Free Motion for Miscellaneous Relief - District Court of California - California

Case 3:08-cr-02970-BTM

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1 TODD W. BURNS California State Bar No. 194937 2 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 3 San Diego, California 92101-5008 Telephone No. (619) 234-8467 4 Email: [email protected] 5 Attorneys for Mr. Alfonso 6 7 8 9 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE BARRY T. MOSKOWITZ) ) ) ) ) ) ) ) ) ) ) Criminal No. 08CR2970-BTM Date: Sept. 26, 2008 Time: 2:00 p.m. NOTICE OF MOTION AND MOTION TO ISSUE SUBPOENA PURSUANT TO 28 U.S.C. §1783

11 UNITED STATES OF AMERICA, 12 13 Plaintiff, v.

14 JUAN CAROLS ALFONSO, SR., 15 16 17 Defendant.

PLEASE TAKE NOTICE that on September 26, 2008, Defendant Juan Carlos Alfonso, by and

18 through counsel, Todd W. Burns and Federal Defenders of San Diego, Inc., will ask this Court to enter an 19 order authorizing issuance of a subpoena pursuant to 28 U.S.C. §1783. 20 21 22 Dated: September 5, 2008 23 24 25 26 27 28 /s/ TODD W. BURNS TODD W. BURNS Federal Defenders of San Diego, Inc. Attorneys for Mr. Alfonso [email protected] Respectfully submitted,

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1 TODD W. BURNS California State Bar No. 194937 2 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 3 San Diego, California 92101-5008 Telephone No. (619) 234-8467 4 Email: [email protected] 5 Attorneys for Mr. Alfonso 6 7 8 9 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE BARRY T. MOSKOWITZ) ) ) ) ) ) ) ) ) ) ) Criminal No. 08CR2970-BTM MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT ALFONSO'S MOTION TO ISSUE SUBPOENA PURSUANT TO 28 U.S.C. §1783

11 UNITED STATES OF AMERICA, 12 13 v. 14 JUAN CAROLS ALFONSO, SR, 15 16 17 18 19 Defendant. Plaintiff,

I. INTRODUCTION AND RELEVANT BACKGROUND1 Defendant Juan Carlos Alfonso, Sr., seeks this Court's authorization to issue a subpoena to the United

20 States Consulate General in Tijuana, Mexico, care of the State Department's Executive Office of the Office 21 of the Legal Adviser, pursuant to 18 U.S.C. §1783 and 22 C.F.R. §172.1 et seq. 22 Mr. Alfonso was arrested at the San Ysidro Port of Entry on August 22, 2008, and was charged by

23 complaint with importation of marijuana. On September 3, 2008, a two-count indictment was filed, charging 24 importation, and possession with intent to distribute, marijuana. 25 Federal Defenders of San Diego, Inc., was appointed to represent Mr. Alfonso on August 25, 2008.

26 Shortly after that appointment, undersigned counsel became aware that there may be a duress defense in this 27 case. Defense counsel also became aware that Mr. Alfonso -- a United States citizen -- may have telephoned 28 This background is based on undersigned counsel's personal knowledge. See Dec. of Todd Burns (Exhibit A).
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1 the United States Consulate in Tijuana about related threats made against him, approximately one month 2 before his arrest. Accordingly, in three letters to Assistant United States Attorneys Carlos Cantu and Gregory 3 Noonan (dated August 26, 27, and 29), undersigned counsel asked the government to seek out and provide 4 materials relating to those contacts. The government has not responded to those requests. 5 Worried that important materials might be destroyed, defense counsel pursued a parallel track. On

6 August 27, 2008, defense counsel spoke with Jessica Huaracayo from the United States Consulate in Tijuana, 7 and Ms. Huaracayo indicated that the situation outlined by undersigned counsel (i.e., a United States citizen 8 calling the Consulate in the recent past, about threats relating to drug smuggling) was familiar, because she 9 thought she was on-duty when one such call was received at the Consulate. Before she would provide any 10 information or materials, Ms. Huaracayo asked defense counsel to submit a signed Privacy Release form from 11 Mr. Alfonso. 12 On August 28, Ms. Huaracayo emailed undersigned counsel that her supervisor required a letter

