Free Motion to Compel - District Court of California - California

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1 BENJAMIN P. LECHMAN California State Bar Number 185729 2 964 Fifth Ave. #320 San Diego, California 92101-5008 3 Telephone: (619) 699-5935 4 Attorney for Defendant Hernandez-Contreras 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 (HONORABLE WILLIAM Q. HAYES) 10 UNITED STATES OF AMERICA, 11 12 13 14 15 16 17 ) ) Plaintiff, ) ) v. ) ) GABRIEL ANGEL ) HERNANDEZ-CONTRERAS ) aka Antonio Reza-Lara, ) ) ) ) Defendant. ) ____________________________________) CASE NO. 07CR3103-WQH DATE: January 2, 2008 TIME: 2:00 p.m. NOTICE OF MOTIONS AND MOTIONS TO: (1) COMPEL FURTHER DISCOVERY; (2) DISMISS INDICTMENT FOR FAILURE TO PLEAD ELEMENT; (3) ELECT DEPORTATION DATE; and (4) LEAVE TO FILE FURTHER MOTIONS

18 TO: 19

KAREN HEWITT, UNITED STATES ATTORNEY, AND DAVID LESHNER, ASSISTANT UNITED STATES ATTORNEY: PLEASE TAKE NOTICE that on January 2, 2008, at 2:00 p.m., or as soon thereafter as

20 counsel may be heard, the defendant, Gabriel Angel Hernandez-Contreras, by and through his attorney 21 Benjamin P. Lechman, will ask this Court to issue an order granting the motions listed below. 22 // 23 // 24 // 25 // 26 // 27 // 28 1 07CR3103-WQH

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MOTIONS The defendant, Mr. Hernandez-Contreras, by and through his attorney, Benjamin P. Lechman,

3 asks this Court pursuant to the United States Constitution, the Federal Rules of Criminal Procedure, and 4 all other applicable statutes and local rules for an order to: 5 6 7 8 9 1. 2. 3. 4. Compel further discovery; Dismiss Indictment for Failure to Plead Element; Elect Deportation date; and Leave to file further motions.

These motions are based upon the instant motions and notice of motions, the attached statement

10 of facts and memorandum of points and authorities, the files and records in the above-captioned matter, 11 and any and all other materials that may come to this Court's attention prior to or during the hearing of 12 these motions. 13 14 15 16 Dated: December 4, 2007 17 18 19 20 21 22 23 24 25 26 27 28 2 07CR3103-WQH BENJAMIN P. LECHMAN Attorney for Defendant Hernandez-Contreras Respectfully submitted,

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1 BENJAMIN P. LECHMAN California State Bar Number 185729 2 964 Fifth Ave. #320 San Diego, California 92101-5008 3 Telephone: (619) 699-5935 4 Attorney for Defendant Hernandez-Contreras 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 (HONORABLE WILLIAM Q. HAYES) 10 UNITED STATES OF AMERICA, 11 12 13 14 15 16 17 18 19 20 21 I. STATEMENT OF FACTS Mr. Hernandez-Contreras hereby incorporates the statement of facts based on the criminal ) ) Plaintiff, ) ) v. ) ) ) ) ) GABRIEL ANGEL ) HERNANDEZ-CONTRERAS ) aka Antonio Reza-Lara, ) ) Defendant. ) ____________________________________) CASE NO. 07CR3103-WQH DATE: January 2, 2008 TIME: 2:00 p.m. STATEMENT OF FACTS AND POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTIONS

22 complaint filed by the government in this case charging a violation of 8 U.S.C. section 1326. However, 23 Mr. Hernandez-Contreras does not accept this statement of facts as his own, and reserves the right to 24 take a contrary position at motions hearing and trial. The facts alleged in these motions are subject to 25 amplification and/or modification at the time these motions are heard. 26 27 28 II. MOTION TO COMPEL DISCOVERY Mr. Hernandez-Contreras moves for the production by the government of the following 1 07CR3103-WQH

