Free Response in Opposition - District Court of California - California

Case 3:07-cr-03163-DMS

Document 10

Filed 12/24/2007

Page 1 of 15

1 2 3 4 5 6 7 8

KAREN P. HEWITT United States Attorney LAWRENCE A. CASPER Assistant U.S. Attorney California State Bar No. 235110 Federal Office Building 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone No.: (619) 557-7455 Facsimile No.: (619) 235-2757 [email protected] Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 UNITED STATES OF AMERICA, 13 Plaintiff, 14 v. 15 JOSE GONZALEZ ALVAREZ, 16 Defendant. 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff, the UNITED STATES OF AMERICA, by and through its counsel KAREN P. HEWITT, United States Attorney, and LAWRENCE A. CASPER, Assistant U.S. Attorney, hereby files its Response and Opposition to the above-described motions filed by Defendant Jose GonzalezAlvarez ("Defendant") and the United States' Motion To Compel Production of Reciprocal Discovery. This Response and Opposition and Motion is based upon the files and records of this case. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Criminal Case No. 07CR3163-DMS District Judge: Courtroom: Date: Time: Hon. Dana M. Sabraw 10 (Second Floor) January 4, 2008 11:00 a.m.

UNITED STATES' RESPONSE AND OPPOSITION TO DEFENDANT'S MOTION TO COMPEL DISCOVERY

TOGETHER WITH STATEMENT OF FACTS, MEMORANDUM OF POINTS AND AUTHORITIES, AND GOVERNMENT'S MOTION TO COMPEL PRODUCTION OF RECIPROCAL DISCOVERY.

Case 3:07-cr-03163-DMS

Document 10

Filed 12/24/2007

Page 2 of 15

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 A.

I STATEMENT OF FACTS Statement of the Case

On November 20, 2007, a federal grand jury handed up a two-count Indictment charging Defendant Jose Gonzalez-Alvarez with: (1) one count of conspiracy to distribute 100 kilograms or more of marijuana to wit: approximately 844.1 kilograms (1,857.1 pounds) in violation of Title 21, United States Code, Sections 841(a)(1) and 846; and (2) one count of possession with the intent to distribute 100 kilograms or more of marijuana to wit: approximately 844.1 kilograms (1,857.1 pounds) in violation of Title 21, United States Code, Section 841(a)(1) and aiding and abetting that offense in violation of Title 18, United States Code, Section 2. B. Statement of Facts 1. Defendant's Arrest

On November 7, 2007, at approximately 12:30 p.m., Senior Patrol Agent Timothy Tucciarone and Senior Patrol Agent (SPA) Andres Reyes observed two vehicles traveling in tandem westbound on State Road 94 at a high rate of speed near the intersection of Harris Ranch Road and State Road 94 in Potrero, California. The first vehicle observed was a green 1996 GMC Yukon with California license plate 4TMV024 followed by a white 1998 Ford F-150 pick-up with California license plate 8L12648. Both vehicles appeared to be heavily laden and were swerving dramatically as they passed Agents' Tucciarone and Reyes' location. SPA Reyes immediately began to follow the Ford pick up and relayed their observations to all agents in the area. As SPA Reyes approached the Ford pick-up, he requested vehicle information and prepared to attempt a vehicle stop. Both suspect vehicles increased speed and began passing other vehicles despite double yellow lines on the road in an effort to avoid being stopped. Both vehicles stayed very close together until the Ford pick-up made an abrupt turn southbound onto Emery Road, where SPA Reyes was able to safely fall in behind the vehicle. SPA Reyes continued to follow the vehicle south where it made another abrupt turn westbound into a ravine with no distinct road. The vehicle traveled for approximately 100 yards into the ravine where it became disabled. As SPA Reyes approached the vehicle, he observed the driver, later identified as Defendant Jose Luis Gonzalez-Alvarez, exit and 2 07CR3163-DMS

