Free Motion to Compel - District Court of California - California

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1 JOHN C. ELLIS, JR.

California State Bar No. 228083
2 FEDERAL DEFENDERS OF SAN DIEGO, INC.

225 Broadway, Suite 900
3 San Diego, CA 92101-5008

(619) 234-8467/Fax: (619) 687-2666
4 E-Mail: [email protected] 5 Attorneys for Juan Manuel Torres-Gomez 6 7

UNITED STATES DISTRICT COURT
8

SOUTHERN DISTRICT OF CALIFORNIA
9

(HONORABLE M. JAMES LORENZ)
10 11 UNITED STATES OF AMERICA, 12 13 14 15 16 17 18 19

) ) Plaintiff, ) ) v. ) ) JUAN MANUEL TORRES-GOMEZ, ) ) Defendant. ) ) ______________________________________ ) I.

Case No. 07CR3055-L DATE: TIME: January 7, 2008 10:00 a.m.

STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTIONS

STATEMENT OF FACTS The following statement of facts is based, in part, on materials received from the government.

20 Mr. Torres-Gomez does not accept this statement of facts as his own, and reserves the right to take a contrary 21 position at motion hearings and trial. The facts alleged in these motions are subject to amplification and/or 22 modification at the time these motions are heard. 23

On September 12, 2007, Senior Patrol Agent Gustavo Suarez was on patrol in an unmarked vehicle.

24 During his patrol, he saw a blue GMC Vandura van parked in the Golden Acorn Casino parking lot. After 25 approximately ten minutes, although no one had entered or exited, the van pulled out and departed the parking 26 lot. The van drove northbound on Crestwood Road, and Agent Suarez followed. According to Agent Suarez, 27 the van conducted an unsafe u-turn. Agent Suarez continued driving, and likewise made a u-turn at a "safe" 28 location. When Agent Suarez next saw the van, it was pulled over on the side of the road. One minute later,

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1 the van had departed and entered onto eastbound Interstate 8. Agent Suarez opined that the van now appeared 2 heavier than it had earlier, though there was no visible sign of passengers. Agent Suarez, in his unmarked 3 vehicle, pulled along side the van and observed that the driver was "sitting straight upright, staring directly 4 ahead and he appeared to be clutching the steering wheel tightly." Agent Suarez opined that this behavior is 5 "initiative [sic] of alien smuggling load drivers." Based on this, Agent Suarez called for backup, and initiated 6 a traffic stop. The driver of the van complied, and pulled over to the side of the road. According to Agent 7 Suarez, at some point thereafter, Mr. Torres-Gomez made an inculpatory statement. 8

On November 9, 2007, the Government filed a six-count indictment against Mr. Torres-Gomez,

9 charging, in counts one, three and five, a violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 2, and in 10 counts two, four, and six, a violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (v) (II). 11 12 13 14

These motions follow. II. MOTION TO COMPEL DISCOVERY/PRESERVE EVIDENCE At this time, Mr. Torres-Gomez has received limited discovery. Mr. Torres-Gomez moves for the

15 production of the following discovery. This request is not limited to those items that the prosecutor knows 16 of, but rather includes all discovery listed below that is in the custody, control, care, or knowledge of any 17 "closely related investigative [or other] agencies." See United States v. Bryan, 868 F.2d 1032 (9th Cir. 1989). 18

(1)

The Defendant's Statements. The government must disclose to the defendant all copies of

19 any written or recorded statements made by the defendant; the substance of any statements made by the 20 defendant, which the government intends to offer in evidence at trial -- either in its case-in-chief or in rebuttal; 21 see id., any response by the defendant to interrogation; the substance of any oral statements, which the 22 government intends to introduce at trial, and any written summaries of the defendant's oral statements 23 contained in the handwritten notes of the government agent; any response to any Miranda warnings, which 24 may have been given to the defendant; as well as any other statements by the defendant. Fed. R. Crim. 25 P. 16(a)(1)(A)1. The Advisory Committee Notes and the 1991 Amendments to Rule 16 make clear that the 26 Government must reveal all the defendant's statements, whether oral or written, regardless of whether the 27 28

Of course, any of Mr. Torres-Gomez's statements, which are exculpatory, must be produced, as well. See Brady v. Maryland, 373 U.S. 83 (1963). 2 07CR3055-L

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1 government intends to make any use of those statements. Federal Rule of Criminal Procedure 16 is designed 2 "to protect the defendant's rights to a fair trial." United States v. Rodriguez, 799 F.2d 649 (11th Cir. 1986); 3 see also United States v. Noe, 821 F.2d 604, 607 (11th Cir. 1987) (reversing conviction for failure to provide 4 statements offered in rebuttal -- government's failure to disclose statements made by the defendant is a serious 5 detriment to preparing trial and defending against criminal charges). This request includes, but is not 6 limited to, all recorded conversations. 7

