Free Motion to Dismiss Indictment - District Court of California - California

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1 JENNIFER L. COON California State Bar No. 203913 2 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 3 San Diego, CA 92101-5008 (619) 234-8467/Fax: (619) 687-2666 4 E-Mail: [email protected] 5 Attorneys for Mr. Hernandez-Rivera 6 7 8 9 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE M. JAMES LORENZ) ) ) ) ) ) ) ) ) ) ) I. BACKGROUND1 On January 24, 2008, Mr. Hernandez-Rivera was arrested. On March 12, 2008, the government filed CASE NO. 08CR0719-L DATE: TIME: April 14, 2008 2:00 p.m.

11 UNITED STATES OF AMERICA, 12 13 v. 14 RIGOBERTO HERNANDEZ-RIVERA, 15 16 17 18 19 Defendant. Plaintiff,

STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS

20 a one-count indictment charging a violation of 8 U.S.C. §§ 1326(a) and (b). The indictment was returned by 21 the January 2007 grand jury. 22 23 24 25 A. 26 27 28 The following statement of facts and any facts further cited in this motion are based on discovery provided by the government. Mr. Hernandez-Rivera does not admit the truth or accuracy of these facts, and reserves the right to challenge the truth and accuracy of these facts in any subsequent pleadings or during any further proceedings.
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These motions follow. II. MOTIONS TO DISMISS THE INDICTMENT Motion to Dismiss the Indictment Because it Fails to Allege All Elements of the Charged Offense The indictment must be dismissed because the government has failed to properly allege all elements

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1 of the offense. "Two corollary purposes of an indictment are to ensure that the defendant is being prosecuted 2 on the basis of facts presented to the grand jury and to allow the court to determine the sufficiency of the 3 indictment." United States v. Lane, 765 F.2d 1376, 1380 (9th Cir. 1985). "To serve each of these functions, 4 the indictment must allege the elements of the offense charged and the facts which inform the defendant of 5 the specific offense with which he is charged." United States v. Pernillo-Fuentes, 252 F.3d 1030, 1032 (9th 6 Cir. 2001) (quoting Lane, 765 F.2d at 1380). Accordingly, "[a]n indictment's failure to recite an essential 7 element of the charged offense is not a minor or technical flaw . . . but a fatal flaw." United States v. Du Bo, 8 186 F.3d 1177, 1179 (9th Cir. 1999). 9 Here, the indictment must be dismissed because it fails to allege both the dates of a previous felony

10 conviction and of a previous removal from the United States subsequent to that conviction. The indictment 11 charges a violation of 8 U.S.C. §§ 1326(a) and (b). The statutory maximum sentence for violation of 8 U.S.C. 12 § 1326(a) is two years of imprisonment. Pursuant to 8 U.S.C. § 1326(b), however, a higher statutory 13 maximum may apply if the alien was removed subsequent to certain predicate crimes. In United States v. 14 Salazar-Lopez, 506 F.3d 748, 751-52 (9th Cir. 2007), the Ninth Circuit held that an allegation in the 15 indictment that the defendant "had been removed on a specific, post-conviction date" is "required" in order 16 to trigger the enhanced penalties under 8 U.S.C. § 1326(b). Here, although the indictment alleges a violation 17 of 8 U.S.C. § 1326(b), it fails to allege either a specific removal date or the temporal relationship between 18 that removal and a prior conviction. Rather, the indictment merely alleges that Mr. Hernandez-Rivera was 19 removed from the United States subsequent to one unassociated date, July 7, 2005. Because the indictment 20 fails to allege all of the necessary elements of the charged offense, § 1326(b), it must be dismissed. 21 B. 22 23 Motion to Dismiss The Indictment Because it Violates Mr. Hernandez-Rivera's Right to Presentment. Mr. Hernandez-Rivera has a Fifth Amendment right to have a grand jury pass upon those facts