Case 3:07-cr-03163-DMS

Document 10

Filed 12/24/2007

Page 3 of 15

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

run toward State Road 188, where he was quickly apprehended by SPA Miguel Veliz and SPA Tucciarone. SPA Reyes arrived at the vehicle and searched the passenger area and found several bundles wrapped in clear plastic that he recognized as being consistent with marijuana smuggling. SPA Reyes and SPA William Ruiz conducted a complete search of the vehicle and found a total of 155 packages of marijuana with an approximate weight of 882 pounds. While SPA Reyes followed the Ford pick-up driven by Defendant, SPA Kyle Krall received information from CBP Air Ops that the second vehicle ­ a green GMC Yukon ­ turned south on State Road 188. Moments later,, SPA Krall observed a GMC Yukon approach his location and SPA Krall deployed a controlled tire deflation device. The tires on the GMC Yukon were deflated and the vehicle continued southbound for approximately one mile until it turned westbound onto Tecate Mission Road. Once the vehicle approached the international boundary, the driver exited the vehicle and absconded into Mexico. SPA Krall secured the abandoned vehicle and observed several large bundles wrapped in brown packing tape, which is consistent with narcotics smuggling. A total of 71 packages of marijuana were located in this vehicle with an approximate weight of 975.1 pounds. Both vehicles and the suspected contraband were transported to the Tecate, California Border Patrol Processing Center. At the center, all the suspected contraband was transferred and secured into two Border Patrol vehicles and transported to the El Cajon Border Patrol Station. Defendant, who was the driver of the Ford pickup, was also transported to the El Cajon Station. A field test of the contraband was conducted; the substance tested positive for marijuana. 2. Defendant's Post-Miranda Statement

Defendant was advised of his Miranda rights in Spanish by Border Patrol agents and witnesses by Special Agents Von Kaenel and Luis Calderon. Defendant waived his rights and voluntarily provided a statement. Defendant claimed that he had illegally entered the United States three days earlier and said he had been residing at a residence near Tecate, California. Defendant could not recall the address or location of the residence. Defendant claimed that on November 7, 2007, he received the Ford pick up from an unidentified male and was told to drive the vehicle two kilometers north, at which time another unknown subject would take the vehicle. Defendant denied knowledge of the marijuana in the vehicle and claimed he did not know what substance comprised 3 07CR3163-DMS

Case 3:07-cr-03163-DMS

Document 10

Filed 12/24/2007

Page 4 of 15

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

the numerous brick shaped objects wrapped in cellophane that were in the vehicle he was driving. Defendant also stated that he uses marijuana as well as methamphetamine but that he did not smell the strong odor of marijuana emanating from inside the car he was driving. Defendant stated that, after receiving the vehicle, he drove west on Highway 94 until he was detained by Border Patrol Agents. Defendant denied that he was traveling in tandem with the other vehicle. C. Defendant's Criminal History

Defendant has several prior known convictions which are described below. 5/21/1986 (CASC Los Angeles) 8/8/1986 (CASC San Diego) 01:10851- VC/Take veh w/o consent/Veh theft (misdo) 01:496.1 PC - Receive, etc. known stolen property (felony) 4/10/1987 (CASC Burbank) 02:10851 - VC/Take veh w/o consent/Veh theft (misdo) II ARGUMENT A. The Government Will Comply With All Discovery Obligations 120 days jail/3 years probation; probation revoked 8/8/91 - sent 16 mos jail 60 days jail/24 mos probation 45 days jail/24 mos probation

The Government intends to continue full compliance with its discovery obligations under Brady v. Maryland, 373 U.S. 83 (1963), the Jencks Act (18 U.S.C. 3500), and Rule 16 of the Federal Rules of Criminal Procedure.1/ To date, the Government has provided 32 pages of discovery. The Government anticipates that all discovery issues can be resolved amicably and informally, and has addressed Defendant's specific requests below. (1) Defendant's Statements The Government recognizes its obligation under Rules 16(a)(1)(A) and 16(a)(1)(B) to provide to Defendant the substance of Defendant's oral statements and Defendant's written

1

28

Unless otherwise noted, all references to "Rules" refers to the Federal Rules of Criminal Procedure. 4 07CR3163-DMS