(2)

Arrest Reports and Notes. The defendant also specifically requests that the government turn

8 over all arrest reports, notes, TECS records, dispatch tapes, audio tapes, and video tapes not already produced 9 that relate to the circumstances surrounding his arrest or any questioning. This request includes, but is not 10 limited to, any rough notes, records, reports, transcripts, referral slips, or other documents in which statements 11 of the defendant or any other discoverable material is contained. Such material is discoverable under Fed. 12 R. Crim. P. 16(a)(1)(A) and Brady v. Maryland. The government must produce arrest reports, investigators' 13 notes, memos from arresting officers, sworn statements, and prosecution reports pertaining to the defendant. 14 See Fed. R. Crim. P. 16(a)(1)(B) and (C), 26.2 and 12(I); United States v. Harris, 543 F.2d 1247, 1253 (9th 15 Cir. 1976) (original notes with suspect or witness must be preserved); see also United States v. Anderson, 813 16 F.2d 1450, 1458 (9th Cir. 1987) (reaffirming Harris' holding). 17

(3)

Brady Material. The defendant requests all documents, statements, agents' reports, and

18 tangible evidence favorable to the defendant on the issue of guilt and/or which affects the credibility of the 19 government's case. Kyles v. Whitley, 514 U.S. 419 (1995). Under Brady, Kyles and their progeny, 20 impeachment, as well as exculpatory evidence, falls within the definition of evidence favorable to the accused. 21 See also United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 427 U.S. 97 (1976). This 22 includes information obtained from other investigations which exculpates Mr. Torres-Gomez. Moreover, 23 Mr. Torres-Gomez request all information regarding the immigration status of the material witness; a 24 complete criminal history report of the material witness; and any reports of investigation, prior statements, 25 prior arrest, etc. of the material witness. This requests includes, but is not limited to, all reports and notes 26 regarding arrests/apprehensions from the Golden Acorn Casino and the Tusil Road area of San Diego. 27

(4)

Any Information That May Result in a Lower Sentence Under The Guidelines. The

28 government must also produce this information under Brady v. Maryland. This request includes any

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1 cooperation, or attempted cooperation, by the defendant, as well as any information, including that obtained 2 from other investigations or debriefings, that could affect any base offense level or specific offense 3 characteristic under Chapter Two of the Guidelines. The defendant also requests any information relevant 4 to a Chapter Three adjustment, a determination of the defendant's criminal history, and information relevant 5 to any other application of the Guidelines. 6

(5)

The Defendant's Prior Record. The defendant requests disclosure of his prior record.

7 Fed. R. Crim. P. 16(a)(1)(B). 8

(6)

Any Proposed 404(b) Evidence. The government must produce evidence of prior similar acts

9 under Fed. R. Crim. P. 16(a)(1)(C) and Fed. R. Evid. 404(b) and 609. In addition, "upon request of the 10 accused, the prosecution . . . shall provide reasonable notice in advance of trial . . . of the general nature" of 11 any evidence the government proposes to introduce under Fed. R. Evid. 404(b) at trial and the purpose for 12 which introduction is sought. This applies not only to evidence which the government may seek to introduce 13 in its case-in-chief, but also to evidence which the government may use as rebuttal. See United States v. 14 Vega, 188 F.3d 1150 (9th Cir. 1999). The defendant is entitled to "reasonable notice" so as to "reduce 15 surprise," preclude "trial by ambush" and prevent the "possibility of prejudice." Id.; United States v. Perez16 Tosta, 36 F.3d 1552, 1560-61 (11th Cir. 1994). Mr. Torres-Gomez requests such reasonable notice at least 17 two weeks before trial, so as to adequately investigate and prepare for trial. 18

(7)

Evidence Seized. The defendant requests production of evidence seized as a result of any

19 search, either warrantless or with a warrant. Fed. R. Crim. P. 16(a)(1)(C). 20

(8)

Request for Preservation of Evidence. The defendant specifically requests the preservation

21 of any and all physical evidence that may be destroyed, lost, or otherwise put out of the possession, custody, 22 or care of the government, and which relates to the arrest, or the events leading to the arrest, in this case. This 23 request includes, but is not limited to, the results of any fingerprint analysis, the vehicle which the defendant 24 drove, the defendant's personal effects, any effects found within the vehicle, any evidence seized from the 25 defendant, or any third party in relation to this case, and all audio or video recordings of Mr. Torres-Gomez 26 or any third parties related, directly or indirectly, to this case. 27

