Free Motion for Discovery - District Court of California - California

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JOSEPH M. McMULLEN California State Bar No. 246757 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 San Diego, California 92101-5030 Telephone: (619) 234-8467 Email: [email protected] Attorneys for Mr. Ortega-Rocha UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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(HONORABLE IRMA E. GONZALEZ)

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UNITED STATES OF AMERICA,

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Plaintiff,

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v.

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JORGE ORTEGA-ROCHA (1),

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ALBERTO MINOR-OLVERA (2),

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Defendants.

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) ) ) ) ) ) ) ) ) ) ) ) I.

CASE NO. 07CR3054-IEG DATE: January 7, 2008 TIME: 2:00 p.m. STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTIONS

STATEMENT OF FACTS On October 27, 2007, at approximately 9:33 a.m., a Border Patrol agent observed a red fourdoor sedan make a U-turn on Old Highway 80 near Jacuma, California. The agent lost sight of the vehicle, and thereafter saw an individual running southbound on foot. Another agent located the vehicle and conducted a registration check, which indicated that the vehicle was misplated. The agent initiated a vehicle stop and the driver, Mr. Ortega-Rocha, yielded immediately. Mr. Ortega-Rocha was removed from the vehicle and handcuffed, while the three individuals in the passenger compartment of the vehicle remained in the vehicle. The agents opened the trunk of the vehicle and discovered two individuals inside. The individuals in the trunk, and two of the passengers were questioned and admitted to being undocumented aliens. On November 9, 2007, a Indictment was returned in the Southern District of California charging Mr. Jorge Ortega-Rocha and Mr. Alberto Minor-Olvera with bringing in three

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undocumented aliens for financial gain in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 2, and transportation of three undocumented aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(II). On November 13, 2007, the Court arraigned both defendants on the on indictment and each entered a not guilty plea. The Court held a motion setting date on November 19, 2007. A motion hearing was scheduled for January 7, 2008. II. THIS COURT SHOULD ORDER PRESERVATION OF EVIDENCE AND PRODUCTION OF DISCOVERY Mr. Ortega-Rocha moves for the production by the government of the following discovery and for the preservation of evidence. This request is not limited to those items that the prosecutor knows of, but rather includes all discovery listed below that is in the custody, control, care, or knowledge of any government agency. See generally Kyles v. Whitley, 514 U.S. 419 (1995); United States v. Bryan, 868 F.2d 1032 (9th Cir. 1989). (1) The Defendant's Statements. The Government must disclose to the defendant all copies of any written or recorded statements made by the defendant; the substance of any statements made by the defendant which the Government intends to offer in evidence at trial; any response by the defendant to interrogation; the substance of any oral statements which the Government intends to introduce at trial and any written summaries of the defendant's oral statements contained in the handwritten notes of the Government agent; any response to any Miranda warnings which may have been given to the defendant; as well as any other statements by the defendant. FED. R. CRIM. P. 16(a)(1)(A) and 16(a)(1)(B). The Advisory Committee Notes and the 1991 amendments to Rule 16 make clear that the Government must reveal all the defendant's statements, whether oral or written, regardless of whether the government intends to make any use of those statements. (2) Arrest Reports, Notes and Dispatch Tapes. The defense also specifically requests that all arrest reports, notes and dispatch or any other tapes that relate to the circumstances surrounding his arrest or any questioning, if such reports have not already been produced in their entirety, be turned over to him. This request includes, but is not limited to, any rough notes, records, reports, transcripts or other documents in which statements of the defendant or any other discoverable

