Free Response in Opposition - District Court of California - California

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KAREN P. HEWITT United States Attorney A. DALE BLANKENSHIP Assistant U.S. Attorney California State Bar No. 235960 Federal Office Building 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-6199/(619) 235-2757 (Fax) Email: [email protected] Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, v. JULIO MARTINEZ-HERNANDEZ, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Criminal Case No. 07CR3101-LAB Date: Time: December 17, 2007 2:00 p.m.

GOVERNMENT'S RESPONSE AND OPPOSITION TO DEFENDANT'S MOTIONS TO: (1) DISMISS INDICTMENT FOR GRAND JURY VIOLATION.

TOGETHER WITH STATEMENT OF FACTS, MEMORANDUM OF POINTS AND AUTHORITIES AND

COMES NOW, the plaintiff, UNITED STATES OF AMERICA, by and through its counsel Karen P. Hewitt, United States Attorney, and A. Dale Blankenship, Assistant U.S. Attorney, hereby files its Response and Opposition to the motions filed on behalf of Julio Martinez-Hernandez (Defendant"). This Response and Opposition is based upon the files and records of this case. // // //

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I STATEMENT OF THE CASE On November 14, 2007, a federal grand jury in the Southern District of California returned a one-count Indictment charging Defendant with attempted entry after deportation, in violation of Title 8, United States Code, Section 1326. Defendant was arraigned on the Indictment on November 15, 2007, and entered a not guilty plea. II STATEMENT OF FACTS INSTANT OFFENSE

On October 15, 2007, at approximately 5:20 a.m., a remote video surveillance system ("RVSS") operator observed four individuals climbing over the international border fence in an area known as the "Elbow." This area is approximately 1.5 miles west of the San Ysidro, California, Port of Entry. The "Elbow" is often used by illegal aliens attempting to avoid detection by U.S. Border Patrol ("USBP") Agents while they further their entry into the United States. The RVSS operator reported this observation to USBP Agent Alan Lambert, who, in turn, relayed the information to USBP Agent Lee Miller. Agent Lambert arrived first to the area and apprehended two individuals. Agent Miller arrived next, and he was informed by Agent Lambert that another individual fled north from his location. Agent Miller began searching the area on his all terrain vehicle. Agent Miller observed an individual running away from the "Elbow" along the secondary border fence who then ducked into the brush in an attempt to hide. Agent Miller dismounted his all terrain vehicle and the individual, later identified as Defendant, Julio Martinez-Hernandez, got up and began to run. Agent Miller identified himself as a USBP Agent and ordered him to stop. Defendant did not stop, but instead kept running. Agent Miller quickly caught up to Defendant and ordered him to stop. Defendant ignored this command also and kept running in an erratic manner, zig-zagging near Agent Miller's all terrain vehicle. Defendant eventually ran into Agent Miller's left front tire and stopped running. // // 2 07CR3101-LAB

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Agent Miller conducted an immigration inspection. Defendant identified himself as "Jose Perez-Ruiz". Defendant admitted to being a citizen of Mexico, without documents permitting him to enter the United States. Defendant complained that he had pain in his lower right leg. Agent Miller asked if he wanted medical attention and Defendant stated that if Agent Miller would let him go back to Mexico, right now, he would not need medical attention. Agent Miller replied that he could not go back to Mexico, right now, and Defendant then declined medical attention. Defendant was arrested and transported to the Imperial Beach Border Patrol Station for processing. A records search revealed that Defendant's name was not "Jose Perez-Ruiz".

Defendant was asked his name again and he replied that he had given a false name in the field and that his name was actually Julio Martinez-Hernandez. The records check also revealed that Defendant was previously deported by an immigration judge and that he had a criminal history. At approximately 9:05 a.m., USBP Agent Fernando Estrada-Flores advised Defendant of his Miranda rights in the Spanish language and Defendant invoked. B. DEFENDANT'S CRIMINAL HISTORY

