Free Reply to Response - District Court of Arizona - Arizona

JON M. SANDS Federal Public Defender 2 District of Arizona 850 West Adams, Suite 201 3 Phoenix, Arizona 85007 Telephone: (602) 382-2739
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JEFFREY A. WILLIAMS, Bar Assoc. #12605 Asst. Federal Public Defender Attorney for Defendant 6 [email protected]
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IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, -vsEric Miguel, Defendant. No. CR-04-1289-PHX-EHC REPLY TO GOVERNMENT'S RESPONSE TO MOTION TO DISMISS INDICTMENT DUE TO ALLEGED MISCONDUCT OCCURRING BEFORE THE GRAND JURY

Defendant, Eric Miguel, through undersigned counsel, hereby replies to the Government's Response to Defendant's Motion to Dismiss Indictment. As a preliminary matter, the defendant did not cite every act of misconduct in its original motion because the record regarding the issue is complete and contains the video recording and transcript of the December 7, 2004, interrogation of the Defendant, a copy of the December 7, 2004, Investigative Report authored by SA Brian Fuller, a copy of the grand jury proceeding and testimony given in prior proceedings. In sum what Agent Fuller testified to is that the defendant was angry because his daughter woke him up as she lay crying in the living room. The defendant yanks her off the couch, takes her into bedroom while squeezing her head, throws her onto the bed and changes her diaper. At some point he shakes her violently and then drops her into a car seat at which point she dies and more importantly, the defendant is aware that she has died. He then makes breakfast for

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his son and himself and then proceeds to nap periodically while his two year old son watches Sesame Street on television. He then leaves to pick up Denise Kisto from work leaving his daughter dead in the crib to be found by his maternal grandmother Sara Lopez. He then admits to abusing his daughter during the December 7, 2004, interrogation. In addition to the instances referred to in the original motion below are additional instances of misconduct occurring at the grand jury proceedings held in this case. 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 at 12) First, the defendant did not say at the beginning of the interrogation "I knew what I did was wrong". The obvious implication is that the defendant was admitting that he killed his daughter when in fact he was simply admitting that he may have picked her up to roughly. Interviewer #1: The Witness: Interviewer #1: The Witness: Interviewer #2: Interviewer #1: The Witness: What have you been thinking about? That I shouldn't have did that. That's what you've been thinking? Yeah. Okay, man. (Indiscernible) female voice Oh, come on in. You've, been thinkin' that you shouldn't have done that, um ­ Shouldn't have grabbed her like that. The defendant then goes on to explain in his own words that he didn't pick her up that hard. (See page 3 of interrogation). 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. But, even then the defendant's returns to his version of events

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Interviewer #1: Interviewer #1: (IT at 5-7). Interviewer #1: The Witness: Interviewer #1:

­ but, you know, after reviewing some of her injuries­ ­ it started lookin' like maybe it would have been a little bit more ­ Did you kind of throw her a little bit down into the car seat? No. Because, you know, from what the medical exam is showin' us, is that she's got some injuries that are consistent with her being thrown around more than just once. So that's why we're asking ya.

The Witness: Uh-huh?

(IT at 12-13). 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. The implication is that the simple fact that his daughter was crying and soiled her diaper so enraged the defendant that he killed his daughter. When in fact, the defendant said that he was upset because Sara Lopez was in the same room and did nothing to console her or change her diaper. Interviewer #2: The Witness: Were you upset at this time, or? I was kinda sleepy and upset `cause her grandma left her layin' right there. Interviewer #1: The Witness: And her pamper was like, packed. It was all coming out on the sides and stuff. So you were pissed because grandma left? Yeah. `Cause she didn't, her gramma was in there with her. But she was banging around dishes.

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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 happened to her. Well, in the second interview he says I know that at that point I had probably killed her. From page 36 to the end of the interrogation transcript, the defendant

is continually telling his interrogators that he did not know when his daughter died and that he thought she was asleep. That if he knew something was wrong he would have sought help. That he didn't check on her because he thought she was asleep. In fact, Agent Fuller told the grand jury that through out the day Sara Lopez would walk past the bedroom and say her granddaughter in the car seat sleeping or what she believed to be sleeping. (See page 10 GJT). 4. And in the second interview he say, you know eyes were slightly open he says, but I knew she was dead. I mean that was his response for her death, sometimes when people die the eyes kind of remain. The obvious implication is that the defendant is cold and uncaring and his only response to her death was that sometimes when people die their eye remain open. When in fact his response is reflected in SA December 6, 2004, Investigative report when he states that mid way through the interrogation he tells the defendant that his daughter has died and he becomes upset and starts crying. Furthermore, the video tape depicts several times throughout the interrogation where the defendant is clearly upset and crying. ... ... ... ... ...

