Free Response to Motion - 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 MOTION TO DISMISS INDICTMENT DUE TO ALLEGED MISCONDUCT OCCURRING BEFORE THE GRAND JURY

The United States, by and through counsel undersigned, hereby responds to the defendant's motion to dismiss the indictment with the following memorandum of facts and law. I. FACTUAL BACKGROUND The defendant is charged with Second Degree Murder and Assault Resulting in Serious Bodily Injury for the death of his 5-month-old daughter on or about December 6, 2004. On that date, the defendant was caring for his daughter from approximately 9:00 am to 1:30 pm. At approximately 1:30 pm., after the defendant left the victim in his bedroom, the victim's grandmother found the victim, stiff, non-responsive and not breathing. The child was

pronounced dead a short time later. During an interview on December 7, 2005, the defendant made several admissions including those outlined below. II. LAW The defense attorney has made very serious allegations that Agent Brian Fuller committed perjury or made gross misstatements regarding his grand jury testimony. As seen below,

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however, it is the defense attorney who has made gross misstatements of fact in his motion.1 In addition to misstating facts, the defense attorney has failed to cite several facts that contradict his arguments. As is elucidated in the facts set forth below, Agent Fuller neither committed perjury, nor was he grossly mistaken as to the facts that were presented to the grand jury. The crime of perjury as set forth in 18 U.S.C. § 1621 criminalizes a sworn statement when a witness "subscribes as true any material matter which he does not believe to be true." To commit perjury, one must believe that his statement is not true. Agent Fuller did not commit perjury in this case as he not only believed his statements to be true, the content of his statements were true and were supported by two different interviews of the defendant. Absent perjury or government misconduct, an indictment is not flawed simply because it is based on testimony which later turns out to be questionable. United States v. Sullivan, 578 F.2d 121, 124 (5th Cir. 1978). Without perjury, misstatements before the grand jury by a government agent which are not material to the offense charged are not sufficient to warrant dismissal of an indictment. United States v. Levine, 700 F.2d 1176, 1180 (8th Cir. 1983). An erroneous, or at most negligent, statement before a grand jury does not require dismissal of an indictment when there is no evidence that the witness committed perjury. Id. Dismissal of an indictment is only required in extreme situations, as where the prosecutor knowingly presents perjured testimony. United States v. Tham, 665 F.2d 855, 863 (9th Cir. 1981). Even if a witness testifies before a Grand Jury and later changes his testimony at trial, such conduct is deemed harmless when both versions implicate the defendant. United States v. Bowers, 534 F.2d 186, 193 (9th Cir. 1976). Motions to dismiss indictments based upon claims of grand jury abuse through the knowing presentation of perjurious testimony, while frequently made, are rarely granted by the courts. See e.g., United States v. Feurtado, 191 F.3d 420 (4th Cir. 1999); United States v.
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On August 24, 2005, before a pretrial conference in this matter, counsel undersigned advised the defense attorney that his motion was factually wrong, to include, as an example, a 27 gross misstatement regarding his arguments 7 and 8. The defense attorney apologized to counsel undersigned, saying that his motion was done in a hurried fashion. Disappointingly, however, 28 to date, the defense attorney has not taken the time to correct his gross misrepresentations and has allowed his defaming and erroneous allegations to stand.
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Mangual-Corchado, 139 F.3d 34 (1st Cir. 1998); United States v. Brooks, 125 F.3d 484 (7th Cir. 1997); United States v. Arana, 13 F. Supp. 2d 613 (E.D. Mich. 1998). Rather these motions are judged against an exacting standard. Before dismissal may be justified, it must be shown that the perjury was both knowing and "material." United States v. Mangual-Corchado at 41-42. Thus, a mere assertion that a single witness' statements were misleading or overstated the evidence will not vitiate an otherwise valid indictment. See United States v. Yost, 24 F.3d 99, 142 (10th Cir. 1994). Moreover, if sufficient truthful testimony exists to support the indictment, the indictment should not be dismissed because of alleged perjury before the grand jury, since it is presumed that the grand jury would have returned the indictment absent the perjurious testimony. United States v. Claiborne, 765 F.2d 784, 791-792 (9th Cir. 1985); United States v. Adamo, 742 F.2d 927 (6th Cir. 1984); United States v. Cathey, 491 F.2d 268, 21-72 (5th Cir. 1979). The defendant's motion cites United States v. Basurto, 497 F.2d 781 (9th Cir. 1974) which addresses perjured testimony before a grand jury. Basurto suggests a course of action, that is, dismissal and re-indictment when perjury has been discovered before trial. As is seen by the factual support below, Agent Fuller neither committed perjury nor misstated facts. The government does not dispute that as to this grand jury testimony that Agent Fuller could have more specifically described whether the statements made were exact quotes of the defendant and/or when those statements were made, (i.e., December 6 or December 7). The lack of precise specificity in no way demeans the integrity of what was presented. While the government knows that the allegations made by the defendant do not constitute a basis for dismissal, the government has decided to present this case anew to a different grand jury. This presentation will allow the government agent to read the December 7 transcript to the grand jury so that there can be no allegation that the grand jury process was abused. A dismissal and re-indictment is supported by the guidance of the Ninth Circuit in Basurto. There the Court stated that: We also note that jeopardy had not attached at the time the prosecutor learned of the perjured testimony, nor had the statute of limitations for the offenses charged run. Under Illinois v Somerville, 410 U.S. 458, 93 S. Ct. 1066, 35 L. Ed 2d 425 (1973), if the prosecutor had brought the perjury to the court's attention
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before the trial commenced and the indictments had been dismissed, the Double Jeopardy Clause of the Fifth Amendment would not have barred trial under a new indictment. The Court said further: Whenever the prosecutor learns of any perjury committed before the grand jury, he is under a duty to immediately inform the court and opposing counsel, and, if the perjury be material, also the grand jury in order that appropriate action be taken. In United States v. Sager, 227 F.3d 1138 (9th Cir. 2000), the Court again suggested that the prosecutor should take steps to resolve misstatements to the grand jury prior to trial.2 III. APPLICATION OF LAW TO FACTS OF THIS CASE While re-indictment will render defendant's motion moot, the government is responding in full to defendant's motion. The defendant has cited eight portions of testimony that he believes constitute a Due Process violation. Those eight portions of testimony are repeated below and are followed by portions of transcripts or investigative interview reports that support such testimony and prove that no perjury or gross misstatements occurred. ALLEGATION NUMBER 1: ...just picking her up he said he grabbed her hard... The following portions of the December 7, 2004 transcript support this testimony: Interviewer #1: Defendant: ... Defendant: (IT 2, lines 5-13.)3 Defendant: No, I just picked her up then, I kind of like, she wouldn't stop cryin' 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. Shouldn't have grabbed her like that. What have you been thinkin' about? That I shouldn't have did that...

