Free Motion for Fingerprint Exemplars - District Court of California - California

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KAREN P. HEWITT United States Attorney PETER J. MAZZA Assistant U.S. Attorney California State Bar No. 239918 Federal Office Building 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-5528 [email protected] Attorneys for Plaintiff UNITED STATES OF AMERICA

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, ) ) ) Plaintiff, ) ) ) v. ) ) ) STEVE VICTOR CUTHBERTSON, ) ) ) Defendant. ) ) ____________________________ ) CASE NO. DATE: TIME: 07CR3140-BTM January 18, 2008 1:30 p.m.

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STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF GOVERNMENT'S MOTIONS FOR RECIPROCAL DISCOVERY AND TO COMPEL FINGERPRINT EXEMPLARS

COMES NOW, the plaintiff, UNITED STATES OF AMERICA, by and through its counsel, KAREN P. HEWITT, United States Attorney, and Peter J. Mazza, Assistant United States Attorney, hereby files the attached statement of facts and memorandum of points and authorities in support of Government's motion for reciprocal discovery and fingerprint exemplars. // // //

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I STATEMENT OF THE CASE On November 15, 2007, a federal grand jury in the Southern District of California returned a one-count Indictment charging Steve Victor Cuthbertson ("Defendant") with bank robbery, in violation of Title 18, United States Code, Section 2113(a). On December 3, 2007, the Government produced in discovery 55 pages of written materials, one audio tape, and one dvd. This

discovery constitutes the full amount of discoverable information the Government has to date. Specifically, it includes: 1) reports

generated in response to the ongoing investigation; 2) photographs; 3) Defendant's criminal history; 4) dvd of the beginning of

Defendant's post-arrest interview; and 5) audio tape of the remainder of Defendant's post-arrest interview. to fulfill its discovery obligations. II STATEMENT OF FACTS THE INSTANT OFFENSE The Government will continue

On September 15, 2007, at approximately 12:41 p.m., a white male robbed the Bank of America branch located at 845 North Second Street, El Cajon, California ("Bank of America"). The robber approached the

teller window of Monette Quintanilla ("victim teller") and gave her a yellow 3" x. 5" "Post-It" note, which read: "Follow these

Instructions and everything will be okay I want all your $20, $50, $100 Bills, No Bait money. Do this quickly" [sic]. The victim

teller complied with the robber's instructions by placing currency in $20 and $50 denominations on the teller counter, and did not include any bait money. While she was emptying her teller drawer, 2

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the robber stated: "Hurry up!

Hurry up!"

The robber grabbed the

money, exited the bank via the south lobby doors, and fled in an unknown direction. The robber left the demand note behind.

The bank suffered a loss of $4,542.00 as a result of the robbery. At the time of the robbery, the bank's deposits were The

insured by the Federal Deposit Insurance Corporation (FDIC).

victim teller failed to activate the bank's alarm, but immediately notified her supervisor of the robbery. Bank surveillance cameras

obtained high-quality pictures of the robber, which included his clothing and the dark-colored hiking boots he wore during the robbery. The victim teller described the robber as follows: white, male, mid-30s, approximately 5'8", heavyset/chunky build, flushed

complexion, plaint white t-shirt, jean shorts, sunglasses and running shoes. On November 1, 2007, the El Cajon Police Department Crime Laboratory reported that it was able to lift latent fingerprints from the demand note the robber left at the bank. A subsequent search of

the Integrated Automated Fingerprint Identification System (IAFIS) returned a match for Defendant based on his 1998 conviction for growing/cultivating marijuana plants. Further investigation of Cuthbertson's record revealed that a missing person's report had been filed by his sister on July 22, 2007, with the La Mesa Police Department. The report indicated that

he was eventually found to be living with a friend named Mike Bagialo. A search of Bagialo's information indicated that his last

known address was 1518 Sams Hill, Unit #59, El Cajon, California. Agents and detectives conducted surveillance of the location on 3

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consecutive days just prior to his arrest that revealed a pick-up truck matching a vehicle registered to Rolfe and Gloria Cuthbertson in the driveway. On November 6, 2007, agents went to this location

to investigate further Cuthbertson's whereabouts. Upon arriving at the Sams Hill residence, Agent Hemmen and El Cajon Police Department Detective Mark Barber knocked on the door. A white male matching Cuthbertson's description opened the door. Detective Barber identified himself and asked the individual his name, to which the individual responded, "Steve." Detective Barber Agent

asked him for his last name, and he responded, "Cuthbertson."

Hemmen and Detective Barber entered the residence with Defendant's consent. No one else was present other than Defendant. Defendant

gave Agent Hemmen and Detective Barber consent to search the bedroom where he kept his personal belongings. Agent Hemmen and Detective Barber searched the bedroom. Among

Defendant's personal items in the room were a pair of Timberland hiking boots that appeared identical to the hiking boots worn by the bank robber in the surveillance photographs. as evidence. The boots were seized

No other items worn by the individual in the bank Agent

surveillance photographs were located during the search. Hemmen and Detective Barber placed Defendant under arrest.