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material is contained. This is all discoverable under FED. R. CRIM. P. 16(a)(1)(A); 16(a)(1)(B) and Brady v. Maryland, 373 U.S. 83 (1963). See also Loux v. United States, 389 F.2d 911 (9th Cir. 1968). Arrest reports, investigator's notes, memos from arresting officers, dispatch tapes, sworn statements, and prosecution reports pertaining to the defendant are available under FED. R. CRIM. P. 16(a)(1)(E) and FED. R. CRIM. P. 26.2. Preservation of rough notes is requested, whether or not the government deems them discoverable. (3) Brady Material. Mr. Ortega-Rocha requests all documents, statements, agents' reports, and tangible evidence favorable to the defendant on the issue of guilt and/or which affects the credibility of the government's case. Impeachment as well as exculpatory evidence falls within Brady's definition of evidence favorable to the accused. United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 427 U.S. 97 (1976). (4) Any Information That May Result in a Lower Sentence Under The Guidelines. As discussed above, this information is discoverable under Brady v. Maryland, 373 U.S. 83 (1963). This request includes any cooperation or attempted cooperation by the defendant, as well as any information that could affect any base offense level or specific offense characteristic under Chapter Two of the Guidelines. Also included in this request is any information relevant to a Chapter Three adjustment, a determination of the defendant's criminal history, or any other application of the Guidelines. (5) The Defendant's Prior Record. Evidence of prior record is available under FED. R. CRIM. P. 16(a)(1)(D). Counsel specifically requests a complete copy of any criminal record. (6) Any Proposed 404(b) Evidence. Evidence of prior similar acts is discoverable under FED. R. EVID. 404(b) and 609. In addition, under FED. R. EVID. 404(b), "upon request of the accused, the prosecution . . . shall provide reasonable notice in advance of trial . . . of the general nature . . ." of any evidence the government proposes to introduce under FED. R. EVID. 404(b) at trial. Mr. Ortega-Rocha requests that notice be given at least three weeks before trial in order to give the defense time to adequately investigate and prepare for trial. (7) Evidence Seized. Evidence seized as a result of any search, either warrantless or with a warrant, is discoverable under FED. R. CRIM. P. 16(a)(1)(E).

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(8) Request for Preservation of Evidence. The defense specifically requests that all dispatch tapes or any other physical evidence that may be destroyed, lost, or otherwise put out of the possession, custody, or care of the government and which relate to the arrest or the events leading to the arrest in this case be preserved. This request includes, but is not limited to, all individuals discovered in the vehicle, the results of any fingerprint analysis, the defendant's personal effects, the vehicle, and any other evidence seized from the defendant or any third party. It is requested that the government be ordered to question all the agencies and individuals involved in the prosecution and investigation of this case to determine if such evidence exists, and if it does exist to inform those parties to preserve any such evidence. (9) Tangible Objects. The defense requests, under FED. R. CRIM. P. 16(a)(1)(E) the opportunity to inspect and copy as well as test, if necessary, all other documents and tangible objects, including photographs, books, papers, documents, photographs of buildings or places or copies of portions thereof which are material to the defense or intended for use in the government's case-in-chief or were obtained from or belong to the defendant. (10) Evidence of Bias or Motive to Lie. The defense requests any evidence that any prospective government witness is biased or prejudiced against the defendant, or has a motive to falsify or distort his or her testimony. Pennsylvania v. Ritchie, 480 U.S. 39 (1987); United States v. Strifler, 851 F.2d 1197 (9th Cir. 1988); Hayes v. Brown, 399 F.3d 972, 986 (9th Cir. 2005) (en banc) ("The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend."). Specifically, Mr. Ortega-Rocha requests copies of any conviction or deportation/removal documents relating to the material witnesses in this case. Mr. Ortega-Rocha also requests disclosure of any deals, promises, or policies regarding the prosecution of material witnesses and co-defendants. (11) Impeachment evidence. Mr. Ortega-Rocha requests any evidence that any prospective government witness has engaged in any criminal act whether or not resulting in a conviction and whether any witness has made a statement favorable to the defendant. See FED. R. EVID. 608, 609 and 613. Such evidence is discoverable under Brady v. Maryland, supra. See United States v.