(9)

Henthorn Evidence. Mr. Torres-Gomez requests that the Assistant United States Attorney

28 assigned to this case oversee a review of all personnel files of each agent involved in the present case for

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1 impeachment material. Kyles, 514 U.S. at 419; United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991); 2 United States v. Lacy, 896 F. Supp. 982 (N.D. Ca. 1995). At a minimum, the prosecutor has the obligation 3 to inquire of his agents in order to ascertain whether or not evidence relevant to veracity or other impeachment 4 exists. 5

(10)

Tangible Objects. The defendant requests the opportunity to weigh the narcotics, to inspect

6 and copy, as well as test, if necessary, all other documents and tangible objects, including photographs, books, 7 papers, documents, fingerprint analyses, vehicles, or copies of portions thereof, which are material to the 8 defense, or intended for use in the government's case-in-chief, or were obtained from or belong to the 9 defendant. Fed. R. Crim. P. 16(a)(1)(C). Specifically, to the extent they were not already produced, the 10 defendant requests copies of all photographs in the government's possession of the vehicle, the defendants, 11 and any other photos taken in connection with this case. Additionally, Mr. Torres-Gomez moves this court 12 to order the government to allow defense counsel to view, inspect, and copy Mr. Torres-Gomez' A-file 13 and the A-file of the material witnesses. 14

(11)

Expert Witnesses. The defendant requests the name, qualifications, and a written summary

15 of the testimony of any person that the government intends to call as an expert witness during its case-in-chief. 16 Fed. R. Crim. P. 16(a)(1)(E). The defense requests that notice of expert testimony be provided at a minimum 17 of three weeks prior to trial, so that the defense can properly prepare to address and respond to this testimony, 18 including obtaining its own expert and/or investigating the opinions and credentials of the government's 19 expert. The defense also requests a hearing in advance of trial to determine the admissibility of qualifications 20 of any expert. See Kumho v. Carmichael Tire Co., 119 S. Ct. 1167, 1176 (1999) (trial judge is "gatekeeper" 21 and must determine reliability and relevancy of expert testimony and such determinations may require "special 22 briefing or other proceedings . . .."). 23

(12) Reports of Scientific Tests or Examinations. Pursuant to Fed. R. Crim. P. 16(a)(1)(F),

24 Mr. Torres-Gomez requests disclosure and the opportunity to inspect, copy, and photograph the results and 25 reports of all tests, examinations, and experiments conducted upon the evidence in this case, including, but 26 not limited to, any fingerprint testing done upon any evidence seized in this case, that is within the possession, 27 custody, or control of the government, the existence of which is known, or by the exercise of due diligence 28

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1 may become known, to the attorney for the government, and that are material to the preparation of the defense 2 or are intended for use by the government as evidence in chief at the trial. 3

(13)

Evidence of Bias or Motive to Lie. The defendant requests any evidence that any prospective

4 government witness is biased or prejudiced against the defendant, or has a motive to falsify or distort his or 5 her testimony. 6

(14)

Impeachment Evidence.

The defendant requests any evidence that any prospective

7 government witness has engaged in any criminal act whether or not resulting in a conviction, and whether any 8 witness has made a statement favorable to the defendant. See Fed. R. Evid. 608, 609 and 613; Brady v. 9 Maryland. 10

(15)

Evidence of Criminal Investigation of Any Government Witness. The defendant requests

11 any evidence that any prospective witness is under investigation by federal, state or local authorities for any 12 criminal conduct. 13

(16)

Evidence Affecting Perception, Recollection, Ability to Communicate, or Truth Telling. The

14 defense requests any evidence, including any medical or psychiatric report or evaluation, that tends to show 15 that any prospective witness' ability to perceive, remember, communicate, or tell the truth is impaired, and 16 any evidence that a witness has ever used narcotics or other controlled substance, or has ever been an 17 alcoholic. 18

(17)

Jencks Act Material. The defendant requests production in advance of trial of all material,

19 including any tapes, which the government must produce pursuant to the Jencks Act, 18 U.S.C. § 3500; 20 Fed. R. Crim. P. 26.2. Advance production will avoid the possibility of delay at the request of the defendant 21 to investigate the Jencks material. A verbal acknowledgment that "rough" notes constitute an accurate account 22 of the witness' interview is sufficient for the report, or notes, to qualify as a statement under 23 section 3500(e)(1). Campbell v. United States, 373 U.S. 487, 490-92 (1963); see also United States v. 24 Boshell, 952 F.2d 1101 (9th Cir. 1991) (holding that where an agent goes over interview notes with subject 25 interview notes are subject to Jencks Act). 26

