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

Case 1:04-cr-00403-LTB

Document 768

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," RENE ALVAREZ, JOSE ANGEL PEREZ, and

3. 4. 5. 6. 7. 8.

9. 10.

11. 12. 13.

14. 15. 16. 17. 18.

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a/k/a "Primo," Defendants.

GOVERNMENT'S MOTION FOR AN ORDER TO PROVIDE EXEMPLARS

THE UNITED STATES, THROUGH UNITED STATES ATTORNEY WILLIAM J. LEONE, and Assistant United States Attorneys Stephanie Podolak and Guy Till, hereby respectfully requests the Court to enter an Order, pursuant to the All Writs Act, Title 28 U.S.C. § 1651, and Fed. R. Crim. P. 16, compelling the above named defendants to provide voice exemplars at the direction of Government staff, after reasonable notice to the defense counsel of record. 1. As grounds therefor, the Government states to the Court that a number of intercepted telephone calls reflecting the voices of defendants will be offered into evidence at trial in this case. Known voice exemplars from the defendants will permit the orderly presentation of such intercepted calls. See United States v. Delaplane, 778 F.2d 570, 574 (10th Cir. 1985)(permitting the jury to receive defendant's voice exemplars did not violate Fifth Amendment rights ­ one exemplar was produced by defendant's reading a magazine, another exemplar was produced by defendant's reading transcripts from wiretap). 2. "It has long been held that the compelled display of identifiable physical characteristics infringes no interest protected by the privilege against compulsory selfincrimination." 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); United States v. Mara, 410 U.S. 19 (1973); Gilbert v. California, 388 U.S. 263,

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265-267 (1967). 3. The Government proposes to have the exemplar sessions recorded by a videographer. The Government will provide texts for the defendant to read -- it is expected that the texts may be read aloud during a period of approximately ten minutes. The sources of material to be read for the purposes of exhibiting the physical characteristics of the speech of each defendant will be selected by Government staff from magazine passages, newspaper passages, and transcripts of recorded conversations. See United States v. Blakney, 581 F.2d 1389, 1390 (10th Cir. 1978)(in the context of handwriting exemplars ­ "[T]he accused can be required even to duplicate the language of the writings used in the offense." ); Delaplane, 778 F.2d at 574 (proper to require "a defendant to demonstrate his voice by speaking the exact words spoken at the crime."). See also Hughes v. United States, 320 F.2d 459, 461 (10th Cir. 1963), cert. denied, 374 U.S. 966 (1964). The Government proposes that the material to be read will be disclosed during the exemplar session in order to reduce the chances of manipulation through rehearsal. See United States v. Campbell, 732 F.2d 1017, 1022 (1st Cir. 1984)(for the purpose of obtaining a reliable handwriting exemplar, courts have acknowledged "proper advantages in dictation over a written request; e.g. speed and surprise, to reduce conscious manipulation.") Counsel for the defendant are welcome to attend and observe the recording sessions. 4. 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. United States v. Li, 55 F.3d 325 (7th Cir. 1995) (All Writs Act gave court power to order handwriting exemplar). See Pennsylvania v. Muniz, 496 U.S. 582 (1990)(remarks made by the defendant in connection with videotaped efforts to perform sobriety tests and regarding his refusal to take breathalyzer test were admissible -- fact of slurred speech was admissible, but answer to question about defendant's

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date of birth was testimonial and was therefore inadmissable). 5. On May 26, 2006, a draft of the foregoing motion was transmitted electronically to counsel for the defendants with a request that such counsel respond and advise the Government of any objections to this motion. As of the time when this motion is filed on May 30, 2006, a number of defense attorneys have indicated that they need more time or will respond to this motion after being ordered to do so by the Court; some defense attorneys have indicated that they are not able to respond to this motion until they are able to schedule and conduct a meeting with the client; and some defense attorneys have indicated they will need approximately ten days to respond to the motion. WHEREFORE, for the reasons stated, the Government respectfully requests the Court grant its motion. Respectfully submitted this day of May, 2006.

WILLIAM J. LEONE UNITED STATES ATTORNEY DISTRICT OF COLORADO

BY:

s/Stephanie Podolak STEPHANIE PODOLAK Assistant United States Attorney U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 Telephone: 303-454-0100 Fax: 303-454-0409 [email protected]

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By:

s/Guy Till GUY TILL Assistant United States Attorney U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 Telephone: 303-454-0100 Fax: 303-454-0409 [email protected]

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CERTIFICATE OF SERVICE I hereby certify that on this 30th day of May, 2006, I electronically filed the foregoing GOVERNMENT'S MOTION FOR AN ORDER TO PROVIDE EXEMPLARS with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Stephanie Podolak, AUSA [email protected] Richard Tegtmeier [email protected] Jeff Pagliuca [email protected] Mark Johnson [email protected] E. Richard Toray and Daniel Gerash [email protected] Richard Banta [email protected] Lisabeth Castle [email protected] Angelica B. Carreon [email protected] Jennifer Gedde [email protected] John Sullivan [email protected] Harvey Steinberg [email protected] Martha Eskesen [email protected] Scott Poland [email protected] Don Lozow [email protected] Mike Root [email protected] James Scherer and Earl Sherwood Wylder [email protected] Chuck Elliot [email protected] Mitch Baker [email protected] Robert Driscoll [email protected]

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and I hereby certify that I have mailed or served the document or paper to following non CM/ECF participants in the manner (mail, hand delivery, etc.) indicated by the non-participant's name: s/Debbie Azua-Dillehay DEBBIE AZUA-DILLEHAY Legal Assistant to Guy Till U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 Phone: (303) 454-0106 Fax: (303) 454-0401 E-mail: [email protected] .