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Strifler, 851 F.2d 1197 (9th Cir. 1988) (witness' prior record); Thomas v. United States, 343 F.2d 49 (9th Cir. 1965) (evidence that detracts from a witness' credibility). Specifically, Mr. OrtegaRocha requests copies of any conviction or deportation/removal documents relating to the material witnesses in this case. (12) Evidence of Criminal Investigation of Any Government Witness. The defense requests any evidence that any prospective witness is under investigation by federal, state or local authorities for any criminal conduct. United States v. Chitty, 760 F.2d 425 (2d Cir. 1985). (13) Evidence Affecting Perception, Recollection, Ability to Communicate. Mr. OrtegaRocha requests any evidence, including any medical or psychiatric report or evaluation, tending to show that any prospective witness's ability to perceive, remember, communicate, or tell the truth is impaired; and any evidence that a witness has ever used narcotics or other controlled substance, or has ever been an alcoholic. United States v. Strifler, 851 F.2d 1197 (9th Cir. 1988); Chavis v. North Carolina, 637 F.2d 213, 224 (4th Cir. 1980). (14) Witness Addresses. The defense requests the names and last known address of each prospective government witness. See United States v. Napue, 834 F.2d 1311 (7th Cir. 1987); United States v. Tucker, 716 F.2d 576 (9th Cir. 1983) (failure to interview government witnesses by counsel is ineffective); United States v. Cook, 608 F.2d 1175, 1181 (9th Cir. 1979)) (defense has equal right to talk to witnesses). The defendant also requests the names and last known address of every witness to the crime or crimes charged (or any of the overt acts committed in furtherance thereof) who will not be called as a government witness. United States v. Cadet, 727 F.2d 1453 (9th Cir. 1984). (15) Names of Witnesses Favorable to the Defendant. Mr. Ortega-Rocha requests the names of any witness who made any arguably favorable statement concerning the defendant or who could not identify him or who was unsure of his identity, or participation in the crime charged. Jackson v. Wainwright, 390 F.2d 288 (5th Cir. 1968); Chavis v. North Carolina, 637 F.2d 213, 223 (4th Cir. 1980); Jones v. Jago, 575 F.2d 1164, 1168 (6th Cir.), cert. denied, 439 U.S. 883 (1978); Hudson v. Blackburn, 601 F.2d 785 (5th Cir. 1979), cert. denied, 444 U.S. 1086 (1980). (16) Statements Relevant to the Defense. Mr. Ortega-Rocha requests disclosure of any statement that may be "relevant to any possible defense or contention" that he might assert. United

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States v. Bailleaux, 685 F.2d 1105 (9th Cir. 1982). (17) Jencks Act Material. The defense requests all material to which Mr. Ortega-Rocha is entitled pursuant to the Jencks Act, 18 U.S.C. § 3500, reasonably in advance of trial or deposition, including dispatch tapes. Advance production will avoid needless delays at pretrial hearings and at trial. This request includes any "rough" notes taken by the agents in this case; these notes must be produced pursuant to 18 U.S.C. § 3500(e)(1). Campbell v. United States, 373 U.S. 487, 490-92 (1963). This request also includes production of transcripts of the testimony of any witness before the grand jury. See 18 U.S.C. § 3500(e)(3). (18) Giglio Information. Pursuant to Giglio v. United States, 405 U.S. 150 (1972), the defendant requests all statements and/or promises, expressed or implied, made to any government witnesses, in exchange for their testimony in this case, and all other information which could arguably be used for the impeachment of any government witnesses. Any deal between the government and the government witnesses must be disclosed, even if the witness is unaware of the deal. See Hayes, 399 F.3d 972 (reversing conviction where secret deal between prosecutor and witness' attorney was not disclosed to the jury, even though witness himself was unaware of the deal). Mr. Ortega-Rocha respectfully requests disclosure of any deals, statements or promises (express or implied) made by the government regarding the material witnesses or codefendants in this case, as well as any government policies regarding the non-prosecution or non-deportation of material witnesses in general. (19) Reports of Scientific Tests or Examinations. Pursuant to FED. R. CRIM. P. 16(a)(1)(F), the defendant requests the reports of all tests and examinations conducted upon the evidence in this case. Including, but not limited to, any fingerprint testing done upon any evidence seized in this case, that is within the possession, custody, or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government, and which are material to the preparation of the defense or are intended for use by the government as evidence in chief at the trial. (20) Henthorn Material. The defense requests that the prosecutor review the personnel files of the officers involved in his arrest, and those who will testify, and produce to him any exculpatory

