Free Motion to Compel - District Court of California - California

Case 3:08-cr-02531-BEN
1 2 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 v. GENTRY ADAMS, Defendant.

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ANDREW LAH California Bar No. 234580 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 San Diego, California 92101-5008 Telephone: (619) 234-8467 [email protected] Attorneys for Mr. Adams

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE ROGER T. BENITEZ) UNITED STATES OF AMERICA, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 08CR2531-BEN DATE: TIME: September 22, 2008 2:00 P.M.

NOTICE OF MOTIONS AND MOTIONS TO: (1) (2) COMPEL DISCOVERY AND PRESERVE EVIDENCE; and GRANT LEAVE TO FILE FURTHER MOTIONS

TO: KAREN HEWITT, UNITED STATES ATTORNEY, AND GREG NOONA, ASSISTANT UNITED STATES ATTORNEY: PLEASE TAKE NOTICE that on Monday, September 22, 2008, at 2:00 p.m., or as soon thereafter as counsel may be heard, Defendant Gentry Adams, by and through his attorneys, Andrew Lah and Federal Defenders of San Diego, Inc., will ask this Court to enter an order granting the following motions.

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1 2 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 Dated: September 8, 2008 (1) (2)

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MOTIONS Defendant Gentry Adams, by and through his attorneys, Andrew Lah and Federal Defenders of San Diego, Inc., moves this Court pursuant to the United States Constitution, the Federal Rules of Criminal Procedure, and all other applicable statutes, case law, and local rules for an order: Compel Discovery and Preserver Evidence; and Granting Leave to File Further Motions.

These motions are based upon the instant motions and notice of motions, the attached statement of facts and memorandum of points and authorities, the files and records in the above-captioned matter, and any and all other materials that may come to this Court's attention prior to or during the hearing of these motions. Respectfully submitted, s/ Andrew Lah ANDREW LAH Federal Defenders of San Diego, Inc. Attorneys for Mr. Adams [email protected]

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1 ANDREW LAH California State Bar No. 234580 2 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 3 San Diego, California 92101-5030 Telephone: (619) 234-8467 4 E-mail: [email protected] 5 6 7 8 9 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE ROGER T. BENITEZ) ) ) ) ) ) ) ) ) ) ) ) I. STATEMENT OF FACTS A grand jury indicted Gentry Adams and Kyle Chapman in an eleven-count indictment charging Case No. 08cr2531-BEN Attorneys for Mr. Adams

11 UNITED STATES OF AMERICA, 12 13 v. 14 GENTRY ADAMS, 15 16 17 18 19 Defendant.

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

20 violations of 18 U.S.C. Sections 922(a)(1)(A) and 924 (a)(1)(D), dealing firearms without a license, 18 21 U.S.C. Sections 922 (g)(1) and (924(a)(2), felon in possession of a firearm, and 26 U.S.C. Sections 5845, 22 5861(d), and 5871, unlawful possession or receipt of unregistered firearms. Counts four and six apply to 23 Mr. Chapman. These motions follow. 24 // 25 // 26 // 27 // 28

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II. MOTION TO COMPEL DISCOVERY AND PRESERVE EVIDENCE Mr. Adams requests the following discovery. His request is not limited to those items of which

4 the prosecutor is aware. It includes all discovery listed below that is in the custody, control, care, or 5 knowledge of any "closely related investigative [or other] agencies." See United States v. Bryan, 868 F.2d 6 1032 (9th Cir. 1989). He also requests preservation of evidence and has attached a proposed order thereon 7 for the Court's convenience. 8 1. The Defendant's Statements. The government must disclose to Mr. Adams all copies of

9 any written or recorded statements made by him; the substance of any statements made by Mr. Adams that 10 the government intends to offer in evidence at trial; any response by him to interrogation; the substance of 11 any oral statements that the government intends to introduce at trial and any written summaries of him 12 oral statements contained in the handwritten notes of the government agent; any response to any Miranda 13 warnings that may have been given to him; and any other statements by him. Fed. R. Crim. P. 16(a)(1)(A) 14 and (B). The Advisory Committee Notes and the 1991 amendments to Rule 16 make clear that the 15 government must reveal all of Mr. Adams's statements, whether oral or written, regardless of whether the 16 government intends to make any use of those statements. 17 2. Arrest Reports, Notes and Surveillance Tapes. Mr. Adams also specifically requests that