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1 discovery. This request is not limited to those items that the prosecutor knows of, but rather includes all 2 discovery listed below that is in the custody, control, care, or knowledge of any government agency. See 3 generally Kyles v. Whitley, ___U.S.___, 115 S. Ct. 1555, 1567-68 (1995); United States v. Lacy, 896 F. 4 Supp. 982 (N.D. Cal. 1995) (prosecutor has duty to ascertain what exculpatory information may be 5 possessed by other agencies): 6 (1) The Defendant's Statements Under Fed. R. Crim. P. 16 (a)(1)(A) the defendant is entitled to

7 disclosure of all copies of any written or recorded statements made by the defendant; the substance of 8 any statements made by the defendant which the government intends to offer in evidence at trial; any 9 recorded testimony of the defendant before the grand jury; any response by the defendant to 10 interrogation; the substance of any oral statements which the government intends to introduce at trial, 11 and any written summaries of the defendant's oral statements contained in the handwritten notes of the 12 government agent; any response to any Miranda warnings which may have been given to the defendant 13 (See United States v. McElroy, 697 F.2d 459 (2d Cir. 1982)); and any other statements by the defendant 14 that are discoverable under Fed. R. Crim. P. 16(a)(1)(A); 15 (2) Arrest Reports, Notes and Dispatch Tapes The defendant also specifically requests that all

16 arrest reports, notes and dispatch or any other tapes that relate to the circumstances surrounding his 17 arrest or any questioning, if such reports have not already been produced in their entirety, be turned over 18 to him. This request includes, but is not limited to, any rough notes, records, reports, transcripts or other 19 documents in which statements of the defendant or any other discoverable material is contained. This is 20 all discoverable under Fed. R. Crim. P. 16(a)(1)(A) and Brady v. Maryland, 373 U.S. 83 (1963). See 21 also United States v. Johnson, 525 F.2d 999 (2d Cir. 1975); United States v. Lewis, 511 F.2d 798 (D.C. 22 Cir. 1975); United States v. Pilnick, 267 F. Supp. 791 (S.D.N.Y. 1967); Loux v. United States, 389 F.2d 23 911 (9th Cir. 1968). Arrest reports, investigator's notes, memos from arresting officers, dispatch tapes, 24 sworn statements, and prosecution reports pertaining to the defendant are available under Fed. R. Crim. 25 P. 16(a)(1)(B) and ©, Fed. R. Crim. P. 26.2 and 12(i). Preservation of rough notes is requested, 26 whether or not the government deems them discoverable at this time; 27 (3) Brady Material The defendant requests all documents, statements, agents' reports, and

28 tangible evidence favorable to the defendant on the issue of guilt and/or which affects the credibility of 2 07CR3103-WQH

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1 the government's case. Impeachment as well as exculpatory evidence falls within Brady's definition of 2 evidence favorable to the accused. United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 3 427 U.S. 97 (1976); 4 (4) Any Information That May result in a Lower Sentence Under The Guidelines As discussed

5 above, this information is discoverable under Brady v. Maryland, 373 U.S. 83(1963). This request 6 includes any cooperation or attempted cooperation by the defendant, as well as any information that 7 could affect any base offense level or specific offense characteristic under Chapter Two of the 8 Guidelines. Also included in this request is any information relevant to a Chapter Three adjustment, a 9 determination of the defendant's criminal history, or any other application of the Guidelines; 10 (5) The Defendant's Prior Record Evidence of prior record is available under Fed. R. Crim. P.

11 16(a)(1)(B). Counsel specifically requests a complete copy of any criminal record as well as any record 12 of prior deportations; 13 (6) Any Proposed 404(b) Evidence Evidence of prior similar acts is discoverable under Fed. R.

14 Crim. P. 16(a)(1)© and Fed. R. Evid. 404(b) and 609. In addition, under Fed. R. Evid. 404(b), "upon 15 request of the accused, the prosecution . . . shall provide reasonable notice in advance of trial . . . of the 16 general nature . . ." of any evidence the government proposes to introduce under Fed. R. Evid. 404(b) at 17 trial. The defendant requests that such notice be given three weeks before trial in order to give the 18 defense time to adequately investigate and prepare for trial; 19 (7) Evidence Seized Evidence seized as a result of any search, either warrantless or with a

20 warrant, is discoverable under Fed. R. Crim. P. 16(a)(1)©; 21 (8) Request for Preservation of Evidence The defendant specifically requests that all dispatch

