Free Motion for Discovery - District Court of California - California

Case 3:08-cr-01551-JAH

Document 22-2

Filed 06/06/2008

Page 1 of 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

JOHN C. LEMON California Bar No. 175847
LAW OFFICES OF JOHN C. LEMON, APC

1350 Columbia Street, Suite 600 San Diego, California 92101 Telephone: (619) 794-0423 Attorney for Mr. Barrera-Santana

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE JOHN A. HOUSTON) UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) ) OSCAR IGNACIO ) BARRERA-SANTANA (2), ) ) Defendant. ) ) Criminal No. 08cr1551-JAH Date: June 23, 2008 Time: 8:30 a.m. STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTIONS

I. 18 STATEMENT OF FACTS1 19 On May 1, 2008, Mr. Barrera-Santana was arrested by Border Patrol agents after being a passenger 20 in a van that was allegedly delivered for the purpose of smuggling aliens. Mr. Barrera-Santana allegedly 21 waived hi Miranda rights and made a post-arrest statement in which he denied knowledge that the van was 22 going to be used for alien smuggling and stated further that he was not going to be paid for dropping off the 23 van. Co-defendant Rosalio Alatorre also allegedly waived Miranda and made statements that inculpated 24 both defendants. 25 // 26 27 28 The following statement of facts was obtained from the statement of facts in support of the complaint filed against Mr. Barrera-Santana. Mr. Barrera-Santana does not stipulate to the accuracy of these facts and reserves the right to adopt a contrary position at a motion hearing or trial. 1 08cr1551-JAH
1

Case 3:08-cr-01551-JAH

Document 22-2

Filed 06/06/2008

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

Mr. Barrera-Santana did not receive a pre-indictment offer. On May 14, 2008, the grand jury for the Southern District of California issued a six-count indictment charging the defendants with bringing undocumented aliens to the United States for financial gain and transporting undocumented aliens. See 8 U.S.C. §§ 1324(a)(2)(B)(ii); 1324(a)(1)(A)(ii) and (v)(II). On May 28, 2008, the government produced 163 pages of discovery and three DVD's. This motion follows. II. MOTION TO COMPEL DISCOVERY AND PRESERVE EVIDENCE Mr. Barrera-Santana moves for the production by the government of the following discovery and for the preservation of evidence. This request is not limited to those items about which the prosecutor knows, but includes all discovery listed below that is in the custody, control, care, or knowledge of any government agency. See generally Kyles v. Whitley, 514 U.S. 419 (1995); United States v. Bryan, 868 F.2d 1032 (9th Cir. 1989). 1. The Defendant's Statements. The government must disclose to Mr. Barrera-Santana all

copies of any written or recorded statements made by Mr. Barrera-Santana; the substance of any statements made by Mr. Barrera-Santana that the government intends to offer in evidence at trial; any response by Mr. Barrera-Santana to interrogation; the substance of any oral statements that the government intends to introduce at trial and any written summaries of Mr. Barrera-Santana's oral statements contained in the handwritten notes of the government agent; any response to any Miranda warnings that may have been given to Mr. Barrera-Santana; and any other statements by Mr. Barrera-Santana. Fed. R. Crim. P. 16(a)(1)(A) and (B). The Advisory Committee Notes and the 1991 amendments to Rule 16 make clear that the government must reveal all of Mr. Barrera-Santana's statements, whether oral or written, regardless of whether the government intends to make any use of those statements. 2. Arrest Reports, Notes and Dispatch Tapes. Mr. Barrera-Santana also specifically requests

that all arrest reports, notes and dispatch or any other tapes that relate to the circumstances surrounding her arrest or any questioning, if such reports have not already been produced in their entirety, be turned over to him. This request includes, but is not limited to, any rough notes, records, reports, transcripts or other documents in which statements of Mr. Barrera-Santana or any other discoverable material is contained. Mr. 2 08cr1551-JAH