Under Sager, it is clear that the government is not required to dismiss this matter and file a new indictment. The government, however, is taking the steps to re-indict because it believes re-indictment would best resolve the issue pending before the court. IT means "Interview Transcript" and refers to the transcript of the December 7, 2004 interview.
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(IT 9, lines 8-11.) Interviewer: Let's talk a little bit about the time whenever you picked her up off of the bed and you said you grabbed her. You said yesterday you were grabbin' her like this? (Demonstrating) Yeah, like that. (Defendant demonstrating)

Defendant:
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(IT 10, lines 19-23.)
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Interviewer #1:
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How hard were you grabbin' her? ... At first I picked her soft, and then, she didn't wanna stop cryin' so then... So then you squeezed her: Yeah, I squeezed her.

Defendant:
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Interviewer #1: Defendant:

Interviewer: #1: You squeezed her `cause you were gettin' mad? Defendant: (IT 11, lines 5-12.) Interviewer #1: Defendant: Interviewer #1: Defendant: (IT 12, lines 4-9.) Interviewer #2: Defendant: ... Interviewer #1: Defendant: (IT 50, lines 7-19.) Defendant: (IT 51, lines 7-8.) Defendant: ... I just kind of squeezed it.
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Yeah, I was frustrated.

...that's when you squeezed harder? No, I didn't... I mean, it got harder, right, `cause you were pissed. yeah.

What do you think hurt her the most, that you've done to her... When I picked her up and squeezed her. Squeezed her head.

How long did you squeeze it for? Not that long. Just like, did it real hard.

I picked her up and I squeezed her.

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... Interviewer #1: Defendant: Interviewer #1: Defendant: Okay, So was it enough maybe to choke her a little bit? Yeah. You think you were chokin' her? yeah.

(IT 52, lines 19-25; IT 53, lines 1-4.) The following portions of the December 6, 2004, investigative report also support this testimony: Miguel admitted that he picked her up "hard with both hands out of anger." (P. 3, 12/6/04 Investigative Report of Agent Fuller.)

ALLEGATION NUMBER 2: ... put her in his arm like he said before, but he says, you know, I was squeezing her too tight because she was still screaming, walked down the hall 11 and that's when he tripped over something, he squeezed her even tighter and she's screaming even more.
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The following portions of the December 7, 2004, transcript support this testimony:
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Defendant:
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(After explaining that he stumbled and tripped after picking up the child) I held on to her tighter...