24 necessary to convict him at trial. In the indictment, the government included the language: "It is further 25 alleged that defendant RIGOBERTO HERNANDEZ-RIVERA was removed from the United States 26 subsequent to July 7, 2005."2 The indictment in this case violates Mr. Hernandez-Rivera's right to 27 28 Presumably, the government added this language in an attempt to comply with the Ninth Circuit's decision in United States v. Covian-Sandoval, 462 F.3d 1090 (9th Cir. 2006). In 2 08CR0719-L
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1 presentment in two ways. First, the language added by the government does not ensure that the grand jury 2 actually found probable cause that Mr. Hernandez-Rivera was deported after July 7, 2005, as opposed to 3 simply being physically removed from the United States. Second, that the grand jury found probable cause 4 to believe that Mr. Hernandez-Rivera was removed "subsequent to July 7, 2005" does not address the 5 possibility that the government may at trial rely on a deportation that was never presented to, or considered 6 by, the grand jury. 7 The Fifth Amendment provides that "[n]o person shall be held to answer for a capital, or otherwise

8 infamous crime, unless on a presentment or indictment of a Grand Jury." U.S. Const. Amend. V. The 9 Sixth Amendment provides that "[i]n all criminal prosecutions the accused shall enjoy the right . . . to be 10 informed of the nature and cause of the accusation . . .." U.S. Const. Amend. VI. Thus, a defendant has a 11 constitutional right to have the charges against him presented to a grand jury and to be informed of the 12 grand jury's findings via indictment. See Russell v. United States, 369 U.S. 749, 763 (1962) (An indictment 13 must "contain[] the elements of the offense intended to be charged, and sufficiently apprise[] the defendant 14 of what he must be prepared to meet."). 15 To be sufficient, an indictment must allege every element of the charged offense. See United States

16 v. Morrison, 536 F.2d 286, 287 (9th Cir. 1976) (citing United States v. Debrow, 346 U.S. 374 (1953)). 17 Indeed, in order to be sufficient, an indictment must include implied elements not present in the statutory 18 language. See Du Bo, 186 F.3d at 1179. "If an element is necessary to convict, it is also necessary to indict, 19 because elements of a crime do not change as criminal proceedings progress." United States v. Hill, 279 F.3d 20 731, 741 (9th Cir. 2002). An indictment's failure to "recite an essential element of the charged offense is not 21 a minor or technical flaw . . . but a fatal flaw requiring dismissal of the indictment." Du Bo, 186 F.3d at 1179. 22 In the indictment, the government here has added the language: "It is further alleged that defendant

23 RIGOBERTO HERNANDEZ-RIVERA was removed from the United States subsequent to July 7, 2005." 24 There is no indication from this allegation that the grand jury was charged with the legal meaning of the word 25 26 27 28 Covian-Sandoval, the Ninth Circuit held that it is an Apprendi violation for a court to increase a person's statutory maximum under 8 U.S.C. § 1326(b) via a court-finding that a person had been removed from the United States following a conviction. This language, however, does not cure the problems with this indictment. Should sentencing become necessary, Mr. Hernandez-Rivera will file further briefing on this issue. 3 08CR0719-L

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1 "removal" applicable in this context, as opposed to being simply removed from the United States in a 2 colloquial sense. It is clear from Covian-Sandoval that in order to trigger the enhanced statutory maximum 3 contained in section 1326(b), the government must prove that a person was removed--as that term is used 4 in the immigration context--after having suffered a conviction. 462 F.3d at 1097-1098 (noting as part of its 5 analysis that immigration proceedings have fewer procedural protections that criminal proceedings). A 6 deportation has the following elements: "(1) that a deportation proceeding occurred as to [the] defendant and 7 as a result, [(2)] a warrant of deportation was issued and [(3)] executed by the removal of the defendant from 8 the United States." See United States v. Castillo-Basa, 483 F.3d 890 (9th Cir. 2007) (citing, without 9 contesting, the elements of a deportation provided by the district court.) As this is the type of removal the 10 government must prove before a petit jury, it is necessary that the government allege such a removal before 11 the grand jury. As returned, however, there is no assurance from the face of the indictment that the grand jury 12 in this case was charged with the type of removal necessary to increase a person's statutory maximum under 13 section 1326(b). 14 As such, there is no fair assurance that the grand jury will have passed upon those facts necessary to

