Free Motion for Miscellaneous Relief - 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
1 4 5

JEFFREY A. WILLIAMS, Bar Assoc. #12605 Asst. Federal Public Defender Attorney for Defendant 6 [email protected]
7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, -vsEric Miguel, Defendant. No. CR-04-1289-PHX-EHC MOTION TO DISMISS INDICTMENT DUE TO MISCONDUCT OCCURRING BEFORE THE GRAND JURY (Redacted Version)

The defendant, through undersigned counsel moves the Court to dismiss the indictment due to the misconduct of Special Agent Brian Fuller and his testimony before the Grand Jury that resulted in a violation of the Due Process Clause of the United States Constitution. FACTS On December 6, 2004, at about 1:30 p.m. Sara Lopez went to check on her granddaughter, and discovered that she was not breathing and unconscious. 911 was called and she was subsequently flown to Chandler Regional Hospital where she was pronounced dead. She had been in the care of the defendant the entire day and as a result he immediately became a suspect. He was interrogated on two occasions. On December 6, 2004, he was interrogated at Chandler Regional Hospital and the following day he was interrogated at the Gila River Indian Community Police Department. Both interrogations were conducted by Special Agent Brian Fuller

Case 2:04-cr-01289-EHC

Document 65

Filed 08/23/2005

Page 1 of 8

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

of the Federal Bureau of Investigations and John Vega and Elyce Redman of the Gila River Police Department. An autopsy was performed prior to the second interrogation. On December 16, 2004, SA Fuller testified before the grand jury. At is issue is the interrogation that took place on December 7, 2004. interrogation was video taped. As relevant SA Fuller testified as follows. 1. ­ he was mad because he was tired and thought that Sara was going get her out of the living room and change her and when she kept continued to cry and he realized that Sara wasn't going to get her, he was mad, he woke up, he went into the living room and said just picking her up he said he grabbed her hard, put her in his arm like he said before. However, compare that passage to the transcript of the video tape and Mr. Miguel appears to say the opposite. Interviewer #1: The Witness: Interviewer#1: The Witness: Interviewer#1: The Witness: Interviewer #1: The Witness: IT at 3. 2. ­ put her in his arm like he said before, but he says, you know, I was Squeezing her too tight because she was sill screaming, walked down the hall and that's when he tripped over something, he squeezed her even tighter and she's screaming even more. Oh, she was laying on the couch. Okay. Yeah. Okay and you grabbed her out of there? Yeah. I picked her up and was walking in the hall. Okay. How hard would you say you grabbed her when you picked her up? Um, I didn't pick her up that hard. Well, how did you grab her? Oh, I just picked her like that, and then I put her like that. That

GJT at 12-13.

Case 2:04-cr-01289-EHC

Document 65

Filed 08/23/2005

Page 2 of 8

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

The transcript of the interrogation reflects the following: Interviewer #1: The Witness: Interviewer #1: The Witness: Interviewer #1: The Witness: Interviewer #1: The Witness #1: IT at 4. 3. ­ I Take her into the room, before he's saying he placed her on the bed, this time saying he threw down on the bed at least six inches above the top of the bed from when he dropped her on the bed. The transcript of the interrogation is as follows: Interviewer #1: The Witness: Interviewer #1: IT at 4-5. ....... Interviewer #2: The Witness: Interviewer #2: And when you threw her down, how did you­ I kind of like leaned over and (indiscernible) put her down. Put her down? 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 I'm not sure. `Cause yesterday you were thinkin' that maybe it was no more than 6 inches ­ Okay. Okay. And, that's when you tripped over Something in the hall? Something (indiscernible). Yeah, it was like a lid to a container and it had like some sharp pieces on it, sharp edges. Okay. And then you went in the room? Yeah. After I stepped on that, I kinda almost fell. I stumbled, but almost (indiscernible) there was a box sitting there. And I kind of ­ Okay. Did she ­ I held on to her tighter. ­ so, then you held on to her tighter during that time. Yeah. Cause I didn't wanna drop her.

GJT at 13.

Case 2:04-cr-01289-EHC

Document 65

Filed 08/23/2005

Page 3 of 8

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

The Witness: IT at 7. 4.