(IT 4, line 10.) The following portions of the December 6, 2004, investigative report more fully supports this testimony: While walking back to the bedroom, Miguel tripped on a container lid and stepped on something sharp in the hallway. Miguel said "fuck" and squeezed [Jane Doe] tighter with his arm. [Jane Doe] screamed louder and cried harder. Miguel stated "I squeezed her too tight." Miguel stated that he squeezed her tighter so that he would not drop her as he walked back to his bedroom. (P. 3, 12/6/04 Investigative Report of Agent Fuller.)

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Miguel stated that when he stepped on the sharp object in the hallway he squeezed [Jane Doe] real tight, he almost stumbled back, but was able to catch himself at the door. (P. 4, 12/6/04 Investigative Report of Agent Fuller.)

ALLEGATION NUMBER 3: I take her into the room, before he's saying he placed her on the bed, this time saying he threw her down on the bed at least six inches above the top 25 of the bed from when he dropped her on the bed.
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The following portions of the December 7, 2004 transcript support this testimony: Interviewer #1: Defendant: Okay. Well, you went in the room and then what happened? And then, I just kinda (indiscernible).
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Interviewer #1: Defendant: Interviewer #1: Defendant:

Threw her down? Threw her down, not real hard. Do you think it could have been a little bit harder than you told us yesterday? `Cause yesterday you were thinkin'... It could have been, you know, I'm not sure. `Cause yesterday you were thinkin' that maybe it was no more than 6 inches. Yeah.

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Interviewer #1:
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Defendant:

(IT 4, lines 16-25; IT 5, line 1.) Interviewer #1: Do you think it definitely was harder, or it was not? I'm not gonna, I don't wanna put words in your mouth, but I wanna, I just wanna get it exactly how it was. .... I probably did throw her down, but (indiscernible)(I probably did throw her down. I probably did throw her down but a little too hard.)4 (Defendant demonstrating)

Defendant:

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Interviewer #1:
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Okay. So, you know you did throw her down hard. Yeah. Okay. What'd you throw her down onto? The floor or the bed? On the bed. The bed. Okay. She, that's when she started to scream more, right? Yeah.

Defendant:
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Interviewer #1:
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Interviewer #2:
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Defendant:
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Interviewer #1:
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Defendant:
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(IT 5, lines 16-25; IT 6 lines 1-8.) Interviewer #2:
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And when you threw her down, how did you. I kind of like leaned over and (indiscernible) put (threw) her down.5

Defendant:
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Agent Fuller and other agents have reviewed the portion marked "indiscernible." While that portion of the transcript may have been "indiscernible" by the transcriptionist, it was not 26 indiscernible by Agent Fuller and others. Here, the defendant stated "I probably did throw her down, I probably did throw her down, but a little too hard."
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This "indiscernible" in fact can be heard as follows: "I kind of like leaned over and threw her down."
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Interviewer #2: Defendant: (IT 7, lines 13-18.) Interviewer #1: Defendant:

Put (threw) her down?6 Yeah.

Okay, but how far away were you when you dropped her in there? It wasn't that far. Probably at least like this... (Defendant demonstrating)7

Interviewer #1: Defendant: (IT 13, 14-19.) Interviewer #1:

Six inches, again? No, not even six inches.

Well, no, was it whenever, was it whenever you, was it during the same time when you brought her in there and threw her down on the bed? No, it wasn't.

Defendant: (IT 17, lines 21-24.) Interviewer #1: Defendant:

And, you're kinda tossin' her around, squeezin' her. You say you're mad and you're takin' it out on her. Yeah, but...

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(IT 31, lines 6-9.)
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The following portions of the December 6, 2004, investigative report also support this testimony:
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When Miguel got into the bedroom, he threw [Jane Doe] down onto the bed. Miguel believes that he threw her down about six inches. (P. 3, 12/6/04 Investigative Report of Agent Fuller.) Miguel was asked to demonstrate with a stuffed animal how he handled [Jane Doe]. Miguel demonstrated how he picked her up off the couch and squeezed her tightly with one arm. Miguel also showed how he threw [Jane Doe] down onto the bed... (Agent Fuller recalls the defendant demonstrating how he threw/dropped the child, consistent with the defendant's statement that he threw the child approximately six

This portion of the transcript indicates that Interviewer #2 was speaking. This portion of the transcript is also incorrect. In fact, Interviewer #1, Agent Fuller was speaking and said "Threw her down?" to which the defendant responded "Yeah." The interview tape shows the defendant demonstrating a height consistent with Interviewer #1's assessment of six inches.
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inches.) (P. 4, 12/6/04 Investigative Report of Agent Fuller.) ALLEGATION NUMBER 4: ...he starts shaking and he goes like this, you know, and it's going up and down in a violent motion... Interviewer #1: What kind was it? I mean, you shook her like that? (Demonstrating a shaking motion)

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Defendant:
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I picked her up and I squeezed her.

