Free Response - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona SHARON K. SEXTON Assistant U.S. Attorney Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Arizona State Bar No. 012359 [email protected] Telephone (602) 514-7500

UNITED STATES DISTRICT COURT
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DISTRICT OF ARIZONA
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United States of America, Plaintiff, v. Eric Miguel, Defendant. CR-04-1289-PHX-EHC RESPONSE TO NEW ALLEGATIONS MADE IN REPLY TO MOTION TO DISMISS INDICTMENT DUE TO ALLEGED MISCONDUCT OCCURRING BEFORE THE GRAND JURY

The defendant filed a document entitled "Reply to Government's Response to Motion to Dismiss Indictment Due to Alleged Misconduct Occurring Before the Grand Jury." In this document, which is supposed to be a "reply" to the government's response, the defendant has raised new arguments and cited new caselaw and requested additional relief, including his recent request for a dismissal with prejudice. While the government believes that the defendant's arguments in his motion and his reply should be deemed moot due to a new indictment having been filed, the government is responding to the new allegations contained in the defendant's motion. Of significance in the defendant's reply is his continuing and disturbing pattern of making unsupported or inaccurate characterizations of prior statements as well as his continuing failure to retract false allegations that have been previously filed. In fact, the defense attorney not only made false assertions in his previous motion (Arguments 7 and 8), but he also aided another lawyer in making those false allegations in a totally unrelated child homicide case, apparently without advising the defense attorney in that case of the mistakes contained within his original

Case 2:04-cr-01289-EHC

Document 70

Filed 09/08/2005

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motion. (See Attachment A, pages 5 and 6).1 The government believes that such conduct can be most charitably described as "careless," but requests that the court proceed with caution when reviewing the defendant's recitation of "facts." One would have hoped that accusations concerning the integrity of a fellow professional would have been more carefully scrutinized and verified before being asserted in a public setting. Unfortunately, again, with similar

"carelessness," the defense attorney has made additional unfounded "factual assertions" about this case in his "reply." Finally, as seen below, the defense attorney has also carelessly misrepresented the holding of one case in his motion, and thus, even his legal arguments must be closely scrutinized. The Defendant has generally mischaracterized the evidence in this case In the "law" section of the defendant's reply, the defendant argues that the defendant "never admitted to shaking his daughter." This is simply false. While the defendant did not use the word "shaking" or "shook," the defendant clearly communicated that he shook the child by his own demonstration. The defendant demonstrated how he shook his child during the December 6, 2005 interview and the defendant demonstrated how he shook the child in the December 7, 2005 interview. Anyone watching the videotape (except apparently the defense attorney) can see that the defendant demonstrated how he held the child and moved her in an up and down motion. Thus, the defense attorney's continued assertion that the defendant did not admit to shaking the child is simply false and is not supported by the evidence in this case. At section 1 of the defendant's reply, the defendant makes the absurdly factually
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The only statement that the defense attorney made regarding this issue is found in his reply: "Regarding the issue of a demonstration with a stuffed animal. The government is 23 correct, during the December 7, 2004 interrogation, a stuffed animal was used to demonstrate how he held his daughter. However, the defendant did not violently shake the doll in an up and 24 down motion as testified to by SA Fuller."
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Again, even though the videotape clearly depicts the defendant moving the child in an up and down shaking motion, the defense attorney does not concede that in his reply. He simply 26 tries to diffuse the demonstration by arguing that the shaking was not "violent." "Crime of violence' is defined in 18 U.S.C. § 16 as "an offense that has as an element the 27 use, attempted use, or threatened use of physical force against the person or property of another." 28 The conduct demonstrated by the defendant against his child clearly involved the use of physical force, and thus, violence.
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inaccurate statement "the only time the defendant remotely admits to anything that could be considered criminal conduct is when he is lied to regarding the findings of the medical examiner." In fact, the defendant admitted to all of the criminal conduct set forth below: 1.) Grabbing the 5-month-old and squeezing her out of anger: IT 2, 9, 10, 11, 12, 50, 51, 52, 53. 2.) Choking the 5-month-old child: IT 52, 53.

