Free Response in Opposition - District Court of California - California

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KAREN P. HEWITT United States Attorney ANNE KRISTINA PERRY Assistant U.S. Attorney California State Bar No. 107440 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-5767 Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, ) ) ) ) ) ) Criminal No. 08cr2425 BTM DATE: August 29, 2008 TIME: 1:30 pm GOVERNMENT'S RESPONSE IN OPPOSITION TO DEFENDANT'S MOTION TO (1) COMPEL DISCOVERY AND PRESERVE EVIDENCE Together with Statement of Facts, Points and Authorities, and Government's Motion for Reciprocal Discovery

10 Plaintiff, 11 v. 12 ALEJANDRO TAPIA-TENA, 13 14 15 16 17 Defendant.

) ) ) ) ) ) ______________________________)

COMES NOW, the plaintiff, UNITED STATES OF AMERICA, by and 18 through its counsel, KAREN P. HEWITT, 19 Anne Kristina Perry, Assistant United States Attorney and hereby files 20 its response and opposition to defendant's above-referenced 21 This response and opposition is based upon the files and records of 22 the case, together with the attached statement of facts and memorandum 23 of points and authorities. 24 motion for reciprocal discovery. 25 I. 26 STATEMENT OF FACTS 27 On June 25, 2008, defendant ALEJANDRO TAPIA-TENA WAS one of nine 28 undocumented aliens found concealed in the rear cargo area of a 1993 Mercury Villager van being driven into the United States from Mexico The Government also hereby files its motion. United States Attorney, and

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by one Alfredo Castro Madrid. defendant was ordered removed

As set forth in Exhibit 1, the from United States through an

Administrative Order issued on May 13, 2008.

The defendant was

physically removed from the United States on June 20, 2008, five days before his attempted reentry. II. POINTS AND AUTHORITIES A. DEFENDANT'S MOTION TO COMPEL DISCOVERY MAY BE GRANTED IN PART The Government will continue to comply with its obligations under Brady v. Maryland, 373 U.S. 83 (1963), the Jencks Act (18 U.S.C. §3500) and Rule 16 of the Federal Rules of Criminal Procedure. The

Government has already provided 44 pages and a CD of discovery, and will be providing A-file documents to the defendant prior to the hearing on the motions. The following is the Government's response to Defendant's various discovery requests: 1. The Governmental Reports United States has provided reports relating to the

defendant's arrest. As noted above, A-file documents will be provided to the defendant immediately, and the United States is prepared to conduct an A-file review in whatever manner the Court deems

appropriate. 2. The List and Addresses of Witnesses Government will provide defendant with a list of all

witnesses which it intends to call in its case-in-chief at the time the Government's trial memorandum is filed, although delivery of such list is not required. See United States v. Dischner, 960 F.2d 870

(9th Cir.1992); United States v. Culter, 806 F.2d 933, 936 (9th 2

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Cir.1986); United States v. Mills, 810 F.2d 907, 910 (9th Cir.1987). Defendant, however, is not entitled to the production of addresses or phone numbers of possible Government witnesses. See United States

v.Hicks, 103 F.3d 837, 841 (9th Cir.1996); United States v. Thompson, 493 F.2d 305, 309 (9th Cir.1977), cert. denied, 419 U.S. 834 (1974). The defendant has already received access to the names of potential witnesses in this case in the investigative reports previously

provided to him. 3. All statements made by the defendant and witnesses

The Government has provided the Defendant with reports. Relevant oral statements of Defendant are included in the reports already provided. Agent rough notes, if any exist, will be preserved, but There may be

they will not be produced as part of Rule 16 discovery.

"statements" in the A-File, which, as noted, will be reviewed or produced or whatever is the Order of this court. A defendant is not entitled to rough notes because they are not "statements" within the meaning of the Jencks Act unless they

compromise both a substantially verbatim narrative of a witness' assertions and they have been approved or adopted by the witness. United States v. Bobadilla-Lopez, 954 F.2d 519 (9th Cir. 1992); United States v. Spencer, 618 F.2d 605 (9th Cir. 1980); see also United States v. Griffin, 659 F.2d 932 (9th Cir. 1981). With regard to statements of witnesses, the Government will comply with its obligation pursuant to the Jencks Act. 4. Tangible Objects

The Government will provide copies of and/or an opportunity to inspect all documents and tangible things material to the defense, intended for use in the Government's case in chief, or seized from 3