...
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Defendant:
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(Indiscernible)(If you had something I'd show you)8 Let's see if I can find something, I'll get you (indiscernible) also. (Consistent with defendant's request, an agent leaves the room to retrieve a stuffed animal)

Interviewer #2:
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Female Interviewer: Yesterday you said after you picked her up and squeezed her, you shook her a little bit, kind of like up and down. Defendant: Oh, I was...

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Female Interviewer: Did you do that?
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Defendant:
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tryin' to, tryin' to like calm her down. (Defendant demonstrating with hands, an up and down shaking motion.)

(IT 51, lines 5 -23.) Interviewer #2: Interviewer #1: (having returned to the interview room with a stuffed animal) (Indiscernible) can I get (indiscernible) work. Show us exactly how it was. I had her like this. And I was goin' like that. I kind of ­ had her like that, and I just kind of squeezed it. (This demonstration, which is able to be seen on the videotape, shows the defendant moving the stuffed animal up and down in a shaking motion.) (IT 52, lines 16-21.)

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Defendant:
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In this portion of the interview, the defendant actually said "If you have something I could show you."
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Defendant:

You know, I was just tryin' to like calm her down, I was goin' like that. (Defendant demonstrating up and down shaking motion.)

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Interviewer #2:
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Right? So when you started squeezin' her and goin' like this, she really cried (Commander Vega is demonstrating holding the child and moving her in an up and down shaking motion.)

Defendant: (IT 53, lines 22-24.) Defendant:

She got kinda all right.

But before when I used to pick her up, I used to just hold her and just go like that, but not real fast, just like slow. (Defendant demonstrating with hands a slower up and down shaking motion.)

(IT 55, lines 6-8.) The following portions of the December 6, 2004, investigative report also support this testimony: Miguel stated "I think I hurt her when I picked her up again." Miguel explained that after he changed [Jane Doe]'s diaper and made her bottle she was still crying. Miguel picked [Jane Doe] up, placed one hand behind her head, and the hand under her back/bottom area. Miguel then squeezed the back of [Jane Doe]'s head "hard" and shook her up and down. Miguel realized that he might have hurt [Jane Doe]. ... Miguel was asked to demonstrated with a stuffed animal how he handled [Jane Doe]. Miguel demonstrated how he picked her up off the couch and squeezed her tightly with one arm. Miguel also showed how he threw [Jane Doe] down onto the bed, and picked her up and began squeezing the back of her head and shaking her up and down. ...

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Miguel stated that he felt responsible for [Jane Doe]'s death because of the way the he dropped her on the bed, squeezed, and shook her before placing her into her car seat. ...

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Miguel admitted that he picked her up from the bed "kind of hard" with both hands and shook her "kind of fast" to calm her. [Jane Doe] started screaming louder when Miguel did this to her. (P. 4, 12/6/04 Investigative Report of Agent Fuller.)

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ALLEGATION NUMBER 5: He goes back to sleep after she is laying there in her car seat, wakes up at about nine, ten o'clock, goes in, make breakfast for he and Alan like nothing
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was wrong. Comes back into the room. She is still in there and he is, you know, knows she is passed away. He's watching Sesame Street on TV with son Alan for a couple of hours. The following portions of the December 7, 2004 transcript support this testimony:

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(After a discussion at pages 13 and 14 about how the defendant mishandled the child)
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Interviewer #1:
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Okay, so and then that's when you just left her there for the rest of the day? Yeah. You didn't hear any other sounds out of her? (Indiscernible)(No, I didn't.)9

Defendant: Interviewer #1: Defendant: ... Interviewer #1: ... Interviewer #1: Defendant: (IT 15 lines 3 -20.) Interviewer #1: Defendant:

Okay. What time was it that this happened, when you were tossin' her around a little bit? Like 10:00 or so? At least like 9 or 10.

I mean, so you feel like she died because of what you, because of how you dropped her around a little bit? It could be. Or, maybe she, you know how some people like, get into, like, shock or something.

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... Interviewer #1: Defendant: Interviewer #1: Defendant: . . . You think she was in shock afterwards? I think so. What makes you think that? `Cause I mean, I didn't do anything else to her. I mean, how else could she have died?