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3.) Throwing the 5-month-old child down hard, causing her to scream more: IT 5, 6.
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4.) Moving the 5-month-old child up and down (in a shaking motion): December 6 interview and December 7 IT 51, 52, 53, 55. 5.) Squeezing the 5-month-old child, in the defendant's own words "real hard." IT 9, 11, 50, 512 6.) Leaving the 5 month old child to die for approximately 3 hours even though he knew he had abused the child and she was dying: IT 15, 22, 23, 41 42, 43, 44, 45, 56, 57.3 In fact, while the defense wants this court to believe the defendant made no criminal admissions, the defendant repeatedly demonstrated how he squeezed and shook the child in the December 6 and December 7 interviews. It was the defendant who first suggested that he "shouldn't have did that" without any leading from the agents. (IT 2.) It was the defendant who first used the word "grabbed" when he admitted that he "shouldn't have grabbed her like that." (IT 2.) It was the defendant who first used the word "threw." (IT 4.)4 It was the defendant who first told the agents that the child was "screaming her head off." (IT 7.) It was the defendant who first used the word "squeezed" when he described his handling of the baby. (IT 9.) It was the defendant who admitted that he "squeezed" the baby because he got mad and she would not stop crying. (IT 11.) The defendant
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The defendant used the word "squeezed" when describing his own conduct at least four times during the December 7, 2004 interview. IT 9, 11, 50, 51.
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Such admissions include the defendant's affirmative responses to all of these questions: "Is it that her eyes were kinda open but they weren't moving?" "It was a blank stare?" and "You think that [Jane Doe] was dead at 10:00?" IT 42, 45. Further, the defendant compared the 27 baby's appearance to that of his dead grandfather.
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This is at IT 4, line 16, which is reported as "indiscernible" and can be actually heard as "threw." Agent Fuller then uses the defendant's word and asks, "Threw her down?" and the defendant repeats, "Threw her down" but tried to minimize "not real hard."
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admitted that he was "high" on his "anger scale" and he never treated his baby like this before. (IT 22, 34.) When asked, "do you think it was your fault?' the defendant responded "Yeah, I do believe it was" and repeated "cause I shouldn't have did this." (IT 57, 58.) When asked what the child would say as to the cause of her death, the defendant replied "My daddy did it." (IT 59.) Given the wealth of these admissions regarding the abuse of his child, it is absurd to argue that the defendant didn't "remotely admit to anything that could be considered criminal conduct." and the defense attorney's motion should be carefully scrutinized. Further arguments as to specific portions of the interview are set forth below in the same format that was presented by the defendant in his reply. ALLEGATION NUMBER 1: ...And pretty much the first thing out of his mouth was that I knew what I did was wrong and I shouldn't have done it. (GJT 12.) Agent Fuller did not tell the Grand Jury that his testimony concerned the exact quotes of

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the defendant. In fact, Agent Fuller provided a summary and paraphrasing of the defendant's
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statements. The defendant does not cite to any case law that requires an agent to present exact
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quotes to the grand jury, but argues that the failure to do so is somehow prejudicial to the
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defendant. In this example, Agent Fuller prefaced his testimony with "pretty much the first thing
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out of his mouth was..." The qualifying words "pretty much" advised the grand jury that this
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was a "summary" of the defendant's reaction and the defendant's interview. This summary is
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consistent with the defendant's December 7, 2004 statement:
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Interviewer #1:
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What have you been thinkin' about? That I shouldn't have did that...

Defendant:
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...
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Defendant:
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Shouldn't have grabbed her like that.

(IT 2, lines 5-13.)5 Defendant: No, I just picked her up then, I kind of like, she wouldn't stop cryin'

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IT means "Interview Transcript" and refers to the transcript of the December 7, 2004 interview. GJT means "Grand Jury Transcript."
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and I tried to give her a bottle when she was laying down, but she didn't want it, and I picked her up and I kind of squeezed her. (IT 9, lines 8-11.)

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While the defense attorney may characterize this exchange in a different manner, at the
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beginning of the interview the defendant was admitting that he shouldn't have handled his child
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in an abusive fashion. He was expressing that he was feeling bad about what he did and this
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clearly showed that the defendant knew what he did was wrong. That is, the defendant would
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not be saying "I shouldn't have did that" if he wasn't feeling guilt for wrongful conduct.
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ALLEGATION NUMBER 2: ...He says that he changed her diaper and he says it was messy, a really messy diaper so he was even more frustrated with that. (GJT 12.) As noted in the defendant's reply, the defendant admitted that he was sleepy and upset because the victim's grandmother left the victim laying with a messy diaper, the contents of which were coming out of the sides. Thus, Agent Fuller's testimony fairly summarized the defendant's statement.

