Free Motion for Fingerprint Exemplars - District Court of California - California

Case 3:08-cr-02424-BTM

Document 12

Filed 08/14/2008

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KAREN P. HEWITT United States Attorney CHRISTOPHER P. TENORIO Assistant U.S. Attorney California State Bar No. 166022 880 Front Street, Suite 6293 San Diego, California 92101-8893 Telephone: (619) 557-7843 [email protected] Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, v. HAMILTON SILVA-VASQUEZ, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) NOTICE OF GOVERNMENT'S MOTION FOR FINGERPRINT EXEMPLARS CASE: JUDGE: COURT: DATE: TIME: 08CR2424-BTM HON. BARRY TED MOSKOWITZ COURTROOM 15 AUGUST 29, 2008 8:30 a.m.

TOGETHER WITH MEMORANDUM OF POINTS AND AUTHORITIES

COMES NOW the plaintiff, UNITED STATES OF AMERICA, by and through its counsel, Karen P. Hewitt, United States Attorney, and Christopher P. Tenorio, Assistant United States Attorney, and hereby files notice of its motion for fingerprint exemplars. DATED: August 14, 2008 Respectfully submitted, KAREN P. HEWITT United States Attorney CHRISTOPHER P. TENORIO Assistant U.S. Attorney

s/Christopher P. Tenorio

08CR2424-BTM

Case 3:08-cr-02424-BTM

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Filed 08/14/2008

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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 2 IT IS HEREBY CERTIFIED that: I, CHRISTOPHER P. TENORIO, am a citizen of the United States and am at least eighteen years of age. My business address is 880 Front v. HAMILTON SILVA-VASQUEZ, Defendant. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, ) CERTIFICATE OF SERVICE ) ) CASE: 08CR2424-BTM ) JUDGE: HON. BARRY TED MOSKOWITZ ) COURT: COURTROOM 15 ) ) ) ) )

Street, Room 6293, San Diego, California 92101-8893. I am not a party to the above-entitled action. I have caused

service of NOTICE OF GOVERNMENT'S MOTION FOR FINGERPRINT EXEMPLARS on Erick L. Guzman, Esq. by electronically filing the foregoing with the Clerk of the District Court using its ECF System. I declare under penalty of perjury that the foregoing is true and correct. Executed on August 14, 2008 Respectfully submitted, CHRISTOPHER P. TENORIO Assistant U.S. Attorney 08CR2424-BTM

s/Christopher P. Tenorio

Case 3:08-cr-02424-BTM

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Filed 08/14/2008

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KAREN P. HEWITT United States Attorney CHRISTOPHER P. TENORIO Assistant U.S. Attorney California State Bar No. 166022 880 Front Street, Suite 6293 San Diego, California 92101-8893 Telephone: (619) 557-7843 [email protected] Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, v. HAMILTON SILVA-VASQUEZ, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) GOVERNMENT'S MOTION FOR FINGERPRINT EXEMPLARS CASE: JUDGE: COURT: DATE: TIME: 08CR2424-BTM HON. BARRY TED MOSKOWITZ COURTROOM 15 AUGUST 29, 2008 8:30 a.m.

TOGETHER WITH MEMORANDUM OF POINTS AND AUTHORITIES

COMES NOW the plaintiff, UNITED STATES OF AMERICA, by and through its counsel, Karen P. Hewitt, United States Attorney, and Christopher P. Tenorio, Assistant United States Attorney, and hereby files its motion for fingerprint exemplars. Said motion is based upon the files and records of the case, together with the attached Memorandum of Points and Authorities. // // // // // //

Case 3:08-cr-02424-BTM

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I. INTRODUCTION The Government incorporates by reference its Statement of Facts provided in its Response in Opposition to Defendant's Motion to Compel Discovery, filed under separate cover. II. GOVERNMENT'S MOTION FOR FINGERPRINT EXEMPLARS To establish that Defendant violated 8 U.S.C. § 1326, the Government must prove Defendant was previously deported from the United States and was subsequently found in the United States without having requested and obtained authorization from the Attorney General. To prove that the defendant currently before this Court and in the custody of the Bureau of Prisons is the same individual who was previously deported from the United States, the Government expects to call a certified fingerprint examiner as an expert witness. expert would testify obtained at from trial this regarding defendant comparisons and those on The

between various

fingerprints

immigration and other documents. The Government intends to introduce such testimony during its case-in-chief at trial. To conclusively establish a match of the aforementioned

identities, the Government requests the Court to permit the expert witness to obtain fingerprint exemplars from the Defendant now in custody. The defendant's fingerprints are not testimonial evidence. Thus, using

See Schmerber v. California, 384 U.S. 757 (1966).

identifying physical characteristics, such as fingerprints, does not violate a defendant's Fifth Amendment right against self-

incrimination. 1969); Woods

United States v. DePalma, 414 F.2d 394, 397 (9th Cir. v. United States 397 2 F.2d 156 (9th Cir. 1968).

08CR2424-BTM

Case 3:08-cr-02424-BTM

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Filed 08/14/2008

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Therefore, the Government respectfully requests that the Court order the defendant to make himself available for fingerprinting by the Government's fingerprint expert or agent. III. CONCLUSION Based on the foregoing, the Court should grant the Government's motion for fingerprint exemplars. DATED: August 14, 2008 Respectfully submitted, KAREN P. HEWITT United States Attorney

CHRISTOPHER P. TENORIO Assistant U.S. Attorney

s/Christopher P. Tenorio

3

08CR2424-BTM

Case 3:08-cr-02424-BTM

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Filed 08/14/2008

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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 IT IS HEREBY CERTIFIED that: I, CHRISTOPHER P. TENORIO, am a citizen of the United States and am at least eighteen years of age. My business address is 880 Front v. HAMILTON SILVA-VASQUEZ, Defendant. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, ) CERTIFICATE OF SERVICE ) ) CASE: 08CR2424-BTM ) JUDGE: HON. BARRY TED MOSKOWITZ ) COURT: COURTROOM 15 ) ) ) ) )

Street, Room 6293, San Diego, California 92101-8893. I am not a party to the above-entitled action. I have caused

service of GOVERNMENT'S MOTION FOR FINGERPRINT EXEMPLARS on Erick L. Guzman, Esq. by electronically filing the foregoing with the Clerk of the District Court using its ECF System. I declare under penalty of perjury that the foregoing is true and correct. Executed on August 14, 2008 Respectfully submitted, CHRISTOPHER P. TENORIO Assistant U.S. Attorney 08CR2424-BTM

s/Christopher P. Tenorio