Free Motion to Preclude Documents - District Court of California - California

Case 3:07-cr-03161-LAB

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Filed 06/04/2008

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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 9, 2008 TIME: 2:00 p.m. NOTICE OF MOTION AND MOTION OPPOSING ADMISSION IN EVIDENCE OF FOREIGN RECORD OF REGULARLY CONDUCTED ACTIVITY

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KAREN P. HEWITT, UNITED STATES ATTORNEY, AND PAUL L. STARITA, ASSISTANT UNITED STATES ATTORNEY: PLEASE TAKE NOTICE that on June 9, 2008, at 2:00 p.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 precluding the 22 admission of foreign documents offered by the Government. 23 // 24 // 25 // 26 // 27 // 28 //

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I. STATEMENT OF FACTS Last year, on December 3, 2007, Genaro Smith-Baltiher was arraigned on a one-count

4 indictment charging him with illegal re-entry after deportation in violation of 8 U.S.C. § 1326. Trial 5 is set for June 10, 2008. This afternoon, on June 4, 2008, defense counsel met with government 6 counsel to discuss any remaining evidentiary issues regarding the trial next week. At that meeting, 7 government counsel provided defense counsel with an exhibit list describing the government's 8 proposed exhibit number five as the "Mexican Birth Certificate of Genaro Smith-Baltiher." At no 9 time prior to June 4, 2008 has government counsel expressed its intention to offer such foreign 10 document into evidence. Defense counsel has never received written notice of the government's 11 intention to offer such foreign document into evidence. 12

The foreign document that the government intends to introduce is accompanied by a document

13 that purports to be a "Certificate of Authenticity of Foreign Business Records." This document 14 consists of a declaration by an employee of the United States Immigration and Naturalization Service 15 regarding the authenticity of the documents. 16 17 18 19

II. THE GOVERNMENT SHOULD NOT BE ALLOWED TO OFFER THE FOREIGN DOCUMENT AT TRIAL Under 18 U.S.C. § 3505, a foreign record of regularly conducted activity must be accompanied

20 by a foreign certification in order to be admissible in a federal criminal trial. 18 U.S.C. § 3505(a). 21 22 23 24 18 U.S.C. § 3505(c)(2) (emphasis added). 25

"Foreign certification" means a written declaration made and signed in a foreign country by the custodian of a foreign record of regularly conducted activity or another qualified person that, if falsely made, would subject the maker to criminal penalty under the laws of that country.

"At the arraignment or as soon after the arraignment as practicable, a party intending to offer

26 in evidence under this section a foreign record of regularly conducted activity shall provide written 27 notice of that intention to each party." 18 U.S.C. § 3504(b) (emphasis added). 28 // 2

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On June 4, 2008, the government provided defense counsel with an exhibit list for trial. The

2 fifth item on the list is described as "Mexican Birth Certificate of Genaro Smith-Baltiher." The 3 exhibit referenced by the government contains an attached declaration by an employee of the United 4 States Immigration Service attesting to the authenticity of the foreign document. The declaration 5 inexplicably suggests that the U.S. I.N.S. employee makes such declaration "with the understanding 6 that [he is] subject to criminal penalty under the laws of

Mexico , for any, intentionally false

7 statements herein." The declaration does not indicate that it was "made and signed in a foreign 8 country," as required under 18 U.S.C. § 3505(c)(2), nor does it offer any explanation for why such 9 a declaration by an employee of the U.S. I.N.S. "would subject the maker to criminal penalty under 10 the laws of Mexico." 18 U.S.C. § 3502(c)(2). 11

This Court should not allow such exhibit into evidence because (1) the exhibit list is

12 insufficient written notice and no other type of written notice has been provided; (2) the insufficient 13 written notice is also untimely; (3) the exhibit is not accompanied by a valid foreign certification, as 14 defined under 18 U.S.C. § 3502(c)(2); and (4) the authenticity of the document is in question based 15 on other similar documents in the A-files of Mr. Smith-Baltiher and his mother that contain contrary 16 information. 17 18 19

III. CONCLUSION For the foregoing reasons, Mr. Smith-Baltiher objects to the admission of the foreign document

20 offered by the government and requests that this Court order that it not be admitted. 21 22 23 Dated: June 4, 2008 24 25 26 27 28 3

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 4, 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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07CR3161-LAB