Free Motion for Discovery - District Court of Arizona - Arizona

1 LAW OFFICES OF MICHAEL J. BRESNEHAN, P.C. Michael J. Bresnehan, Esquire 2 1761 East McNair Drive, Suite 101 Tempe, AZ 85283-5002 3 480-345-7032 [email protected] 4 State Bar No.: 009415 5 Attorney for Defendant 6 7 8 9 10 11 vs. 12 TEDDY LEE LOWE, 13 14 15 16 17 18 19 the defendant, through counsel, to copy or photograph the results of any fingerprint or DNA analyses performed on the guns confiscated in this case, all for the reasons set forth in the COMES NOW the defendant, by and through the undersigned attorney, and, pursuant to Rule 16(a), FRCrim.P., hereby moves this Court for an order compelling to government to permit Defendant. United States of America, Plaintiff, IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Case No.: CR-04-487-PHX-ROS MOTION FOR ORDER COMPELLING DISCOVERY (SCIENTIFIC TEST RESULTS)

20 accompanying memorandum of points and authorities. It is expected that excludable delay under 21 Title 8 U.S.C. §3161(h)(1)(F) will occur as a result of this motion or from an order based thereon. 22 23 24 25 26 27 28 Case 2:04-cr-00487-ROS Document 107 Filed 08/22/2005 Page 1 of 3 s/ Michael J. Bresnehan Attorney for Defendant MICHAEL J. BRESNEHAN, P.C. RESPECTFULLY SUBMITTED this _____ day of August, 2005 by

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MEMORANDUM OF POINTS AND AUTHORITIES Rule 16(a)(1)(F), FRCrim.P., provides as follows: (F) Reports of Examinations and Tests. Upon a defendant's request, the government must permit a defendant to inspect and to copy or photograph the results or reports of any physical or mental examination and of any scientific test or experiment if: (i) the item is within the government's possession, custody, or control; (ii) the attorney for the government knows-or through due diligence could know-that the item exists; and (iii) the item is material to preparing the defense or the government intends to use the item in its case-in-chief at trial. In the instant case, the government has alleged that the defendant was in actual or constructive possession of several guns that were found in his automobile. A hand gun was found under the driver's seat of his vehicle. A rifle and two hand guns were found in the trunk of his

14 vehicle. The defendant posits that the hand gun that was found under the driver's seat, together 15 with the rifle and one of the hand guns in the trunk of the vehicle were placed there by the 16 defendant's friend, Lita Young, and the other hand gun was placed in the trunk by another friend of 17 18 19 20 defendant's, Colon Childress. Those individuals are expected to corroborate this assertion. The defendant intends to establish, at trial, that none of his fingerprints or DNA were on the guns. The government may have already analyzed the weapons for fingerprints and DNA. If so, the defendant

21 may wish to use those results in his case in chief rather than conduct his own tests. It is also 22 possible that any tests already performed by the government may have altered, degraded or used up 23 any physical or biological evidence that was on the weapons prior to testing. 24 25 26 27 28 Case 2:04-cr-00487-ROS Document 107 2 Filed 08/22/2005 Page 2 of 3 WHEREFORE, for these reasons, the defendant moves this Court to compel the government to provide defendant with the results of any fingerprint or DNA analyses performed on the confiscated guns.

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RESPECTFULLY SUBMITTED this _____ day of August, 2005 by MICHAEL J. BRESNEHAN, P.C.

s/ Michael J. Bresnehan Michael J. Bresnehan Attorney for Defendant

Copy of the foregoing delivered 8 this ___ day of August, 2005, to: 9 Bill Solomon, Esq. Assistant U.S. Attorney 10 Two Renaissance Square 40 N. Central, Suite 1200 11 Phoenix, Arizona 85004-4408 12 Lisa Maxie-Mulllins 13 Arizona Attorney General's Office 1275 West Washington St. 14 Phoenix, AZ 85007-2926 15 Teddy Lee Lowe Defendant 16 By__s/ Michael J. Bresnehan 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cr-00487-ROS Document 107 3 Filed 08/22/2005 Page 3 of 3