18 all arrest reports, notes and surveillance or any other tapes that relate to the circumstances surrounding her 19 arrest or any questioning, if such reports have not already been produced in their entirety, be turned over 20 to him. This request includes, but is not limited to, any rough notes, records, reports, transcripts or other 21 documents in which statements of Mr. Adams or any other discoverable material is contained. This is all 22 discoverable under Fed. R. Crim. P. 16(a)(1)(A) and (B) and Brady v. Maryland, 373 U.S. 83 (1963). See 23 also Loux v. United States, 389 F.2d 911 (9th Cir. 1968). Arrest reports, investigator's notes, memos 24 from arresting officers, dispatch tapes, sworn statements, and prosecution reports pertaining to Mr. Adams 25 are available under Fed. R. Crim. P. 16(a)(1)(A) and (B), Fed. R. Crim. P. 26.2 and 12(I). Preservation of 26 rough notes is requested, whether or not the government deems them discoverable. 27 3. Brady Material. Mr. Adams requests all documents, statements, agents' reports, and

28 tangible evidence favorable to her on the issue of guilt and/or that affects the credibility of the 2 08CR2531-BEN

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1 government's case. Impeachment and exculpatory evidence both fall within Brady's definition of 2 evidence favorable to the accused. United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 3 427 U.S. 97 (1976). 4 4. Any Information That May Result in a Lower Sentence. As discussed above, any

5 information that may result in a more favorable sentence must also be disclosed pursuant to Brady, 373 6 U.S. 83. The government must disclose any cooperation or attempted cooperation by Mr. Adams, as well 7 as any information that could affect any base offense level or specific offense characteristic under Chapter 8 Two of the United States Sentencing Commission Guidelines Manual ("Guidelines"). Also included in 9 this request is any information relevant to a Chapter Three adjustment, a determination of Mr. Adams's 10 criminal history, or any other application of the Guidelines. 11 5. The Defendant's Prior Record. Evidence of a prior record is available under Fed. R. Crim.

12 P. 16(a)(1)(D). Mr. Adams specifically requests a complete copy of any criminal record. 13 6. Any Proposed 404(b) Evidence. Evidence of prior similar acts is discoverable under Fed.

14 R. Crim. P. 16(a)(1)(D) and Fed. R. Evid. 404(b) and 609. In addition, under Fed. R. Evid. 404(b), "upon 15 request of the accused, the prosecution . . . shall provide reasonable notice in advance of trial . . . of the 16 general nature . . .." of any evidence the government proposes to introduce under Fed. R. Evid. 404(b) at 17 trial. Sufficient notice requires the government to "articulate precisely the evidential hypothesis by which 18 a fact of consequence may be inferred from the other acts evidence." United States v. Mehrmanesh, 689 19 F.2d 822, 830 (9th Cir. 1982) (emphasis added; internal citations omitted); see also United States v. 20 Brooke, 4 F.3d 1480, 1483 (9th Cir. 1993) (reaffirming Mehrmanesh and reversing convictions). 21 Mr. Adams requests that such notice be given three weeks before trial to give the defense time to

22 adequately investigate and prepare for trial. 23 7. Evidence Seized. Evidence seized as a result of any search, either warrantless or with a

24 warrant, is discoverable under Fed. R. Crim. P. 16(a)(1)(E). Defense counsel requests all search warrants 25 associated with this case. 26 8. Request for Preservation of Evidence. The defense specifically requests that all dispatch

27 tapes or any other physical evidence that may be destroyed, lost, or otherwise put out of the possession, 28 custody, or care of the government and that relate to the arrest or the events leading to the arrest in this

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1 case be preserved. This request includes, but is not limited to the vehicle involved in the case, Mr. 2 Adams's personal effects, and any evidence seized from Mr. Adams or any third party. 3 It is requested that the prosecutor be ordered to question all the agencies and individuals involved

4 in the prosecution and investigation of this case to determine if such evidence exists, and if it does exist, 5 to inform those parties to preserve any such evidence. 6 9. Henthorn Material. Mr. Adams requests that the Assistant United States Attorney

7 ("AUSA") assigned to this case oversee (not personally conduct) a review of all personnel files of each 8 agent involved in the present case for impeachment material. See Kyles v. Whitley, 514 U.S. 437, 438 9 (1995) (holding that "the individual prosecutor has a duty to learn of any favorable evidence known to the 10 others acting on the government's behalf in the case, including the police"); United States v. Henthorn, 11 931 F.2d 29 (9th Cir. 1991). This request includes, but is not limited to, any complaints filed (by a 12 member of the public, by another agent, or any other person) against the agent, whether or not the 13 investigating authority has taken any action, as well as any matter for which a disciplinary review was 14 undertaken, whether or not any disciplinary action was ultimately recommended. Mr. Adams further 15 requests production of any such information at least one week prior to the motion hearing and two weeks 16 prior to trial. If the prosecutor is uncertain whether certain information should be disclosed pursuant to 17 this request, this information should be produced to the Court in advance of the motion hearing and the 18 trial for an in camera inspection. 19 10. Tangible Objects. Mr. Adams requests the opportunity to inspect, copy, and test, as