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Defendant. The Government will try to preserve all evidence to which Defendant is entitled, but objects to any global request for

preservation of all evidence as contrary to Arizona v. Youngblood, 488 U.S. 51, 57 (1988) (improper and unwise to impose on the government "an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution"). 5. Brady Material

The Government will comply with its obligation under Brady v. Maryland, 373 U.S. 83 (1963). Additionally, the Government will

comply with its obligations to disclose impeachment evidence under Giglio v. United States, 405 U.S. 150 (1972). also provide the criminal history and prior The Government will material acts of

misconduct, if any, of its trial witnesses as mandated in Giglio. The Government also agrees to provide information related to the bias, prejudice or other motivation of Government trial witnesses as

required in Napue v. Illinois, 360 U.S. 264 (1959).

In addition, the

Government will disclose all impeachment material, if any, when it files its trial memorandum, although it is not required to produce such material until after its witnesses have testified at trial. United States v. Bramble, 103 F.3d 1475 (9th Cir.1996). 5a. Personnel Files

The Government will review the requested personnel files of all federal law enforcement individuals who will be called as witnesses in this case for Brady material. The Government will request that

counsel for the appropriate federal agency conduct such review. See United States v. Jennings, 960 F.2d 1488, 1492 (9th Cir. 1992). 4

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Pursuant to United States v. Henthorn, 931 F.2d 29(9th Cir.1991) and United States v. Cadet, 727 F.2d 1452 (9th Cir.1984), the United States agrees to "disclose information favorable to the defense that meets the appropriate standard of materiality ..." Cadet, 727 F.2d at 1467, 1468. Further, if counsel for the United States is uncertain

about the materiality of the information within its possession in such personnel files, the information will be submitted to the Court for in camera inspection and review. 6. Grand Jury Transcripts

The defendant has requested that the Government produce grand jury transcripts of relevant witnesses. As of this moment, there are

no percipient witnesses to this case who testified before the Grand Jury. 7. This request should be denied. Evidence which would arguably be the subject of a Motion to Suppress

The Government will make full disclosure of the evidence in this 16 case. 17 8. 18 The Government will comply with its obligation under F.C.R.P. 19 16(a)(1)(D). There is a strong likelihood that the United States will 20 be calling a fingerprint examiner, either Lisa DiMeo or David Beers. 21 III. 22 23 24 25 26 27 28 For the above stated THE GOVERNMENT'S MOTION FOR RECIPROCAL DISCOVERY SHOULD BE GRANTED The Government moves for all discovery to which it is entitled under Fed. R. Crim. P. 16(b) and 26.2. IV. CONCLUSION reasons, 5 the Government respectfully Expert Witness

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requests

that

the

Defendant's

motions

be

denied,

except

where

unopposed, and the Government's motion for reciprocal discovery be granted. DATED: August 24, 2008

Respectfully submitted, KAREN P. HEWITT United States Attorney /s/ Anne Perry Anne Kristina Perry Assistant U.S. Attorney [email protected]

6

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA, Plaintiff,

ALEJANDRO TAPIA-TENA, Defendant. IT IS HEREBY CERTIFIED THAT:

) ) ) ) ) ) ) ) ) )

Case No. 08cr2425 BTM

CERTIFICATE OF SERVICE

10 I, Anne Kristina Perry, am a citizen of the United States and am at least eighteen years of age. 11 My business address is 880 Front Street, Room 6293, San Diego, California 92101-8893. 12 I am not a party to the above-entitled action. I have caused service of the United States' 13 Response in Opposition to Defendant's Motion to Compel Discovery on BRIAN FUNK, Esq., by 14 electronically filing the foregoing with the Clerk of the District Court using its ECF System, which 15 electronically notifies him 16 17 18 19 20 21 22 23 24 25 26 27 28 7 I declare under penalty of perjury that the foregoing is true and correct. Executed on August 24, 2008 s/Anne Perry ANNE KRISTINA PERRY Assistant U.S. Attorney [email protected]

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EXHIBIT 1

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Final Administrative Removal Order
In removal proceedings under section 238(b) of the Immigration and Nationality Act