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information at least three weeks prior to trial and one week prior to the motion hearing. See United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991). In addition, he requests that if the government is uncertain whether certain information is to be turned over pursuant to this request, that it produce such information to the Court in advance of the trial and the motion hearing for an in camera inspection. (21) Informants and Cooperating Witnesses. Mr. Ortega-Rocha requests disclosure of the addresses of all informants or cooperating witnesses used or to be used in this case. The government must disclose the informant's identity and location, as well as disclose the existence of any other percipient witness unknown or unknowable to the defense. Roviaro v. United States, 353 U.S. 53, 61-62 (1957). Mr. Ortega-Rocha also requests disclosure of any information indicating bias on the part of any informant or cooperating witness. Giglio v. United States, 405 U.S. 150 (1972). Such information would include inducements, favors, payments, or threats made to the witness to secure cooperation with the authorities. (22) Expert Witnesses. The defendant requests disclosure of any expert witnesses the government intends to call at trial and "a written summary of testimony that the government intends to use," including the "witnesses' opinions, the bases and the reasons for those opinions" and his or her qualifications. FED. R. CRIM. P. 16(a)(1)(G). (23) Residual Request. The defense intends by this discovery motion to invoke his rights to discovery to the fullest extent possible under the Federal Rules of Criminal Procedure and the Constitution and laws of the United States. This request specifically includes all subsections of Rule 16. Mr. Ortega-Rocha requests that the Government provide him and his attorney with the above requested material sufficiently in advance of trial. III. MR. ORTEGA-ROCHA'S CASE SHOULD BE SEVERED FROM HIS CODEFENDANT'S TO AVOID UNFAIR PREJUDICE AT TRIAL A. Introduction Mr. Ortega-Rocha's rights to due process and a fair trial require that his trial be severed from the trial of his co-defendant.

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Rule 14(a) provides for the severance of defendants under certain conditions: [i]if the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant..., the court may order separate trials of counts, sever the defendant's trials, or provide any other relief that justice requires. Fed. R. Crim. P. 14 (2007). Although a motion for severance is addressed to the trial court's discretion, see, e.g., United States v. Seifert, 648 F.2d 557, 563 (9th Cir. 1980), the granting of such a severance is warranted when there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence. United States v. Mayfield, 189 F.3d 895, 899 (9th Cir. 1999) (quoting United States v. Zafiro, 560 U.S. 534, 539 (1993)); United States v. Tootick, 952 F.2d 1078, 1083 (9th Cir. 1991). B. The Trial of Mr. Ortega-Rocha Should be Severed Due to Prejudicial Joinder.

Rule 14 of the Federal Rules of Criminal Procedure requires severance or other relief whenever a defendant may be prejudiced by joinder of defendants in an indictment or by joinder for trial altogether. See United States v. Escalante, 637 F.2d 1197, 1201 (9th Cir. 1980); United States v. Lutz, 621 F.2d 940, 945 (9th Cir. 1980); United States v. Tousant, 619 F.2d 810, 813 (9th Cir. 1980). A decision to sever multiple co-defendants' cases remains within the trial court's discretion. See United States v. Doe, 655 F.2d 920, 926 (9th Cir. 1980); United States v. Seifert, 648 F.2d 557, 563 (9th Cir. 1980). To warrant the issuance of a severance, the defendant must demonstrate that a joint trial is "so manifestly prejudicial that it outweighs the dominant concern with judicial economy and compels the exercise of the court's discretion to sever." Doe, 655 F.2d at 926 (citations omitted). See also Zafiro, 506 U.S. at 539. A joint trial would greatly prejudice Mr. Ortega-Rocha for four reasons. First, Mr. OrtegaRocha and his co-defendant will offer irreconcilable, mutually exclusive defenses. Second, Mr. Ortega-Rocha will be denied access to the exculpatory testimony of co-defendant Mr. Minor-Olvera, who he would be able to call to testify at a separate trial. Third, Mr. Ortega-Rocha will be denied his Sixth Amendment rights of the Confrontation Clause and cross-examination. Finally, if tried together with the co-defendants, especially Mr. Munoz, the jury may wrongly find Mr. Ortega-Rocha guilty by association, impinging on Mr. Ortega-Rocha' Due Process Rights. Because of the

