judge Burns made it explicitly

4 clear to the grand jurors that "should" was not merely suggestive, but obligatory: 5 (1) The first occasion occurred in the following exchange when Judge Burns conducted voir dire

6 and excused a potential juror (CSW): 7 8 9 10 11 12 13 14 See Ex. B at 17. There was nothing ambiguous about the word "should" in this exchange with a prospective 15 juror. Even if the prospective juror did not like what the government was doing in a particular case, that case 16 "should go forward" and Judge Burns expressly disapproved of any vote that might prevent that. See id. ("I 17 wouldn't want you [to vote against such a case]"). The sanction for the possibility of independent judgment 18 was dismissal, a result that provided full deterrence of that juror's discretion and secondary deterrence as to 19 the exercise of discretion by any other prospective grand juror. 20 (2) In an even more explicit example of what "should" meant, Judge Burns makes clear that it The Court: . . . If there's probable cause, then the case should go forward. I wouldn't want you to say, "Well, yeah, there's probable cause. But I still don't like what the government is doing. I disagree with these laws, so I'm not going to vote for it to go forward." If that's your frame of mind, then probably you shouldn't serve. Only you can tell me that. Prospective Juror: Well, I think I may fall in that category. The Court: In the latter category? Prospective Juror: Yes. The Court: Where it would be difficult for you to support a charge even if y o u thought the evidence warranted it? Prospective Juror: Yes. The Court: I'm going to excuse you then.

21 there is an unbending obligation to indict if there is probable cause. Grand jurors have no other prerogative. 22 Court . . . It's not for me to say, "Well, I don't like it. So I'm not going to follow it here." 23 24 25 26 27 28 17 07CR3161-LAB That's not what your prerogative is here. Your prerogative instead is act like a judge and to say, "All right. This is what I've got to deal with objectively. Does it seem to me that a crime was committed? Yes. Does it seem to me that this person's involved? It does." And then your obligation, if you find those things to be true, would be to vote in favor of the case going forward. You'd have a similar obligation as a grand juror even though you might have to grit your teeth on some cases. Philosophically, if you were a member of Congress, you'd vote against, for example, criminalizing marijuana. I don't know if that's it, but you'd vote against criminalizing some drugs.

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1 Id. at 26-27 (emphasis added). After telling this potential juror (REA) what his obligations and prerogatives 2 were, the Court inquired as to whether "you'd be inclined to let people go on drug cases even though you were 3 convinced there was probable cause they committed a drug offense?" Id. at 27. The potential juror responded: 4 "It would depend on the case." Id. Nevertheless, that juror was excused. Id. at 28. Again, in this context, and 5 contrary to the situation in Navarro-Vargas, "should" means "shall"; it is obligatory, and the juror has no 6 prerogative to do anything other than indict if there is probable cause. 7 Moreover, as this example demonstrates, the issue is not limited to whether the grand jury believes

8 a particular law to be "unwise." This juror said that any decision to indict would not depend on the law, but 9 rather it would "depend on the case." Thus, it is clear that Judge Burns's point was that if a juror could not 10 indict on probable cause for every case, then that juror was not fit for service. It is equally clear that the 11 prospective juror did not dispute the "wisdom of the law;" he was prepared to indict under some factual 12 scenarios, perhaps many. But Judge Burns did not pursue the question of what factual scenarios troubled the 13 prospective jurors, because his message is that there is no discretion not to indict. 14 (3) As if the preceding examples were not enough, Judge Burns continued to pound the point home

15 that "should" meant "shall" when he told another grand juror during voir dire: "[W]hat I have to insist on is 16 that you follow the law that's given to us by the United States Congress. We enforce the federal laws here." 17 See id. at 61. 18 (4) And then again, after swearing in all the grand jurors who had already agreed to indict in every

19 case where there was probable cause, Judge Burns reiterated that "should" means "shall" when he reminded 20 them that "your option is not to say `well, I'm going to vote against indicting even though I think that the 21 evidence is sufficient' . . . . Instead your obligation is . . . not to bring your personal definition of what the law 22 ought to be and try to impose that through applying it in a grand jury setting." See Ex. A at 9. 23 Moreover, Judge Burns advised the grand jurors that the were forbidden from considering the penalties

24 to which indicted persons may be subject. 25 26 27 28 Prospective Juror (REA): ... And as far as being fair, it kind of depends on what the case is about because there is a disparity between state and federal law. The Court: In what regard? Prospective Juror: Specifically, medical marijuana. The Court: Well, those things -- the consequences of your determination shouldn't concern you in the sense that penalties or punishment, things like that 18 07CR3161-LAB