Event No: E C C 0 8 0 5 0 0 0 0 5 4

File Number A095730585 Date M y 1 3 , 2008 a

TO:Alej andro

TAPIA-Pena

A ~ ~ , . ~ ~ ~ : C A L I P A T STATE PRISON 7018 BLAIR R D CALIPATRIA IMPERIAL CA UNITED STATES 92233 RIA
(Number, Slrwl. City. State end ZIP Code)

Telephone: ( 7 6 0 )

348-7338
(Area Code and Phone Number)

ORDER
Based upon the allegations set forth in the Notice of Intent to Issue a Final Administrative Removal Order and evidence contained in the administrative record, I, the undersigned Deciding Officer of the Department of Homeland Security, make the following findings of fact and conclusions of law. I find that you are not a citizen or national of the United States and that you are not lawfully admitted for permanent residence. I further find that you have a final conviction for an aggravated felony as defined in section 101(a)(43)( (3 ) of the lmmigration and Nationality Act (Act) as amended, 8 U.S.C. 1101(a)(43)(fi ), and are ineligible for any relief from removal that the Secretary of Homeland Security, may grant in an exercise of discretion. I further find that the administrative record established by clear, convincing, and unequivocal evidence that you are deportable as an alien convicted of an aggravated felony pursuant to section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. 1227(a)(2)(A)(iii). By the power and authorii vested in the Secretary of Homeland Security, and in me as the Secretary's delegate under the laws of the United States, I find you deportable as charged and order that you be removed from the United States to:
MEXICO

or to any alternate country prescribed in section 241 of the Act.
J O E L MATA

MAY -2 3 2008
(Dete and m e Location) c

-

~rmd Ck

Certificate of Service
I served this FINAL ADMINISTRATIVE REMOVAL ORDER upon the above named individual.

5316104 -2-

CALIPATRIA. CALIFORNIA

(Date. Time. Place and Manner of Service)

CHRISTOPHER S. HORTON IMMIGRATION ENFORCEMENT AGENT
(Signahm and Title d Ohim-)

v

Form I-851A (Rev. 08/01/07)

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Notice of Intent to Issue a Final Administrative Removal Order
In removal proceedings under section 238(b) of the Immigration and Nationality Act
E v e n t No: ECC0805000054 File Number A095730585

To: A l e j andro TAPIA-Pena
A ~ ~ ~ ~ ~ : C A L I P ASTATEAPRISON 7018 B L A I R T R I

R CALIPATRIA I W E R I A L CA UNITED STATES 92233 D (Number,Street. City. Slate and UP Code)

Telephone: ( 7 6 0 ) 3 4 8 - 7 3 3 8
(Area Code and Phone Nunber)

Pursuant to section 238(b) of the Immigration and Nationality Act (Act) as amended, 8 U.S.C. 1228(b), the Department of Homeland Security (Department) has determined that you are amenable to administrativeremoval proceedings. The determination is based on the following allegations: 1. You are not a citizen or national of the United States. 2. 3. 4. 5.
6.

You are a native of MEXICO

.

and a citizen of MEXICO on or about March 1 , 2 0 0 1

You entered the United States (at)(near) c a i ~ ~ i c ocaiifornia . At that time you entered without inspection You are not lawfully admitted for permanent residence. You were, on in violation of for which the term of imprisonment imposed was

, convicted in the SEE
for the offense of

1-831

Court

Charae: You are deportable under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. 1227(a)(2)(A)(iii), as amended, because you have been convicted of an aggravated felony as defined in section lOl(a)(43)( 8 ) of the Act, 8 U.S.C. 1101(a)(43)( Ij ). Based upon section 238(b) of the Act, 8 U.S.C. 1228(b), the Department is serving upon you this NOTICE OF INTENT TO ISSUE A FINAL ADMINISTRATIVE REMOVAL ORDER ('Notice of Intenr) without a hearing before an lmmigrationJudge. Your Riahts and Reswnsibilities: You may be represented (at no expense to the United States government) by counsel, authorized to practice in this proceeding. If you wish legal advice and cannot afford it, you may contact legal counsel from the list of available free legal services provided to you. You must respond to the above charges in writing to the Department address provided on the other side of this form within 10 calendar days of service of this notice (or 13 calendar days if service is by mail). The Department must RECEIVE your response within that time period.