Case 3:07-cr-03163-DMS

Document 10

Filed 12/24/2007

Page 5 of 15

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

statements. The Government has produced all of the Defendant's statements that are known to the undersigned Assistant U.S. Attorney at this date. If the Government discovers additional oral or written statements that require disclosure under Rule 16(a)(1)(A) or Rule 16(a)(1)(B), such statements will be provided to Defendant. The Government has no objection to the preservation of the handwritten notes taken by any of the agents and officers. See United States v. Harris, 543 F.2d 1247, 1253 (9th Cir. 1976) (agents must preserve their original notes of interviews of an accused or prospective government witnesses). However, the Government objects to providing Defendant with a copy of the rough notes at this time. Rule 16(a)(1)(A) does not require disclosure of the rough notes where the content of those notes have been accurately reflected in a type-written report. See United States v. Brown, 303 F.3d 582, 590 (5th Cir. 2002); United States v. Coe, 220 F.3d 573, 583 (7th Cir. 2000) (Rule 16(a)(1)(A) does not require disclosure of an agent's notes even where there are "minor discrepancies" between the notes and a report). The Government is not required to produce rough notes pursuant to the Jencks Act, because the notes do not constitute "statements" (as defined 18 U.S.C. § 3500(e)) unless the notes (1) comprise both a substantially verbatim narrative of a witness' assertion, and (2) have been approved or adopted by the witness. United States v. Spencer, 618 F.2d 605, 606-07 (9th Cir. 1980). The rough notes in this case do not constitute "statements" in accordance with the Jencks Act. See United States v. Ramirez, 954 F.2d 1035, 1038-39 (5th Cir. 1992) (rough notes were not statements under the Jencks Act where notes were scattered and all the information contained in the notes was available in other forms). The notes are not Brady material because the notes do not present any material exculpatory information, or any evidence favorable to Defendant that is material to guilt or punishment. Brown, 303 F.3d at 595-96 (rough notes were not Brady material because the notes were neither favorable to the defense nor material to defendant's guilt or punishment); United States v. Ramos, 27 F.3d 65, 71 (3d Cir. 1994) (mere speculation that agents' rough notes contained Brady evidence was insufficient). If, during a future evidentiary hearing, certain rough notes become discoverable under Rule 16, the Jencks Act, or Brady, the notes in question will be provided to Defendant. // 5 07CR3163-DMS

Case 3:07-cr-03163-DMS

Document 10

Filed 12/24/2007

Page 6 of 15

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

(2)

Arrest reports, notes, dispatch tapes

The Government has provided Defendant with all known reports related to Defendant's arrest in this case that are available at this time. The Government will continue to comply with its obligation to provide to Defendant all reports subject to Rule 16. As previously noted, the Government has no objection to the preservation of the agents' handwritten notes, but objects to providing Defendant with a copy of the rough notes at this time because the notes are not subject to disclosure under Rule 16, the Jencks Act, or Brady. The United States will produce dispatch tapes, if any, relating to the Defendant's arrest in this case. (3) Brady Material

The Government has and will continue to perform its duty under Brady to disclose material exculpatory information or evidence favorable to Defendant when such evidence is material to guilt or punishment. The Government recognizes that its obligation under Brady covers not only exculpatory evidence, but also evidence that could be used to impeach witnesses who testify on behalf of the United States. See Giglio v. United States, 405 U.S. 150, 154 (1972); United States v. Bagley, 473 U.S. 667, 676-77 (1985). This obligation also extends to evidence that was not requested by the defense. Bagley, 473 U.S. at 682; United States v. Agurs, 427 U.S. 97, 107-10 (1976). "Evidence is material, and must be disclosed (pursuant to Brady), `if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Carriger v. Stewart, 132 F.3d 463, 479 (9th Cir. 1997) (en banc). The final determination of materiality is based on the "suppressed evidence considered collectively, not item by item." Kyles v. Whitley, 514 U.S. 419, 436-37 (1995). Brady does not, however, mandate that the Government open all of its files for discovery. See United States v. Henke, 222 F.3d 633, 642-44 (9th Cir. 2000)(per curiam). Under Brady, the Government is not required to provide: (1) neutral, irrelevant, speculative, or inculpatory evidence (see United States v. Smith, 282 F.3d 758, 770 (9th Cir. 2002)); (2) evidence available to the defendant from other sources (see United States v. Bracy, 67 F.3d 1421, 1428-29 (9th Cir. 1995)); (3) evidence that the defendant already possesses (see United States v. Mikaelian, 168 F.3d 380, 389-90 (9th Cir. 1999), amended by 180 F.3d 1091 (9th Cir. 1999)); or (4) evidence that the 6 07CR3163-DMS

