Free Motion for Reciprocal Discovery - District Court of California - California

Case 3:07-cr-03057-WQH

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KAREN P. HEWITT United States Attorney STEVE MILLER Assistant U.S. Attorney California State Bar No. 138020 United States Courthouse 940 Front Street, Room 5152 San Diego, California 92189-0150 Telephone: (619) 557-5432 email: [email protected] Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, v. JOSE LEONEL MAGANA, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Criminal Case No. 07cr3057-WQH DATE: January 4, 2008 TIME: 9:30 a.m. GOVERNMENT'S RESPONSE AND OPPOSITION TO DEFENDANTS' MOTIONS TO: (1) (2) COMPEL DISCOVERY FILE FURTHER MOTIONS

TOGETHER WITH STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES AND GOVERNMENT'S MOTIONS FOR RECIPROCAL DISCOVERY

COMES NOW the plaintiff, UNITED STATES OF AMERICA, by and through its counsel, Karen P. Hewitt, United States Attorney, and Steve Miller, Assistant United States Attorney, and hereby files its

response and opposition to defendants' above-referenced motions. Said response is based upon the files and records of this case, together with the attached statement of facts, memorandum of points and authorities. // // //

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I STATEMENT OF FACTS On October 8, 2007, at approximately 6:15 a.m., defendant JOSE LEONEL MAGANA drove a red Ford F-150 truck to the San Ysidro Port of Entry. At the primary inspection area, defendant told the inspector

that he was a U.S. citizen and presented a California Driver's License. Defendant's hand shook as he handed over the license. The

inspector asked defendant if he was brining anything back from Mexico and he said "nothing." The inspector noticed that defendant kept Defendant told the

eating a burrito each time he asked a question.

inspector that he owned the truck for two months and that he was going to work at Otay. The inspector asked defendant to turn off the truck

and hand the keys over. Defendant's hands shook when he gave the keys to the inspector. Defendant said that there had been mechanical and The inspector

body work done on the truck since he bought it. referred the truck to secondary inspection.

In the secondary inspection area, an x-ray of the truck showed discrepancies in the tires. When the tires were removed, the

inspector recovered 5 packages of marijuana from each of defendant's tires. The twenty packages had a total weight of 50.65 kilograms.

Defendant was advised of his Miranda rights and agreed to make a statement. Defendant told the agents that he was recruited by a man named Juan de Dios to drive a vehicle loaded with drugs into the United States for $500. He was to drop the truck off at a parking lot next to the Pay Less Shoe Store and Church's Chicken Restaurant in San Ysidro. Defendant agreed to smuggle the drugs for de Dios on October

6 and picked up the truck on October 8 from a parking lot in Tijuana. Once defendant dropped the truck off, he was to return to Mexico and

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wait for a phone call; the call would instruct defendant to return to the United States and drive the truck back to Mexico. When defendant

picked up the truck, the $500 payment would be in the truck. Registration documents in the truck listed defendant as the owner of the truck since September 12, 2007. A records check also revealed

that defendant was convicted of importation of 40.26 kilograms of marijuana in 2005. Defendant was a passenger in that case, was

sentenced to 6 months custody and is currently facing a revocation of his supervised release. Defendant was also arrested in 2002 driving

a truck loaded with 57.76 kilograms of marijuana in the bed liner of the truck. That case was declined. Among defendant's personal

effects was a card with a picture of Jesus Malverde, the folk hero who is considered the patron saint of drug smuggling. II POINTS AND AUTHORITIES A. THE GOVERNMENT HAS AND WILL CONTINUE TO COMPLY WITH RULE 16 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE

The Government has provided numerous pages of voluntary discovery as well as a video disk of his statement to the agents. The

Government will continue to provide voluntary discovery when it becomes available and will comply with Rule 16 and its obligations under Brady v. Maryland, 373 U.S. 83 (1963), and 18 U.S.C. § 3500. The Government gives specific notice of its intent to offer evidence of other acts under Rule 404(b). By this notice, the

