Free Motion for Discovery - District Court of California - California

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1 WENDY S. GERBOTH Attorney At Law 2 California Bar No. 167687 964 Fifth Avenue, Suite 214 3 San Diego, California 92101 Telephone: (619) 699-5969 4 Facsimile: (619) 699-5967 [email protected] 5 Attorney for Defendant Mark William Rines 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLEASE TAKE NOTICE that on Friday August 29, 2008 at 1:30 p.m., or as soon thereafter as counsel may be heard, the defendant, Marc William Rines, by and through his attorney, Wendy S. Gerboth, will ask this Court to enter an order granting the motions listed below. MOTIONS Marc William Rines, the defendant in this case, by and through his attorney, Wendy S. Gerboth, pursuant to the U.S. Const., Fed. R. Crim. P., Fed. R. Evid., and all other applicable statutes, case law and local rules, hereby moves this Court for an order: 1 08-CR-2431-03-JLS TO: KAREN P. HEWITT, UNITED STATES ATTORNEY; and DAVID L. LESHNER, ASSISTANT UNITED STATES ATTORNEY v. MARC WILLIAM RINES (3), Defendant. Plaintiff, UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE JANIS L. SAMMARTINO) UNITED STATES OF AMERICA, ) ) ) ) ) ) ) ) ) ) ) ) Criminal No. 08CR-2341-03-JLS Date: August 29, 2008 Time: 1:30 p.m. NOTICE OF MOTIONS AND MOTIONS: 1)TO COMPEL FURTHER DISCOVERY; 2)TO REQUIRED DISCLOSURE OF THE INFORMANT(S); 3)FOR LEAVE TO FILE FURTHER 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:

(1) to compel further discovery; (2) to disclose the confidential informant, and (3) 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, and any and all other materials that may come to this Court's attention at the time of the hearing on these motions. Respectfully submitted, /S/ Wendy S. Gerboth Wendy S. Gerboth Attorney for Marc William Rines

August 15, 2008

C:\Documents and Settings\WENDY\My Documents\Clients\Rines\pretrial motions.wpd

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1 WENDY S. GERBOTH Attorney At Law 2 California Bar No. 167687 964 Fifth Avenue, Suite 214 3 San Diego, California 92101 Telephone: (619) 699-5969 4 Facsimile: (619) 699-5967 [email protected] 5 Attorney for Defendant Marc William Rines 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 This statement of facts is based on discovery provided by the 27 government. Mr. Rines expressly reserves the right to contradict, explain, and/or supplement this statement of facts at any future pre28 trial proceedings and at trial, based on additional discovery and on pretrial investigation.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE JANIS L. SAMMARTINO) UNITED STATES OF AMERICA, Plaintiff, v. MARC WILLIAM RINES(3), Defendant. ) ) ) ) ) ) ) ) ) ) Criminal No. 08-CR2431-03-JLS Date: August 29, 2008 Time: 1:30 p.m. STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S PRETRIAL MOTIONS

I. STATEMENT OF FACTS1 Marc William Rines is charged in a one count indictment with conspiring with four other people to distribute one kilogram and more of heroin in violation of 21 U.S.C. §§ 841(b)(1) and 846. According to

pleadings and discovery produced by the government Mr. Rines and codefendant Paul Michael Padilla allegedly contacted co-defendant's Jose Raul Ayala and William Gomez-Garcia about purchasing multiple kilograms

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1 of heroin.

Mr. Gomez contacted co-defendant Emmanuel Bautista who Further, the

2 arranged to obtain the heroin from a source of supply.

3 government contends that Mr. Rines borrowed a car from a friend in 4 Portland, Oregon and traveled with co-defendant Paul Michael Padilla 5 from Portland, Oregon to San Diego, California for the purpose of 6 purchasing heroin. The government alleges Mr. Rines was with Mr.