Case 3:07-cr-03163-DMS

Document 10

Filed 12/24/2007

Page 7 of 15

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

undersigned Assistant U.S. Attorney could not reasonably be imputed to have knowledge or control over. (see United States v. Hanson, 262 F.3d 1217, 1234-35 (11th Cir. 2001)). Nor does Brady require the Government "to create exculpatory evidence that does not exist," United States v. Sukumolahan, 610 F.2d 685, 687 (9th Cir. 1980), but only requires that the Government "supply a defendant with exculpatory information of which it is aware." United States v. Flores, 540 F.2d 432, 438 (9th Cir. 1976). (4) & (5) Sentencing Information

The United States is not obligated under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny to furnish a defendant with information which he already knows. United States v. Taylor, 802 F.2d 1108, 1118 n.5 (9th Cir. 1986). Brady is a rule of disclosure, and therefore, there can be no violation of Brady if the evidence is already known to the defendant. In such case, the United States has not suppressed the evidence and consequently has no Brady obligation. See United States v. Gaggi, 811 F.2d 47, 59 (2d Cir. 1987). But even assuming Defendant does not already possess the information about factors which might affect his guideline range, the United States would not be required to provide information bearing on Defendant's mitigation of punishment until after Defendant's conviction or plea of guilty and prior to his sentencing date. See United States v. Juvenile Male, 864 F.2d 641, 647 (9th Cir. 1988) ("No [Brady] violation occurs if the evidence is disclosed to the defendant at a time when the disclosure remains in value."). Accordingly, Defendant's demand for this information is premature. (6) Defendant's Prior Record

The United States has already provided Defendant with a copy of any criminal record in accordance with Federal Rule of Criminal Procedure 16(a)(1)(D). (7) Proposed 404(b) and 609 Evidence

Should the United States seek to introduce any similar act evidence pursuant to Federal Rules of Evidence 404(b) or 609(b), the United States will provide Defendant with notice of its proposed use of such evidence and information about such bad act at or before the time the United States' trial memorandum is filed. The United States reserves the right to introduce as prior act evidence any conviction, arrest or prior act that is disclosed to the defense in discovery. 7 07CR3163-DMS

Case 3:07-cr-03163-DMS

Document 10

Filed 12/24/2007

Page 8 of 15

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

(8)

Evidence Seized

The United States has complied and will continue to comply with Rule 16(a)(1)(C) in allowing Defendant an opportunity, upon reasonable notice, to examine, copy and inspect physical evidence which is within the possession, custody or control of the United States, and which is material to the preparation of Defendant's defense or are intended for use by the United States as evidence in chief at trial, or were obtained from or belong to Defendant, including photographs. The United States, however, need not produce rebuttal evidence in advance of trial. United States v. Givens, 767 F.2d 574, 584 (9th Cir. 1984), cert. denied, 474 U.S. 953 (1985). (9) Request for Preservation of Evidence

After issuance of a an order from the Court, the United States will preserve all evidence to which Defendant is entitled to pursuant to the relevant discovery rules. However, the United States objects to Defendant's blanket request to preserve all physical evidence. The United States has complied and will continue to comply with Rule 16(a)(1)(C) in allowing Defendant an opportunity, upon reasonable notice, to examine, copy and inspect physical evidence which is within his possession, custody or control of the United States, and which is material to the preparation of Defendant's defense or are intended for use by the United States as evidence in chief at trial, or were obtained from or belong to Defendant, including photographs. The United States has made the evidence available to Defendant and Defendant's investigators and will comply with any request for inspection. (10) Tangible Objects