On July 24, 1989,Defendant was convicted of taking a vehicle without the owner's consent in violation of Cal. Vehicle Code § 10851(a), and he was sentenced to 270 days jail and 3 years probation. On June 13, 1990, Defendant was convicted of burglary of a locked vehicle in violation of Cal. Penal Code § 459 and he was sentenced to 2 years prison. On January 21, 1992, Defendant was convicted in the Southern District of California of illegal entry in violation of 8 U.S.C. § 1325 and he was sentenced to 150 days' custody. On April 18, 1993, Defendant was convicted in the Southern District of California of illegal entry in violation of 8 U.S.C. § 1325 and he was sentenced to 100 days' custody. On September 17, 1993, Defendant was convicted in the Southern District of California of illegal entry in violation of 8 U.S.C. § 1325 and he was sentenced to 160 days' custody. On April 4, 1995, Defendant was convicted of burglary of a locked vehicle in violation of Cal. Penal Code § 459, and he was sentenced to 16 months prison. On April 4, 1995, Defendant was convicted, in an unrelated case, of two counts of burglary of a locked vehicle in violation of Cal. Penal Code § 459, and he was sentenced to 4 years prison. On July 31, 2000, Defendant was convicted in the Southern District of California of illegal entry in violation of 8 U.S.C. § 1325, and 3 07CR3101-LAB

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he was sentenced to 30 months' custody. On October 11, 2002, Defendant was convicted in the Southern District of California of illegal entry in violation of 8 U.S.C. § 1325, and he was sentenced to 24 months' custody and 1 year supervised release. C. DEFENDANT'S IMMIGRATION HISTORY

Defendant has been removed from the United States on at least 12 occasions. Defendant has also had numerous immigration hearings. Defendant was most recently removed, pursuant to the reinstatement of an immigration judge's order, on November 25, 2006. III DISCUSSION A. THE GRAND JURY INSTRUCTIONS WERE NOT FAULTY, AND THE INDICTMENT SHOULD NOT BE DISMISSED 1. Introduction

12 Defendant makes contentions relating to two separate instructions given to the grand jury 13 during its impanelment by District Judge Larry A. Burns on January 10, 2007. [Def. Mot. at 2.] 14 Although recognizing that the Ninth Circuit in United States v. Navarro-Vargas, 408 F.3d 1184 (9th 15 Cir. 2005) (en banc) generally found the two grand jury instructions constitutional, Defendant here 16 contends Judge Burns went beyond the text of the approved instructions, and by so doing rendered 17 them improper to the point that the Indictment should be dismissed. 18 In making his arguments concerning the two separate instructions Defendant urges this Court 19 to dismiss the Indictment on two separate bases relating to grand jury procedures, both of which 20 were discussed in United States v. Isgro, 974 F.2d 1091 (9th Cir. 1992). Concerning the first 21 attacked instruction, Defendant urges this Court to dismiss the Indictment by exercising its 22 supervising powers over grand jury procedures. This is a practice the Supreme Court discourages 23 as Defendant acknowledges, citing United States v. Williams, 504 U.S. 36, 50 (1992) ("Given the 24 grand jury's operational separateness from its constituting court, it should come as no surprise that 25 we have been reluctant to invoke the judicial supervisory power as a basis for prescribing modes of 26 grand jury procedure. "). [Id.] Isgro reiterated: 27 28 [A] district court may draw on its supervisory powers to dismiss an indictment. The supervisory powers doctrine "is premised on the inherent ability 4 07CR3101-LAB

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of the federal courts to formulate procedural rules not specifically required by the Constitution or Congress to supervise the administration of justice." Before it may invoke this power, a court must first find that the defendant is actually prejudiced by the misconduct. Absent such prejudice-that is, absent "`grave' doubt that the decision to indict was free from the substantial influence of [the misconduct]"-a dismissal is not warranted. 974 F.2d at 1094 (citation omitted, emphasis added). Concerning the second attacked instruction,