20 necessary, all other documents and tangible objects, including photographs, books, papers, documents, 21 alleged narcotics, fingerprint analyses, vehicles, or copies of portions thereof, that are material to the 22 defense or intended for use in the government's case-in-chief or were obtained from or belong to Mr. 23 Adams. Fed. R. Crim. P. 16(a)(1)(E). Specifically, Mr. Adams requests color copies of all photographs 24 related to this case in the government's possession. 25 11. Expert Witnesses. Mr. Adams requests the name, qualifications, and a written summary of

26 the testimony of any person that the government intends to call as an expert witness during its case in 27 chief. Fed. R. Crim. P. 16(a)(1)(G). This summary should include a description of the witness' 28 opinion(s), as well as the bases and the reasons for the opinion(s). See United States v. W.R. Grace, 493

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1 F.3d 1119 (9th Cir. 2007); United States v. Duvall, 272 F.3d 825 (7th Cir. 2001) (finding that 2 government's written expert notice did not adequately summarize or describe police detective's testimony 3 in drug prosecution where notice provided only a list of the general subject matters to be covered and 4 failed to identify what opinion the expert would offer on those subjects). This request includes, but is not 5 limited to, disclosure of the qualifications of any government witness who will testify that he understands 6 and/or speaks Spanish or any other foreign language that may have been used during the course of an 7 interview with Mr. Adams or any other witness. 8 Mr. Adams requests the notice of expert testimony be provided at a minimum of three weeks prior

9 to trial so that the defense can properly prepare to address and respond to this testimony, including 10 obtaining its own expert and/or investigating the opinions, credentials of the government's expert and 11 obtain a hearing in advance of trial to determine the admissibility of qualifications of any expert. See 12 Kumho v. Carmichael Tire Co., 526 U.S. 137, 119 S. Ct. 1167, 1176 (1999) (trial judge is "gatekeeper" 13 and must determine, reliability and relevancy of expert testimony and such determinations may require 14 "special briefing or other proceedings"). 15 12. Impeachment evidence. Mr. Adams requests any evidence that any prospective

16 government witness has engaged in any criminal act whether or not resulting in a conviction and whether 17 any witness has made a statement favorable to Mr. Adams. See Fed. R. Evid. 608, 609 and 613. Such 18 evidence is discoverable under Brady, 373 U.S. 83. See United States v. Strifler, 851 F.2d 1197 (9th Cir. 19 1988) (witness' prior record); Thomas v. United States, 343 F.2d 49 (9th Cir. 1965) (evidence that 20 detracts from a witness' credibility). 21 13. Evidence of Criminal Investigation of Any Government Witness. Mr. Adams requests any

22 evidence that any prospective witness is under investigation by federal, state or local authorities for any 23 criminal conduct. United States v. Chitty, 760 F.2d 425 (2d Cir. 1985). 24 14. Evidence of Bias or Motive to Lie. Mr. Adams requests any evidence that any prospective

25 government witness is biased or prejudiced against him, or has a motive to falsify or distort his or her 26 testimony. Pennsylvania v. Ritchie, 480 U.S. 39 (1987); Strifler, 851 F.2d 1197. To this end, Mr. 27 Adams requests discovery regarding all of the informants' arrests and any other potential 28 impeachment information regarding these witnesses.

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Evidence Affecting Perception, Recollection, Ability to Communicate, or Veracity. Mr.

2 Adams requests any evidence, including any medical or psychiatric report or evaluation, tending to show 3 that any prospective witness's ability to perceive, remember, communicate, or tell the truth is impaired; 4 and any evidence that a witness has ever used narcotics or other controlled substance, or has ever been an 5 alcoholic. Strifler, 851 F.2d 1197; Chavis v. North Carolina, 637 F.2d 213, 224 (4th Cir. 1980). 6 16. Witness Addresses. Mr. Adams requests the name and last known address of each

7 prospective government witness. See United States v. Napue, 834 F.2d 1311 (7th Cir. 1987); 8 United States v. Tucker, 716 F.2d 576 (9th Cir. 1983) (failure to interview government witnesses by 9 counsel is ineffective); United States v. Cook, 608 F.2d 1175, 1181 (9th Cir. 1979) (defense has equal 10 right to talk to witnesses). Mr. Adams also requests the name and last known address of every witness to 11 the crime or crimes charged (or any of the overt acts committed in furtherance thereof) who will not be 12 called as a government witness. United States v. Cadet, 727 F.2d 1453 (9th Cir. 1984). 13 17. Name of Witnesses Favorable to the Defendant. Mr. Adams requests the name of any