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5.

Q. A.

And is it fair to say that medical examiner gave a pre-assessment that this was a non­this was a nonaccidental death? Yes, because based on the bruising of the forehead he says, said that it was blunt force.

(GJT at 17). This testimony was given on December 16, 2004. The autopsy was performed on December 7, 2004, prior to the second interrogation. The original autopsy report dated December 7, 2004, states that both cause of death and manner of death are pending. The report went on to state that "According to investigative report, the child was `squeezed' and `Shaked' by a caretaker. She was also ` thrown hard on the bed.' Her past medical and neonatal histories were not contributory. The opinion that the cause of death was the result of blunt force trauma and the manner of death homicide did not occur until the report was amended on February 22, 2005. 6. We did. As a matter of fact, all the family member 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. The answer by SA Fuller was in response to a question regarding whether he tried to determine whether there was any medical conditions on this child or something that would have resulted in her death that is not related to the violent shaking she underwent. Denise Kisto (mother) was interviewed by Detective Elyce Redman and SA Fuller on December 8, 2004. Ms. Kisto told them that her daughter's fontanel would fall in and that they took her to a woman named Pat who wasn't available. She went on to say that her daughter had been sick the last few weeks with a bad case of diarrhea. Furthermore, the defendant told SA Fuller on December 6, 2004, that his daughter has had health problems over the past couple of months. She kept "tightening up" and was not sleeping. He also confirmed that

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she had diarrhea and respiratory problems. Regarding the issue of a demonstration with a stuffed animal. The government is correct, during the December 7, 2004 interrogation, a stuffed animal was used by the defendant to demonstrate how he held his daughter. However, the defendant did not violently shake the doll in an up and down motion as testified to by SA Fuller. LAW There are two basis for which a motion to dismiss may be granted: constitutional or supervisory powers. Under the constitutional theory, the defendant must show that "the structural protections of the grand jury have been so compromised as to render the proceedings fundamentally unfair, allowing the presumption of prejudice." See Bank of Nova Scotia v. U.S., 487 U.S. 250 (1988). Under the supervisory powers theory, federal courts "may, within limits, formulate procedural rules not specifically required by the Constitution or Congress." U.S. v. Hasting, 461 U.S. 499 (1983). In seeking a motion to dismiss based on misconduct in grand jury proceedings the defendant must s show prejudice. See Bank of Nova Scotia, 487 U.S. at 254-55, 263. Prejudice may be established in two ways: (1) when there is a violation that "substantially influenced the grand jury's decision to indict:" or (2) "if there is `grave doubt' that the decision to indict was free from substantial influence of such violations." id. at 256(quoting U.S. v. Mechanik, 475 U.S. 66 (1986). In the present case there can be no question that the defendant was prejudiced by what took place during the grand jury proceedings. The defendant never admitted to shaking his daughter. Yet SA Fuller told the medical examiner and the grand jury that he did. As a result the medical examiner concluded that the manner of death was homicide resulting from a violent shaking and the grand jury in turn returned and indictment for first degree felony murder. The

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underlying offense was aggravated assault that resulted from this alleged violent shaking. One remedy for a successful motion to dismiss an indictment is dismissal without prejudice. However where the evidence used before the grand jury is irrevocably tainted a dismissal with prejudice is appropriate. U.S. v. Fields, 592 F.2d 638 (2d Cir. 1978). If the government's involvement in a criminal matter shocks the "universal sense of justice," then the Due Process Clause bars prosecution and the indictment should be dismissed. See U.S. v. Haynes, 216 F.3d 789 (9th Cir. 2000). Therefore, for the reasons stated, the defendant moves the Court to dismiss the indictment with prejudice. Excludable delay under 18 U.S.C. § 3161(h)_____may result from this motion. Respectfully submitted: September 6, 2005. JON M. SANDS Federal Public Defender s/Jeffrey A. Williams JEFFREY A. WILLIAMS Asst. Federal Public Defender

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Copy of the foregoing MOTION electronically transmitted 2 by CM/ECF system this 6th day of September, 2005, to:
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Sharon Sexton Assistant U.S. Attorney 4 Two Renaissance Square, Suite 1200 40 North Central Avenue 5 Phoenix, AZ 85004
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I hereby certify that on the 6th day of September, 2005 the foregoing document was 7 mailed on the following, who are not registered participants of the 8 CM/ECF system:
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Eric Miguel Defendant s/Jeffrey A. Williams
JEFFREY A. WILLIAMS

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