5 in an attempt to dodge the holding in Williams, Defendant appears to base his contentions on the 6 Constitution as a reason to dismiss the Indictment. [Def. Mot at 18. ("A grand jury so badly 7 misguided is no grand jury at all under the Fifth Amendment").] Concerning that kind of a 8 contention Isgro stated: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In Isgro the defendants choose the abrogation of constitutional rights route when asserting that prosecutors have a duty to present exculpatory evidence to grand juries. They did not prevail. 974 F.2d at 1096 ("we find that there was no abrogation of constitutional rights sufficient to support the dismissal of the indictment." (relying on Williams)). 07CR3101-LAB 5
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[A] court may dismiss an indictment if it perceives constitutional error that interferes with the grand jury's independence and the integrity of the grand jury proceeding. "Constitutional error is found where the `structural protections of the grand jury have been so compromised as to render the proceedings fundamentally unfair, allowing the presumption of prejudice' to the defendant." Constitutional error may also be found "if [the] defendant can show a history of prosecutorial misconduct that is so systematic and pervasive that it affects the fundamental fairness of the proceeding or if the independence of the grand jury is substantially infringed." 974 F.2d at 1094 (citation omitted).1/ The portions of the two relevant instructions approved in Navarro-Vargas were: You cannot judge the wisdom of the criminal laws enacted by Congress, that is, whether or not there should or should not be a federal law designating certain activity as criminal. That is to be determined by Congress and not by you. 408 F.3d at 1187, 1202. The United States Attorney and his Assistant United States Attorneys will provide you with important service in helping you to find your way when confronted with complex legal problems. It is entirely proper that you should receive this assistance. If past experience is any indication of what to expect in the future, then you can expect candor, honesty, and good faith in matters presented by the government attorneys. 408 F.3d at 1187, 1206. Concerning the "wisdom of the criminal laws" instruction, the court stated it was constitutional because, among other things, "[i]f a grand jury can sit in judgment of wisdom of the

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policy behind a law, then the power to return a no bill in such cases is the clearest form of 'jury nullification.'"2/ 408 F.3d at 1203 (footnote omitted). "Furthermore, the grand jury has few tools for informing itself of the policy or legal justification for the law; it receives no briefs or arguments from the parties. The grand jury has little but its own visceral reaction on which to judge the 'wisdom of the law.'" Id. Concerning the "United States Attorney and his Assistant United States Attorneys" instruction, the court stated: We also reject this final contention and hold that although this passage may include unnecessary language, it does not violate the Constitution. The "candor, honesty, and good faith" language, when read in the context of the instructions as a whole, does not violate the constitutional relationship between the prosecutor and grand jury. . . . The instructions balance the praise for the government's attorney by informing the grand jurors that some have criticized the grand jury as a "mere rubber stamp" to the prosecution and reminding them that the grand jury is "independent of the United States Attorney[.]" 408 F.3d at 1207. Id. "The phrase is not vouching for the prosecutor, but is closer to advising the

13 grand jury of the presumption of regularity and good faith that the branches of government 14 ordinarily afford each other." Id. 15 2. 16 Concerning whether the new grand jurors should concern themselves with the wisdom of the 17 criminal laws enacted by Congress, Judge Burns' full instruction stated: 18 19 20 21 22 23 24 25 26 27 28 The Court acknowledged that as a matter of fact jury nullification does take place, and there is no way to control it. "We recognize and do not discount that some grand jurors might in fact vote to return a no bill because they regard the law as unwise at best or even unconstitutional. For all the reasons we have discussed, there is no post hoc remedy for that; the grand jury's motives are not open to examination." 408 F.3d at 1204 (emphasis in original). 07CR3101-LAB 6
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The Expanded "Wisdom of the Criminal Laws" Instruction Was Proper

You understood from the questions and answers that a couple of people were excused, I think three in this case, because they could not adhere to the principle that I'm about to tell you. But it's not for you to judge the wisdom of the criminal laws enacted by congress; that is, whether or not there should be a federal law or should not be a federal law designating certain activity is criminal is not up to you. That's a judgment that congress makes. And if you disagree with the judgment made by congress, then your option is not to say "Well I'm going to vote against indicting even though I think that the evidence is sufficient" or "I'm going to vote in favor of even though the evidence may be insufficient." Instead, your obligation is to contact your congressman or

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advocate for a change in the laws, but not to bring your personal definition of what the law ought to be and try to impose that through applying it in a grand jury setting. Defense Exhibit A (Reporter's Partial Transcript) pp. 8-9.3/ Defendant acknowledges that in line with Navarro-Vargas, Judge Burns instructed the grand

