Free Motion to Take Deposition - District Court of California - California

Case 3:08-cr-02253-BTM

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NED LYNCH--CA ST. BAR NO. 149680 Attorney At Law 110 West C Street, Suite 1407 San Diego, CA 92101 Telephone: 619-525-0081 Attorney for the Material Witnesses

United States District Court Southern District of California (Hon. Barry T. Moskowitz) UNITED STATES OF AMERICA, Plaintiff, v. AUGUSTIN CARRANZA-DUARTE, Defendant(s). ) ) ) ) ) ) ) ) ) ) Criminal Case No. 08CR2253BTM(PCL) Notice Of Motion And Motion To Take The Videotape Depositions Of Material Witnesses And Thereafter Release Them From Custody Date: July 25, 2008 Time: 2:00 p.m. Judge: Barry T. Moskowitz Room: 15

Notice Of Hearing On July 25, 2008 at 2:00 p.m., or as soon thereafter as counsel may be heard, material witnesses Antonio Gin-Sanchez, Mario Miguel-Rojas, and Cresenciano Rafael-Joaquin [the "Material Witnesses"] by and through their counsel, Attorney Ned Lynch, will bring a motion for a court order to conduct videotaped depositions of the Material Witnesses. This motion will be heard by Hon. Barry T. Moskowitz in the Courtroom 15 of the U.S. District Court for the Southern District of California. Motion The Material Witnesses, by and through their counsel, Ned Lynch, and pursuant to Federal Rules of Criminal Procedure 15 and 18 U.S.C. § 3144, move this court for an order to take their
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depositions by videotape and thereafter release them from custody at the conclusion of the depositions for their return to their home country. This motion is based upon this notice, the memorandum of points and authorities filed in support of this motion, the declaration of Attorney Ned Lynch, the files and records in this case, and any and all other evidence and arguments that may be brought to the court's attention prior to or during the hearing on this motion.

Dated: July 11, 2008

s/Ned Lynch Ned Lynch, Attorney for the Material Witnesses E-mail: [email protected]

U.S. v. Augustin Carranza-Duarte, Case No. 08CR2253BTM Material Witnesses' Motion for Videotaped Depositions

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NED LYNCH--CA ST. BAR NO. 149680 Attorney At Law 110 West C Street, Suite 1407 San Diego, CA 92101 Telephone: 619-525-0081 Attorney for the Material Witness

United States District Court Southern District of California (Hon. Barry T. Moskowitz) UNITED STATES OF AMERICA, Plaintiff, v. AUGUSTIN CARRANZA-DUARTE, Defendant. ) ) ) ) ) ) ) ) ) ) Criminal Case No. 08CR2253BTM(PCL) Material Witnesses' Memorandum Of Points And Authorities In Support Of Their Motions For Videotaped Depositions And Their Release From Custody Date: July 25, 2008 Time: 2:00 p.m. Judge: Barry T. Moskowitz Room: 15