(18)

Giglio Information. Pursuant to Giglio v. United States, 405 U.S. 150 (1972), the defendant

27 requests all statements and/or promises, express or implied, made to any government witnesses, in exchange 28

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1 for their testimony in this case, and all other information which could arguably be used for the impeachment 2 of any government witness. 3

(19)

Agreements Between the Government and Witnesses. In this case, the defendant requests

4 identification of any cooperating witnesses, who have committed crimes, but were not charged, so that they 5 may testify for the government in this case. The defendant also requests discovery regarding any express or 6 implicit promise; understanding; offer of immunity; past, present, or future compensation; or any other kind 7 of agreement or understanding, including any implicit understanding relating to criminal or civil income tax, 8 forfeiture or fine liability between any prospective government witness and the government (federal, state 9 and/or local). This request also includes any discussion with a potential witness about, or advice concerning, 10 any contemplated prosecution, or any possible plea bargain, even if no bargain was made, or the advice not 11 followed. Mr. Torres-Gomez further requests disclosure of all arrangements between the material 12 witness and the government. 13

Pursuant to United States v. Sudikoff, 36 F.Supp.2d 1196 (C.D. Cal. 1999), the defense requests all

14 statements made, either personally or through counsel, at any time, which relate to the witnesses' statements 15 regarding this case, any promises -- implied or express -- regarding punishment/prosecution or detention of 16 these witnesses, any agreement sought, bargained for, or requested on the part of the witness at any time. 17

(20)

Informants and Cooperating Witnesses. To the extent that there was any informant, or any

18 other tip leading to a TECS hit in this case, the defendant requests disclosure of the names and addresses of 19 all informants, or cooperating witnesses, used, or to be used, in this case, and in particular, disclosure of any 20 informant who was a percipient witness in this case, or otherwise participated in the crime charged against 21 Mr. Torres-Gomez. The government must disclose the informant's identity and location, as well as the 22 existence of any other percipient witness, unknown or unknowable, to the defense. Roviaro v. United States, 23 353 U.S. 53, 61-62 (1957). The government must disclose any information derived from informants, which 24 exculpates, or tends to exculpate, the defendant. 25

(21)

Bias by Informants or Cooperating Witnesses. The defendant requests disclosure of any

26 information indicating bias on the part of any informant or cooperating witness. Giglio v. United States. Such 27 information would include what, if any, inducements, favors, payments, or threats were made to the witness 28 to secure cooperation with the authorities.

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1

(22)

Residual Request. Mr. Torres-Gomez intends, by this discovery motion, to invoke his rights

2 to discovery to the fullest extent possible under the Federal Rules of Criminal Procedure and the Constitution 3 and laws of the United States. Mr. Torres-Gomez requests that the government provide his attorney with the 4 above-requested material sufficiently in advance of trial to avoid unnecessary delay prior to cross5 examination. 6 7 8

III. MOTION TO RELEASE GRAND JURY TRANSCRIPTS Mr. Torres-Gomez moves this Court to compel the government to produce all grand jury transcripts

9 in this case.2 See U.S. CONST. AMENDS V & VI3. Federal Rule of Criminal Procedure 6(e)(3)(E)(ii) allows 10 disclosure "at the request of a defendant who shows that a ground may exist to dismiss the indictment because 11 of a matter that occurred before the grand jury." In this case, release of the grand jury transcripts is 12 appropriate because: one, it is likely that the government misinstructed the grand jury on "bring to" liability 13 in light of United States v. Lopez, 484 F.3d 1186 (9th Cir. 2007) (en banc); and two, it is likely that there will 14 be a fatal variance between the theory of liability presented to the grand jury and the evidence that will be 15 presented before the petit jury. 16 17 18 19 20 21 22 23 24 25 26 27 28
2

Although this Court has recently rejected this motion, it is being filed herein to preserve this issue for possible appellate review. The Supreme Court has found that "[t]he grand jury is an integral part of our constitutional heritage which was brought to this country with the common law. The Framers, most of them trained in the English law and traditions, accepted the grand jury as a basic guarantee of individual liberty . . . the grand jury continues to function as a barrier to reckless or unfounded charges. 'Its adoption in our Constitution as the sole method for preferring charges in serious criminal cases shows the high place it held as an instrument of justice.' Costello v. United States, 350 U.S. 359, 362 (1956). Its historic office has been to provide a shield against arbitrary or oppressive action, by insuring that serious criminal accusations will be brought only upon the considered judgment of a representative body of citizens acting under oath and under judicial instruction and guidance. " United States v. Manduano, 425 U.S. 564, 571 (1976). In order to ensure that the criminally accused are safeguarded from reckless and unfounded charges, judges must take their duty to provide guidance seriously and not simply pay lip service to the assurances of the government. It is curious why the government, in this district in particular, fights so hard to keep grand jury proceedings sealed. Interestingly, in many cases, the "witness" who "testifies" before the grand jury is a border patrol agent who neither participated in the arrest or the investigation. He is only called to read a report which has been prepared by others. Such a practice does not allow for the considered judgment of grand jurors. Thus, the release of transcripts is appropriate. 8 07CR3055-L
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1