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-- we tell trial jurors, of course, that they cannot consider the punishment or the consequence that Congress has set for these things. We'd ask you to also abide by that. We want you to make a business-like decision of whether there was a probable cause. ... See Ex. B at 24-25 (emphasis added). A "business-like decision of whether there was a probable cause"

4 would obviously leave no role for the consideration of penalty information. 5 The Ninth Circuit previously rejected a claim based upon the proscription against consideration of 6 penalty information based upon the same unlikely reading of the word "should" employed in Marcucci. See 7 United States v. Cortez-Rivera, 454 F.3d 1038, 1040-41 (9th Cir. 2006). Cortez-Rivera is inapposite for two 8 reasons. First, Judge Burns did not use the term "should" in the passage quoted above. Second, that context, 9 as well as his consistent use of a mandatory meaning in employing the term, eliminate the ambiguity (if there 10 ever was any) relied upon by Cortez-Rivera. The instructions again violate Vasquez, which plainly authorized 11 consideration of penalty information. See 474 U.S. at 263. 12 Nothing can mask the undeniable fact that Judge Burns explicitly instructed the jurors time and time 13 again that they had a duty, an obligation, and a singular prerogative to indict each and every case where there 14 was probable cause. These instructions go far beyond the holding of Navarro-Vargas and stand in direct 15 contradiction of the Supreme Court's decision in Vasquez. Indeed, it defies credulity to suggest that a grand 16 juror hearing these instructions, and that voir dire, could possibly believe what the Supreme Court held in 17 Vasquez: 18 19 20 21 22 474 U.S. at 263 (quoting United States v. Ciambrone, 601 F.2d 616, 629 (2nd Cir. 1979) (Friendly, J., 23 dissenting)); accord Campbell v. Louisiana, 523 U.S. 392, 399 (1998) (The grand jury "controls not only the 24 initial decision to indict, but also significant decisions such as how many counts to charge and whether to 25 charge a greater or lesser offense, including the important decision whether to charge a capital crime."). Nor 26 would the January 2007 grand jury ever believe that it was empowered to assess the "the need to indict." See 27 id. at 264. Judge Burns's grand jury is not Vasquez's grand jury. The instructions therefore represent 28 19 07CR3161-LAB The grand jury does not determine only that probable cause exists to believe that a defendant committed a crime, or that it does not. In the hands of the grand jury lies the power to charge a greater offense or a lesser offense; numerous counts or a single count; and perhaps most significant of all, a capital offense or a non-capital offense ­ all on the basis of the same facts. Moreover, "[t]he grand jury is not bound to indict in every case where a conviction can be obtained."

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1 structural constitutional error "that interferes with the grand jury's independence and the integrity of the grand 2 jury proceeding." See United States v. Isgro, 974 F.2d 1091, 1094 (9th Cir. 1992). The indictment must 3 therefore be dismissed. Id. 4 The Navarro-Vargas II majority's faith in the structure of the grand jury is not a cure for the

5 instructions' excesses. The Navarro-Vargas II majority attributes "[t]he grand jury's discretion -- its 6 independence -- [to] the absolute secrecy of its deliberations and vote and the unreviewability of its 7 decisions." 408 F.3d at 1200. As a result, the majority discounts the effect that a judge's instructions may 8 have on a grand jury because "it is the structure of the grand jury process and its function that make it 9 independent." Id. at 1202 (emphases in the original). 10 Judge Hawkins sharply criticized this approach. The majority, he explains, "believes that the

11 `structure' and `function' of the grand jury -- particularly the secrecy of the proceedings and unreviewability 12 of many of its decisions -- sufficiently protects that power." See id. at 1214 (Hawkins, J., dissenting). The 13 flaw in the majority's analysis is that "[i]nstructing a grand jury that it lacks power to do anything beyond 14 making a probable cause determination ... unconstitutionally undermines the very structural protections that 15 the majority believes save[] the instruction." Id. After all, it is an "`almost invariable assumption of the law 16 that jurors follow their instructions.'" Id. (quoting Richardson v. Marsh, 481 U.S. 200, 206 (1987)). If that 17 "invariable assumption" were to hold true, then the grand jurors could not possibly fulfill the role described 18 in Vasquez. Indeed, "there is something supremely cynical about saying that it is fine to give jurors erroneous 19 instructions because nothing will happen if they disobey them." Id. 20 In setting forth Judge Hawkins' views, Mr. Smith-Baltiher understands that this Court may not adopt

