Free Motion to Take Deposition - District Court of California - California

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AL SMITHSON, Esq. 830 23rd Street San Diego, California 92102 (619) 234-8729 Attorney State Bar No. 51611 Attorney for Material Witness: BENITO MARTINEZ-HERNANDEZ

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (Honorable Anthony J. Battaglia) ) MAGISTRATE CASE 08M2481-AJB ) ) DATE: September 16, 2008 ) TIME: 1:30 P.M. Plaintiff, ) COURTROOM A ) v. ) NOTICE OF MOTION ) AND MOTION FOR ORDER JOSE RAMON HERRERA-CONTRERA ) SETTING VIDEO DEPOSITION JOSE FELIIPE PEREZ ) OF MATERIAL WITNESS WILMER GIOVANY OLMEDO ) BENITO MARTINEZ-HERNANDEZ ) ) ) ) ) Defendants. ) __________________________________) TO: ALL NAMED PARTIES AND THEIR ATTORNEYS and ASSISTANT UNITED STATES ATTORNEY, Attorney for Plaintiff, THE UNITED STATES. PLEASE TAKE NOTICE that on Tuesday, September 16, 2008 at 1:30 P.M. in the Courtroom A of the Honorable ANTHONY J. BATTAGLIA, or as soon thereafter as counsel may be heard, the material witness, BENITO MARTINEZ-HERNANDEZ, by and through counsel, AL SMITHSON, will bring the above entitled motion. /// /// UNITED STATES OF AMERICA,

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MOTION The material witness, BENITO MARTINEZ-HERNANDEZ, by and through counsel, AL SMITHSON, and pursuant to Rule 15(a) of the Federal Rules of Criminal Procedure, and pursuant to 18 U.S.C. Section 3144, moves for an order to secure a video deposition of testimony of this material witness pending trial, and for an Order for release from custody immediately thereafter. This motion will be made on the grounds that this witness is unable to meet any condition of release and that his testimony can be adequately secured by deposition and that detention is not necessary to prevent a failure of justice and that further detention imposes a severe hardship on the witness and his family. This motion will be based upon the Declaration of Attorney AL SMITHSON, the Memorandum of Points and Authorities in support of this motion, and all documents and records on file herein, and upon such oral testimony as the Court may deem proper.

/s/ Al Smithson AL SMITHSON, Attorney for BENITO MARTINEZ-HERNANDEZ

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AL SMITHSON, Esq. 830 23rd Street San Diego, California 92102 (619) 234-8729 Attorney State Bar No. 51611 Attorney for Material Witness: BENITO MARTINEZ-HERNANDEZ

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (Honorable ANTHONY J. BATTAGLIA) ) MAGISTRATE CASE 08MJ2481-AJB ) ) DATE: September 16, 2008 ) TIME: 1:30 P.M. Plaintiff, ) COURTROOM A ) v. ) ) JOSE RAMOS HERRERA-CONTRERA ) PROOF OF SERVICE JOSE FELIPE PEREZ ) WILMER GIOVANY OLMEDO ) ) Defendants. ) __________________________________) I. INTRODUCTION I, the undersigned, state: That I am over eighteen years of age, a resident of the County of San Diego, State of California, and not a party in the within action; That my business address is: 830 23rd Street, San Diego, California 92102; That I served the NOTICE OF MOTION and MOTION FOR ORDER SETTING VIDEO DEPOSITION OF MATERIAL WITNESS; DECLARATION OF UNITED STATES OF AMERICA,

ATTORNEY IN SUPPORT OF MOTION FOR ORDER SETTING VIDEO DEPOSITION OF

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MATERIAL WITNESS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SETTING VIDEOTAPE DEPOSITION OF MATERIAL WITNESS on

counsel involved in this matter. These documents have been served on counsel of record and the AUSA via the Court's email

notification system. I certify under penalty of perjury that the foregoing is true and correct. Executed on September 1, 2008, at San Diego,

California.