22 tapes or any other physical evidence that may be destroyed, lost, or otherwise put out of the possession, 23 custody, or care of the government and which relate to the arrest or the events leading to the arrest in this 24 case be preserved. 25 It is requested that the government be ordered to question all the agencies and individuals

26 involved in the prosecution and investigation of this case to determine if such evidence exists, and if it 27 does exist to inform those parties to preserve any such evidence; 28 (9) Tangible Objects The defendant requests, under Fed. R. Crim. P. 16(a)(2)© the opportunity to 3 07CR3103-WQH

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1 inspect and copy as well as test, if necessary, all other documents and tangible objects, including 2 photographs, books, papers, documents, photographs of buildings or places or copies of portions thereof 3 which are material to the defense or intended for use in the government's case-in-chief or were obtained 4 from or belong to the defendant; 5 (10) Evidence of Bias or Motive to Lie The defendant requests any evidence that any prospective

6 government witness is biased or prejudiced against the defendant, or has a motive to falsify or distort his 7 or her testimony. Pennsylvania v. Ritchie, 480 U.S. 39 (1987); United States v. Strifler, 851 F.2d 1197 8 (9th Cir. 1988); 9 (11) Impeachment evidence The defendant requests any evidence that any prospective

10 government witness has engaged in any criminal act whether or not resulting in a conviction and whether 11 any witness has made a statement favorable to the defendant. See Fed. R. Evid. 608, 609 and 613. Such 12 evidence is discoverable under Brady v. Maryland, supra. See United States v. Strifler, 851 F.2d 1197 13 (9th Cir. 1988) (witness' prior record); Thomas v. United States, 343 F.2d 49 (9th Cir. 1965) (evidence 14 that detracts from a witness' credibility); 15 (12) Evidence of Criminal Investigation of Any Government Witness The defendant requests any

16 evidence that any prospective witness is under investigation by federal, state or local authorities for any 17 criminal conduct. United States v. Chitty, 760 F.2d 425 (2d Cir.), cert. denied, 474 U.S. 945 (1985); 18 (13) Evidence Affecting Perception, Recollection, Ability to Communicate, or Truth Telling The

19 defense requests any evidence, including any medical or psychiatric report or evaluation, tending to 20 show that any prospective witness's ability to perceive, remember, communicate, or tell the truth is 21 impaired; and any evidence that a witness has ever used narcotics or other controlled substance, or has 22 ever been an alcoholic. United States v. Strifler, 851 F.2d 1197 (9th Cir. 1988); Chavis v. North 23 Carolina, 637 F.2d 213, 224 (4th Cir. 1980); 24 (14) Witness Addresses The defendant requests the name and last known address of each

25 prospective government witness. See United States v. Napue, 834 F.2d 1311 (7th Cir. 1987); United 26 States v. Tucker, 716 F.2d 576 (9th Cir. 1983) (failure to interview government witnesses by counsel is 27 ineffective); United States v. Cook, 608 F.2d 1175, 1181 (9th Cir. (1979) (defense has equal right to talk 28 to witnesses). The defendant also requests the name and last known address of every witness to the 4 07CR3103-WQH

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1 crime or crimes charged (or any of the overt acts committed in furtherance thereof) who will not be 2 called as a government witness. United States v. Cadet, 727 F.2d, 1453 (9th Cir. 1984); 3 (15) Name of Witnesses Favorable to the Defendant The defendant requests the name of any

4 witness who made an arguably favorable statement concerning the defendant or who could not identify 5 him or who was unsure of his identity, or participation in the crime charged. Jackson v. Wainwright, 6 390 F.2d 288 (5th Cir. 1968); Chavis v. North Carolina, 637 F.2d 213, 223 (4th Cir. 1980); Jones v. 7 Jago, 575 F.2d 1164, 1168 (6th Cir.), cert. denied, 439 U.S. 883 (1978); Hudson v. Blackburn, 601 F.2d 8 785 (5th Cir. 1979), cert. denied, 444 U.S. 1086 (1980); 9 (16) Statements Relevant to the Defense The defendant requests disclosure of any statement that

10 may be "relevant to any possible defense or contention" that he might assert. United States v. Bailleaux, 11 685 F.2d 1105 (9th Cir. 1982); 12 (17) Jencks Act Material The defense requests all material to which Defendant is entitled