Material witnesses Antonio Gin-Sanchez, Mario Migual-Rojas, and Cresenciano Rafael-Joaquin 19 [the "Material Witnesses"], by and through their counsel, Attorney Ned Lynch, submit this 20 memorandum of points and authorities in support of their motions to take their videotaped 21 depositions and thereafter be released from custody. 22 Case Overview 23 On June 19, 2008 the Material Witnesses were detained in the Southern District of California 24 in relation to the charges brought against Defendant Augustin Carranza-Duarte for violating 8 U.S.C. 25 § 1324 by attempting to smuggle the Material Witnesses into the U.S. illegally as an undocumented 26 aliens. The Material Witnesses are allegedly being detained as material witnesses under 18 U.S.C. 27 § 3144. 28
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The Material Witnesses have been unable to arrange for their release on bond, and by the time this motion will be heard they will have been in custody for over 5 weeks. However, it is unnecessary to detain the Material Witnesses further. The testimony of the Material Witnesses can be preserved by a videotaped depositions. The Material Witnesses therefore requests the court order their testimony be preserved by videotaped depositions, and that they be released immediately thereafter from the custody of the U.S. Marshal for return to their home country. The Testimony Of The Material Witnesses Can Be Secured By Videotaped Depositions, And There Is No Compelling Reason To Keep Them In Custody Title 18, section 3144 of the United States Code provides: "No material witness may be detained . . . if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice." Depositions of material witnesses may be used at trial in criminal cases, so it is only in exceptional circumstances, where the interests of justice will be denied, that a videotaped deposition is not appropriate. [See IIRIRA § 219 (admissibility of videotape depositions); see also, United States v. King 552 F.2d 833 (9th Cir. 1976) (cert. denied, 430 U.S. 966).] The defendant may be present at the videotaped deposition and therefore have a full and fair opportunity to cross-examine the witness. The videotape provides a sufficient indicia of reliability to afford the trier of fact a satisfactory basis for evaluating the truth of a statement. [Dutton v. Evans, 400 U.S. 74, 89 (1970).] The burden is on the objecting party to show that the use of deposition testimony will deny defendant a fair trial and that live testimony would somehow be significantly different. [United States v. Humberto Rivera, 859 F.2d 1204, 1208 (4th Cir. 1988).] The Material Witnesses should not be detained indefinitely because their testimony can be adequately secured by videotaped depositions. In terms of what the Material Witnesses can testify about, this is a routine alien-smuggling case. Based on interviews with the Material Witnesses and the reports submitted by the arresting agency, the facts to which the Material Witnesses are competent to testify are straight-forward. (See paragraph 6 of the declaration of Attorney Ned Lynch submitted with these points and authorities.)

U.S. v. Augustin Carranza-Duarte, Case No. 08CR2253BTM Material Witnesses' P's & A's for Videotaped Depositions

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The Material Witnesses have no criminal charges pending against them relating to this matter, and they have already spent a considerable amount of time in custody (over 5 weeks by the motion hearing). Despite the efforts of the Material Witnesses and their counsel to locate potential sureties for them, there are no persons who legally reside in the United States who are willing and able to post a court bond for these witnesses. The Material Witnesses and their families are enduring emotional, mental, and economic hardships from their indefinite incarceration, especially considering the have not been charged with any crime. (See paragraphs 3 and 4 of the declaration of Attorney Ned Lynch submitted with these points and authorities.) Moreover, the Material Witnesses and their counsel have not been informed by any party to this case of a specific reason why further detention of these witnesses is necessary to prevent a failure of justice. (See paragraph 5 of the declaration of Attorney Ned Lynch submitted with these points and authorities.) The Material Witnesses are NOT Required To Show Exceptional Circumstances Or Hardship Exists For The Court To Order The Videotaped Depositions Under Rule 15(a)(1) a party must establish exceptional circumstances exist if the party wants to take the deposition of a witness. A person designated as material witness is not a party to the case. Neither party to this case--the government or the defendant--is moving the court for this deposition. This motion is brought by the material witnesses only. Under Rule 15(a)(2) a witness may bring a motion to take his or her deposition without any showing of exceptional circumstances, or hardship. Federal Rules of Criminal Procedure, Rule 15. The Material Witnesses have proffered facts through their attorney's declaration regarding the hardships they are their families are enduring during their indefinite incarceration, but only to remind the court and the parties that uncharged persons remain in custody, and their incarceration has a real impact on the Material Witnesses and any other people close to them. These facts are not being offered to show exceptional circumstances exist to order the deposition, because no such showing is required. The court must grant the motion for the Material Witness to be deposed even if no

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exceptional circumstances exist. Conclusion The Material Witnesses request the court grant their motion and set their videotaped depositions so they can be released from custody immediately thereafter.