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foregoing reasons, Mr. Ortega-Rocha's case must be severed from that of his co-defendant. 1. Without Severance, the Defendants Will Offer Mutually Exclusive Defenses

Severance may be granted where the defendant "[shows] that the core of the codefendant's defense is so irreconcilable with the core of his own defense that the acceptance of the codefendant's theory by the jury precludes acquittal of the defendant." United States v. Throckmorton, 87 F.3d 1069, 1072 (9th Cir. 1996). The Ninth Circuit has recognized that "'[t]he prototypical example is a trial in which each of two defendants claims innocence, seeking to prove instead that the other committed the crime.'" United States v.Tootick, 952 F.2d 1078, 1081 (9th Cir. 1991) (citing United States v. Holcomb, 797 F.2d 1320, 1324 (5th Cir.1986)). Mutual exclusivity also may exist when "only one defendant accuses the other, and the other denies any involvement." Tootick, 952 F.2d at 1081 (citing United States v. Romanello, 726 F.2d 173, 177 (5th Cir. 1984)). See also United States v. Mayfield, 189 F.3d 895, 899-900 (9th Cir. 1999). For example, in Tootick, co-defendants Mr. Tootick and Mr. Frank each claimed that the other acted alone in stabbing Mr. Hart, the victim. Tootick, 952 F.2d at 1081. There was no dispute that all three men were present at the scene, and that Mr. Hart did not injure himself. Id. Mr. Frank testified that he watched in horror as Mr. Tootick stabbed Mr. Hart. Id. Mr. Tootick, who did not testify, presented a defense that he passed out or was asleep throughout the episode. Id. Thus, their defenses contradicted each other such that "the acquittal of one [necessitated] the conviction of the other." Id. The joint trial resulted in substantial prejudice to both defendants because their mutually exclusive defenses prevented the jury from determining the "guilt or innocence of each defendant on an individual and independent basis." Id. at 1082. The Ninth Circuit held that the district court abused its discretion in refusing to sever, and reversed both defendants' convictions. Here, severance of Mr. Ortega-Rocha's case from a joint trial is appropriate. Mr. OrtegaRocha was arrested at the same time and place as Mr. Minor-Olvera. While Mr. Ortega-Rocha was duped into driving the vehicle across the border by a clever Mr. Minor-Olvera, it is likely that Mr. Minor-Olvera will claim that he is innocent and Mr. Ortega-Rocha is responsible for the offense. It therefore appears that each defendant will present a defense that the other is the responsible party.

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Under these circumstances, severance of the cases is appropriate to ensure that the jury can assess the guilt or innocence of each defendant on an individual and independent basis. 2. Without Severance, Mr. Ortega-Rocha Will Have No Right to Call the Mr. Minor-Olvera To Testify