Government reserves the right to offer any evidence, of any act, that was performed by the defendants, that is referenced in any of the discovery. These acts include, but are not limited to, both of

defendant's prior arrests for smuggling marijuana into the United

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States and facts related defendants' registration and purchase of the truck. The acts also include, but are not limited to events that only become relevant once defendants' theory of the case is revealed. B. ANY LEAVE FOR DEFENDANT TO FILE FURTHER MOTIONS SHOULD BE STRICTLY LIMITED

While the government recognizes this court's discretion to permit 6 defendant 7 defendant's motion to the extent it is conjectural, overly broad and 8 invites abuse. 9 the time they are filed, permitting both the Government to oppose on 10 a motion-by-motion basis and this court to determine if such motions 11 could in fact have been filed earlier. 12 an interminable and protracted motion practice, resulting in delay of 13 trial. 14 C. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 The THE GOVERNMENT'S MOTION FOR RECIPROCAL DISCOVERY SHOULD BE GRANTED 1. Rule 16(b) has invoked Federal Rule of Criminal Any other course would invite Any need for further motions should be justified at to file further motions, the Government does oppose

defendant

Procedure 16(a) in his motion for discovery.

In addition, the

Government voluntarily will comply with the requirements of Federal Rule of Criminal Procedure 16(a). rule are operable as to defendant. The Government, pursuant to Rule 16(b), hereby requests the defendant to permit the Government to inspect, copy, and photograph any and all books, papers, documents, photographs, tangible objects, or make copies of portions thereof, which are within the possession, custody or control of defendant and which he intends to introduce as evidence in his case in chief at trial. Thus, the 16(b) provision of that

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The Government further requests that it be permitted to inspect and copy or photograph any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with this case, which are in the possession or control of the defendant, which he intends to introduce as evidence in chief at the trial or which were prepared by a witness whom the defendant intends to call as a witness. The Government also requests that the Court

make such orders as it deems necessary under Rule 16(d)(1) and (2) to ensure that the Government receives the discovery to which it is entitled. 2. Rule 26.2

Federal Rule of Criminal Procedure 26.2 requires the production of prior statements of all witnesses except the defendant. The Rule As

thus provides for the reciprocal production of Jencks statements. stated in pertinent part: After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney . . . to produce, for the examination and use of the moving party, any statement of the witness that is in their possession . . . . Fed. R. Crim. P. 26.2(a).

The time frame established by the Rule requires the statement to be provided after the witness has testified, as in the Jencks Act. Therefore, the Government hereby requests that defendant be ordered to supply all prior statements of defense witnesses by a reasonable date before trial to be set by the court. This order should include

any form these statements are memorialized in including, but not limited to, tape recordings, handwritten or typed notes and reports.

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III CONCLUSION For the foregoing reasons, the Government respectfully requests that defendant's motions be denied and the Government motions be granted. DATED: December 26, 2007 Respectfully submitted, KAREN P. HEWITT United States Attorney s/Steve Miller

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 by v. JOSE LEONEL MAGANA, Defendant.

UNITED STATES OF AMERICA SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, ) ) ) ) ) ) ) ) ) ) Criminal Case No. 07cr3057-WQH CERTIFICATE OF SERVICE

IT IS HEREBY CERTIFIED THAT: I, Steve Miller, am a Citizen of the United States over the age of eighteen years and a resident of San Diego county, California. My

business address is 880 Front Street, San Diego, California 921018893. I am not a party to the above-entitled action. I have caused

service of the Government's Response and Opposition to Defendant's Motions on the following parties by electronically filing the

foregoing with the Clerk of the District Court using its ECF system, which electronically notifies them. 1. Gary Burcham; [email protected] I hereby certify that I have caused to be mailed the foregoing, the United States Postal Service, to the following non-EFC

participants on this case n/a 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 26, 2007. s/Steve Miller STEVE MILLER

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