Dated: July 11, 2008

S/Ned Lynch Ned Lynch, Attorney for the Material Witnesses E-mail: [email protected]

U.S. v. Augustin Carranza-Duarte, Case No. 08CR2253BTM Material Witnesses' P's & A's for Videotaped Depositions

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Exhibit A Sample Draft Of The Order

United States District Court Southern District of California UNITED STATES OF AMERICA, Plaintiff, v. , ) ) ) ) ) ) ) ) ) ) Criminal Case No. Deposition Order For Material Witnesses

Upon motion of material witnesses

[the "Material

Witnesses"], by and through their attorney, Ned Lynch, by the appearance of the parties and their respective counsel, and apparent good cause: Order Unless he is otherwise released from custody of the U.S. Marshal, the Material , at a.m/p.m. The

Witnesses shall be deposed on

depositions will be held at the U.S. Attorney's Office in San Diego, California. An employee of the U.S. Attorney's Office shall serve as the videotape operator. 2. All parties shall attend the deposition. A U.S. Marshal or other designated

government agent(s) shall bring the Material Witnesses to the deposition. If the defendant is in custody, he or she shall be brought separately to the deposition. A marshal or other government agent(s) shall remain present during the entire proceeding. 3. The United States Attorney's Office shall arrange for a court-certified interpreter to

be present for the Material Witness, if necessary. The cost of the interpreter for the Material Witnesses will be borne by the United States. See 28 U.S.C. § 1827(c)(2).

U.S. v. Willian Navarro, Case No. 08CR1278DMS Order for the Videotaped Deposition of a Material Witness

EXHIBIT A

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4.

If a defendant needs an interpreter independent of the Material Witness' interpreter

(if any), defense counsel will arrange for a court-certified interpreter to be present. The cost of a separate interpreter shall be paid by the court. 5. The U.S. Attorney's Office shall arrange for a certified court reporter to be present.

The court reporter shall stenographically record the testimony and serve as a notary and preside at the deposition in accordance with Rule 28(a), Fed. R. Civ. P. The cost of the court reporter shall be borne by the U.S. Attorney's Office. 6. The deposition shall be recorded by videotape. Prior to the conclusion of each

deposition, the deponent, or a party, may elect to have the deponent review the videotape record of his deposition and to note any changes. Any errors or changes, and the reasons for making them, shall be stated in writing and such writing shall be signed by the deponent. 7. The videotape operator shall select and supply all equipment required to videotape

and audiotape the deposition and shall determine all matters of staging and technique, such as number and placement of cameras and microphones, lighting, camera angle, and background. He/she shall determine these matters in a manner that accurately reproduces the appearance of the deponent and assures clear reproduction of each deponent's testimony and the statements of counsel. The deponent, or any party to the action, may place upon the record any objection to the videotape operator's handling of any of these matters. Such objection shall be considered by the court in ruling on the admissibility of the video and/or audiotape record. All such objections shall be deemed waived unless made promptly after the objector knows, or has reasonable grounds to know, of the basis of such objection. 8. The deposition shall be recorded in a fair, impartial, objective manner. The videotape

equipment shall be focused on the witness; however, the videotape operator may from time to time focus upon charts, photographs, exhibits or like material being shown to the witness during the deposition. 9. Before examination of the witness, the notary shall state on the video/audio record:

(a) his/her name and address; (b) the date, time and place of the deposition; (c) the name of the

U.S. v. Willian Navarro, Case No. 08CR1278DMS Order for the Videotaped Deposition of a Material Witness

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witness and the caption of the action; and (d) the identity of the parties and the names of all persons present in the room. The notary shall then swear the witness on the video record. Further, at the beginning of the examination by each counsel, the counsel shall identify himself/herself and his/her respective client on the record. If more than one videotape is used, the notary shall repeat items (a), (b) and (c) at the beginning of each new tape. 10. The videotape operator shall not stop the video recorder after the deposition

commences until it concludes, except, however, that any party may request a cessation for a brief recess, which request will be honored unless another party objects and states the basis for said objection on the record. Each time the tape is stopped or started, the videotape operator shall announce the time on the record. If the deposition requires the use of more than one tape, the end of each tape and the beginning of the next shall be announced orally on the video record by the operator. 11. Testimonial evidence objected to shall be recorded as if the objection had been