A joint trial precludes Mr. Ortega-Rocha from being able to elicit any favorable testimony from the co-defendant, Mr. Minor-Olvera. Mr. Ortega-Rocha would have no right to call the codefendant as a witness, and might cause that co-defendant to invoke his Fifth Amendment privilege in front of the jury. U.S. v. Vigil, 561 F.2d 1316, 1318 (9th Cir. 1977). At a separate trial, however, even if the co-defendant would not voluntarily testify, Mr. Ortega-Rocha has a constitutional right to call him as a witness. See Bruton v. United States, 391 U.S. 123, 126-27 (1968). To ensure the invocation of this right, severance must be granted. Severance to facilitate the testimony of a co-defendant is proper if the three- element test of Rule 14 is satisfied. Under the test, a defendant must show that (1) the defendant would call the co-defendant to the stand in the severed trial, (2) that the co-defendant would testify, and (3), that the testimony would be favorable to the severing party. United States v. Reese, 2 F.3d 870, 892 (9th Cir. 1993). If the current cases were severed, Mr. Ortega-Rocha could call his co-defendant to testify. If a co-defendant is called as a witness and refuses to answer questions based upon his Fifth Amendment privilege against self-incrimination, Mr. Ortega-Rocha can seek to compel that testimony by requesting immunity as to statements in court. At that time, Mr. Ortega-Rocha could seek an order requiring the government to grant use immunity to the co-defendant's testimony under 18 U.S.C. § 6003(b)(1). Such use of this statute is compelled by the Sixth Amendment's guarantee of compulsory process and by the Fifth Amendment's due process considerations of fairness. See United States v. Leonard, 494 F.2d 955, 985 n.79 (D.C. Cir. 1974) (Bazelon, J., concurring in part and dissenting in part). Even if statutory immunity is not appropriate, the Court can confer immunity independent of the prosecutor's statutory power because Mr. Ortega-Rocha would be "prevented from presenting exculpatory evidence which is crucial to his case" if the trial court did not confer immunity. Government of the Virgin Islands v. Smith, 615 F.2d 964, 969-70 (3d Cir. 1980). See United States

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v. Alessio, 528 F.2d 1079, 1082 (9th Cir. 1976). Mr. Ortega-Rocha' rights to compulsory process and to due process of law entitle him to a separate trial if Mr. Minor-Olvera refuses to testify at a joint trial. 3. Without Severance, Mr. Ortega-Rocha' Sixth Amendment Confrontation and Cross-Examination Rights Are Nullified.

The Sixth Amendment guarantees the accused the rights to confront and to cross-examine witnesses against him. Lilly v. Virginia, 527 U.S. 116, 123-24 (1999); Bruton v. United States, 391 U.S. 123, 126 (1968). When the government seeks to introduce an accomplice's hearsay statements against the accused, this Court must decide whether the Sixth Amendment permits the government to dispense with the accused's usual guarantee of confrontation and cross-examination. Lilly, 527 U.S. at 124. This Court has the power to sever Mr. Ortega-Rocha' trial, and thus preserve his rights of confrontation and cross-examination. U.S. Const. amend VI; Fed. R. Crim. P. 14. In Bruton v. United States, the Supreme Court held that the admission in a joint trial of a codefendant's confession, which implicated the defendant, violated the defendant's Sixth Amendment right to confront and cross-examine when the co-defendant whose statement was introduced did not testify. 391 U.S. at 126. The Supreme Court has repeatedly reaffirmed the validity of Bruton's Sixth Amendment analysis. See, e.g., Richardson v. Marsh, 481 U.S. 200, 201-02 (1987) (holding that a defendant has the right to move for severance when a co-defendant in a joint trial makes admissions that implicate the defendant and the prosecution seeks to use such admissions). Here, the government is likely to seek to introduce statements by the co-defendant that mention Mr. Ortega-Rocha. Any such statements made by the co-defendant are inadmissible prejudicial hearsay and cannot be admitted at a joint trial where Mr. Ortega-Rocha has no opportunity to cross-examine that statement. Admission of such a statement in a joint trial violates Mr. Ortega-Rocha's Sixth Amendment right to confront and cross-examine witnesses against him. The Supreme Court has stated several times that " 'the naive assumption that prejudicial effects can be overcome by instructions to the jury . . . all practicing lawyers know to be unmitigated fiction.' " Bruton, 391 U.S. at 129, quoting Krulewitch v. U.S., 336 U.S. 440, 453 (1949) (Jackson, J., concurring). The Court in Bruton held that instructing the jury to disregard the evidence was

