Free Reply to Response - District Court of California - California

Case 3:08-cr-02428-JAH

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PHILIP A. DeMASSA # 47667 PHILIP A. DeMASSA, APC SUITE 201 2356 MOORE STREET San Diego, CA 92110 Telephone: (619) 294-2777 Facsimile: (619) 294-2120 [email protected] Attorney for Defendant VICENTE MANUEL AGUIRRE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, ) CASE NO. 08CR2428 JAH ) ) ) ) REPLY TO GOVERNMENT'S ) RESPONSE AND OPPOSITION ) TO DEFENDANT'S MOTIONS ) ) ) DATE: August 25, 2008 ) TIME: 8:30 a.m.

10 Plaintiff, 11 v. 12 VICENTE MANUEL AGUIRRE, 13 Defendant. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REPLY

Defendant submits the following Reply to the Government's Response and Opposition to Defendant's various motions

("Opposition"). I MOTION FOR SEARCH AND DISCLOSURE OF ELECTRONIC SURVEILLANCE The Government's Opposition argues Defendant's motion for disclosure of electronic surveillance should be denied because he failed to establish standing since he hasn't shown he was intercepted or have a legitimate expectation of privacy where the interception took place. The Government makes this argument despite the admission of another Assistant U.S. Attorney that

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Defendant was in fact intercepted and that was the reason why he and his vehicle were intercepted and the vehicle searched. Although faced with a declaration directly quoting AUSA James Melendres that Defendant was intercepted and this was the reason his vehicle was stopped and searched, the Government's present lawyer simply ignores her co-counsel's admission. Moreover, the Government makes no attempt to submit a declaration from AUSA Melendres explaining whether 1) he made the statements, or, 2) if he made the statements, what was the context under which they were made, or, 3) which sources he relied upon when making the statements, or 4) why he was wrongly quoted, or 5) how he misunderstood what he was told. The Government is silent on this matter other than the present Government attorney's disavowal she was not the source of the information. be Defendant's That goes without saying. to it when establish would a the he was that Although it may the his subject burden in of is a

burden

unlawful

surveillance, lighter know,

seem

substantially position to

government wiretap

prosecutor, the

admits

and

Defendant's

involvement in it resulting in the stop and seizure. Such an admission is more than sufficient to establish standing, as opposed to a Defendant's declaration of what he believes may have occurred. wiretapping A Government attorney is more in the know when than a Defendant would be, who

occurred

understandably is not clued in while his communications are being intercepted. Government attorneys should be considered more reliable than other sources of information. Further, given

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the sophisticated means of modern interceptions, interceptees are more unobtrusively monitored than previously. The

Government has established Defendant is an "aggrieved party." A party claiming to be the victim of illegal electronic surveillance must first demonstrate that his interests were affected before the Government's obligation to affirm or deny is triggered. This "standing" requirement is met if a definite

"claim" is made by an "aggrieved party" defined as "a party to any intercepted wire, oral, or electronic communication or a person against whom the interception is directed." Title 18 U.S.C. § 2518(10(a). A "cognizable `claim' need be no more than a `mere

assertion,' provided that it is a positive statement that illegal surveillance has taken place." United States v. Apple, 915 F.2d 899, 905 (4th Cir. 1990). Once the defendant makes such a showing, the Government must "affirm or deny" the occurrence of the alleged unlawful act. 18 U.S.C. § 3504(a)(1). Defendant has filed with this Reply his Declaration his possession and use of two cell phones. When he was arrested,

Mr. Aguirre was in possession of one cell phone with a "push-totalk" function. Aguirre Declaration, ¶ 4. Since the presently

provided discovery does not even reflect the seizure of any phone, Mr. Aguirre is unable noted to further to his identify arrest it. that Id. he

However,

Mr.

Aguirre

prior

experienced difficulties in using these phones, including the quality of the communications had deteriorated: "the calls would

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become scratchy and irregular with the volume going up and down. Some of the calls were cut off without explanation." Id.1 Mr. Aguirre's Declaration is sufficiently concrete and

specific to make a prima facie showing that on the occasions described someone was interfering with his telephone calls and the Government was involved. United States v. Alter, 482 F.2d 1016, 1027 (9th Cir. 1973). compelling when considered Defendant's proof is even more along with the Government

prosecutor's admission that a wiretap led to Defendant's stop and search. The Government must unequivocally affirm or affirm or deny the use of electronic surveillance. United States v. Wylie, 625 F.2d 1371, 1375-76 (9th Cir. 1980). In Wylie, after the

Government made a general denial defendant countered with a more detailed affidavit. This was sufficient for the court to order

the Government to make a more specific search and disclosure. Id. Defendant Aguirre has gone beyond such a prima facie and cited the Government itself as proof of the

showing

unauthorized wiretap. The Court should further be mindful that the wiretap in question may not be a federal but a state wiretap. If such is Under ...

