Free Notice (Other) - District Court of California - California

Case 3:07-cr-03021-WQH

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KAREN P. HEWITT United States Attorney CHRISTOPHER P. TENORIO Assistant U.S. Attorney California State Bar No. 166022 880 Front Street, Suite 6293 San Diego, California 92101-8893 Telephone: (619) 557-7843 [email protected] Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, v. PEDRO CRUZ-TERCERO, Defendant. ) ) ) ) ) ) ) ) ) ) ) Criminal Case No. DATE: TIME: 07CR3021-WQH

March 18, 2008 2:00 p.m.

GOVERNMENT'S NOTICE OF PROPOSED EXPERT TESTIMONY TOGETHER WITH MEMORANDUM OF POINTS AND AUTHORITIES

COMES NOW the plaintiff, UNITED STATES OF AMERICA, by and through its counsel, Karen P. Hewitt, United States Attorney, and Christopher P. Tenorio, Assistant United States Attorney, and hereby provides its notice of expert testimony. Said notice is based upon the files and

records of the case, together with the attached Memorandum of Points and Authorities. // // // // // // //

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I. INTRODUCTION The Government herein provides notice of its intent to present expert testimony in the trial of Defendant Pedro Cruz-Tercero. The

Government incorporates by reference the Statement of Facts from its previous response in opposition to Defendant's motions, filed on February 4, 2008. II. THE COURT SHOULD ADMIT EXPERT TESTIMONY FINGERPRINT EXPERT

The Government hereby gives notice of its intent to offer testimony of a fingerprint expert, Latent Print Examiner David Beers, to identify Defendant as the individual who was previously deported under the same name. If specialized knowledge will assist the trier-of-fact in

understanding the evidence or determining a fact in issue, a qualified expert witness may provide opinion testimony on the issue in question. See Fed. R. Evid. 702. Determining whether expert testimony would

assist the trier-of-fact in understanding the facts at issue is within the sound discretion of the trial judge. See United States v. Alonso, 48 F.3d 1536, 1539 (9th Cir. 1995); United States v. Lennick, 18 F.3d 814, 821 (9th Cir. 1994). An expert's opinion may be based on hearsay or facts not in evidence where the facts or data relied upon are of the type reasonably relied upon by experts in the field. See Fed. R. Evid. 703. In addition, an expert may provide opinion testimony even

if the testimony embraces an ultimate issue to be decided by the trier-of-fact. Here, See Fed. R. Evid. 704. comparisons between Defendant and the

fingerprint

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individual deported on the documents in the A-File is necessary to prove identity and the prior deportation. Fingerprint comparisons are widely accepted and thus no Daubert hearing is necessary. States v. Sherwood, 98 F.3d 402, 408 (9th Cir. 1996). United

Any question

regarding the validity of the fingerprint comparison should be left to the jury. See Kennedy v. Collagen Corporation, 161 F.3d 1226,

1230-31 (9th Cir. 1998) (noting that faults in an expert's use of a specific methodology go to the weight, not admissibility of the testimony). The Government, therefore, respectfully requests that

this Court permit the testimony of its fingerprint expert. B. A-FILE CUSTODIAN

The Government also intends to present testimony from A-File Custodian, Senior Patrol Agent Victor Vega, regarding Defendant's Afile and the context and meaning to documents contained therein. The

custodian will seek to testify about standard record keeping and administrative procedures of Immigration authorities. Further, the

Government will present the custodian's testimony regarding the standardized procedures employed in immigration proceedings and

immigration record keeping. The custodian will have direct experience and knowledge of these procedures. See United States v. Loyola-

Dominguez, 125 F.3d 1315, 1317 (9th Cir. 1997) (agent "served as the conduit through which the government introduced documents from INS' Alien Registry File".) The Government, therefore, respectfully

requests that this Court permit the testimony of its A-file Custodian. // // // //

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III. CONCLUSION Based on the foregoing, the Court should admit the Government's proffered expert testimony. DATED: March 5, 2008 Respectfully submitted, KAREN P. HEWITT United States Attorney CHRISTOPHER P. TENORIO Assistant U.S. Attorney

s/ Christopher P. Tenorio

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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 IT IS HEREBY CERTIFIED that: I, CHRISTOPHER P. TENORIO, am a citizen of the United States and am at least eighteen years of age. My business address is 880 Front v. PEDRO CRUZ-TERCERO, Defendant. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, ) ) ) ) ) ) ) ) ) ) Criminal Case No. 07CR3021-WQH

CERTIFICATE OF SERVICE

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 NOTICE OF EXPERT WITNESSES on the following party by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically notifies them: Christian De Olivas, Esq. I declare under penalty of perjury that the foregoing is true and correct. Executed on March 5, 2008 Respectfully submitted, KAREN P. HEWITT United States Attorney CHRISTOPHER P. TENORIO Assistant U.S. Attorney

s/Christopher P. Tenorio

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