Free Motion to Continue - District Court of California - California

Case 3:07-cr-03161-LAB

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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 92101-5008

Telephone: (619) 234-8467
4 Email: [email protected] 5 Attorneys for Mr. Smith 6 7 8

UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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(HONORABLE LARRY A. BURNS)
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) ) Plaintiff, ) ) v. ) ) GENARO SMITH-BALTIHER, ) ) Defendant. ) __________________________________ ) TO:

UNITED STATES OF AMERICA,

CASE NO. 07CR3161-LAB DATE: June 13, 2008 TIME: 9:00 a.m. NOTICE OF MOTION AND MOTION TO RECONSIDER REQUEST FOR CONTINUANCE

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KAREN P. HEWITT, UNITED STATES ATTORNEY, AND PAUL L. STARITA, ASSISTANT UNITED STATES ATTORNEY: PLEASE TAKE NOTICE that on June 12, 2008, at 9:00 a.m. or as soon thereafter as counsel

20 may be heard, the defendant, Genaro Smith-Baltiher, by and through his counsel, Joseph M. 21 McMullen and Federal Defenders of San Diego, Inc., moves this Court for an order continuing the 22 trial date currently set for June 13, 2008. 23 // 24 // 25 // 26 // 27 // 28 //

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I. STATEMENT OF FACTS Yesterday, on June 10, 2008, a jury was empaneled and heard evidence in an illegal reentry

4 case against Mr. Smith-Baltiher. The jury began deliberating at 9:00 a.m. today, on June 11, 2008. 5 At approximately 4:55 p.m., this Court declared a mistrial upon finding that the jury was deadlocked. 6 This Court initially ordered that the retrial would take place tomorrow, on June 12, 2008, beginning 7 at 10:00 a.m. Defense counsel objected and requested a continuance of one week in order to (1) 8 ensure that the defense's only witness at trial, Mr. Joe T. Alday, an 84 year-old World War II veteran 9 in poor health who resides in Phoenix, Arizona under the full-time care of his daughter, Ms. 10 Rosalinda Alday, would again be available for trial; and (2) to procure an expert witness to rebut the 11 arguments of government counsel to the jury that Mr. Smith or his family members would have been 12 aware of his status as a natural-born citizen under 8 U.S.C. § 1401(g). The request for a one week 13 continuance was denied, and at approximately 5:05 p.m., trial was set for the day after tomorrow, on 14 June 13, 2008, provided that defense counsel would be allowed to present any defense witnesses on 15 Tuesday, June 17, 2008. 16

During the proceedings on the record today, government counsel and defense counsel also

17 discussed their differing recollections about the testimony of Officer Guzman, the A-file custodian. 18 Less than one hour after defense counsel was excused from this Court upon declaration of the 19 mistrial, defense counsel called the Court Reporter of this Court, Ms. Oemick, and left her a voice 20 message requesting transcripts of yesterday's trial for purposes of Friday's retrial. 21 22

II.

THE GOVERNMENT SHOULD CONTINUE THE RETRIAL DATE UNTIL DEFENSE COUNSEL HAS HAD AN ADEQUATE OPPORTUNITY TO PROCURE NECESSARY 23 DEFENSE WITNESSES AND REVIEW TRANSCRIPTS OF GOVERNMENT WITNESS TESTIMONY FROM THE TRIAL IN THIS CASE
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The Ninth Circuit considers four factors to determine whether the denial of a continuance

26 constitutes reversible error: (1) the defendant's diligence in preparing his defense prior to the trial 27 date; (2) whether the continuance would have satisfied his needs; (3) the inconvenience a continuance 28 would have caused the court and the government; and (4) the extent to which the defendant might 2

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1 have suffered harm as a result of the district court's denial. United States v. Zamora-Hernandez, 222 2 F.3d 1046, 1049 (9th Cir. 2000). "The fourth factor is the most critical." Id. 3

The Supreme Court has found that "even in the absence of specific allegations it can ordinarily

4 be assumed that a transcript of a prior mistrial would be valuable to the defendant in at least two 5 ways: as a discovery device in preparation for trial, and as a tool at the trial itself for the impeachment 6 of prosecution witnesses." Britt v. North Carolina, 404 U.S. 226, 228 (1971). "Courts have 7 repeatedly recognized that counsel's memory or notes and access to the court reporter at trial are not 8 adequate substitutes for a transcript of a prior proceeding." United States v. Devlin, 13 F.3d 1361, 9 1364 (9th Cir. 1994). 10

"Where a mistrial has occurred, courts have generally regarded a transcript of the prior trial

11 as a tool `reasonably necessary' to an effective defense and have deemed it error to refuse to provide 12 the defendant with such a transcript, provided that a timely request is made for its production." 13 United States v. Rosales-Lopez, 617 F.2d 1349, 1355 (9th Cir. 1980). In order to be most effective 14 to the defendant, the transcript should be made available before the trial so that defense counsel can 15 prepare the defendant's defense strategy. Devlin, 13 F.3d at 1364. 16

In this case, the defendant made a request for production of the transcripts to the Court

17 Reporter approximately one hour after this Court declared a mistrial. Review in advance of the retrial 18 of transcripts of the testimony of Officer Guzman and the arguments of government counsel are 19 necessary to adequately and effectively prepare for the impeachment of Officer Guzman and the 20 strategy of the defense, including the procuring of appropriate expert witnesses on the subject of 21 Officer Guzman's immigration-related testimony. The jury for the retrial in this case has not yet been 22 empaneled. Further, it is defense counsel's understanding based on a conversation with government 23 counsel this evening that the government would not oppose a continuance of the retrial. Accordingly, 24 this Court should grant a continuance of a retrial for at least one week in order to provide defense 25 counsel with an opportunity to receive, review, and prepare defense strategy based on the transcripts. 26

Further, as defense counsel advised the Court today, defense counsel anticipates an inability

27 to procure the presence of Mr. Alday, the 84-year-old witness in poor health residing in Phoenix, 28 Arizona, and to procure expert witnesses to rebut the immigration-related arguments made by 3

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1 government counsel during yesterday's trial by Tuesday, June 17, 2008. The considerable prejudice 2 articulated by this Court during today's proceedings that the defendant would suffer if Mr. Alday was 3 not available at trial to provide live witness testimony, and the defendant's newly-discovered need 4 to procure an additional expert witness further support the need for a continuance of the retrial. 5 6 7

III. CONCLUSION For the foregoing reasons, Mr. Smith-Baltiher requests that the retrial in this case be continued

8 at least one week until defense counsel has had an opportunity to receive, review, and prepare based 9 on the trial transcripts, and procure the availability of necessary witnesses. 10 11 12 Dated: June 11, 2008 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

Respectfully submitted,

/s/ Joseph M. McMullen JOSEPH M. McMULLEN Federal Defenders of San Diego, Inc. Attorneys for Mr. Smith [email protected]

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CERTIFICATE OF SERVICE Counsel for Defendant certifies that the foregoing is true and accurate to the best

3 information and belief, and that a copy of the foregoing document has been caused to be delivered 4 this day upon: 5 6 7

Courtesy Copy to Chambers Copy to Assistant U.S. Attorney via ECF NEF Copy to Defendant /s/ Joseph M. McMullen JOSEPH M. McMULLEN Federal Defenders of San Diego, Inc. 225 Broadway, Suite 900 San Diego, CA 92101-5030 (619) 234-8467 (tel) (619) 687-2666 (fax) [email protected] (email)

8 Dated: June 11, 2008 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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