4 jurors that they were forbidden 'from judg[ing] the wisdom of the criminal laws enacted by 5 Congress; that is, whether or not there should be a federal law or should not be a federal law 6 designating certain activity [as] criminal is not up to you.'" [Def. Mot. at 3.] Defendant notes, 7 however, that the instructions go beyond that, however, and tell the grand jurors that, "should you 8 disagree with that judgment made by Congress, then your option is not to say 'well, I'm going to vote 9 against indicting even though I think that the evidence is sufficient'." [Def. Mot. at 10.] Defendant 10 contends that this addition to the approved instruction, "flatly bars the grand jury from declining to 11 indict because the grand jurors disagree with a proposed prosecution." [Def. Mot. at 10.] Defendant 12 further contends that the flat prohibition was preemptively reinforced by Judge Burns when he 13 excused three potential jurors. 14 In concocting his theory of why Judge Burns erred, Defendant posits that the expanded 15 instruction renders irrelevant the debate about what the word "should" means. [Def. Mot. at 10.] 16 Defendant contends, "the instruction flatly bars the grand jury from declining to indict because they 17 disagree with a proposed prosecution." [Def. Mot. at 10.] This argument mixes-up two of the 18 holdings in Navarro-Vargas in the hope they will blend into one. They do not. 19 Navarro-Vargas does permit flatly barring the grand jury from disagreeing with the wisdom 20 of the criminal laws. The statement, "[y]ou cannot judge the wisdom of the criminal laws enacted 21 by Congress," (emphasis added) authorized by Navarro-Vargas, 408 F.3d at 1187, 1202, is not an 22 expression of discretion. Jury nullification is forbidden although acknowledged as a sub rosa fact 23 in grand jury proceedings. 408 F.3d at 1204. In this respect Judge Burns was absolutely within his 24 25 26 27 28 Defense Exhibit A (Reporter's Partial Transcript) recounts the excusing of the three individuals. This transcript involves the voir dire portion of the grand jury selection process, and has been redacted, to include redaction of the individual names, to provide only the relevant three incidents wherein prospective grand jurors were excused. Specifically, the pages of the Supplemental Transcript supplied are: page 15, line 10 - page 17, line 18; page 24, line 14 - page 28, line 2; page 38, line 9 - page 44, line 17. 07CR3101-LAB 7
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rights, and within the law, when he excused the three prospective grand jurors because of their expressed inability to apply the laws passed by Congress. Similarly, it was proper for him to remind the impaneled grand jurors that they could not question the wisdom of the laws. As we will establish, this reminder did not pressure the grand jurors to give up their discretion not to return an indictment. Judge Burns' words cannot be parsed to say that they flatly barred the grand jury from declining to indict because the grand jurors disagree with a proposed prosecution, because they do not say that. That aspect of a grand jury's discretionary power (i.e. disagreement with the prosecution) was dealt with in Navarro-Vargas in its discussion of another instruction wherein the term "should" was germane.4/ 408 F.3d at 1204-06 ("'Should' Indict if Probable Cause Is Found"). This other instruction bestows discretion on the grand jury not to indict.5/ In finding this instruction constitutional, the court stated in words that ring true here, "It is the grand jury's position in the constitutional scheme that gives it its independence, not any instructions that a court might offer." 408 F.3d at 1206. The other instruction was also given by Judge Burns in his own fashion as follows: The function of the grand jury, in federal court at least, is to determine probable cause. That's the simple formulation that I mentioned to a number of you
4

That instruction is not at issue here. It read as follows: [Y]our task is to determine whether the government's evidence as presented to you is sufficient to cause you to conclude that there is probable cause to believe that the accused is guilty of the offense charged. To put it another way, you should vote to indict where the evidence presented to you is sufficiently strong to warrant a reasonable person's believing that the accused is probably guilty of the offense with which the accused is charged.

408 F.3d at 1187.
5

The court upheld the instruction stating: This instruction does not violate the grand jury's independence. The language of the model charge does not state that the jury "must" or "shall" indict, but merely that it "should" indict if it finds probable cause. As a matter of pure semantics, it does not "eliminate discretion on the part of the grand jurors," leaving room for the grand jury to dismiss even if it finds probable cause.