15 convict Mr. Hernandez-Rivera. Additionally, as charged, there is no fair assurance that the indictment will 16 contain those allegations the government will attempt to prove at trial. If the government alleged before the 17 grand jury that Mr. Hernandez-Rivera was removed (in a colloquial sense), but offers proof at trial that 18 Mr. Hernandez-Rivera was removed (in an immigration sense), there will be a constructive amendment of 19 the indictment at trial. See Stirone v. United States, 361 U.S. 212, 217-19 (1960). Either scenario represents 20 a violation of Mr. Hernandez-Rivera's right to presentment. Stirone, 361 U.S. at 218-19. 21 A second problem with the indictment is that there is no indication which (if any) deportation the

22 government presented to the grand jury. In most cases, the government will have a choice of deportations 23 to present to the grand jury to support an allegation that a person had been deported after a specific date. 24 According to information provided by the government, although not conceded by the defendant, Mr. 25 Hernandez-Rivera has been subjected to removal proceedings on more than one occasion. This renders it a 26 very real possibility that the government alleged one deportation to the grand jury to sustain its allegation that 27 Mr. Hernandez-Rivera was removed from the United States, but will attempt to prove at trial a wholly 28 different deportation to sustain its trial proof. If this were to turn out to be the case, Mr. Hernandez-Rivera's

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1 right to have the grand jury pass on all facts necessary to convict him would be violated. See Du Bo, 186 2 F.3d 1179. 3 C. 4 Motion to Dismiss the Indictment Due to Misinstruction of the Grand Jury. The indictment in the instant case was returned by the January 2007 grand jury. That grand jury was

5 instructed on January 11, 2007. The instructions to the impaneled grand jury deviate from the instructions 6 at issue in the major Ninth Circuit cases challenging a form grand jury instruction previously given in this 7 district in several ways.3 First, the grand jury was improperly instructed that their singular duty is to 8 determine whether or not probable cause exists and that they have no right to decline to indict when the 9 probable cause standard is satisfied. Second, the grand jury was improperly instructed of a non-existent 10 prosecutorial duty to present exculpatory evidence. These instructions were compounded by the erroneous 11 instructions and comments to prospective grand jurors during voir dire of the grand jury panel, which 12 immediately preceded the instructions. Therefore, the indictment should be dismissed. 13 D. 14 Motion to Dismiss the Indictment Because the Charging Statute is Unconstitutional The Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), renders 8 U.S.C.

15 § 1326 unconstitutional. Although this argument is foreclosed by current Ninth Circuit precedent, see United 16 States v. Covian-Sandoval, 462 F.2d 1090, 1096-97 (9th Cir. 2006), it is presented for purposes of further 17 appellate review. 18 In Almendarez-Torres v. United States, 523 U.S. 224 (1998), the Supreme Court held that in a § 1326

19 prosecution, the fact of a prior conviction need not be alleged in the indictment to increase a defendant's 20 maximum sentence. Subsequently, however, in Apprendi, the Supreme Court held that any fact that increases 21 the statutory maximum sentence must be pled in the indictment, submitted to a jury, and proved beyond a 22 reasonable doubt. See 530 U.S. at 476. Section 1326 sets forth a scheme in which certain facts ­ prior 23 convictions ­ may drastically increase the applicable statutory maximum without being set forth in the 24 indictment or proven at trial. According to the explicit mandate of Apprendi, this violates the Fifth and Sixth 25 26 27 28 See, e.g., United States v. Cortez-Rivera, 454 F.3d 1038 (9th Cir. 2006); United States v. Navarro-Vargas, 408 F.3d 1184 (9th Cir.) (en banc), cert. denied, 126 S. Ct. 736 (2005) (NavarroVargas II); United States v. Navarro-Vargas, 367 F.3d 896 (9th Cir. 2004)(Navarro-Vargas I); United States v. Marcucci, 299 F.3d 1156 (9th Cir. 2002) (per curiam). If the Court or the government request further briefing on this issue, or the transcript from the grand jury proceedings, then it will be provided forthwith. 5 08CR0719-L
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1 Amendments. To the extent that Almendarez-Torres holds that section 1326(b) was intended by Congress 2 to create sentencing enhancements for a judge to determine rather than elements of separate offenses, section 3 1326 is unconstitutional under Apprendi. 4 5 6 III. MOTION TO STRIKE SURPLUSAGE FROM THE INDICTMENT The above arguments to dismiss the indictment based on the government's failure to comply with