Case 3:08-cr-01551-JAH

Document 22-2

Filed 06/06/2008

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

Barrera-Santana includes in this request any redacted portions of the Report of Investigation ("ROI") and any subsequent ROI's that the case agent or any other agent has written. This is all discoverable under Fed. R. Crim. P. 16(a)(1)(A) and (B) and Brady v. Maryland, 373 U.S. 83 (1963). See also Loux v. United States, 389 F.2d 911 (9th Cir. 1968). Arrest reports, investigator's notes, memos from arresting officers, dispatch tapes, sworn statements, and prosecution reports pertaining to Mr. Barrera-Santana are available under Fed. R. Crim. P. 16(a)(1)(A) and (B), Fed. R. Crim. P. 26.2 and 12(I). Preservation of rough notes is requested, whether or not the government deems them discoverable. 3. Brady Material. Mr. Barrera-Santana requests all documents, statements, agents' reports,

and tangible evidence favorable to her on the issue of guilt and/or evidence that affects the credibility of the government's case. Impeachment and exculpatory evidence both fall within Brady's definition of evidence favorable to the accused. United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 427 U.S. 97 (1976). 4. Any Information That May Result in a Lower Sentence. As discussed above, any

information that may result in a more favorable sentence must also be disclosed pursuant to Brady, 373 U.S. 83. The government must disclose any cooperation or attempted cooperation by Mr. Barrera-Santana, as well as any information that could affect any base offense level or specific offense characteristic under Chapter Two of the Guidelines. Also included in this request is any information relevant to a Chapter Three adjustment, a determination of Mr. Barrera-Santana's criminal history, or any other application of the Guidelines. 5. The Defendant's Prior Record. Evidence of a prior record is discoverable under Fed. R.

Crim. P. 16(a)(1)(D). Mr. Barrera-Santana specifically requests a complete copy of any criminal record. 6. Any Proposed 404(b) Evidence. Evidence of prior similar acts is discoverable under Fed.

R. Crim. P. 16(a)(1)(D) and Fed. R. Evid. 404(b) and 609. In addition, under Fed. R. Evid. 404(b), "upon request of the accused, the prosecution . . . shall provide reasonable notice in advance of trial . . . of the general nature . . . ." of any evidence the government proposes to introduce under Fed. R. Evid. 404(b) at trial. Sufficient notice requires the government to "articulate precisely the evidential hypothesis by which a fact of consequence may be inferred from the other acts evidence." United States v. Mehrmanesh, 689 F.2d 822, 830 (9th Cir. 1982) (emphasis added; internal citations omitted); see also United States v. Brooke, 4 3 08cr1551-JAH

Case 3:08-cr-01551-JAH

Document 22-2

Filed 06/06/2008

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

F.3d 1480, 1483 (9th Cir. 1993) (reaffirming Mehrmanesh and reversing convictions). 7. Evidence Seized. Evidence seized as a result of any search, either warrantless or with a

warrant, is discoverable under Fed. R. Crim. P. 16(a)(1)(E). 8. Request for Preservation of Evidence. The defense specifically requests that all dispatch

tapes or any other physical evidence that may be destroyed, lost, or otherwise put out of the possession, custody, or care of the government and that relate to the arrest or the events leading to the arrest in this case be preserved. This request includes, but is not limited to, Mr. Barrera-Santana's personal effects, and any evidence seized from Mr. Barrera-Santana or any third party. Mr. Barrera-Santana requests that the prosecutor be ordered to question all the agencies and individuals involved in the prosecution and investigation of this case to determine if such evidence exists, and if it does exist, to inform those parties to preserve any such evidence. 9. Henthorn Material. Mr. Barrera-Santana requests that the Assistant United States

Attorney ("AUSA") assigned to this case oversee (not personally conduct) a review of all personnel files of each agent (including local and state authorities) involved in the present case for impeachment material. See Kyles v. Whitley, 514 U.S. 437, 438 (1995) (holding that "the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police"); United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991). This request includes, but is not limited to, any complaints filed (by a member of the public, by another agent, or any other person) against the agent, whether or not the investigating authority has taken any action, as well as any matter for which a disciplinary review was undertaken, whether or not any disciplinary action was ultimately recommended. Mr. Barrera-Santana further requests production of any such information at least one week prior to the motion hearing and two weeks prior to trial. If the prosecutor is uncertain whether certain information should be disclosed pursuant to this request, this information should be produced to the Court in advance of the motion hearing and the trial for an in camera inspection. 10. Tangible Objects. Mr. Barrera-Santana requests the opportunity to inspect, copy, and

test, as necessary, all other documents and tangible objects, including photographs, books, papers, documents, fingerprint analyses, vehicles, or copies of portions thereof, that are material to the defense or intended for use in the government's case-in-chief or were obtained from or belong to Mr. Barrera-Santana 4 08cr1551-JAH

