Free Motion for Release of Material Witness - District Court of California - California

Case 3:08-cr-01560-JAH

Document 42-2

Filed 06/06/2008

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CIRO HERNANDEZ, ESQ SB#174791 551 Third Avenue Chula Vista, CA 91910 Telephone: (619) 266-0389 Fax: (619) 501-2493 Attorney for Material Witness

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

) ) Plaintiff ) ) v. ) ) ) Christian Paul RODARTE ) ) ) Defendant ) ) ) __________________________________)

UNITED STATES OF AMERICA

Criminal Case 08CR1560-JAH

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF, MOTION FOR VIDEOTAPE DEPOSITIONS AND RELEASE OF MATERIAL WITNESS Hearing Date: June 26, 2008 Time: 9:30 a..m. Court: F Judge: Hon. Nita L. Strormes

Material Witnesses, CGP. (minor) respectfully submit the following Memorandum of Points and Authorities in Support of their Motion for Videotape Depositions and Release of Material Witnesses. STATEMENT OF FACTS CGP (minor) was taken into custody on April 17, 2008. He was a passengers in a vehicle driven by the defendant, which contained seven other undocumented aliens. On May 14, 2008, the defendant was indicted on five counts of violation of Title 8, United States Code, Section 1324 (a) (2) (B) (ii), five counts of violation of Title 8, United States Code, Section 1324 (a) (1)

08CR1560-JAH

Case 3:08-cr-01560-JAH

Document 42-2

Filed 06/06/2008

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(A) (ii), and two counts of Title 8, United States Cod, Section 1324 (a) (1) (A) (ii) and (a) (1) (B) (iv) . As of the date of this motion, the material witness has no prospects of obtaining a surety. No potential sureties were contacted on behalf of material witness CGP (minor). He has no friends relatives who could qualify as a surety on his behalf. In Mexico, CGP (minor) helps support his mother. The material witness was coming to the United States to find work in order to provide that support. Requiring the material witness to remain in custody

during the pendency of the case constitutes a severe economic and emotional hardship for him, and even more severely, for his family who is receiving less support during the time he is incarcerated. . POINTS AND AUTHORITIES DEPOSITION IS APPROPRIATE IN THESE CIRCUMSTANCES In Torres-Ruiz v. United States, 120 F.3d. 933, (9th cir. 1997), the Ninth Circuit mandated the use of videotape depositions when the material witness testimony can be adequately secured by deposition and further detention is not necessary to prevent the failure of justice. (emphasis added; see 18 U.S.C. § 3144) In Torres-Ruiz, the witnesses were the sole support of their families in Mexico, and their continued incarceration constituted a hardship on thier families in Mexico. The Torres-Ruiz Court clarified that denial of a motion to videotape the witness' testimony is limited to situations in which a "failure of justice" would occur because the deposition would not serve as an adequate substitute for the witness' live testimony. As of the date of this hearing, the MATERIAL WITNESS has been in custody over one month, and continued incarceration constitutes an economic hardship for him and his family. It is not necessary to continue to detain him because no failure to justice would occur by videotaping his testimony. His testimony can be adequately secured by granting this Motion, and there has been no showing that the deposition testimony would be different from the live

08CR1560-JAH

Case 3:08-cr-01560-JAH

Document 42-2

Filed 06/06/2008

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testimony, and he is subject to the subpoena power of this Court. Therefore, it is requested the Court grant this Motion and order the videotape deposition of the MATERIAL WITNESS forthwith, to occur within 10 days of granting this Motion. The Material WITNESS also request the Court order their immediate release upon conclusion of this deposition.

DATED: __June 5, 2008

/S/ Ciro Hernandez_______________________ CIRO HERNANDEZ Attorney for Material Witnesses

08CR1560-JAH