7 Mr. Hernandez-Rivera's Fifth and Sixth Amendment rights is premised on Covian-Sandoval having read into 8 section 1326 an additional element--a deportation that occurred at a particular time--that the government 9 must plead to the grand jury and prove to a jury. To the extent the government argues that Covian-Sandoval 10 did not create an additional element, the indictment contains surplusage. In other words, if the government 11 argues that the timing of a person's deportation is not a element of section 1326, but rather a sentencing factor 12 under subsection (b) of section 1326, the indictment alleges a fact--the timing of a person's deportation--the 13 Supreme Court has clearly held to be decided by a judge. 14 The Ninth Circuit has "repeatedly held that language [in an indictment] that describes elements

15 beyond what is required under statute is surplusage and need not be proved at trial." Bargas v. Burns, 16 179 F.3d 1207, 1216 n. 6 (9th Cir. 1999). Surplusage in an indictment is subject to being struck at the request 17 of the defendant. United States v. Fernandez, 388 F.3d 1199, 1220-21 (9th Cir. 2004). In this case, if the 18 government argues that the date of a person's deportation is not a required element of section 1326, the 19 indictment contains language beyond that which is necessary to convict Mr. Hernandez-Rivera of violating 20 section 1326. If the date of a person's deportation is not an element of section 1326, then the language in the 21 indictment--"It is further alleged that defendant RIGOBERTO HERNANDEZ-RIVERA was removed from 22 the United States subsequent to July 7, 2005"-- is surplusage. So too is the government's allegation in the 23 indictment that Mr. Hernandez-Rivera violated section 1326, subsection (b). 24 At one time, the Ninth Circuit considered subsection (b) of section 1326 to be a separate offense from

25 subsection (a). See United States v. Corona-Sanchez, 291 F.3d 1201, 1203 (9th Cir. 2002) (en banc). This 26 changed, however, following the Supreme Court's decision in Almendarez-Torres v. United States, 27 523 U.S. 224 (1998). See Corona-Sanchez, 291 F.3d at 1203. In Almendarez-Torres, the Supreme Court 28 decided that subsection (b) of section 1326 described a sentencing provision, to be determined by a judge,

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1 rather than a substantive offense. See id. Following Almendarez-Torres, the Ninth Circuit rethought the way 2 in which subsection (b) should be viewed, to the extent that indictments and judgements that reflect a 3 violation of both subsection (a) and subsection (b) of section 1326 should have the reference to subsection (b) 4 struck to "unambiguously reflect that the defendant was convicted of only one punishable offense 5 pursuant . . .." Id. 6 Although an allegation of a particular date of deportation would likely be an appropriate response on

7 the government's part to the holding of Covian-Sandoval, the government here has chosen to include in the 8 indictment an allegation that goes solely towards an allegation under subsection (b) of section 1326. Indeed, 9 the government has chosen to actually allege a violation of subsection (b) of section 1326 in the indictment. 10 As Almendarez-Torres makes clear, however, Congress clearly intended findings under subsection (b) of 11 section 1326 to be made by a judge, rather than a jury. Almendarez-Torres, 523 U.S. at 235 ("we believe that 12 Congress intended to set forth a sentencing factor in subsection (b)(2) and not a separate criminal offense). 13 Although the Ninth Circuit is free to overrule its own precedent regarding whether Congress intended

14 a statutory provision to be decided by a judge, rather than a jury, see, e.g., United States v. Buckland, 15 289 F.3d 558, 564-68 (9th Cir. 2002) (en banc) (discussing enhanced penalties under 21 U.S.C. § 841), it has 16 not seen fit to overrule the Supreme Court's decision in Almendarez-Torres. See, e.g., United States v. 17 Weiland, 420 F.3d 1062, 1079 n. 16 (9th Cir. 2005). For these reasons, to the degree the government argues 18 that Covian-Sandoval did not create an additional element of section 1326, the government has pled in the 19 indictment an allegation that Congress intended to be decided by judge, rather than a jury.4 Therefore, 20 pursuant to Federal Rule of Criminal Procedure 7(d), Mr. Hernandez-Rivera moves to strike this surplusage 21 from the indictment. 22 // 23 // 24 25 26 27 28 The holdings in Covian-Sandoval and Almendarez-Torres also render subsection (b) of section 1326 unconstitutional. In Covian-Sandoval, the Ninth Circuit held that a jury must determine the timing of a person's deportation to trigger subsection (b)'s enhanced statutory maximum. Covian-Sandoval, 462 F.3d 1097-1098. In Almendarez-Torres, however, the Supreme Court held that Congress intended subsection (b) to be a sentencing provision to be determined by a judge. Almendarez-Torres, 523 U.S. at 235. It is thus clear that subsection (b), as written and construed by the Supreme Court, violates Apprendi. 7 08CR0719-L
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IV. MOTION TO PRODUCE GRAND JURY TRANSCRIPTS Mr. Hernandez-Rivera hereby moves this Court to compel the government to produce all grand jury