Regarding the first issue, in Lopez, the Ninth Circuit set forth the analytical model to be applied in

2 analyzing whether a defendant acting entirely within the United States may be thought to have aided and 3 abetted another actor in bringing aliens to the United States in violation of 8 U.S.C. § 1324(a)(2), and 18 4 U.S.C. § 2. 5 6

The mere act of picking up aliens at a location near the border and transporting them within the United States is not sufficient to support a conviction for aiding and abetting a 'brings to' offense. The Lopez Court thoroughly examined the statutes at issue and

7 Id. at 1199-1200 (footnote omitted). 8 determined that: 9 10 11

[o]n a plain reading of the statutory language, then, a person who moves aliens from one location in the United States to another has not brought the aliens "to" the United States, has not acted extraterritorially, and has not committed a "brings to" offense. He has acted entirely on domestic soil and has committed only a "transports within" offense.

12 484 F.3d at 1195. Honoring the statutory scheme set forth in section 1324, in which several offenses with 13 varying penalties are set forth, Lopez held that "the 'brings to' offense does not continue beyond the point at 14 which the 'transports [wholly] within' offense begins." See id. at 1196 (brackets in original, footnote omitted). 15 Lopez thus "permit[s] prosecution of the secondary wrongdoers -- those who act entirely in the United States 16 -- only under the 'transports within' provision ...." See id. at 1197. Thus, an individual who is alleged to have 17 acted entirely within this country, cannot be liable as a principal in a "brings to" offense unless that individual 18 is guilty as an aider and abettor. See id. at 1191. 19

The government in Lopez offered two theories of aiding and abetting liability. First, it argued that

20 the brings to offense continued until the aliens' reached their "immediate destination." See id. at 1191. This 21 theory, however, was flatly rejected by Lopez as having "little basis in the law." See id. at 1197. 22

Second, the government argued that "aiding and abetting liability was established by its showing that

23 prior to the termination of the offense the defendant acted in a fashion that enabled or encouraged others to 24 commit [the 'brings to'] offense." See id. at 1191. Lopez found that this theory was legally tenable, but not 25 on the Lopez facts. See id. at 1199-1201 & n.18. Specifically, Lopez found that "the termination point of the 26 'brings to' offense as the end of the initial wrongdoer's physical involvement...." See id. at 1197. 27

The facts in Lopez are quite similar to those presented here. The government alleges that Mr. Torres-

28 Gomez, like Ms. Lopez, picked up a group of aliens who had already been brought to the United States and

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1 who were awaiting transportation. See id. at 1189. In Lopez, the guide dropped off the group, see id., while, 2 in the instant case, the government alleges that the guide continued on with the group. Ultimately, there can 3 be no meaningful distinction between "dropping off" the aliens and terminating active involvement in the 4 transportation. Lopez holds that "[t]he mere act of picking up aliens at a location near the border and 5 transporting them within the United States is not sufficient to support a conviction for aiding and abetting a 6 'brings to' offense." See id. at 1199-1200. Drawing a distinction between an initial transporter who drops off 7 the aliens and an initial transporter who ceases active transportation will necessarily contravene that holding: 8 under such a reading, the rule would be "[t]he mere act of picking up aliens at a location near the border and 9 transporting them within the United States is not sufficient to support a conviction for aiding and abetting a 10 'brings to' offense [unless the initial transporter comes along for the ride]." 11

Moreover, such a reading would undercut the Congressional goal of differentiating between initial

12 and secondary transporters. 13 14 15 16 17 Id. at 1197. Drawing a distinction between secondary transporters who also transport guides and those 18 secondary transporters who do not transport guides frustrates that purpose erases the very distinction that 19 Congress sought to create. Moreover, it does so based upon a factor that the transporter is unlikely to have 20 any influence over, the guide's decision as to whether he wishes to be transported within the United States. 21

The construction of § 1324 most consistent with the statute's history and structure ... is one that recognizes that the different provisions of § 1324 cover different groups of wrongdoers. By designating the termination point of the 'brings to' offense as the end of the initial wrongdoer's physical involvement and by permitting prosecution of the secondary wrongdoers -- those who act entirely in the United States -- only under the 'transports within' provision, our construction accomplishes precisely what Congress intended.