7 Padilla shortly before Mr. Padilla met with the heroin source of supply 8 (believed to be an informant/cooperating witness) carrying a bag 9 containing $96,000 in cash. 10 In a post-arrest statement Mr. Rines denied knowledge of the

11 drug deal, and has entered a not-guilty plea. 12 The government has produced 20 pages of discovery, and three

13 compact discs (photos, video surveillance footage, and a recording). 14 15 16 II. MOTION TO COMPEL DISCOVERY/PRESERVE EVIDENCE Pursuant to the Fourth, Fifth and Sixth Amendments to the

17 United States Constitution, Rules 12 and 16 of the Federal Rules of 18 Criminal Procedure, Brady v. Maryland, 373 U.S. 83 (1963), 18 U.S.C. 19 3500 (the Jenks Act), Mr. Rines moves the Court for an order compelling 20 further discovery, and for the preservation of evidence. This motion

21 includes all discovery in the possession, custody or control of the 22 government, and of which the government attorney may become aware 23 through the exercise of due diligence. See Fed. R. Crim. P. 16. This

24 discovery motion includes, but is not limited to, the following: 25 (1) The Defendant's Statements. All written or recorded

26 statements, any written record containing the substance of any oral 27 statements, any written summaries of his oral statements, and the 28 handwritten notes of any government agents who took notes of such

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1 statements, and any response to Miranda warnings. 2 16(a)(1)(A). 3 (2)

Fed. R. Crim. P.

Arrest Reports, Notes and Surveillance.

All arrest

4 reports, notes, dispatch or any other tapes that relate to the 5 circumstances surrounding the defendant's arrest and/or questioning. 6 This request includes, but is not limited to, any rough notes, records, 7 reports, transcripts, or other documents which contain statements of 8 the defendant or any other discoverable material. 9 16(a)(1)(A); Brady v. Maryland, 373 U.S. 83 (1963). Fed. R. Crim. P. The government

10 must produce arrest reports, investigator's notes, memos from arresting 11 officers, dispatch tapes, sworn statements, and prosecution reports 12 pertaining to the defendant. Fed. R. Crim. P. 16(a)(1)(B) and (C);

13 Fed. R. Crim. P. 26.2 and 12(i). 14 (3) The Defendant's Prior Record. The defendant requests

15 disclosure of his prior record. 16 (4) Evidence Seized.

Fed. R. Crim. P. 16(a)(1)(B). The defendant requests production of

17 evidence seized as a result of any search, either warrantless or with a 18 warrant. 19 Fed. R. Crim. P. 16(a)(1)(C). (5) Tangible Objects. The defendant requests the

20 opportunity to inspect and copy as well as test, if necessary, all 21 other documents and tangible objects, including photographs, books, 22 papers, documents, alleged narcotics, fingerprint analyses, vehicles, 23 or copies of portions thereof, which are material to the defense or 24 intended for use in the government's case or were obtained from or 25 belong to him. 26 (6) Fed. R. Crim. P. 16(a)(1)(C). Request for Preservation of Evidence. The defendant

27 specifically requests the preservation of all physical evidence that 28 may be destroyed, lost, or otherwise put out of the possession,

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1 custody, or care of the government and which relate to the arrest or 2 the events leading to the arrest in this case. This request includes,

3 but is not limited to, the results of any fingerprint analysis, the 4 alleged controlled substance, vehicles, the defendant's personal 5 effects, and any other evidence seized from the defendant or any other 6 party. 7 (7) Reports Of Examinations And Tests. The defendant

8 requests the opportunity to inspect and copy any reports of any 9 scientific tests which are material to the preparation of the defense 10 or intended for use in the government's case. 11 16(a)(1)(D). 12 (8) Expert Witnesses. The defendant requests the name, Fed. R. Crim. P.

13 qualifications, and a written summary of the testimony of any person 14 that the government intends to call as an expert witness during its 15 case. Fed. R. Crim. P. 16(a)(1)(E). The defendant requests that the

16 Court order disclosure of this discovery at least four weeks prior to 17 trial in order so the defendant may perform follow-up investigation, 18 prepare in limine motions in a timely manner, and prepare for trial. 19 (9) Brady Material. The defendant requests all documents,

20 statements, agents' reports, and tangible evidence favorable to the 21 defendant on the issue of guilt, which affects the credibility of the 22 government's case, or which may result in a lower sentence under the 23 United States Sentencing Guidelines. Under Brady, impeachment as well

24 as exculpatory evidence falls within the definition of evidence 25 favorable to the accused. United States v. Bagley, 473 U.S. 667

26 (1985); United States v. Agurs, 427 U.S. 97 (1976). 27 (10) Giglio Information. The defendant requests all

28 statements and/or promises, express or implied, made to any government

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1 witnesses in exchange for their testimony in this case, and all other 2 information which could arguably be used for the impeachment of any 3 government witnesses. 4 (11) Giglio v. United States, 405 U.S. 150 (1972). The defendant requests that the

Henthorn Material.