Yeah.

I come back, I give her the bottle, she's still screaming, he says, so I pick and he shows me how he picked her up, puts his hand behind her neck and then the other hand behind her back, you know, lower back, rear end area an he starts shaking and he goes like this, you know, and its going up and down violent motion. He says, you know, I was frustrated, I wanted her to calm down. She stopped crying after that, and beginning before he was saying he replaced her into the car seat, this time he says I dropped her into the car seat and she wasn't crying anymore.

GJT at 13-14. The transcript reflects the following: Interviewer #1: The Witness: Interviewer #1: The Witness: Okay. Now, you come back into the room, and that's when you gave her the bottle? Yeah. I put her in the car seat. Did you do that first or you shake her first? No, I just picked her up but then, I kind of like, she wouldn't stop cryin', and I tried to giver 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. Well, but, and then you took her out and shook her? No.

......... Interviewer #1: The Witness: IT at 9. 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, makes breakfast for he and Alan like nothing 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 hours.

GJT at 14.

Case 2:04-cr-01289-EHC

Document 65

Filed 08/23/2005

Page 4 of 8

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

This portion of the interrogation is reflected in pages 43-47 of the transcript. At no time did the defendant acknowledge that he knew his daughter was dead. This testimony was meant for one purpose and one purpose only, to inflame the grand jury. 6. GJT at 15. The portion of the transcripts that reflects this part of interrogation reads as follows: Interviewer #2: The Witness: You just wanted her to stop crying? Yeah, just stop crying.`Cause her gramma and them, they always spoil her. They always hold her and stuff. And, she won't, every time I try and lay her down, she just cries. And it just finally got to you, huh. Yeah. ­ 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 finally got to me."

Interviewer #2: The Witness: IT at 60. 7. ...... GJT at 15. 8. GJT at 16.

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 pressure on the stuffed animal

­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. While Mr. Miguel may have described his actions, he could not have

demonstrated anything with a stuffed animal in the second interview. First he was handcuffed and second the video tape does not reflect any such demonstration. \\\ \\\ \\\

Case 2:04-cr-01289-EHC

Document 65

Filed 08/23/2005

Page 5 of 8

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

LAW United States v. Basurto et al, 497 F.2d 781 (9th Cir 1974), holds that the Due Process Clause of the Fifth Amendment is violated when a defendant has to stand trial on an indictment which the government knows is based partially on perjured testimony, when the perjured testimony is material, and when jeopardy has not attached. In the present case all three requirement are present. If SA Fuller did not commit perjury, he was grossly mistaken at best. He testimony before the grand jury regarding the statement of the only person present at the time of the incident can only be characterized as material and obviously jeopardy has not yet attached. Therefore, for the reasons stated above, the defendant moves the Court to dismiss the indictment in this case. Excludable delay under 18 U.S.C. § 3161(h)_____may result from this motion. Respectfully submitted: August 23, 2005. JON M. SANDS Federal Public Defender s/Jeffrey A. Williams JEFFREY A. WILLIAMS Asst. Federal Public Defender

Case 2:04-cr-01289-EHC

Document 65

Filed 08/23/2005

Page 6 of 8

Copy of the foregoing MOTION electronically transmitted 2 by CM/ECF system this23rd day of August, 2005, to:
1

Sharon Sexton Assistant U.S. Attorney 4 Two Renaissance Square, Suite 1200 40 North Central Avenue 5 Phoenix, AZ 85004
3

I hereby certify that on 23rd day of August, 2005 the foregoing document was 7 mailed on the following, who are not registered participants of the 8 CM/ECF system:
6 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Eric Miguel Defendant s/Jeffrey A. Williams
JEFFREY A. WILLIAMS i:\miguel, e\mtn dismiss

Case 2:04-cr-01289-EHC

Document 65

Filed 08/23/2005

Page 7 of 8

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

INDEX OF EXHIBITS United States v. Eric Miguel CR-04-1289-PHX-EHC Exhibit A . . . . . . . . . . . . . . . Grand Jury Transcript, dated 12/16/04 (redacted)

Case 2:04-cr-01289-EHC

Document 65

Filed 08/23/2005

Page 8 of 8