408 F.3d at 1205 (confirming holding in United States v. Marcucci, 299 F.3d 1156, 1159 (9th Cir. 2002) (per curiam)). "In this respect, the grand jury has even greater powers of nonprosecution than the executive because there is, literally, no check on a grand jury's decision not to return an indictment. 408 F.3d at 1206. 07CR3101-LAB 8

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during the jury selection process. Probable cause is just an analysis of whether a crime was committed and there's a reasonable basis to believe that and whether a certain person is associated with the commission of that crime, committed it or helped commit it. If the answer is yes, then as grand jurors your function is to find that the probable cause is there, that the case has been substantiated, and it should move forward. If conscientiously, after listening to the evidence, you say "No, I can't form a reasonable belief has anything to do with it, then your obligation, of course, would be to decline to indict, to turn the case away and not have it go forward. Defense Exhibit A (Reporter's Partial Transcript) pp. 3-4.

7 8 9 10 11 12 Defense Exhibit A (Reporter's Partial Transcript) p. 23. 13 While the new grand jurors were told by Judge Burns that they could not question the 14 wisdom of the criminal laws per Navarro-Vargas, they were also told by Judge Burns they had the 15 discretion not to return an indictment per Navarro-Vargas. Further, if a potential grand juror could 16 not be dissuaded from questioning the wisdom of the criminal laws, that grand juror should be 17 dismissed as a potential jury nullification advocate. See Merced v. McGrath, 426 F.3d 1076, 107918 80 (9th Cir. 2005). Thus, there was no error requiring dismissal of this Indictment or any other 19 indictment by this Court exercising its supervisory powers. 20 Further, a reading of the dialogues between Judge Burns and the three excused jurors found 21 in the Supplemental Transcript excerpts (Defense Exhibit B) reflects a measured, thoughtful, almost 22 mutual decision, that those three individuals should not serve on the grand jury because of their 23 views. Judge Burns' reference back to those three colloquies cannot be construed as pressuring the 24 impaneled grand jurors, but merely bespeaks a reminder to the grand jury of their duties. 25 Finally, even if there was an error, Defendant has not demonstrated he was actually 26 prejudiced thereby, a burden he has to bear. "Absent such prejudice--that is, absent `grave' doubt 27 28 9 07CR3101-LAB To put it another way, you should vote to indict when the evidence presented to you is sufficiently strong to warrant a reasonable person to believe that the accused is probably guilty of the offense which is proposed. Probable cause means that you have an honestly held conscientious belief and that the belief is reasonable that a federal crime was committed and that the person to be indicted was somehow associated with the commission of that crime. Either they committed it themselves or they helped someone commit it or they were part of a conspiracy, an illegal agreement, to commit that crime.

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that the decision to indict was free from the substantial influence of [the misconduct]'--a dismissal is not warranted." Isgro, 974 F.2d at 1094. 3. The Addition to the "United States Attorney and his Assistant United States Attorneys" Instruction Did Not Violate the Constitution

Concerning the new grand jurors' relationship to the United States Attorney and the Assistant 5 U.S. Attorneys, Judge Burns variously stated: 6 [T]here's a close association between the grand jury and the U.S. Attorney's Office. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Defense Exhibit A (Reporter's Partial Transcript) pp. 26-27. 24 25 26 27 28
6

. . . . You'll work closely with the U.S. Attorney's Office in your investigation of cases. Defense Exhibit A (Reporter's Partial Transcript) p. 11. [I]n my experience here in the over 20 years in this court, that kind of tension does not exist on a regular basis, that I can recall, between the U.S. Attorney and the grand juries. They generally work together. Defense Exhibit A (Reporter's Partial Transcript) p. 12. Now, again, this emphasizes the difference between the function of the grand jury and the trial jury. You're all about probable cause. If you think that there's evidence out there that might cause you to say "well, I don't think probable cause exists," then it's incumbent upon you to hear that evidence as well. As I told you, in most instances, the U.S. Attorneys are duty-bound to present evidence that cuts against what they may be asking you to do if they're aware of that evidence. Defense Exhibit A (Reporter's Partial Transcript) p. 20.6/ As a practical matter, you will work closely with government lawyers. The U.S. Attorney and the Assistant U.S. Attorneys will provide you with important services and help you find your way when you're confronted with complex legal matters. It's entirely proper that you should receive the assistance from the government lawyers. But at the end of the day, the decision about whether a case goes forward and an indictment should be returned is yours and yours alone. If past experience is any indication of what to expect in the future, then you can expect that the U.S. Attorneys that will appear in front of you will be candid, they'll be honest, that they'll act in good faith in all matters presented to you.