Case 3:08-cr-01551-JAH

Document 22-2

Filed 06/06/2008

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

. Fed. R. Crim. P. 16(a)(1)(E). Specifically, Mr. Barrera-Santana requests color copies of all photographs in the government's possession. 11. Expert Witnesses. Mr. Barrera-Santana requests the name, qualifications, and a written

summary of the testimony of any person that the government intends to call as an expert witness during its case in chief. Fed. R. Crim. P. 16(a)(1)(G). This summary should include a description of the witness' opinion(s), as well as the bases and the reasons for the opinion(s). See United States v. Duvall, 272 F.3d 825 (7th Cir. 2001) (finding that government's written expert notice did not adequately summarize or describe police detective's testimony in drug prosecution where notice provided only a list of the general subject matters to be covered and failed to identify what opinion the expert would offer on those subjects). Mr. Barrera-Santana requests the notice of expert testimony be provided at a minimum of four weeks prior to trial so that the defense can properly prepare to address and respond to this testimony, including obtaining its own expert and/or investigating the opinions, credentials of the government's expert and obtain a hearing in advance of trial to determine the admissibility of qualifications of any expert. See Kumho v. Carmichael Tire Co., 526 U.S. 137, 119 S.Ct. 1167, 1176 (1999) (trial judge is "gatekeeper" and must determine, reliability and relevancy of expert testimony and such determinations may require "special briefing or other proceedings"). 12. Impeachment evidence. Mr. Barrera-Santana requests any evidence that any prospective

government witness has engaged in any criminal act whether or not resulting in a conviction and whether any witness has made a statement favorable to Mr. Barrera-Santana. See Fed. R. Evid. 608, 609 and 613. Such evidence is discoverable under Brady, 373 U.S. 83. See United States v. Strifler, 851 F.2d 1197 (9th Cir. 1988) (witness' prior record); Thomas v. United States, 343 F.2d 49 (9th Cir. 1965) (evidence that detracts from a witness' credibility). 13. Evidence of Criminal Investigation of Any Government Witness. Mr. Barrera-Santana

requests any evidence that any prospective witness is under investigation by federal, state or local authorities for any criminal conduct. United States v. Chitty, 760 F.2d 425 (2d Cir. 1985). 14. Evidence of Bias or Motive to Lie. Mr. Barrera-Santana requests any evidence that any

prospective government witness is biased or prejudiced against Mr. Barrera-Santana, or has a motive to falsify or distort his or her testimony. Pennsylvania v. Ritchie, 480 U.S. 39 (1987); Strifler, 851 F.2d 1197. 5 08cr1551-JAH

Case 3:08-cr-01551-JAH

Document 22-2

Filed 06/06/2008

Page 6 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

15.

Evidence Affecting Perception, Recollection, Ability to Communicate, or Veracity. Mr.

Barrera-Santana requests any evidence, including any medical or psychiatric report or evaluation, tending to show that any prospective witness's ability to perceive, remember, communicate, or tell the truth is impaired; and any evidence that a witness has ever used narcotics or other controlled substance, or has ever been an alcoholic. Strifler, 851 F.2d 1197; Chavis v. North Carolina, 637 F.2d 213, 224 (4th Cir. 1980). 16. Witness Addresses. Mr. Barrera-Santana requests the name and last known address of

each prospective government witness. See United States v. Napue, 834 F.2d 1311 (7th Cir. 1987); United States v. Tucker, 716 F.2d 576 (9th Cir. 1983) (failure to interview government witnesses by counsel is ineffective); United States v. Cook, 608 F.2d 1175, 1181 (9th Cir. 1979) (defense has equal right to talk to witnesses). Mr. Ortiz also requests the name and last known address of every witness to the crime or crimes charged (or any of the overt acts committed in furtherance thereof) who will not be called as a government witness. United States v. Cadet, 727 F.2d 1453 (9th Cir. 1984). 17. Names of Witnesses Favorable to the Defendant. Mr. Barrera-Santana requests the name

of any witness who made any arguably favorable statement concerning Mr. Barrera-Santana or who could not identify him or who was unsure of his identity or participation in the crime charged. Jackson v. Wainwright, 390 F.2d 288 (5th Cir. 1968); Chavis, 637 F.2d at 223; Jones v. Jago, 575 F.2d 1164,1168 (6th Cir.1978); Hudson v. Blackburn, 601 F.2d 785 (5th Cir. 1979), cert. denied, 444 U.S. 1086 (1980). 18. Statements Relevant to the Defense. Mr. Barrera-Santana requests disclosure of any

statement that may be "relevant to any possible defense or contention" that he might assert. United States v. Bailleaux, 685 F.2d 1105 (9th Cir. 1982). 19. Jencks Act Material. Mr. Barrera-Santana requests production in advance of the motion

hearing or trial of all material, including dispatch tapes, that the government must produce pursuant to the Jencks Act, 18 U.S.C. § 3500 and Fed. R. Crim. P. 26.2 Advance production will avoid the possibility of delay of the motion hearing or trial to allow Mr. Barrera-Santana to investigate the Jencks material. Mr. Barrera-Santana requests pre-trial disclosure of such statements to avoid unnecessary recesses and delays and to allow defense counsel to prepare for, and use properly any Jencks statements during crossexamination. 20. Giglio Information. Pursuant to Giglio v. United States, 405 U.S. 150 (1972), Mr. 6 08cr1551-JAH