Even if the guide's initial transport conduct were to be considered ongoing in some sense, that need

22 not result in extending "brings to" liability to Mr. Torres-Gomez's alleged "transports within" conduct. Lopez 23 reaffirmed the vitality of the holding in United States v. Vowiell, 869 F.2d 1264 (9th Cir. 1989), that the fact 24 that an escapee's liability was continuing until he was apprehended or surrendered did not mean that the crime 25 of assisting an escape persisted as long, particularly in light of the fact that Congress passed a separate statute 26 that condemned harboring an escapee. See Lopez, 484 F.3d at 1195 (citing Vowiell, 869 F.2d at 1268). In 27 fact, the Supreme Court has recognized that crimes involving unlawful "entry" are not continuing offenses, 28 "as 'entry' is limited to a particular locality and hardly suggests continuity." United States v. Cores, 356 U.S.

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1 405, 408 n.6 (1958). Accord United States v. Rodriguez-Rodriguez, 453 F.3d 458, 460 (7th Cir. July 6, 2006) 2 (following Cores); United States v. Rincon-Jimenez, 595 F.2d 1192, 1194 (9th Cir. 1979). 3

Thus, in order to ensure that the government did not misinstruct the grand jury, release of the grand

4 jury transcripts is appropriate. 5 6 7 8

IV. MOTION TO COMPEL THE GOVERNMENT TO PROVIDE A BILL OF PARTICULARS If this Court denies the above motion to compel the production of grand jury transcripts, then Mr.

9 Torres-Gomez moves this Court to direct the government to file a bill of particulars. See Fed. Rule Crim. Pro. 10 7(f). A bill of particulars is warranted where it will enable adequate preparation of the defense and prevent 11 surprise at trial. United States v. Giese, 597 F.2d 1170, 1180 (9th Cir. 1979). A bill of particulars provides 12 a defendant with the details of the charges necessary to present a defense, to avoid prejudicial surprise at trial, 13 and to protect against a second prosecution based on the same facts. See United States v. Cecil, 608 F.2d 14 1294, 1296 (9th Cir. 1979) (noting also that a bill of particulars ensures that the defendant is tried on the basis 15 of facts presented to a grand jury). Mr. Torres-Gomez has rights under the Fifth and Sixth Amendments and 16 Fed. R. Crim. P. 7(f) to notice of the charges against him and to a fair trial with an opportunity to defend 17 himself against the charges. In addition, a bill of particulars guarantees a defendant's Fifth Amendment right 18 to be tried on a charge found by a Grand Jury, as a defendant is entitled to know the Government's theory as 19 to a particular count. See Yeargain v. United States, 314 F.2d 881, 882 (9th Cir. 1963). This is true even 20 where the indictment states all the ingredients of the offense. Myers v. United States, 15 F.2d 977, 983 (8th 21 Cir. 1926) ("The office of a bill of particulars attaches without distinction, where the indictment states all the 22 ingredients of the offense and further detail may be required or demanded for the protection of the 23 defendant"). See also United States v. Thompson, 189 F. 838, 839 (W.D.Va. 1911) ("An indictment may be 24 so expressed as to be good on demurrer and which still does not give the defendant all the information which 25 he should in fairness have in order to properly prepare for trial, and in such case the defects in the indictment, 26 in Federal practice, may be overcome by a bill of particulars"). 27

In this case, Mr. Torres-Gomez has no idea how the government will attempt to prove the elements

28 of Counts One, Three, and Five, that he "did bring to the United States [the material witnesses] for purposes

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1 of commercial advantage and private financial gain...." Nothing in the indictment provides sufficient notice 2 of how Mr. Torres-Gomez is linked to these counts, and the government has not produced any discovery 3 linking Mr. Torres-Gomez to the material witnesses' entry. In the absence of a bill of particulars, Mr. Torres4 Gomez is not in a position to adequately prepare to defend this seemingly baseless allegation at trial. 5 Accordingly, Mr. Torres-Gomez moves this Court to order the government to produce a bill of particulars 6 explaining its theory of liability on these counts. 7 8 9

V. MOTION TO SUPPRESS STATEMENTS Mr. Torres-Gomez moves to suppress any statements made at the time of his arrest on the grounds

10 that his Miranda waiver was not knowing, intelligent, and voluntary. Moreover, Mr. Torres-Gomez moves 11 to suppress any other statements made on the grounds that those statements were not made voluntarily. 12 A. 13