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inadequate to remedy the significant prejudice inherent in such evidence. Id. at 135-36. The Court reaffirmed this principle in Cruz v. New York, 481 U.S. 186, 192-93 (1987), holding that an instruction to disregard such evidence is deficient when a co-defendant's confession, which directly incriminates the defendant, is admitted into evidence without the co-defendant being compelled to testify. For this reason, counsel requests severance in this case. 4. Without Severance, the Jury May Find Mr. Ortega-Rocha Guilty by Association, Impinging on Mr. Ortega-Rocha's Due Process Rights.

It is important to note that "[n]either mere association and activity with a co-conspirator nor even knowledge of the conspiracy's existence . . . meets the standards [required] to link a defendant to the conspiracy charge." United States v. Peterson, 549 F.2d 654, 658 (9th Cir. 1977). "Mere association and activity with a co-conspirator does not meet the test." United States v. Basurto, 497 F.2d 781, 793 (9th Cir. 1974) (citation omitted). A jury ordinarily experiences great difficulty in following admonishing instructions and in keeping separate evidence that is relevant only to co-defendants. In most cases, [a] co-defendant in a conspiracy trial occupies an uneasy seat. There generally will be evidence of wrongdoing by somebody. It is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together. Krulewitch v. United States, 336 U.S. 440, 454 (1949) (Jackson, J., Concurring). If a jury cannot compartmentalize the evidence that pertains to each defendant, the trial court runs the risk of allowing a conviction based upon a defendant's association with incriminating evidence alone. The jury cannot reasonably be expected to compartmentalize the evidence as it relates to Mr. Ortega-Rocha alone. Cf. United States v. DeRosa, 670 F.2d 889, 898-99 (9th Cir. 1982) (noting that highly limited implicit connections between co-defendants may allow the jury to "easily compartmentalize the evidence"). In this case, there is a considerable amount of evidence that implicates Mr. Minor-Olvera as being responsible for the crime charged. Most of this evidence would probably be admissible against Mr. Minor-Olvera in his separate trial. However, in a separate trial of Mr. Ortega-Rocha, a jury would not be permitted to hear the prejudicial evidence pointing towards Mr. Minor-Olvera's guilt. Since Mr. Ortega-Rocha will likely be prejudiced by evidence

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admissible only against his co-defendants, his rights can only be protected by severance of the two defendants. IV. THIS COURT SHOULD SUPPRESS EVIDENCE SEIZED IN VIOLATION OF THE FOURTH AMENDMENT. The Fourth Amendment's prohibition of unreasonable searches and seizures extends to seizures of the person and brief investigatory stops of vehicles. See United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975). An officer may not detain a motorist without "a particularized and objective bases for suspecting the particular person stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417-418 (1981). This "objective basis, or `reasonable suspicion' must consist of `specific, articulable facts which, together with objective and reasonable inferences, form the basis for suspecting that the particular person detained is engaged in criminal activity.'" United States v. Garcia-Camacho, 53 F.3d 244, 246 (9th Cir. 1995) (citations omitted); accord United States v. Sigmond-Ballesteros, 285 F.3d 1117, 1120 (9th Cir. 2002) (finding that district court erred in finding that vehicle stop was unconstitutional). In the instant case, the arresting officer did not have reasonable suspicion to stop Mr. OrtegaRocha and question him about smuggling activities. The arresting agent's alleged justification for the stop of the car rests almost entirely on observing the vehicle make a U-turn on Highway 80 and seeing an unidentified person running outdoors. Neither this nor any other supposed

justification­including the alleged traffic violations­ made by the arresting agent support the stop of the vehicle Mr. Ortega-Rocha was driving. Because the agents did not have reasonable suspicion to believe that he committed any offense, Mr. Ortega-Rocha's detention was unconstitutional. Moreover, even if the government can prove that the initial detention of Mr. Ortega-Rocha was justified on the grounds of some alleged reasonable suspicion that a violation had occurred, the agents violated the Fourth Amendment warrant requirement when they searched the trunk of the vehicle Mr. Ortega-Rocha was driving without his consent. "The government must prove the existence of an exception to the Fourth Amendment Warrant Requirement by a preponderance of the evidence." United States v. Vasey, 834 F.2d 782, 785 (9th Cir. 1987). Although an officer may