overruled and the court shall rule on the objections prior to admitting that portion of the deposition. The party raising the objection(s) shall be responsible for preparing a transcript for the court to consider. All objections to the evidence presented shall be deemed waived unless made during the deposition. 12. If requested by a party, the deposition testimony, if offered other than for

impeachment, may be presented in non-stenographic audio/visual format, in which case no transcript need be prepared in advance of trial, unless otherwise ordered by the court. [See Fed. R. Civ. P. 32(c).] 13. Copies of all exhibits utilized during the videotaped deposition shall be marked for

identification during the deposition and filed along with the videotape. 14. At the conclusion of the deposition, the government and defense attorneys will advise

the material witness attorney if they intend to object to the release of the material witness. If the parties do not object to the witness' release, the government and defense attorney will immediately stipulate to an order to release the material witness from custody. The government's attorney will

U.S. v. Willian Navarro, Case No. 08CR1278DMS Order for the Videotaped Deposition of a Material Witness

EXHIBIT A

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provide the material witness with a subpoena for the trial date, a travel advance fund letter, and written authorization to enter the United States to testify at trial. 15. If either party objects to the release of the material witness, the objecting party must

immediately request in writing a hearing on the issue before the district court within a reasonable time after the deposition is concluded. At the hearing, the objecting party must be prepared to show why the release of the material witness is not appropriate under 18 U.S.C. § 3144. If, after the hearing, the court decides to release the material witness, the material witness attorney should file the witness release order immediately. Again, the government's attorney must serve the witness with a trial subpoena, a travel fund advance letter, and written authorization to legally enter the United States to testify at trial before the material witness is released. 16. Upon request by either party, the videotape operator shall provide a copy of the

videotape deposition to the requesting party at the requesting party's expense. After preparing the requested copies, if any, the videotape operator shall turn the original videotape over to the notary along with a certificate signed by the videotape operator attesting that the videotape is an accurate and complete record of the deposition. 17. The notary shall file this original tape, along with the any exhibits offered during the

deposition, with the court in a sealed envelope marked with the caption of the case, the name of the witness and the date of the deposition. To that envelope, the notary shall attach the sworn statement that the videotape is accurate and complete record of the recorded deposition and certification that the witness was duly sworn by the officer. 18. To the extent that the procedures set forth herein for the videotaping vary from those

set forth in Rules 28 and 30 F.R.Civ.P., these variations are found to be for good cause shown as allowed by F.R.Civ.P. 29. 19. Unless waived by the parties, the notary must give prompt notice to all parties of the

filing of the videotape record of the deposition with the court pursuant to Fed.R.Civ.P. 30(f)(3). It Is So Ordered. Dated: United States District/Magistrate Judge
U.S. v. Willian Navarro, Case No. 08CR1278DMS Order for the Videotaped Deposition of a Material Witness

EXHIBIT A

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NED LYNCH--CA ST. BAR NO. 149680 Attorney At Law 110 West C Street, Suite 1407 San Diego, CA 92101 Telephone: 619-525-0081 Attorney for the Material Witnesses

United States District Court Southern District of California (Hon. Barry T. Moskowitz) UNITED STATES OF AMERICA, Plaintiff, v. AUGUSTIN CARRANZA-DUARTE, Defendant(s). ) ) ) ) ) ) ) ) ) ) Criminal Case No. 08CR2253BTM(PCL) Declaration Of Attorney Ned Lynch In Support Of The Material Witnesses' Motion For Videotaped Depositions And Their Release From Custody Date: July 25, 2008 Time: 2:00 p.m. Judge: Barry T. Moskowitz Room: 15

I, Ned Lynch, declare: 1. I am an attorney licensed to practice law in the State of California and before the United

States District Court for the Southern District of California. 2. On June 23, 2008 I was appointed to represent material witnesses in this case: Antonio Gin-

