Free Response in Opposition - District Court of California - California

Case 3:07-cr-03164-LAB

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KAREN P. HEWITT United States Attorney CARLOS ARGUELLO Assistant U.S. Attorney California State Bar No. 157162 Federal Office Building 880 Front Street, Room 6293 San Diego, California 92101-8800 Telephone: (619) 557-6252 Facsimile: (619) 235-2757 Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA 10 UNITED STATES OF AMERICA, 11 Plaintiff, 12 v. 13 14 15 16 17 18 19 20 COMES NOW the Plaintiff, UNITED STATES OF AMERICA, by and 21 through its counsel, Karen P. Hewitt, United States Attorney, and 22 Carlos Arguello, Assistant United States Attorney, and hereby 23 files its response and opposition to Defendant's above-referenced 24 motions. 25 this 26 memorandum of points and authorities and the Government's motion 27 for reciprocal discovery. 28 case, together with the attached statement of facts, This response is based upon the files and records of ANTHONY DAVID CORREA, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Criminal Case No. 07cr3164LAB DATE: TIME: February 4, 2008 9:30 a.m.

GOVERNMENT'S RESPONSE AND OPPOSITION TO DEFENDANT'S MOTIONS TO: (1) (2) COMPEL DISCOVERY AND FILE ADDITIONAL MOTIONS.

TOGETHER WITH STATEMENT OF FACTS, MEMORANDUM OF POINTS AND AUTHORITIES AND GOVERNMENT'S MOTION FOR RECIPROCAL DISCOVERY

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I. CURRENT CASE STATUS Counsel for Defendant, Mr. Michael Berg, and the Government have reached a preliminary agreement on the resolution of this case. However, the parties do not expect that Defendant will have pled guilty in this case before the motion hearing date set for February 4, 2008. As a result, the Government anticipates that In

the parties will request a trial date at the motion hearing.

the meantime, Mr. Berg's client will plead guilty before a Magistrate Judge if a disposition is reached. II. STATEMENT OF FACTS On July 14, 2005, District Court Judge John A. Houston sentenced Anthony David Correa ("Defendant") to 120 days in a community corrections center and four years' probation. The

sentence was for a felony alien smuggling case to which Defendant pled guilty in case number 04cr2803JAH. Later, on March 24, 2006, Judge Houston revoked Defendant's probation on that same case and sentenced Defendant to 90 days' custody and three years' supervised release. Thereafter, on

February 15, 2007, Judge Houston revoked Defendant's supervised release and sentenced him to nine months' custody and imposed twenty-seven (27) months' supervised release. The following took

place that became the basis for the escape charge in the instant matter: October 10, 2007: After serving the majority of his ninemonth sentence in custody, Defendant is placed in a community corrections center 2
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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. DISCOVERY November 20, 2007: October 30, 2007:

in San Diego.

His expected release date

is November 2, 2007. Defendant walks-away from the facility and is placed on escape status after failing to return. A grand jury returns an indictment with escape.

charging

Defendant

(Defendant is arrested in late December 2007.) Defendant now remains in custody following his stipulation to detention. III. POINTS AND AUTHORITIES

The Government has produced approximately twenty (20) pages of discovery. available. Marshall's Additional discovery will be produced as it is At this time, the Government is awaiting further U.S. reports, and documents from Defendant's prior

convictions, which will be provided to Defendant once they have been received. The discovery produced is in excess of that

required by Rule 16 of the Federal Rules of Criminal Procedure and the Jencks Act (now covered by Rule 26.2 of the Federal Rules of Criminal Procedure). As to the physical evidence, the Government

will make it available for viewing by defense counsel at a mutually convenient time and place. As to exculpatory information, the Government is well aware of its obligation under Brady v. Maryland, 373 U.S. 83 (1963) and will comply. 3
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The Government will provide a list of witnesses in its trial memorandum. The grand jury transcript of any person who will

testify at trial will also be produced. The Government has provided and will continue to provide information within its possession or control pertaining to the prior criminal history of the Defendants. Evidence of other acts

or crimes by the Defendants similar to this escape incident will be provided once the information is received. The Government

intends to seek permission to introduce this evidence under Federal Rule of Evidence 404(b) at trial. The Government also

intends to seek permission to impeach Defendant with his felony conviction under Federal Rule of Evidence 609(a)(1) if he

testifies at trial. The Government will produce the reports of any experts that it intends to use in its case-in-chief at trial or are material to the preparation of the defense. In view of the above-stated position of the Government

concerning discovery, it is respectfully requested that no orders compelling specific discovery by the Government be made at this time. The Government also respectfully requests reciprocal

discovery of the Defendants.

If and when individual problems

arise which cannot be resolved between counsel for Defendants and the Government, the matters can be submitted to the Court for decision. B. REQUEST TO FILE FURTHER MOTIONS The Government does not oppose Defendant's request to file further motions if based on newly obtained discovery. /// 4
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 For the foregoing

IV. GOVERNMENT'S MOTION FOR RECIPROCAL DISCOVERY The Government hereby requests Defendants to deliver all materials to which the Government may be entitled under Federal Rules of Criminal Procedure 16(b) and 26.2. V. CONCLUSION reasons, the Government respectfully

requests that Defendant's motions be denied where opposed and that the Government's motion for reciprocal discovery be granted. DATED: January 28, 2008. Respectfully submitted, KAREN P. HEWITT United States Attorney s/Carlos Arguello

15 16 17 18 19 20 21 22 23 24 25 26 27 28 CARLOS ARGUELLO Assistant U.S. Attorney