Just prior to this instruction, Judge Burns had informed the grand jurors that: [T]hese proceedings tend to be one-sided necessarily. . . . Because it's not a fullblown trial, you're likely in most cases not to hear the other side of the story, if there is another side to the story.

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Commenting on the phrase, "the U.S. Attorneys are duty-bound to present evidence that cuts against what they may be asking you to do if they're aware of that evidence," Defendant proposes that by making that statement, "Judge Burns also assured the grand jurors that prosecutors would present to them evidence that tended to undercut probable cause." [Def. Mot. at 17.] Defendant then ties this statement to the later instruction which "advis[ed] the grand jurors that they 'can expect that the U.S. Attorneys that will appear in front of [them] will be candid, they'll be honest, and . . . they'll act in good faith in all matters presented to you.'" [Def. Mot. at 17.] From this lash-up Defendant contends: These instructions create a presumption that, in cases where the prosecutor does not present exculpatory evidence, no exculpatory evidence exists. A grand juror's reasoning, in a case in which no exculpatory evidence was presented, would proceed along these lines: (1) I have to consider evidence that undercuts probable cause.

12 13 14 15 16 17 18 19 20 21 Frankly, Judge Burns' statement that "the U.S. Attorneys are duty-bound to present evidence 22 that cuts against what they may be asking you to do if they're aware of that evidence," is directly 23 contradicted by United States v. Williams, 504 U.S. 36, 51-53 (1992) ("If the grand jury has no 24 25 26 27 28 The term "presumption" is too strong a word in this setting. The term "inference" is more appropriate. See McClean v. Moran, 963 F.2d 1306 (9th Cir. 1992) which states there are (1) permissive inferences; (2) mandatory rebuttable presumptions; and (3) mandatory conclusive presumptions, and explains the difference between the three. 963 F.2d at 1308-09 (discussing Francis v. Franklin, 471 U.S. 314 (1985); Sandstrom v. Montana, 442 U.S. 510 (1979); and Ulster County Court v. Allen, 442 U.S. 140, 157 & n. 16 (1979)). See also United States v. Warren, 25 F.3d 890, 897 (9th Cir. 1994). 07CR3101-LAB 11
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(2) The candid, honest, duty-bound prosecutor would, in good faith, have presented any such evidence to me, if it existed. (3) Because no such evidence was presented to me, I may conclude that there is none. Even if some exculpatory evidence were presented, a grand juror would necessarily presume that the evidence presented represents the universe of all available exculpatory evidence; if there was more, the duty-bound prosecutor would have presented it. The instructions therefore discourage investigation--if exculpatory evidence were out there, the prosecutor would present it, so investigation is a waste of time and provide additional support to every probable cause determination: i.e., this case may be week [sic], but I know that there is nothing on the other side of the equation because it was not presented. A grand jury so badly misguided is no grand jury at all under the Fifth Amendment. [Def. Mot. at 17-18.] (Emphasis added.)7/

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obligation to consider all 'substantial exculpatory' evidence, we do not understand how the prosecutor can be said to have a binding obligation to present it."8/ (emphasis added)). See also, United States v. Haynes, 216 F.3d 789, 798 (9th Cir. 2000) ("Finally, their challenge to the government's failure to introduce evidence impugning Fairbanks's credibility lacks merit because prosecutors have no obligation to disclose 'substantial exculpatory evidence' to a grand jury." (citing Williams) (emphasis added)). However, the analysis does not stop there. Prior to assuming his judicial duties, Judge Burns was a member of the United States Attorney's Office, and made appearances in front of the federal grand jury.9/ As such he was undoubtedly aware of the provisions in the United States Attorneys' Manual ("USAM").10/ Specifically, it appears he is aware of USAM Section 9-11.233 thereof which reads: In United States v. Williams, 112 S.Ct. 1735 (1992), the Supreme Court held that the Federal courts' supervisory powers over the grand jury did not include the power to make a rule allowing the dismissal of an otherwise valid indictment where the prosecutor failed to introduce substantial exculpatory evidence to a grand jury. It is the policy of the Department of Justice, however, that when a prosecutor conducting a grand jury inquiry is personally aware of substantial evidence that directly negates the guilt of a subject of the investigation, the prosecutor must present or otherwise disclose such evidence to the grand jury before seeking an indictment against such a person. While a failure to follow the Department's policy should not

8

Note that in Williams the Court established: Respondent does not contend that the Fifth Amendment itself obliges the prosecutor to disclose substantial exculpatory evidence in his possession to the grand jury. Instead, building on our statement that the federal courts "may, within limits, formulate procedural rules not specifically required by the Constitution or the Congress," he argues that imposition of the Tenth Circuit's disclosure rule is supported by the courts' "supervisory power."