On November 6, 2007, at approximately 11:30 a.m., Detective Barber and Agent Hemmen interviewed Defendant. Defendant was

informed of his Miranda rights and agreed to make a statement. Defendant admitted to robbing a Bank of America branch located in El Cajon, California. Defendant further stated that on the day of the

robbery, he entered the bank on three separate occasions, the third entry for the purpose of robbing the bank. He stated that he entered 4

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the bank and waited in line for the next available teller.

He

recalled handing the bank teller a demand note once he had approached the teller counter, but could not remember the type of paper or what he had written. He stated that after he took the money, he exited He informed agents that he

the bank and drove away in his truck.

used most of the $4,542 to purchase alcohol over the last two months. III GOVERNMENT'S MOTIONS A. MOTION 1.
FOR

RECIPROCAL DISCOVERY

RULE 16(b)

The United States, pursuant to Rule 16 of the Federal Rules of Criminal Procedure, requests that Defendant permit the United States to inspect, copy, and photograph any and all books, papers,

documents, photographs, tangible objects, or make copies of 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 United States 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 or control of Defendant, which Defendant 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. Because the United States has complied with its obligations for delivery of reports of examinations, the United States is entitled to the items listed above under Rule 16(b)(1) of the Federal Rules of Criminal Procedure. The United

States also requests that the Court make such order as it deems 5

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necessary under Rules 16(d)(1) and (2) to ensure that the United States receives the discovery to which it is entitled. 2. RULE 26.2

Rule 26.2 of the Federal Rules of Criminal Procedure requires the production of prior statements of all witnesses, except a statement made by Defendant. This rule thus provides for the

reciprocal production of Jencks statements. The time frame established by the rule requires the statement to be provided after the witness has testified. To expedite trial

proceedings, the United States hereby requests that Defendant be ordered to supply 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/or reports. B. Motion to Compel Fingerprint Exemplars The Government requests that Defendant be ordered to make himself available for fingerprint exemplars at a time and place convenient to the Government's fingerprint expert. See United States v. Kloepper, 725 F. Supp. 638, 640 (D. Mass. 1989) (the District Court has "inherent authority" to order a defendant to provide handwriting exemplars, fingerprints, and palmprints). Since the fingerprint exemplars are sought for the sole purpose of proving Defendant's identity, rather for than investigatory purposes, the Fourth Amendment is not implicated. The Ninth Circuit in United

States v. Ortiz-Hernandez, 427 F.3d 567, 576-79 (9th Cir. 2005), upheld the Government's ability to compel a defendant to submit to fingerprinting for purposes of identification at trial. 6 See United

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States v. Garcia-Beltran, 389 F.3d 864, 866-68 (9th Cir. 2004) (citing United States v. Parga-Rosas, 238 F.3d 1209, 1215 (9th Cir. 2001)). Furthermore, exemplars an order not requiring infringe Defendant on to provide Fifth

fingerprint

does

Defendant's

Amendment rights.

See Schmerber v. California, 384 U.S. 757, 770-71

(1966) (the Fifth Amendment privilege "offers no protection against compulsion to submit to fingerprinting"); Williams v. Schario, 93 F.3d 527, 529 absence of (8th Cir. 1996) (the taking of fingerprints in the Miranda warnings did not constitute testimonial

incrimination as proscribed by the Fifth Amendment). IV CONCLUSION For the foregoing reasons, the United States requests that the Government's Motions be granted. DATED: January 5, 2008. Respectfully Submitted, KAREN P. HEWITT United States Attorney /s/ Peter J. Mazza PETER J. MAZZA Assistant U.S. Attorney [email protected]

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1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 UNITED STATES OF AMERICA, 4 Plaintiff, 5 v. 6 STEVE VICTOR CUTHBERTSON, 7 Defendant. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 /s/ Peter J. Mazza PETER J. MAZZA IT IS HEREBY CERTIFIED THAT: I, PETER J. MAZZA, am a citizen of the United States and am at least eighteen years of age. My business address is 880 Front ) ) ) ) ) ) ) ) ) ) Case No. 07CR3140-BTM

CERTIFICATE OF SERVICE

Street, Room 6293, San Diego, California 92101-8893. I am not a party to the above-entitled action. I have caused

service of GOVERNMENT'S NOTICE OF MOTIONS AND MOTIONS FOR RECIPROCAL DISCOVERY AND TO COMPEL FINGERPRINT EXEMPLARS on the following parties by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically notifies them. 1. Jodi Thorp, Esq. I declare under penalty of perjury that the foregoing is true and correct. Executed on January 5, 2008.