21 them solely because the reasoning that supports them is so much more persuasive than the majority's 22 sophistry. Rather, he sets them forth to urge the Court not to extend what is already untenable reasoning. 23 Here, again, the question is not an obscure interpretation of the word "should", especially in light of

24 the instructions and commentary by Judge Burns during voir dire discussed above - unaccounted for by the 25 Court in Navarro-Vargas II because they had not yet been disclosed to the defense, but an absolute ban on the 26 right to refuse to indict that directly conflicts with the recognition of that right in Vasquez, Campbell, and both 27 Navarro-Vargas II opinions. Navarro-Vargas II is distinguishable on that basis, but not only that. 28 Judge Burns did not limit himself to denying the grand jurors the power that Vasquez plainly states 20 07CR3161-LAB

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1 they enjoy. He also excused prospective grand jurors who might have exercised that Fifth Amendment 2 prerogative, excusing "three [jurors] in this case, because they could not adhere to [that] principle...." See Ex. 3 A at 8; Ex. B at 17, 28. The structure of the grand jury and the secrecy of its deliberations cannot embolden 4 grand jurors who are no longer there, likely because they expressed their willingness to act as the conscience 5 of the community. See Navarro-Vargas II, 408 F.3d at 1210-11 (Hawkins, J., dissenting) (a grand jury 6 exercising its powers under Vasquez "serves ... to protect the accused from the other branches of government 7 by acting as the `conscience of the community.'") (quoting Gaither v. United States, 413 F.2d 1061, 1066 & 8 n.6 (D.C. Cir. 1969)). The federal courts possess only "very limited" power "to fashion, on their own 9 initiative, rules of grand jury procedure," United States v. Williams, 504 U.S. 36, 50 (1992), and, here, Judge 10 Burns has both fashioned his own rules and enforced them. 11 D. 12 13 In Williams, the defendant, although conceding that it was not required by the Fifth Amendment, The Instructions Conflict with Williams' Holding That There Is No Duty to Present Exculpatory Evidence to the Grand Jury.

14 argued that the federal courts should exercise their supervisory power to order prosecutors to disclose 15 exculpatory evidence to grand jurors, or, perhaps, to find such disclosure required by Fifth Amendment 16 common law. See 504 U.S. at 45, 51. Williams held that "as a general matter at least, no such `supervisory' 17 judicial authority exists." See id. at 47. Indeed, although the supervisory power may provide the authority 18 "to dismiss an indictment because of misconduct before the grand jury, at least where that misconduct 19 amounts to a violation of one of those `few, clear rules which were carefully drafted and approved by this 20 Court and by Congress to ensure the integrity of the grand jury's functions,'" id. at 46 (citation omitted), it 21 does not serve as "a means of prescribing such standards of prosecutorial conduct in the first instance." Id. 22 at 47 (emphasis added). The federal courts possess only "very limited" power "to fashion, on their own 23 initiative, rules of grand jury procedure." Id. at 50. As a consequence, Williams rejected the defendant's 24 claim, both as an exercise of supervisory power and as Fifth Amendment common law. See id. at 51-55. 25 Despite the holding in Williams, the instructions here assure the grand jurors that prosecutors would

26 present to them evidence that tended to undercut probable cause. See Ex. A at 20. 27 28 Now, again, this emphasizes the difference between the function of the grand jury and the trial jury. You're all about probable cause. If you think that there's evidence out there that might cause you say "well, I don't think probable 21 07CR3161-LAB

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cause exists," then it's incumbent upon you to hear that evidence as well. As I told you, in most instances, the U.S. Attorneys are duty-bound to present evidence that cuts against what they may be asking you to do if they're aware of that evidence. Id. (emphasis added). Moreover, the district court later returned to the notion of the prosecutors and their