13 pursuant to the Jencks Act, 18 U.S.C. § 3500, reasonably in advance of trial, including dispatch tapes. A 14 verbal acknowledgment that "rough" notes constitute an accurate account of the witness' interview is 15 sufficient for the report or notes to qualify as a statement under § 3500(e)(1). Campbell v. United States, 16 373 U.S. 487, 490-92 (1963); 17 (18) Defendant's "A" File The defendant requests his Immigration and Naturalization Service "A"

18 file # A71 632 137; 19 (19) The Record of any Deportation Hearing The defendant requests all records, tapes and

20 transcripts, including and not limited to the tapes from all alleged deportations; and from any and all 21 administrative hearings relating to any and all alleged orders of deportation pertaining to him; and 22 (20) Giglio Information Pursuant to Giglio v. United States, 405 U.S. 150 (1972), the defendant

23 requests all statements and/or promises express or implied made to any government witnesses, in 24 exchange for their testimony in this case, and all other information which could arguably be used for the 25 impeachment of any government witnesses. 26 27 // 28 // 5 07CR3103-WQH

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III. MOTION TO DISMISS FOR FAILURE TO PLEAD ELEMENT OF DEPORTATION DATE The indictment must be dismissed because the government has failed to properly allege

4 all elements of the offense. The Fifth Amendment requires that "[n]o person shall be held to answer for 5 a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . .." 6 Consistent with this Constitutional requirement, the Supreme Court has held that an indictment must 7 "fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary 8 to constitute the offense intended to be punished." United States v. Carll, 105 U.S. 611, 612-13 (1881) 9 (emphasis added). It is black letter law that an indictment that does not allege an element of an offense, 10 even an implied element, is defective, and should be dismissed. See, e.g., Russell v. United States, 369 11 U.S. 749, 769-72 (1962); Stirone v. United States, 361 U.S. 212, 218-19 (1960); United States v. Du Bo, 12 186 F.3d 1177, 1179 (9th Cir. 1999); United States v. Keith, 605 F.2d 462, 464 (9th Cir. 1979). 13 The indictment in this case alleges that Mr. Hernandez-Contreras "was removed from the United

14 States subsequent to October 14, 2003." However, this generalized assertion, without more, is 15 insufficient to trigger the increased statutory maximums under section 1326(b). A recent Ninth Circuit 16 case is illustrative. In United States v. Salazar-Lopez, ­ F.3d ­, 2007 WL 3085906 (9th Cir. 2007), the 17 Ninth Circuit definitively held that the government must allege in a 1326 indictment that the defendant 18 "had been removed on a specific, post-conviction date. Id. at *3. In this case, the indictment fails to offer 19 an actual date of removal. This is fatal for two reasons. First, the failure to plead the date is not in 20 accord with the law of Salazar-Lopez. 21 Additionally, the failure to plead an exact date, does not provide adequate notice for a defendant

22 to prepare his defense to the 1326 charge. As the Ninth Circuit observed in Salazar-Lopez, there might 23 be more than one deportation at issue in a 1326 trial. Cf. Salazar-Lopez, at *3. Thus, it may be 24 impossible for the defendant to know exactly against which deportation he is to defend. The particular 25 facts of a specific deportation are material and are fundamental to a § 1326 prosecution. Swapping the 26 factual details of the element of a deportation amounts to a constructive amendment to the indictment. 27 See e.g., United States v. Stirone, 361 U.S. 212 (1960) (when a defendant is tried on proof that was not 28 presented to the grand jury, the defendant's constitutional right to a trial only on charges presented to a 6 07CR3103-WQH

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1 grand jury is violated); United States v. Du Bo, 186 F.3d 1177 (9th Cir. 1999). 2 In Howard v. Dagget, 526 F.2d 1388 (9th Cir.1975), the Ninth Circuit found a constructive

3 amendment where the indictment charged the defendant with inducing two named women to engage in 4 prostitution, but evidence and instructions allowed the jury to convict the defendant of inducing women 5 neither named nor mentioned in the indictment. The Dagget court reversed the defendant's conviction 6 because to allow the jury "to consider the evidence respecting the other alleged prostitutes was to allow 7 the jury to convict of a charge not brought by the grand jury" which destroyed the defendant's 8 "substantial right to be tried only on charges presented in an indictment returned by a grand jury" as 9 articulated in Stirone. Id. at 1390 (citation omitted). 10 11 IV