Sanchez, Mario Miguel-Rojas, and Cresenciano Rafael-Joaquin [the "Material Witnesses"]. As a material witness attorney one of my primary responsibilities is to help arrange for the release of the material witnesses from custody as soon as possible. They are being held in custody by the U.S. Marshal, with an additional detention hold on them by U.S. immigration authorities. To that end, I promptly conducted interviews with the Material Witnesses to explain why they were being held and under what conditions they could be released. In most alien smuggling cases such as this one the material witnesses are released by having a personal surety post a court approved appearance bond of $5,000, and for the surety or family of the witness to also satisfy any other release conditions that are imposed by U.S. immigration authorities. The same

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circumstances are true for this case. 3. My clients, my interpreter, and I have all attempted to locate sureties for these Material

Witnesses. As of the date of filing this motion the Material Witnesses do not know anyone who legally resides in the United States who is willing and able to post a court bond for them. Therefore, the Material Witnesses are essentially being held in custody without bail, and they will continue to be held indefinitely unless their videotaped depositions are taken and they are released from custody. By the time this motion is heard the Material Witnesses will be in custody over 5 weeks (since June 19, 2008). 4. The Material Witnesses informed me their detention is imposing emotional, mental, and

economic hardships on them. They have not been charged with any crime. Mr. Miguel and Mr. Rafael both have three children (mostly minors) and wives who rely on them for support. Mr. Gin is younger and single, and he's never had any legal trouble before. All three were coming to the U.S. simply to find work to afford a better life for themselves and their families. Thus, the lengthy and indefinite nature of the Material Witnesses' detentions are causing them and their families a lot of stress, anxiety, worry, and economic hardship. 5. I am not aware of any reason in this case why the testimony of the Material Witnesses can

not adequately be secured by deposition, nor am I aware of any reason why they should not be released once those depositions are concluded. 6. The Material Witnesses are willing to testify about what they know about this case.

However, there are only a few facts relevant to this case which the witnesses are competent to testify about-facts that are material and not cumulative to the proposed testimony of the other material witnesses in this case. Specifically, these witness can testify about: (a) their citizenship, (b) who might have transported the witnesses, and (c) whether the witnesses agreed to pay anyone. I declare under penalty of perjury under the laws of the United States the above is true and correct to the best of my knowledge.

Dated: July 11, 2008

s/Ned Lynch Ned Lynch, Attorney for the Material Witnesses

E-mail: [email protected]

U.S. v. Augustin Carranza-Duarte, Case No. 08CR2253BTM Declaration of Attorney Ned Lynch Supporting Mat Wits' Videotaped Depositions

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NED LYNCH--CA ST. BAR NO. 149680 Attorney At Law 110 West C Street, Suite 1407 San Diego, CA 92101 Telephone: 619-525-0081 Attorney for the Material Witness(es) United States District Court Southern District of California (Hon. Barry T. Moskowitz) UNITED STATES OF AMERICA, Plaintiff, v. AUGUSTIN CARRANZA-DUARTE, Defendant(s). ) ) ) ) ) ) ) ) ) ) Criminal Case No. 08CR2253BTM(PCL) Certificate of Service by ECF

I, Ned Lynch, declare that at the time of the service of the document(s) noted below, I was at least 18 years of age and not a party to the lawsuit noted above. My business address is 110 West C Street, Suite 1407, San Diego, CA 92101. On July 11, 2008 I served the document(s) noted below by ECF to the person(s) at the e-mail addressed listed by the ECF system for the Southern District of California. Document(s) Served 1. 2. 3. Notice of Motion and Motion to Take the Videotaped Deposition of Material Witness and Thereafter Release Him From Custody Points and authorities supporting that motion Declaration of Attorney Ned Lynch supporting that motion Served On Office of the U.S. Attorney (served via ECF) Attorney Kristin Kraus (served via ECF)

I declare under penalty of perjury under the laws of the United States that the above is true and accurate.

Dated: July 11, 2008

s/Ned Lynch Ned Lynch

1