In your response you may: request, for good cause, an extension of time; rebut the charges stated above (with supporting evidence); request an opportljnity to review the govemmenrs evidence; admit deportability; designate the country to which you choose to be removed in the event that a final order of removal is issued (which designation the Deparbnentwill honor only to the extent permitted under section 2410f the Act. 8 U.S.C. 1231); andlor, if you fear persecution in any specific country or countries on account of race, religion, nationality, membership in a particular social group, or political opinion or, if you fear torture in any specific country or countries, you may request withholding of removal under section 241(b)(3) of the A d . 8 U.S.C. 1231(b)(3), or withholdingldeferral of removal under the Convention Against Tortuie and Other Cruel, Inhuman, or Degrading Treatment or Punishment (ConventionAgainst Torture). A grant of withholding or deferral of removal would prohibit your return to a country or countries where you would be persecuted or tortured, but would not prevent your removal to a safe third country.
You have the right to remain in the United States for 14 calendar days so that you may file a petition for review of this order to the 242 of the Ad, 8 U.S.C. 1252. You may waive your right to remain in for review within this 14day period, you will still be allowed to file a s that petition is filed with the appropriate U.S. Circuit Court of Appeals within 30
Calipatria, California

0*2/&

(Dak and Time)

634afW

Form 1-851 (Rev. 08/01/07)

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US Department of Homeland Security ..
Alien's Name File Number

Continuation Page for Form Ia51
Date
May 13, 2008 A095730585 Event No: ECC0805000054

Ale jandro TAPIA-Pena
Custom # 6

---------

You were, on 06/28/2007, convicted in the California Superior Court County o f Santa Barbara for the offense of, Possession for Sale of a Controlled Substance to wit, Methamphetamine in violation of Section 11378 of the California Health and Safety Code for which the term of imprisonment was 1 years 4 months.

3 of

3

Pages

Form 1-831 Continuation Page (Rev. 08/01/07)

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II

Certificate of Service
Iserved this Notice of Intent. Ihave determined that the person served with this document is the individual named on the other side of the form.
-S O H R IT PE

I1

s.

HORTON ~ I Q ~ U T I O N ENFORCK~~ENT ( S i b r e and T i of Oflbf)

-

AGENT

5-xzc03

Oqq(

personal
(Date end Mamer of Senrice)

Iexplained and/or served this Notice of Intent to the alien in the *GLIsH
CHRISTOPHER S.

language.
(Sgnature of inlerpretec)

I LocationlEmployer: ~ a l i ~ i t r i aCalifornia ,
I
7

HORTON (Name of inlerpretec)

IAcknowledge that I Have Received this Notice of Intent to Issue a Final Administrative Removal Order.

I

tsibnauve

Responden0

(Date and Time)

The alien refused to acknowledge receipt of this document.
(SgnaDJn, and T i dOfIicer)

(Cate and Time)

II 1

C] IWish to Contest andlor to Request Withholding of Removal

I

[IJ I contest my deportabili because: (Attach any supporting documentation)
I am a citizen or national of the United States. [IJ I am a lawful permanent resident of the United States. [IJ Iwas not convicted of the criminal offense described in allegation number 6 above. [IJ 1 am attaching documents in support of my rebuttal and request for further review.

I I

[IJ

I request withholding or deferral of removal to

[Name of Country or Countries]:

Under section 241(b)(3) of the Act, 8 U.S.C. 1231(b)(3), because I fear persecution on account of my race, religion, nationality, membership in a particular social group, or political opinion in that country or those countries. Under the Convention Against Torture, because I fear torture in that country or those countries.
( w of R m t ) S m
( w m d Reapandent) (Date and me)

i

Ia
61

IDo Not Wish to Contest andlor to Request Withholdlng of Removal I admit the allegations and charge in this Notice of lntent Iadmit that I am deportable and a@nowledge that I am not eligible for any form of relief from removal. Iwaive my right to rebut and contest the above charges. Ido not wish to request withholding or deferral of removal. Iwish to be removed to
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I

1 flz(gkeno!
, ,

I understand that I have the right to remain in the United States for 14 calendar days in order to apply for judicial review. Ido not wish this opportunity. Iwaive this right.
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RETURN THIS FORM TO: Department Of Homeland Security

7018 B L A I R RD
CALIPATRIA,

CALIFORNIA

The Departmentoffice at the above address must RECEIVE your responsewithin 10 calendar days from the date of service of thb Notice of lntent H3 calendar davs If service Is

Form 1-851 (Rev. 08/01/07)