THE INDICTMENT MUST BE DISMISSED BECAUSE IT FAILS TO ALLEGE THAT MR. HERNANDEZ-CONTRERAS KNEW HE WAS AN ALIEN, WHICH IS AN ESSENTIAL 12 ELEMENT OF THE CRIME OF BEING "FOUND IN" THE UNITED STATES AFTER DEPORTATION. 13 14 Being "found in" the United States after deportation is a general intent crime. This means that

15 the government must prove the defendant knew "the facts that make his actions illegal, but not that the 16 action itself is illegal." United States v. Salazar-Gonzalez, 458 F.3d 851, 855 (9th Cir. 2006). Both the 17 Supreme Court and the Ninth Circuit have made clear that the intent general knowledge requirement 18 extends to both the proscribed act (i.e., entering and remaining in the United States) and the facts that 19 make the act illegal (being an alien). C.f. Staples v. United States, 511 U.S. 600 (1994) (holding that a 20 federal firearms statute requires proof that the defendant knowingly possessed a firearm and that he 21 knew the weapon he possessed had characteristics bringing it within the scope of the statute.); United 22 States v. Lynch, 233 F.3d 1139 (9th Cir. 2000)(Provision of Archeological Resources Protection Act 23 imposing criminal liability for removing archeological resources from government land requires that 24 defendant knew that item intentionally removed was "archeological resource."). 25 The Ninth Circuit recently reiterated that 8 U.S.C. §1326 requires that the defendant know the

26 essential facts making his presence in the United States illegal. In Salazar Gonzalez, 458 F.3d at 858, 27 the panel held that the district court erred when it failed to instruct the jury that the defendant could not 28 be convicted unless the government proved he knew he was in the United States. Id. at 858. Because 7 07CR3103-WQH

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1 "knowledge" was an essential element of the offense of being "found in" the United States after 2 deportation, id. at 857, the defendant was entitled to a knowledge instruction, even without presenting 3 any evidence himself. 4 The Ninth Circuit's reasoning is even more compelling when applied to the defendant's

5 knowledge of his alienage. Because alienage is the fact that makes Mr. Hernandez-Contreras's 6 remaining in the United States illegal, he must know that fact to be guilty of the general intent crime 7 charged. This is true even though he need not have had the specific purpose to violate U.S. immigration 8 laws. As an essential element of the crime, knowledge of alienage must be specifically alleged in the in 9 the indictment. Because the indictment here alleges no mens rea at all, to assure that all facts necessary 10 to convict him were"presented to...the grand jury that indicted him," the charges against Mr. Hernandez11 Contreras must be dismissed. 12 The Ninth Circuit's decision in Rivera-Sillas, is not to the contrary. In that case, the Ninth

13 Circuit rejected the argument that the district court erred by refusing to dismiss an indictment because it 14 that did not allege the defendant knew he was in the United States.367 F.3d at 1090. Emphasizing that § 15 1326 is not a strict liability offense, the Ninth Circuit nonetheless held that "alleging a defendant is a 16 deported alien who is subsequently found in the United States without permission suffices to allege 17 general intent" because a person physically present in the United States may be presumed to have acted 18 to enter in this country. Id. (Internal citations omitted). 19 Rivera Sillas did not address whether the indictment must allege a defendant's knowledge of his