5 government examine the personnel files of all government agents in this 6 action for Brady material. 7 Cir. 1996). 8 (12) Informants and Cooperating Witnesses. The defendant United States v. Herring, 83 F.3d 1120 (9th

9 requests disclosure of the name(s), address(es), and location(s) of all 10 informants or cooperating witnesses used or to be used in this case, 11 and in particular, disclosure of any informant who was a percipient 12 witness in this case or otherwise participated in the crime charged 13 against the defendant. 14 (1957). Roviaro v. United States, 353 U.S. 52, 61-62

The government must disclose any information derived from Brady

15 informants which exculpates or tends to exculpate the defendant. 16 v. Maryland, 373 U.S. 83 (1963). The government must disclose any

17 information indicating bias on the part of any informant or cooperating 18 witness. 19 infra. 20 (13) Jencks Act Material. The defendant requests production Id. The defendant submits further authority on this issue

21 at least four weeks in advance of trial of all material, including 22 dispatch tapes, which the government must produce pursuant to 18 U.S.C. 23 § 3500. Advance production will avoid the possibility of delay at the

24 request of defendant to investigate the Jencks material. 25 (14) Any Proposed 404(b) Evidence. The defendant requests

26 prior notice of any other acts that the government intends to introduce 27 in its case-in-chief, through impeachment, or in its rebuttal case. 28 Fed. R. Crim. P. 16(a)(1)(C); Fed. R. Evid. 404(b) and 609(b); United

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1 States v. Vega, 188 F.3d 1150 (9th Cir. 1999). The defendant requests 2 that the Court order disclosure of this discovery at least four weeks 3 prior to trial in order to investigate it, to prepare in limine motions 4 in a timely manner, and to prepare adequately for trial. 5 6 7 8 III. THE GOVENMENT MUST REVEAL THE IDENTITY OF ANY CONFIDENTIAL INFORMANTS Due process requires disclosure of the identity of Roviaro v. United

9 confidential informant(s)/cooperating witness(es).

10 States, 353 U.S. 53, 60-61 (1957); United States v. Ramirez-Rangel, 103 11 F.3d 1501, 1505 (9th Cir. 1997); United States v. Ordonez, 737 F.2d 12 793, 809 (9th Cir. 1984). "Where the disclosure of an informant's

13 identity, or the contents of his communication, is relevant and helpful 14 to the defense of an accused, or is essential to a fair determination 15 of a cause," the government must disclose the information. Rovario, 353 16 U.S. at 60-61. If the government withholds this information, the action 17 may be dismissed. 18 Id.

Under Roviaro, this Court must balance the government's

19 interest in protecting the flow of information about illegal activity 20 against the accused's right to prepare a defense to the charges. 21 Roviaro, 353 U.S. at 62; Ramirez-Rangel, supra. To prevail in

22 disclosure, the accused must show that the testimony of the witness 23 will prove "relevant and helpful, or [is] essential to a fair trial." 24 Ramirez-Rangel, 103 F.3d 1505 (quoting United States v. Amador-Galvan, 25 9 F.3d 1414, 1417 (9th Cir. 1993)) (internal quotations omitted). 26 Although, courts require more than a "suspicion" on the part of the 27 accused, see e.g., Ramirez-Rangel, the Rovario standard is identical to 28 the "reasonable probability" standard under Brady and its progeny. To

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1 evaluate whether the accused has met the threshold showing for 2 revelation of the witnesses under due process and Rovario, this Court 3 must consider the particular facts and circumstances of this case, as 4 well as the crime charged, the possible defenses, the possible 5 significance of the witnesses's testimony, and other relevant factors. 6 Roviaro, supra, Ordonez, 737 F.2d at 808. 7 This case clearly involves at least one confidential This person played a

8 informant - the "source" of the alleged heroin.