504 U.S. at 45 (citation omitted). The Court concluded, "we conclude that courts have no authority to prescribe such a duty [to present exculpatory evidence] pursuant to their inherent supervisory authority over their own proceedings." 504 U.S. at 55. See also, United States v. Haynes, 216 F.3d 789, 797-98 (9th Cir. 2000). However, the Ninth Circuit in Isgro used Williams' holding that the supervisory powers would not be invoked to ward off an attack on grand jury procedures couched in constitutional terms. 974 F.2d at 1096. He recalled those days when instructing the new grand jurors. [Defense Exhibit A (Reporter's Partial Transcript) pp. 12, 14-16, 17-18.] The USAM is available on-line at www.usdoj.gov/usao/eousa/foia_reading_room/ usam/index.html. 07CR3101-LAB 12
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result in dismissal of an indictment, appellate courts may refer violations of the policy to the Office of Professional Responsibility for review. (Emphasis added.)11/ This policy was reconfirmed in USAM 9-5.001, Policy Regarding Disclosure of Exculpatory and Impeachment Information, Paragraph "A," "this policy does not alter or

4 supersede the policy that requires prosecutors to disclose 'substantial evidence that directly negates 5 the guilt of a subject of the investigation' to the grand jury before seeking an indictment, see USAM 6 7 The facts that Judge Burns' statement contradicts Williams, but is in line with self-imposed 8 guidelines for United States Attorneys, does not create the constitutional crisis proposed by 9 Defendant. No improper presumption/inference was created when Judge Burns reiterated what he 10 knew to be a self-imposed duty to the new grand jurors. Simply stated, in the vast majority of the 11 cases the reason the prosecutor does not present "substantial" exculpatory evidence, is because no 12 13 should be presented to the grand jury by the Assistant U.S. Attorney upon pain of possibly having 14 his or her career destroyed by an Office of Professional Responsibility investigation. Even if there 15 16 17 18 19 20 21 22 23 24 25 26 27 28 See www.usdoj.gov/usao/eousa/foia_reading_room/usam/ title9/11mcrm.htm. Even if Judge Burns did not know of this provision in the USAM while he was a member of the United States Attorney's Office, because of the accessability of the USAM on the internet, as the District Judge overseeing the grand jury he certainly could determine the required duties of the United States Attorneys appearing before the grand jury from that source.
12 11

§ 9-11.233 ." (Emphasis added.)12/

"substantial" exculpatory evidence exists.13/ If it does exist, as mandated by the USAM, the evidence

See www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/5mcrm.htm. Similarly, this new section does not bestow any procedural or substantive rights on defendants. Under this policy, the government's disclosure will exceed its constitutional obligations. This expanded disclosure policy, however, does not create a general right of discovery in criminal cases. Nor does it provide defendants with any additional rights or remedies. USAM 9-5.001, ¶ "E". See www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/ 5mcrm.htm.
13

Recall Judge Burns also told the grand jurors that: [T]hese proceedings tend to be one-sided necessarily. . . . Because it's not a fullblown trial, you're likely in most cases not to hear the other side of the story, if there is another side to the story.