4 transcripts in this case. See U.S. CONST. AMENDS V & VI5. Federal Rule of Criminal Procedure 6(e)(3)(E)(ii) 5 allows disclosure "at the request of a defendant who shows that a ground may exist to dismiss the indictment 6 because of a matter that occurred before the grand jury." Given the arguments raised above, it is clear that 7 "a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury." 8 Fed. R. Crim. P 6(e)(3)(E)(ii). Mr. Hernandez-Rivera requests the Court "authorize disclosure" of the grand 9 jury transcript to allow him to adequately prepare for trial and to perfect his appellate record. See id. 10 11 12 V. MOTION TO COMPEL DISCOVERY/PRESERVE EVIDENCE Mr. Hernandez-Rivera moves for the production of the following discovery. This request is not

13 limited to those items that the prosecutor knows of, but rather includes all discovery listed below that is in 14 the custody, control, care, or knowledge of any "closely related investigative [or other] agencies." See 15 United States v. Bryan, 868 F.2d 1032 (9th Cir. 1989). 16 (1) The Defendant's Statements. The government must disclose to the defendant all copies of any

17 written or recorded statements made by the defendant; the substance of any statements made by the defendant 18 which the government intends to offer in evidence at trial -- either in its case-in-chief or in rebuttal; see id., 19 20 21 22 23 24 25 26 27 28 The Supreme Court has found that "[t]he grand jury is an integral part of our constitutional heritage which was brought to this country with the common law. The Framers, most of them trained in the English law and traditions, accepted the grand jury as a basic guarantee of individual liberty . . . the grand jury continues to function as a barrier to reckless or unfounded charges. 'Its adoption in our Constitution as the sole method for preferring charges in serious criminal cases shows the high place it held as an instrument of justice.' Costello v. United States, 350 U.S. 359, 362 (1956). Its historic office has been to provide a shield against arbitrary or oppressive action, by insuring that serious criminal accusations will be brought only upon the considered judgment of a representative body of citizens acting under oath and under judicial instruction and guidance. " United States v. Manduano, 425 U.S. 564, 571 (1976). In order to ensure that the criminally accused are safeguarded from reckless and unfounded charges, judges must take their duty to provide guidance seriously and not simply pay lip service to the assurances of the government. It is curious why the government, in this district in particular, fights so hard to keep grand jury proceedings sealed. Interestingly, in many cases, the "witness" who "testifies" before the grand jury is a border patrol agent who neither participated in the arrest or the investigation. He is only called to read a report which has been prepared by others. Such a practice does not allow for the considered judgment of grand jurors. Thus, the release of transcripts is appropriate. 8 08CR0719-L
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1 any response by the defendant to interrogation; the substance of any oral statements which the government 2 intends to introduce at trial and any written summaries of the defendant's oral statements contained in the 3 handwritten notes of the government agent; any response to any Miranda warnings which may have been 4 given to the defendant; as well as any other statements by the defendant. Fed. R. Crim. P. 16(a)(1)(A)6. The 5 Advisory Committee Notes and the 1991 Amendments to Rule 16 make clear that the Government must 6 reveal all the defendant's statements, whether oral or written, regardless of whether the government intends 7 to make any use of those statements. Federal Rule of Criminal Procedure 16 is designed "to protect the 8 defendant's rights to a fair trial." United States v. Rodriguez, 799 F.2d 649 (11th Cir. 1986); see also United 9 States v. Noe, 821 F.2d 604, 607 (11th Cir. 1987) (reversing conviction for failure to provide statements 10 offered in rebuttal -- government's failure to disclose statements made by the defendant is a serious detriment 11 to preparing trial and defending against criminal charges). 12 (2) Arrest Reports and Notes. The defendant also specifically requests that the government turn