4 duties, advising the grand jurors that they "can expect that the U.S. Attorneys that will appear in from of 5 [them] will be candid, they'll be honest, and ... they'll act in good faith in all matters presented to you." See 6 id. at 27. The Ninth Circuit has already concluded it is likely this final comment is "unnecessary." See 7 Navarro-Vargas, 408 F.3d at 1207. 8 This particular instruction has a devastating effect on the grand jury's protective powers, particularly 9 if it is not true. It begins by emphasizing the message that Navarro-Vargas II somehow concluded was not 10 conveyed by the previous instruction: "You're all about probable cause." See Ex. A at 20. Thus, once again, 11 the grand jury is reminded that they are limited to probable cause determinations (a reminder that was 12 probably unnecessary in light of the fact that Judge Burns had already told the grand jurors that they likely 13 would be excused if they rejected this limitation). The instruction goes on to tell the grand jurors that they 14 should consider evidence that undercuts probable cause, but also advises the grand jurors that the prosecutor 15 will present it. The end result, then, is that grand jurors should consider evidence that goes against probable 16 cause, but, if none is presented by the government, they can presume that there is none. After all, "in most 17 instances, the U.S. Attorneys are duty-bound to present evidence that cuts against what they may be asking 18 you to do if they're aware of that evidence." See id. Moreover, during voir dire, Judge Burns informed the 19 jurors that "my experience is that the prosecutors don't play hide-the-ball. If there's something adverse or 20 that cuts against the charge, you'll be informed of that. They have a duty to do that." See Ex. B at 14-15 21 (emphasis added). Thus, if the exculpatory evidence existed, it necessarily would have been presented by the 22 "duty-bound" prosecutor, because the grand jurors "can expect that the U.S. Attorneys that will appear in from 23 of [them] will be candid, they'll be honest, and ... they'll act in good faith in all matters presented to you." See 24 Ex. A at 27. 25 These instructions create a presumption that, in cases where the prosecutor does not present 26 exculpatory evidence, no exculpatory evidence exists. A grand juror's reasoning, in a case in which no 27 exculpatory evidence was presented, would proceed along these lines: 28 22 07CR3161-LAB

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(1) (2)

I have to consider evidence that undercuts probable cause. The candid, honest, duty-bound prosecutor would, in good faith, have presented any such evidence to me, if it existed.

(3)

Because no such evidence was presented to me, I may conclude that there is none.

5 Even if some exculpatory evidence were presented, a grand juror would necessarily presume that the evidence 6 presented represents the universe of all available exculpatory evidence; if there was more, the duty-bound 7 prosecutor would have presented it. 8 The instructions, therefore, discourage investigation -- if exculpatory evidence were out there, the

9 prosecutor would present it, so investigation is a waste of time -- and provide additional support to every 10 probable cause determination: i.e., this case may be weak, but I know that there is nothing on the other side 11 of the equation because it was not presented. A grand jury so badly misguided is no grand jury at all under 12 the Fifth Amendment.9 13 // 14 // 15 // 16 17 18 19 20 21 22 23 24 25 26 27 28 Judge Moskowitz has recently ruled on a motion similar to that filed by Mr. SmithBaltiher. See United States v. Martinez-Covarrubias, Case No. 07CR0491-BTM, Order Denying Defendant's Motion to Dismiss the Indictment, dated October 11, 2007 (attached hereto as Exhibit J). While Mr. Smith-Baltiher disagrees with Judge Moskowitz's analysis, Judge Moskowitz at least recognizes that a portion of the instruction is error, although he incorrectly found that it was not structural. Ex. J at 11. Because, under Judge Moskowitz's analysis, this Court should determine whether the error was harmless, Mr. Smith-Baltiher asks that this Court order the government to produce the transcripts of the grand jury proceedings that resulted in the instant indictment. The Court may order disclosure of grand jury proceedings "at the request of a defendant who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury." Fed. R. Crim. P. 6(e)(3)(E)(ii). The Ninth Circuit requires a "particularized need" to justify disclosure, see United States v. Walczak, 785 F.2d 852, 857 (9th Cir. 1986), but that need cannot be any different than the standard set for in Rule 6(e)(3)(E)(ii): Mr. Smith-Baltiher need only show that "a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury." Fed. R. Crim. P. 6(e)(3)(E)(ii) (emphasis added). That is why the Rule's "general suggestion [is] in favor of disclosure." See Walczak, 785 F.2d at 857. Here, under Judge Moskowitz's approach to Judge Burns' erroneous instruction, it is clear that, at the very least, "a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury." Fed. R. Crim. P. 6(e)(3)(E)(ii). 23 07CR3161-LAB
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IV. MOTION FOR LEAVE TO FILE ADDITIONAL MOTIONS Defense counsel has incomplete discovery at this time, and in particular, has requested and is awaiting

4 the opportunity to review the immigration file of Mr. Smith-Baltiher's late mother and father. Defense 5 counsel contemplates further motions once discovery is received and reviewed with Mr. Smith-Baltiher. 6 Therefore, counsel requests leave to file additional motions once discovery is completed. 7 8 9 V. CONCLUSION For the foregoing reasons, Mr. Smith-Baltiher respectfully reques