The Government has complied and will continue to comply with Rule 16(a)(1)(E) in allowing Defendant an opportunity, upon reasonable notice, to examine, inspect, and copy all tangible objects seized that are within its possession, custody, or control, and that are either material to the preparation of Defendant's defense, or are intended for use by the Government as evidence during its case-in-chief at trial, or were obtained from or belong to Defendant. The Government need not, however, produce rebuttal evidence in advance of trial. United States v. Givens, 767 F.2d 574, 584 (9th Cir. 1984). // 8 07CR3163-DMS

Case 3:07-cr-03163-DMS

Document 10

Filed 12/24/2007

Page 9 of 15

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

(11)

Evidence of Bias or Motive To Lie

The United States is unaware of any evidence indicating that a prospective witness is biased or prejudiced against Defendant. The United States is also unaware of any evidence that prospective witnesses have a motive to falsify or distort testimony. (12) Impeachment Evidence

The Government recognizes its obligation under Brady and Giglio to provide evidence that could be used to impeach Government witnesses including material information regarding demonstrable bias or motive to lie. (13) Evidence of Criminal Investigation of Any Government Witness

Defendants are not entitled to any evidence that a prospective witness is under criminal investigation by federal, state, or local authorities. "[T]he criminal records of such [Government] witnesses are not discoverable." United States v. Taylor, 542 F.2d 1023, 1026 (8th Cir. 1976); United States v. Riley, 657 F.2d 1377, 1389 (8th Cir. 1981) (holding that since criminal records of prosecution witnesses are not discoverable under Rule 16, rap sheets are not either); cf. United States v. Rinn, 586 F.2d 113, 118-19 (9th Cir. 1978) (noting in dicta that "[i]t has been said that the Government has no discovery obligation under Fed. R. Crim. P. 16(a)(1)(C) to supply a defendant with the criminal records of the Government's intended witnesses.") (citing Taylor, 542 F.2d at 1026). The Government will, however, provide the conviction record, if any, which could be used to impeach witnesses the Government intends to call in its case-in-chief. When disclosing such information, disclosure need only extend to witnesses the United States intends to call in its case-inchief. United States v. Gering, 716 F.2d 615, 621 (9th Cir. 1983); United States v. Angelini, 607 F.2d 1305, 1309 (9th Cir. 1979). Evidence Affecting Perception, Recollection, Ability to Communicate, or Truth Telling The United States is unaware of any evidence indicating that a prospective witness has a problem with perception, recollection, communication, or truth-telling. The United States (14)

recognizes its obligation under Brady and Giglio to provide material evidence that could be used to impeach Government witnesses including material information related to perception, recollection 9 07CR3163-DMS

Case 3:07-cr-03163-DMS

Document 10

Filed 12/24/2007

Page 10 of 15

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

or ability to communicate. The Government objects to providing any evidence that a witness has ever used narcotics or other controlled substances, or has ever been an alcoholic because such information is not discoverable under Rule 16, Brady, Giglio, Henthorn, or any other Constitutional or statutory disclosure provision. (15) Witness Addresses

The Government has already provided Defendant with the reports containing the names of the agents involved in the apprehension and interviews of Defendant. A defendant in a non-capital case, however, has no right to discover the identity of prospective Government witnesses prior to trial. See Weatherford v. Bursey, 429 U.S. 545, 559 (1977); United States v. Dishner, 974 F.2d 1502, 1522 (9th Cir 1992) (citing United States v. Steel, 759 F.2d 706, 709 (9th Cir. 1985)); United States v. Hicks, 103 F.23d 837, 841 (9th Cir. 1996). Nevertheless, in its trial memorandum, the Government will provide Defendant with a list of all witnesses whom it intends to call in its case-inchief, although delivery of such a witness list is not required. See United States v. Discher, 960 F.2d 870 (9th Cir. 1992); United States v. Mills, 810 F.2d 907, 910 (9th Cir. 1987). The Government objects to any request that the Government provide a list of every witness to the crimes charged who will not be called as a Government witness. "There is no statutory basis for granting such broad requests," and a request for the names and addresses of witnesses who will not be called at trial "far exceed[s] the parameters of Rule 16(a)(1)(C)." United States v. HsinYung, 97 F. Supp.2d 24, 36 (D. D.C. 2000) (quoting United States v. Boffa, 513 F. Supp. 444, 502 (D. Del. 1980)). The Government is not required to produce all possible information and evidence regarding any speculative defense claimed by Defendant. Wood v. Bartholomew, 516 U.S. 1, 6-8 (1995) (per curiam) (holding that inadmissible materials that are not likely to lead to the discovery of admissible exculpatory evidence are not subject to disclosure under Brady). (16) Names of Witnesses Favorable to the Defendant

