Free Motion for Reciprocal Discovery - District Court of California - California

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KAREN P. HEWITT United States Attorney LUELLA M. CALDITO Assistant U.S. Attorney California State Bar No. 215953 United States Attorney's Office 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-7035/(619) 235-2757 (Fax) Email: [email protected] Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, RAUL TARABAY, ) ) ) ) ) ) ) ) ) ) ) CRIM. CASE NO. 08CR1280-W DATE: TIME: June 2, 2008 2:00 p.m.

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STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF GOVERNMENT'S MOTION FOR RECIPROCAL DISCOVERY

COMES NOW, the plaintiff, UNITED STATES OF AMERICA, by and through its counsel, Karen P. Hewitt, United States Attorney, and Luella M. Caldito, Assistant United States Attorney, and hereby files the attached statement of facts and memorandum of points and authorities in support of Government's motion for reciprocal discovery. I STATEMENT OF THE CASE On April 23, 2008, a federal grand jury in the Southern District of California returned a two-count Indictment charging Defendant with Importation of Marijuana, in violation of Title 21, United States Code, Sections 952 and 960 and Possession of Marijuana with the Intent to Distribute, in violation of Title 21, United States Code, Section 841(a)(1). Defendant was arraigned on the Indictment on April 28, 2008, and pled not guilty to the Indictment.

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II 1 STATEMENT OF FACTS 2 On March 4, 2008, at approximately 12:15 a.m., Defendant entered the United States from 3 Mexico at the San Ysidro, California, Port of Entry as the driver and sole occupant of a Ford F-150 4 bearing California license plate 7FO1133. At primary inspection, Defendant stated that he was 5 a citizen of the United States and the owner of the truck. Defendant further stated that he traveled 6 into Mexico for an emergency and had nothing to declare. Defendant presented a California driver 7 license bearing the name "Mark A. Kochackis." Defendant claimed that this was the only 8 identification he brought with him to Mexico. When Defendant handed the identification to the 9 Officer Benson for inspection, Officer Benson noticed that Defendant's hands were trembling. 10 Officer Benson then instructed Defendant to open the tool box located in the bed of the truck. 11 Defendant was unable to open the tool box because he claimed that he did not have the key. The 12 vehicle was then referred to secondary inspection. 13 At secondary, numerous packages were found in the dashboard, spare tire, gas tank and 14 tool box of Defendant's vehicle. One package field tested positive for marijuana. A total of 34 15 packages, weighing 138.18 kilograms, were removed from Defendant's vehicle. 16 At approximately 1:40 a.m., Defendant was advised of his Miranda rights and invoked his 17 right to remain silent. 18 III 19 GOVERNMENT'S MOTIONS 20 A. 21
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MOTION FOR RECIPROCAL DISCOVERY RULE 16(b)

22 The United States, pursuant to Rule 16 of the Federal Rules of Criminal Procedure, 23 requests that Defendant permit the United States to inspect, copy, and photograph any and all 24 books, papers, documents, photographs, tangible objects, or make copies of portions thereof, 25 which are within the possession, custody or control of Defendant and which Defendant intends 26 to introduce as evidence in his case-in-chief at trial. 27 28 2

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The United States further requests that it be permitted to inspect and copy or 1 photograph any results or reports of physical or mental examinations and of scientific tests or 2 experiments made in connection with this case, which are in the possession or control of 3 Defendant, which Defendant intends to introduce as evidence-in-chief at the trial, or which 4 were prepared by a witness whom Defendant intends to call as a witness. Because the United 5 States will comply with a defense request for delivery of reports of examinations, the United 6 States is entitled to the items listed above under Rule 16(b)(1) of the Federal Rules of Criminal 7 Procedure. The United States also requests that the Court make such order as it deems 8 necessary under Rules 16(d)(1) and (2) to ensure that the United States receives the discovery 9 to which it is entitled. 10 2. 11 Rule 26.2 of the Federal Rules of Criminal Procedure requires the production of prior 12 statements of all witnesses, except a statement made by Defendant. This rule thus provides for 13 the reciprocal production of Jencks statements. 14 The time frame established by the rule requires the statement to be provided after the 15 witness has testified. To expedite trial proceedings, the United States hereby requests that 16 Defendant be ordered to supply all prior statements of defense witnesses by a reasonable date 17 before trial to be set by the Court. Such an order should include any form in which these 18 statements are memorialized, including but not limited to, tape recordings, handwritten or 19 typed notes and/or reports. 20 21 22 23 24 25 26 27 28 3 RULE 26.2

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IV 1 CONCLUSION 2 For the foregoing reasons, the United States requests that the Government's Motion be 3 granted. 4 5 DATED: May 19, 2008 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Respectfully Submitted, KAREN P. HEWITT United States Attorney /s/ Luella M. Caldito LUELLA M. CALDITO Assistant U.S. Attorney Email: [email protected]

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UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF CALIFORNIA 2 3 UNITED STATES OF AMERICA, 4 Plaintiff, 5 v. 6 RAUL TARABAY, 7 Defendant. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IT IS HEREBY CERTIFIED THAT: I, LUELLA M. CALDITO, am a citizen of the United States and am at least eighteen years of age. My business address is 880 Front Street, Room 6293, San Diego, California 92101-8893. I am not a party to the above-entitled action. I have caused service of Government's Notice of Motion and Motion for Reciprocal Discovery and Statement of Facts and Points & Authorities in Support of Motion for Reciprocal Discovery on the following parties by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically notifies them. Joseph McMullen, Federal Defenders of San Diego, Inc. I hereby certify that I have caused to be mailed the foregoing, by the United States Postal Service, to the following non-ECF participants on this case: None the last known address, at which place there is delivery service of mail from the United States Postal Service. I declare under penalty of perjury that the foregoing is true and correct. Executed on May 19, 2008. /s/ Luella M. Caldito LUELLA M. CALDITO
) Criminal Case No. 08CR1058-W ) ) ) CERTIFICATE OF SERVICE ) ) ) ) ) )