13 over all arrest reports, notes and TECS records not already produced that relate to the circumstances 14 surrounding his arrest or any questioning. This request includes, but is not limited to, any rough notes, 15 records, reports, transcripts, referral slips, or other documents in which statements of the defendant or any 16 other discoverable material is contained. Such material is discoverable under Fed. R. Crim. P. 16(a)(1)(A) 17 and Brady v. Maryland. The government must produce arrest reports, investigators' notes, memos from 18 arresting officers, sworn statements, and prosecution reports pertaining to the defendant. See Fed. R. Crim. 19 P. 16(a)(1)(B) and (C), 26.2 and 12(I); United States v. Harris, 543 F.2d 1247, 1253 (9th Cir. 1976) (original 20 notes with suspect or witness must be preserved); see also United States v. Anderson, 813 F.2d 1450, 1458 21 (9th Cir. 1987) (reaffirming Harris' holding). 22 (3) Brady Material. The defendant requests all documents, statements, agents' reports, and

23 tangible evidence favorable to the defendant on the issue of guilt and/or which affects the credibility of the 24 government's case. Kyles v. Whitley, 514 U.S. 419 (1995). Under Brady, Kyles and their progeny, 25 impeachment, as well as exculpatory evidence, falls within the definition of evidence favorable to the 26 27 28 Of course, any of Mr. Hernandez-Rivera's statements, which are exculpatory, must be produced, as well. See Brady v. Maryland, 373 U.S. 83 (1963). 9 08CR0719-L
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1 accused. See also United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 427 U.S. 97 (1976). 2 This includes information obtained from other investigations which exculpates Mr. Hernandez-Rivera. 3 (4) Any Information That May Result in a Lower Sentence Under The Guidelines. The

4 government must also produce this information under Brady v. Maryland. This request includes any 5 cooperation or attempted cooperation by the defendant, as well as any information, including that obtained 6 from other investigations or debriefings, that could affect any base offense level or specific offense 7 characteristic under Chapter Two of the Guidelines. The defendant also requests any information relevant 8 to a Chapter Three adjustment, a determination of the defendant's criminal history, and information relevant 9 to any other application of the Guidelines. 10 (5) The Defendant's Prior Record. The defendant requests disclosure of his prior record.

11 Fed. R. Crim. P. 16(a)(1)(B). 12 (6) Any Proposed 404(b) Evidence. The government must produce evidence of prior similar acts

13 under Fed. R. Crim. P. 16(a)(1)(C) and Fed. R. Evid. 404(b) and 609. In addition, "upon request of the 14 accused, the prosecution . . . shall provide reasonable notice in advance of trial . . . of the general nature" of 15 any evidence the government proposes to introduce under Fed. R. Evid. 404(b) at trial and the purpose for 16 which introduction is sought. This applies not only to evidence which the government may seek to introduce 17 in its case-in-chief, but also to evidence which the government may use as rebuttal. See United States v. 18 Vega, 188 F.3d 1150 (9th Cir. 1999). The defendant is entitled to "reasonable notice" so as to "reduce 19 surprise," preclude "trial by ambush" and prevent the "possibility of prejudice." Id.; United States v. Perez20 Tosta, 36 F.3d 1552, 1560-61 (11th Cir. 1994). Mr. Hernandez-Rivera requests such reasonable notice at least 21 two weeks before trial so as to adequately investigate and prepare for trial. 22 (7) Evidence Seized. The defendant requests production of evidence seized as a result of any

23 search, either warrantless or with a warrant. Fed. R. Crim. P. 16(a)(1)(C). 24 (8) Request for Preservation of Evidence. The defendant specifically requests the preservation

25 of any and all physical evidence that may be destroyed, lost, or otherwise put out of the possession, custody, 26 or care of the government and which relates to the arrest or the events leading to the arrest in this case. This 27 request includes, but is not limited to, the results of any fingerprint analysis, the defendant's personal effects, 28 and any evidence seized from the defendant or any third party in relation to this case.