Case 3:08-cr-01551-JAH

Document 22-2

Filed 06/06/2008

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

Barrera-Santana requests all statements and/or promises, expressed or implied, made to any government witnesses, in exchange for their testimony in this case, and all other information that could arguably be used for the impeachment of any government witnesses. 21. Agreements Between the Government and Witnesses. Mr. Barrera-Santana requests

discovery regarding any express or implicit promise, understanding, offer of immunity, of past, present, or future compensation, or any other kind of agreement or understanding, including any implicit understanding relating to criminal or civil income tax, forfeiture or fine liability, between any prospective government witness and the government (federal, state and/or local). This request also includes any discussion with a potential witness about or advice concerning any immigration benefits, any contemplated prosecution, or any possible plea bargain, even if no bargain was made or the advice not followed. 22. Informants and Cooperating Witnesses. Mr. Barrera-Santana requests disclosure of the

names and addresses of all informants or cooperating witnesses used or to be used in this case, and in particular, disclosure of any informant who was a percipient witness in this case or otherwise participated in the crime charged against Mr. Barrera-Santana. The government must disclose the informant's identity and location, as well as disclose the existence of any other percipient witness unknown or unknowable to the defense. Roviaro v. United States, 353 U.S. 52, 61-62 (1957). The government must disclose any information derived from informants that exculpates or tends to exculpate Mr. Barrera-Santana. 23. Bias by Informants or Cooperating Witnesses. Mr. Barrera-Santana requests disclosure

of any information indicating bias on the part of any informant or cooperating witness. Giglio, 405 U.S. 150. Such information would include what, if any, inducements, favors, payments or threats were made to the witness to secure cooperation with the authorities. 24. Personnel Records of Government Officers Involved in the Arrest. Mr. Barrera-Santana

requests all citizen complaints and other related internal affairs documents involving any of the federal, state or local law enforcement officers who were involved in the investigation, search, arrest and interrogation of Mr. Barrera-Santana. See Pitchess v. Superior Court, 11 Cal. 3d 531, 539 (1974). Because of the sensitive nature of these documents, defense counsel will be unable to procure them from any other source. 25. Training of Relevant Law Enforcement Officers. Mr. Barrera-Santana requests copies

of all written, videotaped or otherwise recorded policies or training instructions or manuals issued by all law 7 08cr1551-JAH

Case 3:08-cr-01551-JAH

Document 22-2

Filed 06/06/2008

Page 8 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

enforcement agencies involved in the case (Immigration and Customs enforcement, Customs and Border Protection, DEA, etc.) to their employees regarding training, policies and procedures regarding the interrogation of suspects. 26. Performance Goals and Policy Awards. Mr. Barrera-Santana requests disclosure of

information regarding standards used for measuring, compensating or reprimanding the conduct of all law enforcement officers involved in the case to the extent such information relates to the interdiction of aliens. 27. Reports of Scientific Tests or Examinations. Pursuant to Fed. R. Crim. P. 16(a)(1)(F),

Mr. Barrera-Santana requests the reports of all tests and examinations conducted in this case, including, but not limited to, any fingerprint testing done upon any evidence seized in this case, that is within the possession, custody, or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government, and that are material to the preparation of the defense or are intended for use by the government as evidence in chief at the trial. 29. Residual Request. Mr. Barrera-Santana intends by this discovery motion to invoke his rights to discovery to the fullest extent possible under the Federal Rules of Criminal Procedure and the Constitution and laws of the United States. This request specifically includes all subsections of Rule 16. Mr. Barrera-Santana requests that the government provide the above requested material sufficiently in advance of trial and the next motion hearing date. III. CONCLUSION Mr. Barrera-Santana respectfully requests that the Court grant his motion.

Respectfully submitted,

Dated: June 6, 2008

/s/ John C. Lemon JOHN C. LEMON Attorney for Mr. Barrera-Santana

8

08cr1551-JAH