13 indicating why undersigned counsel sought the requested information and materials. That same day, 14 undersigned counsel replied, indicating he sought the materials to aid in Mr. Alfonso's defense in a federal 15 criminal case. 16 On September 5, Ms. Huaracayo emailed defense counsel that the Consulate would not turn over the

17 requested material or information, and that defense counsel could seek such through a Freedom of Information 18 Act ("FOIA") request. That same day, defense counsel responded by email, and indicated he would seek to 19 subpoena the materials and information requested, pursuant to 28 U.S.C. §1783. Defense counsel inquired 20 on whom he should serve the subpoena. 21 Later on September 5, Kay Barton, the Chief of American Citizen Services at the Consulate, called

22 undersigned counsel and indicated three important things. First, Ms. Barton indicated the State Department's 23 response to a FOIA request would likely take three months, thus proceeding by subpoena made more sense. 24 Second, Ms. Barton indicated that a subpoena should be directed to the State Department's Executive Office 25 of the Office of the Legal Adviser ("L/EX"), in Washington, D.C., pursuant to 22 C.F.R. §172.1 et seq. Third, 26 Ms. Barton indicated that she thought the L/EX would authorize release of the materials sought by Mr. 27 Alfonso, thus implicitly acknowledging such materials exist. 28 // 2 08CR2970

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Accordingly, Mr. Alfonso seeks the Court's permission to issue a subpoena for production of

2 information and materials relating to his telephone calls to the United States Consulate in Tijuana, in which 3 he indicated he was being threatened. 4 5 6 II. THE COURT SHOULD AUTHORIZE ISSUANCE OF THE SUBPOENA Section 1783 of Title 18 of the United States Code governs issuance of subpoenas to a person in a

7 foreign country, or for production of documents located in a foreign country. Given that the United States 8 Consulate in Tijuana is located in the country of Mexico, this would seem to be the statute governing Mr. 9 Alfonso's request. Section 1783 reads, in relevant part: 10 11 12 13 14 15 16 17 It is in the interest of justice for the Court to order production of the sought after materials and (b) The subpoena shall designate the time and place . . . for the production of the document or other thing. Service of the subpoena . . . authorized by this section . . shall be effected in accordance with the provisions of the Federal Rules of Civil Procedure relating to service of process on a person in a foreign country. The person serving the subpoena shall tender to the person to whom the subpoena is addressed his estimated necessary travel and attendance expenses, the amount of which shall be determined by the court and stated in the order directing the issuance of the subpoena. (a) A court of the United States may order the issuance of a subpoena . . requiring the production of a specified document or other thing [by a national or resident of the United States], if the court finds that . . . production of the document or other thing by him is necessary in the interest of justice . . . .2

18 information: likely those amount to Brady-type information and materials, and requiring production imposes 19 no unreasonable burden on the government. See United States v. Johnson, 735 F.2d 1200, 1202-03 (9th Cir. 20 1984). 21 As far as service, and the manner of production, Ms. Barton, of the United States Consulate in

22 Tijuana, indicated service should be effected through the State Department's Executive Office of the Office 23 of the Legal Adviser, in Washington, D.C., pursuant to 22 C.F.R. 172.1 et seq. Since there is no need for 24 appearance of a witness at this time, and given that Mr. Alfonso is an indigent defendant, the Court should 25 // 26 With respect to non-criminal matters, subsection (a) has the additional requirement that the document sought cannot be obtained in another manner. Since this is a criminal matter, that provision does 28 not apply. 27 3 08CR2970
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1 simply order that the State Department produce the sought-after information and materials to undersigned 2 counsel, via mail or courier, by a set date. 3 4 5 6 7 8 Dated: September 5, 2008 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 08CR2970 /s/ TODD W. BURNS TODD W. BURNS Federal Defenders of San Diego, Inc. Attorneys for Mr. Alfonso [email protected] III. CONCLUSION Mr. Alfonso requests that the Court grant the motion set out above. Respectfully submitted,

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1 2 EXHIBIT A 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

INDEX TO EXHIBITS Declaration of Todd W. Burns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

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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 has been caused to be delivered this day upon: 4 5 6 7 Dated: September 5, 2008 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 08CR2970 /s/ Todd W. Burns TODD W. BURNS 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] 1 Courtesy Copy to Honorable Barry T. Moskowitz, 1 Copy via CM/ECF to Gregory Noonan, Assistant U.S. Attorney

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