The Government Must Demonstrate Compliance with Miranda. In order for any statements made by Mr. Torres-Gomez to be admissible against him, the government

14 must demonstrate that they were obtained in compliance with Miranda v. Arizona, 384 U.S. 436 (1966). 15 Specifically, the government must establish that Mr. Torres-Gomez waived his rights and that any waiver of 16 his Miranda rights was voluntary, knowing, and intelligent. See Schneckloth v. Bustamonte, 412 U.S. 218 17 (1973). When an interrogation continues without the presence of an attorney, and a statement results, the 18 government has a heavy burden to demonstrate that the defendant has intelligently and voluntarily waived his 19 privilege against self-incrimination. Miranda, 384 U.S. at 475. The court must indulge every reasonable 20 presumption against waiver of fundamental constitutional rights, so the burden on the government is great. 21 United States v. Heldt, 745 F. 2d 1275, 1277 (9th Cir. 1984). 22

In determining whether a waiver is voluntary, knowing, and intelligent, the court looks to the totality

23 of the circumstances surrounding the case. Edwards v. Arizona, 451 U.S. 477 (1981); United States v. 24 Garibay, 143 F.3d 534 (9th Cir. 1998). The Ninth Circuit has held that determination of the validity of a 25 Miranda waiver requires a two prong analysis: the waiver must be both (1) voluntary and (2) knowing and 26 intelligent. Derrick v. Peterson, 924 F. 2d 813 (9th Cir. 1990). The second prong requires an inquiry into 27 whether "the waiver [was] made with a full awareness both of the nature of the right being abandoned and 28 the consequences of the decision to abandon it." Id. at 820-821 (quoting Colorado v. Spring, 479 U.S. 564,

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1 573 (1987)). Not only must the waiver be uncoerced, then, it must also involve a "requisite level of 2 comprehension" before a court may conclude that Miranda rights have been legitimately waived. Id. (quoting 3 Colorado v. Spring, 479 U.S. at 573). Unless and until Miranda warnings and a knowing and intelligent 4 waiver are demonstrated by the prosecution, no evidence obtained as a result of the interrogation can be used 5 against the defendant. Miranda, 384 U.S. at 479. The government in this case must prove that Mr. Torres6 Gomez waived his rights intelligently and voluntarily. Mr. Torres-Gomez disputes any allegation that his 7 waiver was knowing, intelligent, and voluntarily. 8 B. 9

Mr. Torres-Gomez's Statements Must Be Voluntary. Even if this Court determines that Mr. Torres-Gomez validly waived his Miranda rights, it must still

10 make a determination that any statements are voluntary. Under 18 U.S.C. § 3501(a), this Court is required 11 to determine, whether any statements made by Mr. Torres-Gomez are voluntary. In addition, section 3501(b) 12 requires this Court to consider various enumerated factors, including whether Mr. Torres-Gomez understood 13 the nature of the charges against him and whether he understood his rights. Without such evidence, this Court 14 cannot adequately consider these statutorily mandated factors. 15

Moreover, section 3501(a) requires this Court to make a factual determination. Where a factual

16 determination is required, Fed. R. Crim. P. 12 obligates courts to make factual findings. See United States 17 v. Prieto-Villa, 910 F.2d 601, 606-10 (9th Cir. 1990). Because "'suppression hearings are often as important 18 as the trial itself,'" id. at 610 (quoting Waller v. Georgia, 467 U.S. 39, 46 (1984)), these findings should be 19 supported by evidence, not merely an unsubstantiated recitation of purported evidence in a prosecutor's 20 responsive pleading. Therefore, prior to admitting any alleged statements from Mr. Torres-Gomez, a hearing 21 must be held to determine whether the statements were voluntary. 22 23 24

VI. SUPPRESS ALL EVIDENCE SEIZED IN VIOLATION OF THE FOURTH AMENDMENT. The Fourth Amendment prohibits "unreasonable" searches and seizures. U.S. CONST. amend. IV;

25 Terry v. Ohio, 392 U.S. 1, 20-21 (1968). The test of whether a seizure is reasonable entails a balancing of the 26 governmental interest that justifies the intrusion against the individual's privacy expectations and interests. 27 See Ferguson v. City of Charleston, 532 U.S. 67, 84 n.21 (2001); see also Mich. Dep't of State Police v. Sitz, 28 496 U.S. 444, 448-49 (1990).