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inspect the passenger compartment of a vehicle as a search incident to a defendant's arrest, see New York v. Belton, 453 U.S. 454, 460 (1981), such exception does not extend to the trunk of a vehicle. See, e.g., United States v. Mayo, 394 F.3d 1271, 1277 n.12 (9th Cir. 2005) ("As in Belton, our ruling does not extend to the trunk of a vehicle.). As Mr. Ortega-Rocha did not consent to the agents searching the trunk of the vehicle, the search conducted by agents violated the Fourth Amendment. As a consequence, all evidence and the fruits of the unconstitutional detention and search (e.g., statements, all evidence) must be suppressed. See Wong Sun v. United States, 371 U.S. 471 (1963); see also United States v. Romero-Bustamente, 337 F.3d 1104 (9th Cir. 2003) (finding Fourth Amendment violation, suppressing alien material witnesses, and requiring dismissal of indictment). This Court should accordingly grant the motion. V. MOTION TO DISMISS THE INDICTMENT DUE TO MISINSTRUCTION OF THE GRAND JURY Mr. Ortega-Rocha recognizes that his argument below has been rejected by an en banc court of the Ninth Circuit. See United States v. Navarro-Vargas, 408 F.3d 1184 (9th Cir. 2005) (en banc), cert. denied, Navarro-Vargas v. United States, 126 S. Ct. 736 (2005). Mr. Ortega-Rocha nonetheless raises it to preserve the issue. Mr. Ortega-Rocha moves to dismiss the Indictment due to misinstruction of the Grand Jury. Mr. Ortega-Rocha's arguments are essentially those set out in Judge Hawkins' dissent in United States v. Marcucci, 299 F.3d 1156 (9th Cir. 2002), cert. denied, 1538 U.S. 934 (2003), Judge Kozinski's dissent in United States v. Navarro-Vargas, 367 F.3d 896 (9th Cir. 2004), opinion vacated by United States v. Navarro-Vargas, 367 F.3d 920 (9th Cir. 2004), and Judge Hawkins' dissent in United States v. Navarro-Vargas, 408 F.3d 1184 (9th Cir. 2005) (en banc). Ms. OrtegaRocha incorporates those arguments by reference. However, if the Court would like further briefing on this issue, Mr. Ortega-Rocha is willing to provide it. // // //

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Dated: December 27, 2007

VI. LEAVE TO FILE FURTHER MOTIONS Mr. Ortega-Rocha and defense counsel have received only limited discovery in this case. As new information surfaces ­ via further discovery provided by government, defense investigation, or an order of this court ­ the defense may need to file further motions, or to supplement existing motions. For this reason, defense counsel requests leave to file further motions. VII. CONCLUSION For the reasons stated, Mr. Ortega-Rocha requests that this Court grant his motions.

Respectfully submitted, /s/ Joseph M. McMullen JOSEPH M. McMULLEN Federal Defenders of San Diego, Inc. Attorneys for Mr. Ortega-Rocha

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Dated: December 27, 2007 /s/ Joseph McMullen JOSEPH McMULLEN Federal Defenders of San Diego, Inc. 225 Broadway, Suite 900 San Diego, CA 92101-5030 (619) 234-8467 (tel) (619) 687-2666 (fax) e-mail: [email protected] CERTIFICATE OF SERVICE Counsel for Defendant certifies that the foregoing pleading is true and accurate to the best of his information and belief, and that a copy of the foregoing document has been served this day upon: Christopher M. Alexander [email protected]; [email protected]

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