20 alienage. Moreover, while the allegation that the defendant is a "deported alien who is subsequently 21 found in the United States without permission" may give rise to an inference that the defendant knew he 22 was in the United States and voluntarily entered, the same language does not lead to an inference that the 23 defendant knew he was a non-citizen. The fact of an defendant's removal does not establish his 24 alienage, much less his knowledge of alienage.1 E.g. United States v. Ortiz-Lopez, 24 F.3d 53, 56 (9th 25 Cir. 1994) (quote). Indeed, a defendant's alienage is seldom evaluated in depth in many removal 26 27 Indeed, an Immigration Judge does not adjudicate alienage, though she may terminate 28 proceedings based on evidence of citizenship. 8 07CR3103-WQH
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1 proceedings, either because the respondent is unrepresented and unable to evaluate his citizenship, does 2 not want to remain in custody while contesting the allegations in the order to show cause, has agreed to 3 removal as part of a plea agreement entered into with insufficient information, or does not yet know the 4 facts that make him a United States citizen. Accordingly, unless the government presents some evidence 5 to the grand jury in addition to the fact of a removal­evidence that may, but need not, come from the 6 removal proceeding­the grand jury has no way to evaluate the defendant's knowledge of his own 7 alienage.2 8 9 10 11 Mr. Hernandez-Contreras has a Fifth Amendment right to have a grand jury pass upon those facts V. THE INDICTMENT MUST BE DISMISSED BECAUSE IT VIOLATES MR. HERNANDEZ-CONTRERAS'S RIGHT TO PRESENTMENT.

12 necessary to convict him at trial. In the indictment, the government included the language: "It is further 13 alleged that defendant Gabriel Angel Hernandez-Contreras was removed from the United States 14 subsequent to October 14, 2003."3 The indictment in this case violates Mr. Hernandez-Contreras's right 15 to presentment in two ways. First, the language added by the government does not ensure that the grand 16 jury actually found probable cause that Mr. Hernandez-Contreras was deported or removed in a legal 17 sense after October 14, 2003, as opposed to simply being physically removed in a practical way from the 18 United States. Second, that the grand jury found probable cause to believe that Mr. Hernandez19 Contreras was removed "subsequent to October 14, 2003" does not address the possibility that the 20 government may at trial rely on a deportation that was never presented to, or considered by, the grand 21 22 The facts of United States v. Staples illustrate the limits of the presumptions relied upon 23 in Rivera-Sillas. To date, no court has read Staples to permit a presumption that a defendant knew the particular characteristics bringing the firearm within the scope of the statute simply because he 24 possessed it. 25 Presumably, the government added this language in an attempt to comply with the Ninth Circuit's decision in United States v. Covian-Sandoval, 462 F.3d 1090 (9th Cir. 2006). In 26 Covian-Sandoval, the Ninth Circuit held that it is an Apprendi violation for a court to increase a 27 person's statutory maximum under 8 U.S.C. § 1326(b) via a court-finding that a person had been removed from the United States following a conviction. This language, however, does not cure the 28 problems with this indictment. 9 07CR3103-WQH
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1 jury. 2 The Fifth Amendment provides that "[n]o person shall be held to answer for a capital, or

3 otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." U.S. Const. Amend. 4 V. The Sixth Amendment provides that "[i]n all criminal prosecutions the accused shall enjoy the right . 5 . . to be informed of the nature and cause of the accusation . . .." U.S. Const. Amend. VI. Thus, a 6 defendant has a constitutional right to have the charges against him presented to a grand jury and to be 7 informed of the grand jury's findings via indictment. See Russell, 369 U.S. at 763 (An indictment must 8 "contain[] the elements of the offense intended to be charged, and sufficiently apprise[] the defendant of 9 what he must be prepared to meet."). 10 To be sufficient, an indictment must allege every element of the charged offense. See United

11 States v. Morrison, 536 F.2d 286, 287 (9th Cir. 1976) (citing United States v. Debrow, 346 U.S. 374 12 (1953)). Indeed, in order to be sufficient, an indictment must include implied elements not present in the 13 statutory language. See Du Bo, 186 F.3d at 1179. "If an element is necessary to convict, it is also 14 necessary to indict, because elements of a crime do not change as criminal proceedings progress." 15 United States v. Hill, 279 F.3d 731, 741 (9th Cir. 2002). An indictment's failure to "recite an essential 16 element of the charged offense is not a minor or technical flaw . . . but a fatal flaw requiring dismissal of 17 the indictment." Du Bo, 186 F.3d at 1179. 18 In the indictment, the government here has added the language: "It is further alleged that