the case, the rules on standing are totally different. California Penal Code § 629.72, "Any person in

any

proceeding, may move to suppress some or all of the contents of

Mr. Aguirre has submitted two Declarations; one is in English, the other in Spanish. The Spanish version is in Mr. Aguirre's native language and the English is an accurate translation. REPLY - 4 -

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any intercepted wire, electronic digital pager, or electronic cellular telephone communications, or evidence derived

therefrom, only on the basis that the contents or evidence were obtained in violation of the Fourth Amendment ... or of this chapter."2 "Any person" under California law is a broader

definition than "an aggrieved person." The federal Title III wiretap law established minimum

standards for the admissibility of evidence obtained through electronic surveillance; state law cannot be less protective of privacy than the federal act. People v. Otto, 2 Cal.4th 1088, 1098, 831 P.2d 1178 (1992). Since the federal act established

minimum standards California was free to enact, and did, a more expansive rule on standing to protect the right to privacy in the state. Penal Code § 629.72, enacted in 1995, was passed by

an overwhelming Senate vote of 92%, 28 to 2, and an overwhelming Assembly vote of 77.5%, 62 to 5.3 The Government in this case may be viewing a state wiretap conducted via a state wiretap law through a restrictive federal standing analysis. Under either analysis, however, Defendant

has established his right to have the Government admit the unlawful wiretap so that the Court can order disclosure and discovery.

"[T]his chapter" is Chapter 1.4 of the California Penal Code, which consists of §§ 629.50 et seq. Statutes 1995, chapter 971, section 10, page 5732; California Legislature, 1995-1996 Regular Session, Senate Final History, page 703. REPLY - 5 3

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II THE MOTIONS TO SUPPRESS A. Motion to Suppress Statements. The Government opposes Defendant's motion to suppress because he did not provide a declaration. Attached to this Reply is the requisite declaration adducing facts sufficient to establish his right to an evidentiary hearing on several grounds.4 First, Defendant was effectively arrested when he was stopped and he was not free to go, as his declaration states. This was

not an investigatory or border stop but one based on the illegal wiretap. Statements obtained from a defendant after an illegal arrest are suppressed under the Fourth Amendment without regard to satisfying any "threshold" Fifth Amendment condition.

Statements were obtained from the beginning from a person in custody. Dunaway v. New York, 442 U.S. 200, 216-219, 99 S.Ct. 2248, 2256-58 (1979). Second, Defendant's statements were obtained in violation of Miranda as set forth in his declaration, including the

statements made to the officers four hours later when he was told, prior to the video interview, that things would go better for him if he spoke to them. Mr. Aguirre was then taken into

the room where he was interviewed; he did so after being told off camera that it would go better for him to be interviewed. On camera Mr. Aguirre stated, "As you wish." Aguirre

Declaration, ¶ 3. This is a clear reference to what he was

The Aguirre Declaration appears smaller than in the original as it has undergone several facsimile transmissions. REPLY - 6 -

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instructed to do off camera. statements must be suppressed.

The entirety of Defendant's

B. Motion to Suppress Vehicle Stop. Defendant was stopped and arrested on the road. There is to

date no evidence he was at the border when detained. The reason for the detention was the unlawful interceptions which caused him to be detained. After discovery is complete with the

provision of the wiretap information the evidence must be suppressed.

DATED: September 6, 2008

Respectfully submitted,

S/ Philip A. DeMassa PHILIP A. DeMASSA Attorney for Defendant VICENTE MANUEL AGUIRRE

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1 2 UNITED STATES DISTRICT COURT 3 SOUTHERN DISTRICT OF CALIFORNIA 4 5 UNITED STATES OF AMERICA, 6 7 8 9 10 11 I HEREBY CERTIFY THAT: 12 13 14 15 16 17 1. 18 19 20 21 22 23 Executed on September 6, 2008 24 25 26 27 28 CERTIFICATE OF SERVICE s/Philip A. DeMassa PHILIP A. DeMASSA Caroline P. Han, Esq [email protected] I am not a party to the above-entitled action. I have caused service of the Reply and attached Declaration of Vicente Manuel Aguirre on the following parties by electronically filing the foregoing with the Clerk of the District Court using its ECF System which electronically notifies them: I, PHILIP A. DeMASSA, am a citizen of the United States and am at least eighteen years of age. My business address is 2356 Moore Street, Suite 201, San Diego, CA 92110. v. VICENTE MANUEL AGUIRRE, Defendant. Plaintiff, ) ) ) ) ) ) ) ) ) ) ) CASE NO. 08CR2428 JAH CERTIFICATE OF SERVICE

I hereby certify that I have caused to be mailed the foregoing by the United States Postal Service, to the following non-ECF participant(s) in this case: 1. None

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.