(IT 22 lines 5-24; IT 23 lines 1-2.)
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Interviewer #1:
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. . . She died pretty much shortly after you put her down in that car seat. Right? yeah.

Defendant:

The defendant actually said "No I didn't."
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(IT 38, lines 3-5.) Defendant: Interviewer #1: Defendant: Interviewer #1: It was about 11. That this happened? When I took her bottle out of her mouth, it was at least, I'd say about 10 or something. So, was this before or after you made breakfast, though? It was before. Then I got up and went in the kitchen, me and my little boy. Okay. And, I made him some eggs and stuff, `cause he was hungry. Okay, so you think that's about the time she probably died? Yeah, I think so. Why? Why do you think that? Because I was like, (indiscernible) I don't know. `Cause she didn't really open her eyes before you left? Yeah. She, she didn't really open her eyes.

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Defendant:
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Interviewer #1: Defendant: Interviewer #1: Defendant: Interviewer #1: Defendant: Interviewer #1: Defendant: ... Interviewer #1: Defendant: Interviewer #1: Defendant: Interviewer #2:

Okay. Okay. So that's different than what you told us yesterday, right? Yeah. But, why are you finally telling us the truth now, today? Because last time when my grampa died, he kinda opened his eyes too, and he was already dead. So the eyes were partly open? Yeah, but, then my gramma, she just closed `em, `cause she didn't want You think that [Jane Doe] was dead maybe about 10:00 yesterday morning? Yeah, I'd say about 10.

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Defendant:
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Interviewer #2: Defendant:

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...
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(IT 41, lines 9-25; IT 42, lines 1-25; IT 43 lines 1-4.)
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Interviewer #1: And then that's when you knew you probably killed her? Defendant: That's when I figured I did. I did something wrong to her. ... Interviewer #1: And, you figured yourself that that's what, that you did something, that it was your fault? yeah. So, do you think that [Jane Doe] was dead about 10:00? Yeah.

Defendant: Interviewer #2: Defendant:

(IT 44, lines 17-25; IT 45, lines 1-5.) (At pages 46-47, the defendant discusses how after he ate with his son, he and his son did nothing else but watch television, including Sesame Street "the whole time" until 1:17 p.m.) Interviewer #2: ... I know we've kind of covered it before, and I've asked you a couple of times, but I wanna try to narrow this down to where we think she passed away at. I would say about 10. About 10? Yeah.

Defendant: Interviewer #2: Defendant:

Interviewer #2 : Okay. When - you think she passed away in the car seat, or? Defendant: Interviewer #2: In the car seat. In that little car seat you put her in? You think she passed away in there, or do you think she passed away when you laid her on the bed, or you In the car seat. You think she passed away - why do you think that? `Cause, she didn't make no sounds after. It seemed like she was sleeping. Okay. So, we can safely, pretty much, I mean, it's up to you, we can safely say she probably passed away around 10:00? Yeah. When you put her back in her car seat?
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Defendant: Interviewer #2: Defendant: ... Interviewer #2:

Defendant: Interviewer #2:

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Defendant: Interviewer #1: Defendant:

Yeah. Do you think it was your fault? Yeah, I do believe it was.

(IT 56, lines 15-25; IT 57, lines 1-24.)

ALLEGATION NUMBER 6: - And he says, you know, it basically just when he tell you that he quote that he said he says right here at the very end of the interview he says, "It 6 finally got to me." Finally got to him.
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The following portions of the December 7, 2004 transcript support this testimony: Interviewer #2: Okay. So, we can pretty much say that because of her continuous, or constantly crying that, yesterday mornin', is what made you mad, mad at her. Made you angry? Yeah. It got me.

Defendant: (IT 34, lines 8-12.) Interviewer #2: Defendant: (IT 60, lines 16-17.)

And it just finally got to you, huh. Yeah.

ALLEGATION NUMBER 7: He picked up this stuffed animal and he showed when he hugged him like this with the arm squeezing it real tight. I mean, you could see the 16 pressure on the stuffed animal.
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(See argument at Allegation Number 8 below) ALLEGATION NUMBER 8: He demonstrated also how he dropped her on the bed I mean, it was like it wasn't a drop, it was a throw six inches up above. As to Allegations number 7 and 8, the defendant argues that the defendant was

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handcuffed and could not have and did not make any demonstrations. The defense attorney is
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grossly mistaken about this argument. As is noted in several references within this motion
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response, the defendant demonstrated dropping, shaking and squeezing the child in the
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December 6th interview and he specifically requested an object to be brought to him so that he could demonstrate his conduct during the December 7th interview.

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For all these reasons, defendant's motion should be denied. Respectfully submitted this 2nd 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 2, 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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