19 defendant Gabriel Angel Hernandez-Contreras was removed from the United States subsequent to 20 October 14, 2003." There is no indication from this "allegation" that the grand jury was charged with 21 the term of art legal meaning of the word "removal" (as defined by the immigration code) applicable in 22 this context, as opposed to being simply removed from the United States in a colloquial sense. It is clear 23 from Covian-Sandoval that in order to trigger the enhanced statutory maximum contained in section 24 1326(b), the government must prove that a person was removed--as that term is used in the immigration 25 context--after having suffered a conviction. 462 F.3d at 1097-1098 (noting as part of its analysis that 26 immigration proceedings have fewer procedural protections that criminal proceedings). A deportation 27 has the following elements: "(1) that a deportation proceeding occurred as to [the] defendant and as a 28 result, [(2)] a warrant of deportation was issued and [(3)] executed by the removal of the defendant from 10 07CR3103-WQH

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1 the United States." See United States v. Castillo-Basa, 483 F.3d 890 (9th Cir. 2007) (citing, without 2 contesting, the elements of a deportation provided by the district court.) As this is the type of removal 3 the government must prove before a petite jury, it is necessary that the government allege such a removal 4 before the grand jury. As returned, however, there is no assurance from the face of the indictment that 5 the grand jury in this case was charged with the type of removal necessary to increase a person's 6 statutory maximum under section 1326(b). 7 As such, there is no fair assurance that the grand jury will have passed upon those facts necessary

8 to convict Mr. Hernandez-Contreras. Additionally, as charged, there is no fair assurance that the 9 indictment will contain those allegations the government will attempt to prove at trial. If the government 10 alleged before the grand jury that Mr. Hernandez-Contreras was removed (in a colloquial sense), but 11 offers proof at trial that Mr. Hernandez-Contreras was removed (in an immigration sense), there will be 12 a constructive amendment of the indictment at trial. See Stirone v. United States, 361 U.S. 212, 217-19 13 (1960). Either scenario represents a violation of Mr. Hernandez-Contreras's right to presentment. 14 Stirone, 361 U.S. at 218-19. 15 A second problem with the indictment is that there is no indication which (if any) deportation the

16 government presented to the grand jury. In many cases, the government will have a choice of multiple 17 deportations to present to the grand jury to support an allegation that a person had been deported on a 18 specific date. According to information provided by the government, although not conceded by the 19 defendant, Mr. Hernandez-Contreras has been deported on several occasions. This renders it a very real 20 possibility that the government alleged one deportation to the grand jury to sustain its allegation that Mr. 21 Hernandez-Contreras was removed from the United States, but will attempt to prove at trial a wholly 22 different deportation to sustain its trial proof. If this were to turn out to be the case, Mr. Hernandez23 Contreras's right to have the grand jury pass on all facts necessary to convict him would be violated. See 24 Du Bo, 186 F.3d 1179. 25 Accordingly, Mr. Hernandez-Contreras requests production of grand jury transcripts, or at a

26 minimum, that the government provide them to the Court in camera, to determine if the deportation 27 found by the grand jury is the same as the one the government elects to use at trial in this case. Mr. 28 Hernandez-Contreras respectfully requests that this Court order the government to make an election as to 11 07CR3103-WQH

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1 which deportation they will choose to proceed upon. Without such an election, Mr. Hernandez2 Contreras will be deprived of his Fifth Amendment grand jury notice rights and deprived of his 3 opportunity to challenge his prior removal. After all, how can he mount a challenge to a proceeding that 4 has not been identified as part of the case? 5 6 7 VI. REQUEST FOR LEAVE TO FILE FURTHER MOTIONS At present, the government has provided only partial discovery in this case. Mr. Hernandez-

8 Contreras is still awaiting a tape of the underlying deportation proceeding and any other documentary 9 evidence that relates to the deportation with which the government elects to proceed. Without the aid of 10 such information, defense counsel cannot adequately prepare or file substantive motions. Accordingly, 11 Mr. Hernandez-Contreras respectfully requests leave of this Court to file additional motions after 12 additional discovery has been provided, and after the government has made an election as to the specific 13 deportation it intends to rely upon in this case. 14 15 16 17 18 19 20 21 Dated: December 9, 2007 22 23 24 25 26 27 28 12 07CR3103-WQH S/ Benjamin P. Lechman BENJAMIN P. LECHMAN Attorney for Defendant Hernandez-Contreras Respectfully submitted, VII. CONCLUSION For the foregoing reasons, it is respectfully requested that the Court grant the above motions.