As stated earlier, the Government will continue to comply with its obligations under Brady and its progeny. At the present time, the Government is not aware of any witnesses who have made an arguably favorable statement concerning the defendant. // 10 07CR3163-DMS

Case 3:07-cr-03163-DMS

Document 10

Filed 12/24/2007

Page 11 of 15

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

(17)

Statements Relevant to the Defense

The United States will comply with all of its discovery obligations. However, "the prosecution does not have a constitutional duty to disclose every bit of information that might affect the jury's decision; it need only disclose information favorable to the defense that meets the appropriate standard of materiality." Gardner, 611 F.2d at 774-775 (citation omitted). (18) Jencks Act Material

The Jencks Act, 18 U.S.C. § 3500, requires that, after a Government witness has testified on direct examination, the Government must give the Defendant any "statement" (as defined by the Jencks Act) in the Government's possession that was made by the witness relating to the subject matter to which the witness testified. 18 U.S.C. § 3500(b). A "statement" under the Jencks Act is (1) a written statement made by the witness and signed or otherwise adopted or approved by him, (2) a substantially verbatim, contemporaneously recorded transcription of the witness's oral statement, or (3) a statement by the witness before a grand jury. 18 U.S.C. § 3500(e). If notes are read back to a witness to see whether or not the government agent correctly understood what the witness was saying, that act constitutes "adoption by the witness" for purposes of the Jencks Act. United States v. Boshell, 952 F.2d 1101, 1105 (9th Cir. 1991) (citing Goldberg v. United States, 425 U.S. 94, 98 (1976)). While the Government is only required to produce all Jencks Act material after the witness testifies, the Government plans to provide most (if not all) Jencks Act material well in advance of trial to avoid any needless delays. (19) Giglio Information

As stated previously, the United States will comply with its obligations pursuant to Brady v. Maryland, 373 U.S. 83 (1963), the Jencks Act, United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991), and Giglio v. United States, 405 U.S. 150 (1972). (20) Reports of Scientific Tests or Examinations

The United States is not aware of any scientific tests or examinations at this time but, if any scientific tests or examinations were conducted or are conducted in the future, the United States will provide Defendant with any reports of any such tests or examinations in accordance with Rule 16(a)(1)(F). 11 07CR3163-DMS

Case 3:07-cr-03163-DMS

Document 10

Filed 12/24/2007

Page 12 of 15

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

(21)

Henthorn Material

The Government will comply with United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991) and request that all federal agencies involved in the criminal investigation and prosecution review the personnel files of the federal law enforcement inspectors, officers, and special agents whom the Government intends to call at trial and disclose information favorable to the defense that meets the appropriate standard of materiality. United States v. Booth, 309 F.3d 566, 574 (9th Cir. 2002)(citing United States v. Jennings, 960 F.2d 1488, 1489 (9th Cir. 1992). If the undersigned Assistant U.S. Attorney is uncertain whether certain incriminating information in the personnel files is "material," the information will be submitted to the Court for an in camera inspection and review. (22) Informants and Cooperating Witnesses

If the Government determines that there is a confidential informant who has information that is "relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause," the Government will either disclose the identity of the informant or submit the informant's identity to the Court for an in-chambers inspection. See Roviaro v. United States, 353 U.S. 53, 6061 (1957) (emphasis added); United States v. Ramirez-Rangel, 103 F.3d 1501, 1505 (9th Cir. 1997) (same). (23) Expert Witnesses