/s/ Al Smithson AL SMITHSON, Attorney For Material Witness

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AL SMITHSON, Esq. 830 23rd Street San Diego, California 92102 (619) 234-8729 Attorney State Bar No. 51611 Attorney for Material Witness: BENITO MARTINEZ-HERNANDEZ

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (Honorable ANTHONY J. BATTAGLIA) ) MAGISTRATE CASE 08MJ2481-AJB ) ) DATE: September 16, 2008 ) TIME: 1:30 P.M. Plaintiff, ) ) MEMORANDUM OF POINTS AND v. ) AUTHORITIES IN SUPPORT ) OF MOTION FOR ORDER JOSE RAMON HERRERA-CONTRERA ) SETTING VIDEO DEPOSITION JOSE FELIPE PEREZ ) OF MATERIAL WITNESS WILMER GIOVANY OLMEDO ) BENITO MARTINEZ-HERNANDEZ ) ) ) ) Defendants. ) __________________________________) UNITED STATES OF AMERICA,

I. INTRODUCTION The material witness, BENITO MARTINEZ-HERNANDEZ arrested on or about August 11, 2008, and has remained in custody since that date. Material witness BENITO MARTINEZ-HERNANDEZ, seeks an Order by this Court under 18 U.S.C. Section 3144 and Federal Rule of Criminal Procedure 15 to have his testimony preserved in a video deposition as he has been unable to secure a surety under the conditions imposed by the government in this matter.

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II. UNDER EXISTING FEDERAL LAW THE COURT IS REQUIRED TO ORDER THE DEPOSITION AND RELEASE OF THIS WITNESS 18 U.S.C. Section 3144 provides that a material witness who is unable to comply with any condition of release has the right to have their deposition taken and thereafter be released: "No material witness may be detained because of inability to comply with an condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice..." "Upon such a showing, the district must order [the witness'] deposition and prompt release." (Torres-Ruiz v. United States District Court for the Southern District Court of California, 120 F.3d 933, 935 (9th Cir., 1997)) (emphasis in original).

Further, Federal Rule of Criminal Procedure 15 (a) provides the procedure basis for this motion for deposition: "If a witness is detained pursuant to Section 3144 of Title 18, United States Code, the Court on written motion of the witness and upon notice to the parties may direct that the witness's deposition be taken. After the deposition has been subscribed the Court may discharge the witness..."

Under such circumstances, "if the deposition would prove admissible over any objection under the Confrontation Clause of the United States Constitution or the Federal Rules of Evidence, the

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material [witness] must be deposed rather than detained." (AguilarAyala v. Ruiz, 973 F.2d 411, 413 (5th Cir. 1992)).

The language of 18 U.S.C. Section 3144 is mandatory and requires material witnesses's deposition and release.

Further, legislative history supports the position that the deposition and release of a material witness is mandatory.

Section 3144: RELEASE OR DETENTION OF A MATERIAL WITNESS, reads (in part): This Section carries forward, with two significant changes, current 18 U.S.C. 3149 which concerns the release of a material witness. If a person's testimony is that it may become

impracticable to secure his presence by subpena, the government is authorized to take such person into custody. A judicial officer is to treat such a person in accordance with Section 3142 and to impose those conditions of release that he finds to be reasonably necessary to assure the presence of the witness as required, or if no conditions of release will assure the appearance of the witness, order his detention as provided in Section 3142. However, if a

material witness cannot comply with release conditions or there are no release conditions that will assure his appearance, but he will give a deposition that will adequately preserve his testimony, the judicial officer is required to order the witness's release after the taking of the deposition if this will not result in a failure of justice... 1984 U.S. Code Cong. and Adm. News, p. 3182.

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In the instant case, in which the material witness will have been incarcerated 36 days on the hearing date of this motion due solely to his inability to secure bond, continued incarceration violates the clearly stated intent of the Congress and the

straightforward rulings by the Court of Appeals (Torres-Ruiz v. United States District Court) that such practices shall not be permitted. Prolonged and continued incarceration clearly meets the test of "exceptional circumstances" as referenced in Torres-Ruiz v. United States District Court. In another case where the material

witness had been in custody for three weeks, the Fourth Circuit held that continued incarceration with no prospective surety

available to post bond was an exceptional circumstance justifying deposition and release of the material witness. (United States v. Rivera, 859 F.2d, 1204, 1205 (4th Cir. 1988)

The circumstances in this case are similar to Torres-Ruiz and Rivera, as the material witness in this case continues to be held for no purpose other than to be a witness owing solely to his inability to post bond. alternative to his Because deposition serves as an adequate incarceration, BENITO MARTINEZ-

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HERNANDEZ has "an overriding liberty interest in not being detained as a material witness when the deposition serves as an adequate alternative to prolonged detention." (Aguilar-Ayala v. Ruiz, 973 F.2d 411, 419-420 (5th Cir. 1992)). Under the standards articulated by the Court of Appeals, prolonged incarceration of BENITO

MARTINEZ-HERNANDEZ merely because of his inability to secure bond thus is an exceptional circumstance that mandates his immediate

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deposition and release.