9 key role in the alleged conspiracy, as a percipient witness. The 10 government, however, has not provided any information about him. 11 government must reveal his identity and whereabouts. The

Roviaro, 353 U.S.

12 at 64 (disclosure required where informant participant in charged 13 transaction). government must reveal the identity of the witnesses even 14 if they are not percipient witnesses to the acts alleged in the 15 indictment because the witnesses may provide information which might 16 lead to other sources of information relevant or helpful to the 17 defense. 18 Amador-Galvan, 9 F.3d at 1417. The government does not satisfy its obligation by merely

19 disclosing the identity and location of the confidential witnesses. 20 The government has the duty to produce the witnesses or to show that 21 despite reasonable efforts it was not able to do so. United States v.

22 LaRizza, 72 F.3d 775, 779 (9th Cir. 1995); United States v. Montgomery, 23 998 F.2d 1468, 1472-1473 (9th Cir. 1992). 24 In a conspiracy case such as this where the witnesses

25 participated in the alleged offense, the testimony of any cooperating 26 witnesses is vital to the defense. Even if the government has no

27 reason to call the witnesses to testify, the defense may wish to call 28 them to provide favorable testimony. Accordingly, the defendant

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1 requests that the Court permit defense counsel to question any 2 cooperating witnesses before trial. See United States v. Hernandez,

3 608 F.2d 741 (9th Cir. 1979); United States Bower, 575 F.2d 499 (9th 4 Cir. 1978). 5 In Callahan v. United States, 371 F.2d 658 (9th Cir. 1957),

6 the court held that both the defense and the prosecution had the right 7 to interview witnesses before trial, and that exceptions to such rules 8 were justifiable only by the clearest and most compelling 9 circumstances. It is beyond dispute that witnesses to a crime are the

10 property of neither the prosecution nor the defense, and that both 11 sides have an equal right to interview them and should have an equal 12 opportunity to do so. 13 14 15 IV. REQUEST FOR LEAVE TO FILE FURTHER MOTIONS Mr. Rines and defense counsel have received very little As additional information becomes available

16 discovery in this case.

17 through further discovery and investigation, Mr. Rines requests leave 18 to file further motions, as appropriate. 19 20 21 V. CONCLUSION For the reasons stated above, Mr. Rines respectfully requests

22 that the Court grant his motions, and accord such other relief as seems 23 just. 24 25 26 Dated: 27 28 August 15, 2008 /S/ Wendy S. Gerboth Wendy S. Gerboth Attorney for Marc Anthony Rines Respectfully submitted,

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1 2 3 4 5 6 7 8 UNITED STATES OF AMERICA, 9 Plaintiff, 10 v. 11 MARC WILLIAM RINES (3), 12 Defendant. 13 14 15 16 2. My business address is 964 Fifth Avenue, Suite 214, San Diego, California 17 18 19 20 21 22 23 24 25 26 27 28 /s/ Wendy S. Gerboth WENDY S. GERBOTH I certify under penalty of perjury that the foregoing is true and correct. Executed on August 15, 2008 at San Diego, California. 92101. 3. I caused service of the Notice of Motions and Motions (1) TO COMPEL DISCOVERY; (2) TO REQUIRE DISCLOSURE OF THE IDENTITY OF CONFIDENTIAL INFORMANT(S) AND (3) FOR LEAVE TO FILE FURTHER MOTIONS and STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES on the following by electronically filing the foregoing with the Clerk of the District Court by using the ECF System, which electronically notifies the following individuals David D. Leshner Timothy R. Garrison Stephen W. Peterson David H. Bartick Robert A. Garcia [email protected] [email protected], [email protected] [email protected] [email protected] ) ) ) ) ) ) ) ) ) ) Criminal No. 08-CR-2431-03-JLS PROOF OF SERVICE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE JANIS L. SAMMARTINO)

I, WENDY S. GERBOTH, certify: 1. I am over eighteen years of age, a United States citizen, a resident of the County of San Diego, State of California. I am not a party to the above-titled action.