Defense Exhibit A (Reporter's Partial Transcript) p. 19. 13 07CR3101-LAB

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is some nefarious slant to the grand jury proceedings when the prosecutor does not present any "substantial" exculpatory evidence, because there is none, the negative inference created thereby in the minds of the grand jurors is legitimate. In cases such as Defendant's, the Government has no "substantial" exculpatory evidence generated from its investigation or from submissions tendered by the defendant.14/ There is nothing wrong in this scenario with a grand juror inferring from this state-of-affairs that there is no "substantial" exculpatory evidence, or even if some exculpatory evidence were presented, the evidence presented represents the universe of all available exculpatory evidence. Further, just as the instruction language regarding the United States Attorney attacked in Navarro-Vargas was found to be "unnecessary language [which] does not violate the Constitution," 408 F.3d at 1207, so too the "duty-bound" statement was unnecessary when charging the grand jury concerning its relationship with the United States Attorney and her Assistant U.S. Attorneys, and does not violate the Constitution. In United States v. Isgro, 974 F.2d 1091 (9th Cir. 1992), the Ninth Circuit while reviewing Williams established that there is nothing in the Constitution which requires a prosecutor to give the person under investigation the right to present anything to the grand jury (including his or her testimony or other exculpatory evidence), and the absence of that information does not require dismissal of the indictment. 974 F.2d at 1096 ("Williams clearly rejects the idea that there exists a right to such 'fair' or 'objective' grand jury deliberations."). That the USAM imposes a duty on United States Attorneys to present "substantial" exculpatory evidence to the grand jury is irrelevant since by its own terms the USAM excludes defendants from reaping any benefits from the self-imposed policy.15/ Therefore, while the "duty-bound" statement was an interesting tidbit of information, it was unnecessary in terms of advising the grand jurors of their rights and Realistically, given "that the grand jury sits not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge [i.e. only finding probable cause]," Williams, 504 U.S. at 51 (citing United States v. Calandra, 414 U.S. 338, 343-44 (1974)), no competent defense attorney is going to preview the defendant's defense story prior to trial assuming one will be presented to a fact-finder. Therefore, defense submissions to the grand jury will be few and far between. The apparent irony is that although an Assistant U.S. Attorney will not lose a case for failure to present exculpatory information to a grand jury per Williams, he or she could lose his or her job with the United States Attorney's Office for such a failure per the USAM. 07CR3101-LAB 14
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responsibilities, and does not cast an unconstitutional pall upon the instructions which requires dismissal of the indictment in this case or any case. The grand jurors were repeatedly instructed by Judge Burns that, in essence, the United Sates Attorneys are "good guys," which was authorized by Navarro-Vargas. 408 F.3d at 1206-07 ("laudatory comments . . . not vouching for the prosecutor"). But he also repeatedly "remind[ed] the grand jury that it stands between the government and the accused and is independent," which was also required by Navarro-Vargas. 408 F.3d at 1207. In this context the unnecessary "duty-bound" statement does not mean the instructions were constitutionally defective requiring dismissal of this indictment or any indictment. The "duty bound" statement constitutional contentions raised by Defendant do not indicate that the "`structural protections of the grand jury have been so compromised as to render the proceedings fundamentally unfair, allowing the presumption of prejudice' to the defendant," and "[the] defendant can[not] show a history of prosecutorial misconduct that is so systematic and pervasive that it affects the fundamental fairness of the proceeding or if the independence of the grand jury is substantially infringed." Isgro, 974 F.2d at 1094 (citation omitted). Therefore, this Indictment, or any other indictment, need not be dismissed. VI CONCLUSION For the foregoing reasons, the United States requests that the Court deny Defendant's Motions. Dated: December 13, 2007. Respectfully Submitted, KAREN P. HEWITT United States Attorney

S/ A. Dale Blankenship A. DALE BLANKENSHIP Assistant United States Attorney Attorneys for Plaintiff United States of America Email: [email protected]

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff,
) Criminal Case No. 07CR3101-LAB ) ) ) CERTIFICATE OF SERVICE ) ) ) ) ) )

JULIO MARTINEZ-HERNANDEZ, Defendant.

IT IS HEREBY CERTIFIED THAT: I, A. DALE BLANKENSHIP, 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. I am not a party to the above-entitled action. I have caused service of GOVERNMENT'S RESPONSE AND OPPOSITION TO DEFENDANT'S MOTIONS FOR: 1. DISMISS THE INDICTMENT FOR GRAND JURY VIOLATION on the following parties by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically notifies them. Linda Lopez [email protected] 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:

the last known address, at which place there is delivery service of mail from the United States Postal Service. I declare under penalty of perjury that the foregoing is true and correct. Executed on December 13, 2007. s/ A. Dale Blankenship A. DALE BLANKENSHIP

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