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(9)

Henthorn Material. Mr. Hernandez-Rivera requests that the Assistant United States Attorney

2 assigned to this case oversee a review of all personnel files of each agent involved in the present case for 3 impeachment material. Kyles, 514 U.S. at 419; United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991); 4 United States v. Lacy, 896 F. Supp. 982 (N.D. Ca. 1995). At a minimum, the prosecutor has the obligation 5 to inquire of his agents in order to ascertain whether or not evidence relevant to veracity or other 6 impeachment exists. 7 (10) Tangible Objects. The defendant requests the opportunity to inspect and copy, as well as test,

8 if necessary, all other documents and tangible objects, including photographs, books, papers, documents, 9 fingerprint analyses, vehicles, or copies of portions thereof, which are material to the defense or intended for 10 use in the government's case-in-chief or were obtained from or belong to the defendant. Fed. R. Crim. 11 P. 16(a)(1)(C). Specifically, to the extent they were not already produced, the defendant requests copies of 12 all photographs in the government's possession, including, but not limited to, the defendant and any other 13 photos taken in connection with this case. 14 (11) Expert Witnesses. The defendant requests the name, qualifications, and a written summary

15 of the testimony of any person that the government intends to call as an expert witness during its case in chief. 16 Fed. R. Crim. P. 16(a)(1)(E). The defense requests that notice of expert testimony be provided at a minimum 17 of two weeks prior to trial so that the defense can properly prepare to address and respond to this testimony, 18 including obtaining its own expert and/or investigating the opinions and credentials of the government's 19 expert. The defense also requests a hearing in advance of trial to determine the admissibility of qualifications 20 of any expert. See Kumho v. Carmichael Tire Co. 119 S. Ct. 1167, 1176 (1999) (trial judge is "gatekeeper" 21 and must determine reliability and relevancy of expert testimony and such determinations may require 22 "special briefing or other proceedings . . .."). 23 (12) Evidence of Bias or Motive to Lie. The defendant requests any evidence that any prospective

24 government witness is biased or prejudiced against the defendant, or has a motive to falsify or distort his or 25 her testimony. 26 (13) Impeachment Evidence. The defendant requests any evidence that any prospective

27 government witness has engaged in any criminal act whether or not resulting in a conviction and whether any 28

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1 witness has made a statement favorable to the defendant. See Fed. R. Evid. 608, 609 and 613; Brady v. 2 Maryland. 3 (14) Evidence of Criminal Investigation of Any Government Witness. The defendant requests any

4 evidence that any prospective witness is under investigation by federal, state or local authorities for any 5 criminal conduct. 6 (15) Evidence Affecting Perception, Recollection, Ability to Communicate, or Truth Telling. The

7 defense requests any evidence, including any medical or psychiatric report or evaluation, that tends to show 8 that any prospective witness' ability to perceive, remember, communicate, or tell the truth is impaired, and 9 any evidence that a witness has ever used narcotics or other controlled substance, or has ever been an 10 alcoholic. 11 (16) Jencks Act Material. The defendant requests production in advance of trial of all material,

12 including any tapes, which the government must produce pursuant to the Jencks Act, 18 U.S.C. § 3500; 13 Fed. R. Crim. P. 26.2. Advance production will avoid the possibility of delay at the request of the defendant 14 to investigate the Jencks material. A verbal acknowledgment that "rough" notes constitute an accurate 15 account of the witness' interview is sufficient for the report or notes to qualify as a statement under section 16 3500(e)(1). Campbell v. United States, 373 U.S. 487, 490-92 (1963); see also United States v. Boshell, 952 17 F.2d 1101 (9th Cir. 1991) (holding that, where an agent goes over interview notes with subject, interview notes 18 are subject to Jencks Act). 19 (17) Giglio Information. Pursuant to Giglio v. United States, 405 U.S. 150 (1972), the defendant

20 requests all statements and/or promises, express or implied, made to any government witnesses, in exchange 21 for their testimony in this case, and all other information which could arguably be used for the impeachment 22 of any government witnesses. 23 (18) Agreements Between the Government and Witnesses. In this case, the defendant requests

