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

Case 3:08-cr-01913-L

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R. Keramati, SBN# 182425 Western Legal Group, APC. 110 West C. Street, Suite 1300 San Diego, California 92101 Telephone (619) 231-2529 Facsimile (619) 231-2528 Attorney for: ANTONIO SOLIS-MARTINEZ AND EFRAIN RAMOS-BAEZ

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE PETER C. LEWIS)

UNITED STATES OF AMERICA, 12 Plaintiff, 13 vs. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant(s) Katherine Frances STOVER

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Criminal Case No. 08cr1913-L (PCL) NOTICE OF MOTION AND MOTION FOR THE TAKING OF THE VIDEO DEPOSITIONS OF MATERIAL WITNESSES ANTONIO SOLISMARTINEZ AND EFRAIN RAMOS-BAEZ DATE: July 2, 2008 TIME: 10:30 a.m. JUDGE: Honorable Peter C. Lewis

TO: GERARD WASSON, ESQ., Attorney for Defendant Katherine Frances Stover TO: REBECCA KANTER, AUSA, Attorney for the Prosecution. PLEASE TAKE NOTICE that on July 2, 2008 at 10:30 a.m., or as soon thereafter as counsel may be heard, in the Courtroom of the Honorable Peter C. Lewis, the material witnesses, ANTONIO SOLIS-MARTINEZ AND EFRAIN RAMOS-BAEZ, by and through their counsel, RAY KERAMATI, will bring the above entitled motion. MOTION The material witnesses, ANTONIO SOLIS-MARTINEZ AND EFRAIN RAMOSBAEZ, by and through their counsel, RAY KERAMATI, and pursuant to Rule 15(a) of the -108cr1913-L (PCL)

NOTICE OF MOTION AND MOTION FOR THE TAKING OF THE VIDEO DEPOSITIONS OF MATERIAL WITNESSES ANTONIO SOLIS-MARTINEZ AND EFRAIN RAMOS-BAEZ

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Federal Rules of Criminal Procedure, and pursuant to 18 U.S.C. Section 3144, move for an order to secure their testimony pending trial, and for an order for their release from custody immediately thereafter. This motion will be made on the grounds that the witnesses are unable to meet any condition of release and that their testimony can be adequately be secured by deposition, and that further detention is not necessary to prevent a failure of justice and would, in fact, perpetuate an extreme hardship on the material witnesses and their family. This motion will be made based upon the Declaration of Ray Keramati, Esq., the Points and Authorities in Support of the Motion, and all documents and records on file herein and upon

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such oral testimony as the Court may deem proper. DATED: June 24, 2008 /s/ Ray Keramati ___ R. Keramati, Esq. Attorney for Material Witnesses

NOTICE OF MOTION AND MOTION FOR THE TAKING OF THE VIDEO DEPOSITIONS OF MATERIAL WITNESSES ANTONIO SOLIS-MARTINEZ AND EFRAIN RAMOS-BAEZ

Case 3:08-cr-01913-L

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R. Keramati, SBN# 182425 Western Legal Group, APC. 110 West C. Street, Suite 1300 San Diego, California 92101 Telephone (619) 231-2529 Facsimile (619) 231-2528 Attorney for: ANTONIO SOLIS-MARTINEZ AND EFRAIN RAMOS-BAEZ

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE PETER C. LEWIS)

UNITED STATES OF AMERICA, Plaintiff, vs. Katherine Frances STOVER Defendant(s)

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Criminal Case No. 08cr1913-L (PCL) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR THE TAKING OF THE VIDEO DEPOSITIONS OF MATERIAL WITNESSES ANTONIO SOLISMARTINEZ AND EFRAIN RAMOS-BAEZ DATE: July 2, 2008 TIME: 10:30 a.m. JUDGE: Honorable Peter C. Lewis

I. INTRODUCTION The material witnesses, ANTONIO SOLIS-MARTINEZ AND EFRAIN RAMOSBAEZ arrested on or about May 16, 2008, near Seeley, California, by officers of United States Border Patrol after they had illegally entered the United States. They were later designated as material witnesses and were placed in custody by US Marshals and subsequently transported to El Centro where they remain in custody. They may remain so indefinitely as qualified sureties cannot be found. These witnesses, by and through their appointed counsel, Ray Keramati, move this Court -108cr1913-L (PCL)
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR THE TAKING OF THE VIDEO DEPOSITIONS OF MATERIAL WITNESSES ANTONIO SOLIS-MARTINEZ AND EFRAIN RAMOS-BAEZ