14 witness who made any arguably favorable statement concerning her or who could not identify him or who 15 was unsure of his identity or participation in the crime charged. Jackson v. Wainwright, 390 F.2d 288 16 (5th Cir. 1968); Chavis, 637 F.2d at 223; Jones v. Jago, 575 F.2d 1164,1168 (6th Cir. 1978); Hudson v. 17 Blackburn, 601 F.2d 785 (5th Cir. 1979), cert. denied, 444 U.S. 1086 (1980). 18 18. Statements Relevant to the Defense. Mr. Adams requests disclosure of any statement that

19 may be "relevant to any possible defense or contention" that he might assert. United States v. Bailleaux, 20 685 F.2d 1105 (9th Cir. 1982). This includes grand jury transcripts that are relevant to the defense 21 motion to dismiss the indictment. 22 19. Jencks Act Material. Mr. Adams requests production in advance of the motion hearing or

23 trial of all material, including dispatch tapes, that the government must produce pursuant to the Jencks 24 Act, 18 U.S.C. § 3500 and Fed. R. Crim. P. 26.2. A verbal acknowledgment that "rough" notes constitute 25 an accurate account of the witness' interview is sufficient for the report or notes to qualify as a statement 26 under section 3500(e)(1). Campbell v. United States, 373 U.S. 487, 490-92 (1963); see also United States 27 v. Boshell, 952 F.2d 1101 (9th Cir. 1991) (holding that interview notes constitutes Jencks material when 28 an agent reviews notes with the subject of the interview); see also United States v. Riley, 189 F.3d 802,

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1 806-808 (9th Cir. 1999). Advance production will avoid the possibility of delay of the motion hearing or 2 trial to allow Mr. Adams to investigate the Jencks material. Mr. Adams requests pre-trial disclosure of 3 such statements to avoid unnecessary recesses and delays and to allow defense counsel to prepare for, and 4 use properly any Jencks statements during cross-examination. 5 20. Giglio Information. Pursuant to Giglio v. United States, 405 U.S. 150 (1972), Mr. Adams

6 requests all statements and/or promises, expressed or implied, made to any government witnesses, in 7 exchange for their testimony in this case, and all other information that could arguably be used for the 8 impeachment of any government witnesses. 9 21. Agreements Between the Government and Witnesses. Mr. Adams requests discovery

10 regarding any express or implicit promise, understanding, offer of immunity, of past, present, or future 11 compensation, or any other kind of agreement or understanding, including any implicit understanding 12 relating to criminal or civil income tax, forfeiture or fine liability, between any prospective government 13 witness and the government (federal, state and/or local). This request also includes any discussion with a 14 potential witness about or advice concerning any immigration benefits, any contemplated prosecution, or 15 any possible plea bargain, even if no bargain was made or the advice not followed. 16 22. Informants and Cooperating Witnesses. Mr. Adams requests disclosure of the names and

17 addresses of all informants or cooperating witnesses used or to be used in this case, and in particular, 18 disclosure of any informant who was a percipient witness in this case or otherwise participated in the 19 crime charged against Mr. Adams. The government must disclose the informant's identity and location, 20 as well as disclose the existence of any other percipient witness unknown or unknowable to the defense. 21 Roviaro v. United States, 353 U.S. 52, 61-62 (1957). The government must disclose any information 22 derived from informants that exculpates or tends to exculpate Mr. Adams. 23 23. Bias by Informants or Cooperating Witnesses. Mr. Adams requests disclosure of any

24 information indicating bias on the part of any informant or cooperating witness. Giglio, 405 U.S. 24. 25 Such information would include what, if any, inducements, favors, payments or threats were made to the 26 witness to secure cooperation with the authorities. 27 24. Personnel Records of Government Officers Involved in the Arrest. Mr. Adams requests all

28 citizen complaints and other related internal affairs documents involving any of the immigration officers

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1 or other law enforcement officers who were involved in the investigation, arrest and interrogation of Mr. 2 Adams. See Pitchess v. Superior Court, 11 Cal. 3d 531, 539 (1974). Because of the sensitive nature of 3 these documents, defense counsel will be unable to procure them from any other source. 4 25. Training of Relevant Law Enforcement Officers. Mr. Adams requests copies of all written

5 videotaped or otherwise recorded policies or training instructions or manuals issued by all law 6 enforcement agencies involved in the case (ATF, etc.) to their employees regarding: (a) the handling of 7 vehicles suspected to be transporting contraband across the port of entry; (b) the referral to secondary 8 inspection of persons within those vehicles; (c) the detention of individuals within those vehicles; (d) the 9 search of those vehicles and the occupants of those vehicles, including the proper means of obtaining 10 consent to search and what constitutes consent to search; (e) the informing of suspects of their 11 Constitutional rights; (f) the questioning of suspects and witnesses. 12 26. Reports of Scientific Tests or Examinations. Pursuant to Fed. R. Crim. P. 16(a)(1)(F), Mr.

