Free Motion for Miscellaneous Relief - District Court of Colorado - Colorado

Case 1:04-cr-00403-LTB

Document 768-2

Filed 05/30/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Case No. 04-cr-00403-LTB UNITED STATES OF AMERICA, Plaintiff, v. 1. 2. CARLOS ZAPATA-HERNANDEZ, SERGIO ZAPATA-HERNANDEZ, a/k/a "Tito," a/k/a "Titillo," and a/k/a "Lucas," FABIAN MIRANDA-URBINA, a/k/a "Chino," ARNOLDO ZAPATA, a/k/a "Lolo," JOSE ALFREDO ZAPATA, a/k/a "Alfredo," JAIME ARMENDARIZ, RAMON ZAPATA, JAIME ZAPATA, a/k/a "Rudy," a/k/a "Jimmy," and a/k/a "Chasco," EFRAIN VENZOR, ALBERTO CABRAL, a/k/a "Beto," and a/k/a "Tio Beto," ARTEMISA ZAPATA-MONTOYA, HUMBERTO GALVAN, a/k/a "Beto," LILIAN GALVAN, a/k/a "Petunia," and a/k/a "Yiya," BARBARA ZAPATA, OSCAR ZAPATA, a/k/a "Karin," MICHAEL ROMERO, a/k/a "Mike," 1

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Case 1:04-cr-00403-LTB

Document 768-2

Filed 05/30/2006

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17. 18.

RENE ALVAREZ, JOSE ANGEL PEREZ, and a/k/a "Primo," Defendants.

ORDER TO PROVIDE VOICE EXEMPLARS

THE COURT has reviewed the government's Motion For an Order to Provide Voice Exemplars, filed pursuant the All Writs Act at Title 28 U.S.C. § 1651 and Federal Rule of Criminal Procedure 16, compelling the above named defendants to provide voice exemplars at the direction of government agents after reasonable notice to the defense counsel of record. The Court is familiar with the record in this case. This matter is set for jury trial starting August 14, 2006. It is anticipated that intercepted telephone conversations will be introduced during the course of the trial. Rule 16 and the All Writs Act, Title 28 U.S.C. § 1651, grant the Court authority to compel a defendant to give such physical evidence. See United States v. Li, 55 F.3d 325 (7th Cir. 1995) (All Writs Act gave court power to order handwriting exemplar). The Court finds that each defendant is without constitutional right to refuse to provide such exemplars. United States v. Dionisio, 410 U.S. 1, 5-6 (1973)(grand jury witnesses properly required to read transcripts to provide voice exemplars); United States v. Wade, 388 U.S. 218 (1967)(proper to require suspect to be present and to speak at lineup for purposes of identification). See United States v. Delaplane, 778 F.2d 570, 574 (10th Cir. 1985)(voice exemplars were properly admitted into evidence at trial).

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Case 1:04-cr-00403-LTB

Document 768-2

Filed 05/30/2006

Page 3 of 3

THE COURT, being sufficiently advised in the premises, finds and concludes that the government's Motion shall be granted. The government may employ the services of a videographer to record the voice exemplar sessions. In cases where the defendant is in custody, the defendant shall be brought to the U.S. Marshal's office located at the United States Courthouse for the District of Colorado at the request of the United States Attorney's Office and a voice exemplar recording session shall be conducted, after notice to the defense attorney of record, in facilities appropriate for such purposes within the Courthouse complex. Where a defendant is on bond, the voice exemplar recording session may be at the office of the United States Attorney, and the parties shall schedule the voice exemplar recording session by agreement. The materials to be read aloud by each defendant for the purposes of providing the voice exemplar will be provided to the defendant by the government's agents at the exemplar recording session. Counsel of record or an associate shall have the opportunity to be present during the exemplar recording session if counsel chooses to be present. SO ORDERED. Signed and entered this _______ day of June 2006.

BY THE COURT:

________________________________ LEWIS T. BABCOCK, CHIEF JUDGE UNITED STATES DISTRICT COURT DISTRICT OF COLORADO

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