Case 3:08-cr-01913-L

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for an Order under U.S.C. Section 3144 and Federal Rule of Criminal Procedure 15, as the witnesses have been unable to secure sureties under the conditions imposed by the government in this matter. II. UNDER EXISTING FEDERAL LAW THE COURT IS REQUIRED TO ORDER THE DEPOSITION AND RELEASE OF THIS WITNESS The language of 18 U.S.C. Section 3144 provides that material witnesses who are unable to comply with any condition of release have the right to have their depositions taken and thereafter be released: "No material witness may be detained because of inability to comply with a condition of release 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..." Further, Federal Rule of Criminal Procedure 15(a) provides the procedure basis for this motion for deposition: "If a witness is detained pursuant to Section 3144 of Title 18, United States Code, the Court on written motion of the witness and upon notice to the parties may direct that the witness's deposition be taken. After the deposition has been subscribed the Court may discharge the witness..." The language of 18 U.S.C. 3144 is mandatory and requires material witnesses' deposition and release. Moreover, any ambiguity which exists in 18 U.S.C. Section 3144 must be construed in favor of material witnesses where they were incarcerated indefinitely without being charged with any criminal violation. As part of In Re Class Action Application for Habeas Corpus on behalf of all Material Witnesses in the Western District of Texas, 612 Fed.Supp. 940, 945 (1985), the Court stated: As a final matter, this Court is of the opinion that 18 U.S.C. Section 3144 required that an individual incarcerated as a material witness be deposed if certain requirements are met. Without assistance of counsel, it is this Court's belief that deposition of the material witnesses rarely go forward and that as a consequence, the incarceration of material witnesses is -208cr1913-L (PCL)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR THE TAKING OF THE VIDEO DEPOSITIONS OF MATERIAL WITNESSES ANTONIO SOLIS-MARTINEZ AND EFRAIN RAMOS-BAEZ

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prolonged. This Court is of the opinion that extant procedures not only create the risk of erroneous deprivations of liberty, but also create the risk of unnecessarily prolonged deprivations of liberty..." The instant witness is entitled to due process of the law under the Fifth Amendment. Id. 612 Fed. Supp. at 944. Also see United States v. Linton, 502 Fed. Supp. 878 (1980), which had a material witness's deposition ordered and then ordered the release of the material witness despite failure of the witness to appear in response to subpoena in the underlying criminal action. Further, legislative history supports the position that the deposition and release of the material witness is mandatory. Section 3144: RELEASE OR DETENTION OF A MATERIAL WITNESS, reads (in part): "This Section carries forward, with two significant changes, current 18 U.S.C. 3149 which concerns the release of a material witness. If a person's testimony is that it may become impracticable to secure his presence by subpoena, the government is authorized to take such person into custody. A judicial officer is to treat such a person in accordance with Section 3142 and to impose those conditions of release that he finds to be reasonably necessary to assure the presence of the witness as required, or if no conditions of release will assure the appearance of the witness, order his detention as provided in Section 3142. However, if a material witness cannot comply with release conditions or there are no release conditions that will assure his appearance, but he will give a deposition that will adequately preserve his testimony, the judicial officer is required to order the witness's release after the taking of the deposition if this will not result in a failure of justice...1984 U.S. Code Cong. and Adm. News, p 3182. In the instant mater, counsel for the detained material witness believes there will be no failure of justice in requiring the deposition, and asserts that such contention is supported by case law. It is true that defendant has a Constitutional right to confront and cross-examine witnesses against them, but this right must be balanced against the Constitutional rights of the detained witness. In this matter, the defendant is represented by counsel, said counsel has not been denied the opportunity to interview the witness while the witness has been detained, and said counsel -308cr1913-L (PCL)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR THE TAKING OF THE VIDEO DEPOSITIONS OF MATERIAL WITNESSES ANTONIO SOLIS-MARTINEZ AND EFRAIN RAMOS-BAEZ