ALLEGATION NUMBER 3: ...This time he says I dropped her into the car seat and she wasn't crying anymore. And he says, and the first time he says I didn't know that anything 15 happened to her. Well, in the second interview, he says I know that at that point I had probably killed her. (GJT 13-14.)
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This testimony is supported by statements from the following pages of the December 7,
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transcript: IT 15, 22, 23, 41 42, 43, 44, 45, 56, 57. Such admissions include the defendant's
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affirmative responses to all of these questions: "Is it that her eyes were kinda open but they
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weren't moving?" "It was a blank stare?" and "You think that [Jane Doe] was dead at 10:00?"
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IT 42, 45. Further, the defendant compared the baby's appearance to that of his dead
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grandfather. Combined with the defendant's admissions that the child's death was his fault, this
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is a fair summary of the defendant's statement.
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ALLEGATION NUMBER 4: ...And in the second interview he says, you know eyes were slightly open he says, but I knew she was dead. I mean that was his response for her death, sometimes people die the eyes kind of remain open. (GJT 15.) The defendant here tries to argue what Agent Fuller was implying. The defense attorney

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does not know what Agent Fuller was implying and does not know how the grand jury
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interpreted this statement. This statement was based in the factual assertions made by the
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defendant, including his comparison of the child's appearance to his dead grandfather. (IT 15, 22, 23, 41, 42, 43, 44, 45, 56, 57.)

ALLEGATION NUMBER 5: Q. And is it fair to say that medical examiner gave a preassessment that this was a non- this was a nonaccidental death? 4 A. Yes, because based on the bruising of the forehead he says, said it was blunt force. (GJT 17.)
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This is information that was provided to Agent Fuller prior to his testimony. While the
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written report of the autopsy was pending, the medical examiner gave a preliminary oral finding
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to Agent Fuller. This preliminary oral finding is consistent with the medical examiner's final
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report which indicates that the child died as a result of blunt force head injuries.
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ALLEGATION NUMBER 6:...We did. As a matter of fact, all the family members I spoke with, it was a specific question, did she ever have any type of sickness or anything like that that could cause it and the answer was no. (GJT 17.) Agent Fuller accurately testified that there was no information from family members

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regarding a pre-existing medical condition of this child that would have resulted in her death on
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December 6, 2004.
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LAW:
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The defendant cites Bank of Nova Scotia, 487 U.S. 250 (1988). In that case, the court
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held that as a general matter, a district court may not dismiss an indictment for errors in grand
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jury proceedings unless such error prejudiced the defendants. Id. at 254. In that case, the
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Supreme Court noted that dismissal was not appropriate even though the government had
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engaged in various forms of grand jury misconduct.
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The defendant also cites United States v. Haynes, 216 F.3d 789 (9th Cir. 2000). In that case, the Ninth Circuit found that a dismissal of an indictment was not required even though the

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prosecution engaged in various forms of misconduct before the grand jury. The Ninth Circuit
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noted that even if the government introduced perjured and inflammatory testimony, any such
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error was harmless and dismissal was not required.
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Finally, the defendant cited United States v. Fields, 592 F.2d 638 (2nd Cir. 1978) for the premise that "where the evidence used before the grand jury is irrevocably tainted a dismissal

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with prejudice is appropriate." Fields does not stand for this premise or use the words that the
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defendant has cited to the court. In fact, nowhere in the Fields opinion do the words "irrevocably", "tainted" or "dismiss with prejudice" appear. Fields is a case that involves a motion to dismiss a securities fraud indictment due to the action of the Securities and Exchange Commission regional office misconduct. The case did not address abuses before the grand jury. Finally, the Second Circuit in this case found that a dismissal of the case was not an appropriate remedy. For all these reasons, including the fact that the defendant's motion is legally and factually erroneous, the defendant's motion should be denied. Respectfully submitted this 8th day of September, 2005. PAUL K. CHARLTON United States Attorney District of Arizona S/Sharon K. Sexton SHARON K. SEXTON Assistant U.S. Attorney
I hereby certify that on September 8, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Jeffrey A. Williams

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