13 Adams requests disclosure and the opportunity to inspect, copy, and photograph the results and reports of 14 all tests, examinations, and experiments conducted upon the evidence in this case, including, but not 15 limited to, any fingerprint, ballistics, or DNA testing done upon any evidence seized in this case, that is 16 within the possession, custody, or control of the government, the existence of which is known, or by the 17 exercise of due diligence may become known, to the attorney for the government, and that are material to 18 the preparation of the defense or are intended for use by the government as evidence in chief at the trial. 19 Mr. Adams also requests any tests used to establish a firearm for a higher guideline adjustment (e.g. 20 automatic machine guns, sawed-off shotguns). 21 27. Brady Information. The defendant requests all documents, statements, agents' reports, and

22 tangible evidence favorable to the defendant on the issue of guilt and/or which affects the credibility of the 23 government's case. Under Brady v. Maryland, 373 U.S. 83 (1963), impeachment as well as exculpatory 24 evidence falls within the definition of evidence favorable to the accused. United States v. Bagley, 473 25 U.S. 667 (1985); United States v. Agurs, 427 U.S. 97 (1976). 26 28. Any Proposed 404(b) Evidence. The government must produce evidence of prior similar

27 acts under Fed. R. Crim. P. 16(a)(1) and Fed. R. Evid. 404(b) and any prior convictions which would be 28 used to impeach as noted in Fed. R. Crim. P. 609. In addition, under Fed. R. Evid. 404(b), "upon request

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1 of the accused, the prosecution . . . shall provide reasonable notice in advance of trial . . . of the general 2 nature" of any evidence the government proposes to introduce under Fed. R. Evid. 404(b) at trial. The 3 defendant requests notice two weeks before trial to give the defense time to investigate and prepare for 4 trial. 5 29. Specific Requests. Mr. Adams specifically requests the opportunity to view the "A-File"

6 of the material witness in this case. He also specifically requests all reports and documentation relating to 7 prior apprehensions of the material witnesses. 8 30. Residual Request. The defendant intends by this discovery motion to invoke his rights to

9 discovery to the fullest extent possible under the Federal Rules of Criminal Procedure and the 10 Constitution and laws of the United States. 11 12 13 III. MOTION FOR LEAVE TO FILE FURTHER MOTIONS Mr. Adams and defense counsel have received some discovery, but substantial discovery has not

14 been produced. For example, Mr. Adams has yet to receive the conviction documents regarding the prior 15 felony conviction alleged in the indictment, any documents establishing interstate or foreign commerce, 16 and the search warrants. Mr. Adams requests the opportunity to file further motions as this or other 17 information comes to light or as the interests of justice require. 18 19 20 21 22 Dated: September 8, 2008 23 24 25 26 27 28 IV. CONCLUSION For the foregoing reasons, Mr. Adams respectfully requests that the Court grant the above motions. Respectfully submitted, s/ Andrew Lah ANDREW LAH Federal Defenders of San Diego, Inc. Attorneys for Mr. Adams

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2 FEDERAL DEFENDERS OF SAN DIEGO, INC. 3 San Diego, California 92101-5008 4 Facsimile: 5

ANDREW LAH California State Bar No. 234580
225 Broadway, Suite 900

Telephone: (619) 234-8467 Ext. 3737 (619) 687-2666 [email protected]

6 Attorneys for Mr. Adams 7 8 9 10

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE ROGER T. BENITEZ) ) ) ) ) ) ) ) ) ) ) Case No. 08CR2531-BEN

11 UNITED STATES OF AMERICA, 12 13 v. 14 GENTRY ADAMS, 15 16 17

Plaintiff,

PROOF OF SERVICE

Defendant.

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

18 his information and belief, and that a copy of the foregoing document has been served via CM/ECF this day 19 upon: 20 21

Assistant United States Attorney [email protected] s/ ANDREW LAH ANDREW LAH Federal Defenders of San Diego, Inc., [email protected]

22 Dated: September 8, 2008 23 24 25 26 27 28