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The Fourth Amendment specifically prohibits unreasonable searches and seizures of a vehicle during

2 brief investigatory stops. See United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975). Moreover, an 3 officer may detain a motorist only upon a demonstration of "reasonable suspicion" of criminal activity. See 4 United States v. Cortez, 449 U.S. 411, 417 (1981); see also United States v. Rodriguez, 976 F.2d 592, 594 5 (9th Cir. 1992), amended 997 F.2d 1306 (9th Cir. 1993). That "reasonable suspicion" must consist of 6 "specific, articulable facts which, together with objective and reasonable inferences, form the basis for 7 suspecting that the particular person detained is engaged in criminal activity." Rodriguez, 976 F.2d at 594 8 (citations omitted); see also United States v. Sigmond-Ballesteros, 285 F.3d 1117 (9th Cir. 2002). A "gloss 9 on this rule prohibits reasonable suspicion from being based on broad profiles which cast suspicion on entire 10 categories of people without any individualized suspicion of the particular person to be stopped." Sigmond11 Ballesteros, 285 F.3d at 1121 (quoting United States v. Rodriguez-Sanchez, 23 F.3d 1488, 1492 (9th Cir. 12 1994), (overruled in part on other grounds); see also United States v. Montero-Camargo, 208 F.3d 1122, 113113 32 (9th Cir. 2000); United States v. Garcia-Camacho, 53 F.3d 244, 245-46 (9th Cir. 1995); United States v. 14 Mariscal, 285 F.3d 1127 (9th Cir. 2002). 15

A determination of whether an officer had "reasonable suspicion" of wrongdoing is '"not readily, or

16 even usefully, reduced to a neat set of legal rules.'" Ornelas v. United States, 517 U.S. 690, 695-96 (1996) 17 (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)); see also United States v. Hernandez- Alvarado, 891 F.2d 18 1414, 1416 (9th Cir. 1989). Rather, in making reasonable-suspicion determinations, the court must consider 19 the "totality of the circumstances" of each case to see whether the detaining officer has a "particularized and 20 objective basis" for suspecting criminal activity. United States v. Cortez, 449 U.S. 411, 418 (1981); see also 21 United States v. Arvizu, 534 U.S. 266, 266 (2002) (holding that the "totality of the circumstances" inquiry of 22 an investigatory stop of a vehicle must be based on all factors, collectively, and not each in isolation). While 23 this inquiry "includes the 'collective knowledge of the officers involved, and the inferences reached by 24 experienced, trained officers,'" Hall, 974 F.2d at 1204 (other internal quotations omitted), this experience 25 may not be used to give the officers unbridled discretion in making a stop. See Hernandez-Alvarado, 891 F.2d 26 at 1416; see also Florida v. J.L., 529 U.S. 266, 271 (2000) (finding that a tip from an anonymous informant 27 did not give rise to sufficient reasonable suspicion to perform a Terry stop). 28

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In this case, the information and activities on which the arresting agents relied to make the

2 investigatory stop did not give rise to reasonable suspicion. According to information provided by the 3 government, the only basis for initiating the traffic stop were: (1) the location;4 (2) the fact that van made an 4 unsafe u-turn; (3) the van looked heavier after it pulled to the side of the road; and (4) the driver appeared to 5 be nervous. This evidence is weak and does not rise to the requisite level of individualized suspicion required 6 under the Fourth Amendment to seize and detain a person. Thus, the Agent Suarez lacked reasonable 7 suspicion to stop the van. Therefore, because the agents lacked reasonable suspicion, all evidence flowing 8 from the illegal stop must be suppressed. See Wong Sun v. United States, 371 U.S. 471 (1963).5 9 10 11

VII. REQUEST FOR LEAVE TO FILE FURTHER MOTIONS As new information surfaces due to the government providing discovery in response to these

12 motions, or an order of this Court, defense may find it necessary to file further motions, or to supplement 13 existing motions with additional facts. The denial of this motion will result in a violation, at a minimum, of 14 Mr. Torres-Gomez's Fifth and Sixth Amendment rights. Therefore, defense counsel requests the opportunity 15 to file further motions based upon information gained from discovery. 16 17 18 19 20

VIII. CONCLUSION For the reasons stated above, Mr. Torres-Gomez moves this Court to grant his motions. Respectfully submitted, DATED: December 21, 2007 /s/ John C. Ellis, Jr. JOHN C. ELLIS, JR. Federal Defenders of San Diego, Inc. Attorneys for Mr. Torres-Gomez [email protected]

21 22 23 24 25 26 27 28

This factor is easily dismissed because it appears that this agent believes that all of East County is a hotbed of smuggling activity. The requests to suppress evidence includes, but is not limited to, the material witnesses, and any statements or other evidence seized as a result of this unlawful stop. 15 07CR3055-L
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