The Government will comply with Rule 16(a)(1)(G) and provide Defendant with a written summary of any expert testimony that the Government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial. This summary shall include the expert witnesses' qualifications, the expert witnesses opinions, the bases, and reasons for those opinions. (24) Residual Request

The Government will comply with all of its discovery obligations, but objects to the broad and unspecified nature of Defendant's residual discovery request. // // // 12 07CR3163-DMS

Case 3:07-cr-03163-DMS

Document 10

Filed 12/24/2007

Page 13 of 15

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

III GOVERNMENT'S MOTION TO COMPEL RECIPROCAL DISCOVERY A. All Evidence That Defendant Intends To Introduce In His Case-In-Chief

Since the Government will honor Defendant's request for disclosure under Rule 16(a)(1)(E), the Government is entitled to reciprocal discovery under Rule 16(b)(1). Pursuant to Rule 16(b)(1), requests that Defendant permit the Government to inspect, copy and photograph any and all books, papers, documents, photographs, tangible objects, or make copies or portions thereof, which are within the possession, custody, or control of Defendant and which Defendant intends to introduce as evidence in his case-in-chief at trial. The Government 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 and control of Defendant, which he 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. The Government also requests that the Court make such order as it deems necessary under Rules 16(d)(1) and (2) to ensure that the Government receives the reciprocal discovery to which it is entitled. B. Reciprocal Jencks ­ Statements By Defense Witnesses

Rule 26.2 provides for the reciprocal production of Jencks material. Rule 26.2 requires production of the prior statements of all witnesses, except a statement made by Defendant. The time frame established by Rule 26.2 requires the statements to be provided to the Government after the witness has testified. However, to expedite trial proceedings, the Government hereby requests that Defendant be ordered to provide 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 reports. // // // 13 07CR3163-DMS

Case 3:07-cr-03163-DMS

Document 10

Filed 12/24/2007

Page 14 of 15

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 Dated: December 24, 2007

IV CONCLUSION For the foregoing reasons, the United States requests that the Court deny Defendant's motion and grant the United States' motion for reciprocal discovery.

Respectfully submitted, KAREN P. HEWITT United States Attorney

s/Lawrence A. Casper

LAWRENCE A. CASPER Assistant U.S. Attorney

14

07CR3163-DMS

Case 3:07-cr-03163-DMS

Document 10

Filed 12/24/2007

Page 15 of 15

1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 UNITED STATES OF AMERICA, 4 Plaintiff, 5 v. 6 JOSE GONZALEZ ALVAREZ, 7 Defendant. 8 9 10 11 I am not a party to the above-entitled action. I have caused service of 12 UNITED STATES' RESPONSE AND OPPOSITION TO DEFENDANT'S MOTIONS TO: 13 (1) COMPEL DISCOVERY; (2) GRANT LEAVE TO FILE FURTHER MOTIONS 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 07CR3163-DMS I declare under penalty of perjury that the foregoing is true and correct. Executed on December 24, 2007. the last known address, at which place there is delivery service of mail from the United States Postal Service. on the following parties by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically notifies them. Inge Brauer, Esq. Federal Defenders of San Diego, Inc. I hereby certify that I have caused to be mailed the foregoing, by the United States Postal Service, to the following non-ECF participants on this case: 1. None 1. TOGETHER WITH STATEMENT OF FACTS, MEMORANDUM OF POINTS AND AUTHORITIES, AND GOVERNMENT'S MOTION TO COMPEL PRODUCTION OF RECIPROCAL DISCOVERY. IT IS HEREBY CERTIFIED THAT: I, Lawrence A. Casper, am a citizen of the United States and am at least eighteen years of age. My business address is 880 Front Street, Room 6293, San Diego, California 92101-8893. ) ) ) ) ) ) ) ) ) ) Criminal Case No. 07CR3163-DMS

CERTIFICATE OF SERVICE

s/ Lawrence A. Casper
LAWRENCE A. CASPER