24 identification of any cooperating witnesses who have committed crimes, but were not charged, so that they 25 may testify for the government in this case. The defendant also requests discovery regarding any express or 26 implicit promise; understanding; offer of immunity; past, present, or future compensation; or any other kind 27 of agreement or understanding, including any implicit understanding relating to criminal or civil income tax, 28 forfeiture or fine liability between any prospective government witness and the government (federal, state

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1 and/or local). This request also includes any discussion with a potential witness about, or advice concerning, 2 any contemplated prosecution, or any possible plea bargain, even if no bargain was made, or the advice not 3 followed. 4 Pursuant to United States v. Sudikoff, 36 F.Supp.2d 1196 (C.D. Cal. 1999), the defense requests all

5 statements made, either personally or through counsel, at any time, which relate to the witnesses' statements 6 regarding this case, any promises -- implied or express -- regarding punishment/prosecution or detention of 7 these witnesses, any agreement sought, bargained for or requested, on the part of the witness at any time. 8 (19) Informants and Cooperating Witnesses. To the extent that there was any informant, or any

9 other tip leading to a TECS hit in this case, the defendant requests disclosure of the names and addresses of 10 all informants or cooperating witnesses used, or to be used, in this case, and in particular, disclosure of any 11 informant who was a percipient witness in this case or otherwise participated in the crime charged against 12 Mr. Hernandez-Rivera. The government must disclose the informant's identity and location, as well as the 13 existence of any other percipient witness unknown or unknowable to the defense. Roviaro v. United States, 14 353 U.S. 53, 61-62 (1957). The government must disclose any information derived from informants which 15 exculpates or tends to exculpate the defendant. 16 (20) Bias by Informants or Cooperating Witnesses. The defendant requests disclosure of any

17 information indicating bias on the part of any informant or cooperating witness. Giglio v. United States. 18 Such information would include what, if any, inducements, favors, payments or threats were made to the 19 witness to secure cooperation with the authorities. 20 (21) Inspection and Copying of A-File. Mr. Hernandez-Rivera requests that this Court order the

21 government to make all A-Files relevant to Mr. Hernandez-Rivera available for inspection and copying. 22 (22) Residual Request. Mr. Hernandez-Rivera intends, by this discovery motion, to invoke his

23 rights to discovery to the fullest extent possible under the Federal Rules of Criminal Procedure and the 24 Constitution and laws of the United States. Mr. Hernandez-Rivera requests that the government provide his 25 attorney with the above-requested material sufficiently in advance of trial to avoid unnecessary delay prior 26 to cross-examination. 27 // 28 //

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1 // 2 3 4 VI. MOTION FOR LEAVE TO FILE ADDITIONAL MOTIONS Mr. Hernandez-Rivera and defense counsel have received limited discovery in this case. Specifically,

5 after viewing the A-file, Mr. Hernandez-Rivera may file a motion attacking the validity of his alleged 6 deportation. Additionally, as new information surfaces due to the government providing discovery in 7 response to these motions, or an order of this Court, the defense may find it necessary to file further motions, 8 or to supplement existing motions with additional facts. The denial of this request will result in a violation, 9 at a minimum, of Mr. Hernandez-Rivera's Fifth and Sixth Amendment rights. Therefore, defense counsel 10 requests the opportunity to file further motions based upon information gained from discovery. 11 12 13 VII. CONCLUSION For the foregoing reasons, Mr. Hernandez-Rivera respectfully requests that the Court grant the above

14 motions. 15 16 17 DATED: 18 19 20 21 22 23 24 25 26 27 28 April 1, 2008 /s/ Jennifer L. Coon JENNIFER L. COON Federal Defenders of San Diego, Inc. Attorneys for Mr. Hernandez-Rivera Respectfully submitted,

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1 2

CERTIFICATE OF SERVICE Counsel for Defendant certifies that the foregoing pleading is true and accurate to the best of

3 information and belief, and that a copy of the foregoing document has been caused to be delivered this day 4 upon: 5 6 Courtesy Copy Court Assistant United States Attorney via ECF /s/ Jennifer L. Coon JENNIFER L. COON Federal Defenders of San Diego, Inc. 225 Broadway, Suite 900 San Diego, CA 92101-5030 (619) 234-8467 (tel) (619) 687-2666 (fax) e-mail: [email protected]

7 Dated: April 1, 2008 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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