Free Response in Opposition - 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 17, 2008 2:00 p.m.

GOVERNMENT'S RESPONSE IN OPPOSITION TO DEFENDANT'S MOTIONS IN LIMINE TO: DISALLOW 609 EVIDENCE REGARDING OTHER CRIMES; 2) ALLOW REFERENCE TO PUNISHMENT ENHANCEMENT; 3) ALLOW U.S. BORDER PATROL AGENTS TO TESTIFY AT TRIAL; AND DEFENDANT'S MOTIONS; 1) SUPPRESS STATEMENTS DUE TO VIOLATION OF MIRANDA; AND, 2) SUPPRESS STATEMENTS DUE TO INVALID WAIVER; TOGETHER WITH MEMORANDUM OF POINTS AND AUTHORITIES 1)

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 files its response in opposition to Defendant's above-referenced motions. Said response is based upon the files and records of the case, together with the attached Memorandum of Points and Authorities. //

Case 3:07-cr-03021-WQH

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I. INTRODUCTION Defendant Pedro Cruz-Tercero has filed both motions in limine and substantive motions. The Government incorporates by reference the

Statement of Facts from its previous response in opposition to Defendant's motions, filed on February 4, 2008. As addressed below,

the Government also incorporates by reference its previously-filed opposition to Defendant's motions. II. POINTS AND AUTHORITIES THE GOVERNMENT WILL NOT SEEK TO ADMIT EVIDENCE PURSUANT TO RULE 609

Defendant requests notice whether the Government intends to present evidence pursuant to Federal Rule of Evidence 609. The

Government does not intend to present any evidence pursuant to either Rule 609 or 404(b). B. EVIDENCE OF SENTENCING ENHANCEMENT NEED NOT BE PROVEN

Defendant argues that the Government must prove the fact of his prior felony conviction which may result in a sentencing enhancement. The Government responded to the argument in its opposition to

Defendant's previous motion to dismiss the indictment for failure to allege essential elements. As the Government argued, Defendant's

argument has been rejected in United States v. Covian-Sandoval, 462 F.3d 1090 (9th Cir. 2006), cert. denied, 127 S. Ct. 1866 (2007). C. THE GOVERNMENT WILL PRESENT BORDER PATROL WITNESSES

Defendant asserts that the agents who encountered him, "must be brought to this Court" to see if they violated any of Defendant's Constitutional rights. Although Defendant provides insufficient

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justification for his argument, opposition is academic because the Government intends to call as witnesses at trial Border Patrol Agents Jason Wardlow and Daniel Alvarado. D. DEFENDANT'S STATEMENTS AND IDENTITY NEED NOT BE SUPPRESSED, AND NO HEARING IS NECESSARY

The Government incorporates by reference its previous response to Defendant's motions to suppress statements, filed on February 4, 2008 (Document 13). On that date, this court instructed the The

Government to provide a copy of Defendant's video statement. Government will comply with the court's instruction.

The Government

will also translate and transcribe the advisal and waiver, and will provide copies of the same to the court and Defendant in advance of the motion hearing. E. DEFENDANT VOLUNTARILY WAIVED HIS FIFTH AMENDMENT RIGHTS

As stated above, the Government incorporates by reference its previous response in opposition to Defendant's motion to suppress statements. III. CONCLUSION Based motions. DATED: March 5, 2008 Respectfully submitted, KAREN P. HEWITT United States Attorney CHRISTOPHER P. TENORIO Assistant U.S. Attorney on the foregoing, the Court should deny Defendant's

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 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

Front Street, Room 6293, San Diego, California 92101-8893. I am not a party to the above-entitled action. I have caused

service of GOVERNMENT'S RESPONSE AND OPPOSITION TO DEFENDANT'S MOTIONS 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

07CR3021-WQH