Exceptional circumstances also may be shown by the effect of prolonged incarceration on the family of the material witness. (Torres-Ruiz v. United States District for the Southern District of California) In the Torres-Ruiz case, the material witnesses were

held more than 60 days and the Ninth Circuit held "the continued detention of . . . material witnesses, whose testimony could be adequately preserved by videotaped deposition and whose families are suffering extreme hardship as a result of petitioner's

continued detention, is an exceptional circumstance justifying the extraordinary remedy of mandamus. . ." and ordered the district court to "schedule video depositions of petitioners at the earliest possible date."

In

the

instant

matter,

counsel

acting

on

behalf

of

the

detained material witness believes there will be no failure of justice in requiring a deposition, and asserts that such is

supported by case law. Constitutional against them, right but to

It is true that the defendants have a confront rights and cross-examine be balanced witnesses the

these

must

against

Constitutional rights of the detained witness. In this matter, the defendants are represented by counsel who has been notified of the deposition and invited to ask all questions of the witness which counsel believes will further their case. /// ///

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III. CONCLUSION Under the clear meaning of 18 U.S.C. Section 3144, legislative history and relevant case law, the ordering of a deposition and subsequent release of this material witness is mandatory. With that in mind, the witness respectfully requests this Court grant a video deposition of his testimony and then order his release. DATED: September 1, 2008 /s/ Al Smithson AL SMITHSON, Attorney for Material Witness BENITO MARTINEZ-HERNANDEZ

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AL SMITHSON, Esq. 830 23rd Street San Diego, California 92102 (619) 234-8729 Attorney State Bar No. 51611 Attorney for Material Witness: BENITO MARTINEZ-HERNANDEZ

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (Honorable ANTHONY J. BATTAGLIA) ) ) ) ) Plaintiff, ) ) v. ) ) JOSE RAMON HERRERA-CONTRERA ) JOSE FELIPE PEREZ ) WILMER GIOVANY OLMEDO ) ) ) ) ) Defendants. ) __________________________________) UNITED STATES OF AMERICA, MAGISTRATE CASE 08MJ2481-AJB DATE: September 16, 2008 TIME: 1:30 P.M. COURTROOM A DECLARATION OF ATTORNEY AL SMITHSON IN SUPPORT OF MOTION FOR ORDER SETTING VIDEO DEPOSITION OF MATERIAL WITNESS BENITO MARTINEZ-HERNANDEZ

I. INTRODUCTION

I, AL SMITHSON, declare that I am an attorney, duly licensed to practice law in the State of California and in the United States District Court for the Southern District of California; I am making this declaration on behalf of the material

witness, BENITO MARTINEZ-HERNANDEZ was arrested on or about August

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11, 2008, and has remained in custody since that date. The material witness has no friends, neighbors, or acquaintances in the United States who can qualify as an acceptable surety to accommodate his

release from custody. Material witness BENITO MARTINEZ-HERNANDEZ came to the United States to seek employment to help support his family. The material witness will have been in custody for 36 days as of the hearing date of this motion. To continue to remain in

custody imposes an extreme hardship on the material witness and on his family. In view of these facts, material witness BENITO MARTINEZHERNANDEZ seeks an Order for a video deposition from this Court. I have fully explained the procedures involved in this deposition process and received his promise of full cooperation in the video deposition process. I am unaware of any reason why this witness should not be released from custody in this case after the video deposition pursuant to Rule 15 (a) of the Federal Rules of Criminal Procedure, and am further unaware of the existence of a statement of such reason by any other attorney on this case. I believe it would be in the interests of justice to allow the testimony of this material witness in question to be secured by video deposition and to thereafter release the material witness to prevent them from suffering custody any longer than necessary in order to further justice in this case. I declare under penalty of perjury that the foregoing is true and correct.

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DATED: September 1, 2008. /s/ Al Smithson AL SMITHSON, Attorney for Material Witness BENITO MARTINEZ-HERNANDEZ

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