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and his client will be notified of the time and place of the deposition and are invited to ask all questions of the witnesses which they believe will further their case. III. THE WITNESS AND HIS FAMILY ARE SUFFERING ECONOMIC HARDSHIP AS A RESULT OF HIS CONTINUING INCARCERATION Federal courts in this District have been applying Torres-Ruiz v. U.S. District Court For The Southern District of California, 120 F.3d 933 (9th Cir. 1997) as support for a decision to order the depositions and subsequent release of material witnesses. Some of these same courts have also been asking for some reassurance that continued incarceration of witnesses will result in a hardship for the witnesses. Counsel for this witness has provided the Court with a separate declaration identifying the circumstances which are in place creating severe economic and personal hardships for this witness and his family. requirement has been met. IV. CONCLUSION Under the clear meaning of U.S.C. Section 3144, legislative history and relevant case law, the ordering of deposition and subsequent release of these material witnesses appears mandatory. With that in mind, the witnesses respectfully request this Court to grant video depositions of their testimonies and then order their release. Thus, this standard and often-applied

DATED: June 24, 2008

/s/ Ray Keramati ____ R. Keramati, Esq. Attorney for Material Witnesses

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08cr1913-L (PCL)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR THE TAKING OF THE VIDEO DEPOSITIONS OF MATERIAL WITNESSES ANTONIO SOLIS-MARTINEZ AND EFRAIN RAMOS-BAEZ

Case 3:08-cr-01913-L

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R. Keramati, SBN# 182425 Western Legal Group, APC. 110 West C. Street, Suite 1300 San Diego, California 92101 Telephone (619) 231-2529 Facsimile (619) 231-2528 Attorney for: ANTONIO SOLIS-MARTINEZ AND EFRAIN RAMOS-BAEZ

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE PETER C. LEWIS)

UNITED STATES OF AMERICA, 12 Plaintiff, 13 vs. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I, Ray Keramati, declare as follows: Defendant(s) Katherine Frances STOVER

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Criminal Case No. 08cr1913-L (PCL) DECLARATION OF RAY KERAMATI IN SUPPORT OF MOTION REQUESTING THE ORDERING OF THE VIDEO DEPOSITIONS OF ANTONIO SOLISMARTINEZ AND EFRAIN RAMOS-BAEZ DATE: July 2, 2008 TIME: 10:30 a.m. JUDGE: Honorable Peter C. Lewis

1. I am an attorney duly licensed to practice before the courts of the State of California and I am counsel of record for Mr. Antonio Solis-Martinez and Efrain Ramos-Baez. If called as a witness herein, I could and would competently testify to the facts set forth herein. 2. Mr. Solis-Martinez and Mr. Ramos-Baez have been in custody since May 16, 2008. 3. Mr. Solis-Martinez and Mr. Ramos-Baez' incarceration have placed a great hardship on them. 4. Mr. Solis-Martinez and Mr. Ramos-Baez does not have sureties to post material witness appearance bonds for their release. -108cr1913-L (PCL)

DECLARATION OF RAY KERAMATI IN SUPPORT OF MOTION REQUESTING THE ORDERING OF THE VIDEO DEPOSITION OF ANTONIO SOLIS-MARTINEZ AND EFRAIN RAMOS-BAEZ

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5. I am requesting that the court order a video deposition hearing to be held to secure the testimonies of Mr. Solis-Martinez and Mr. Ramos-Baez as soon as practicable. I declare under the penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed at San Diego, California on June 24, 2008.

DATED: June 24, 2008

/s/ Ray Keramati ____ R. Keramati, Esq. Attorney for Material Witnesses

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DECLARATION OF RAY KERAMATI IN SUPPORT OF MOTION REQUESTING THE ORDERING OF THE VIDEO DEPOSITION OF ANTONIO SOLIS-MARTINEZ AND EFRAIN RAMOS-BAEZ

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R. Keramati, SBN# 182425 Employment Mediation & Litigation Services, APC 110 West C. Street, Suite 1300 San Diego, California 92101 Telephone (619) 231-2529 Facsimile (619) 231-2528 Attorney for Material Witnesses

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE PETER C. LEWIS)

UNITED STATES OF AMERICA, Plaintiff, vs. Katherine Frances STOVER Defendant(s)

) Criminal Case No. 08cr1913-L (PCL) ) ) ) ) ) ) ) CERTIFICATE OF SERVICE ) ) ) ) ) ) ) )

I HEREBY CERTIFY that on June 24, 2008, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record identified on the below Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronic Notices of Electronic Filing.

DATED: June 24, 2008

/s/ Ray Keramati R. Keramati, Esq. -1CERTIFICATE OF SERVICE

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SERVICE LIST United States v. Katherine Frances Stover Case No. 08cr1913-L (PCL) United States District Court, Southern District of California U S Attorney CR [email protected] Gerard Jeffrey Wasson [email protected]

[Service via CM/ECF]

-2CERTIFICATE OF SERVICE

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