Free Motion to Dismiss - District Court of California - California

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TIMOTHY R. GARRISON California Bar No. 228105 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 San Diego, California 92101-5008 Tel: (619) 234-8467 ext. 3722 / Fax: (619) 687-2666 [email protected] Attorneys for BENITO CONTRERAS-MESA

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE LARRY A. BURNS) ) ) ) ) ) ) Plaintiff, ) ) ) ) ) ) v. ) ) ) ) ) ) BENITO CONTRERAS-MESA, ) ) ) ) ) Defendant. ) ________________________________________ ) TO: UNITED STATES OF AMERICA, Criminal No. 08-CR-2412-LAB DATE: TIME: September 2, 2008 2:00 p.m.

NOTICE OF MOTIONS AND MOTIONS TO: 1) DISMISS THE INDICTMENT FOR FAILURE TO ALLEGE ALL ELEMENTS OF THE CHARGED OFFENSE; 2) DISMISS THE INDICTMENT FOR VIOLATION OF MR. CONTRERAS-MESA'S RIGHT TO PRESENTMENT; 3) STRIKE SURPLUSAGE FROM INDICTMENT; 4) PRODUCE GRAND JURY TRANSCRIPTS; 5) SUPPRESS STATEMENTS; 6) COMPEL DISCOVERY AND PRESERVE EVIDENCE; AND 7) GRANT LEAVE TO FILE FURTHER MOTIONS

KAREN P. HEWITT, UNITED STATES ATTORNEY; AND AARON B. CLARK, ASSISTANT UNITED STATES ATTORNEY: PLEASE TAKE NOTICE that on September 2, 2008, at 2:00 p.m., or as soon thereafter

as counsel may be heard, the accused, BENITO CONTRERAS-MESA, by and through his

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attorneys, Timothy R. Garrison, and Federal Defenders of San Diego, Inc., will ask this Court to enter an order granting the motions listed below. MOTIONS BENITO CONTRERAS-MESA, the accused in this case, by and through his attorneys, Timothy R. Garrison, and Federal Defenders of San Diego, Inc., pursuant to the Fourth, Fifth and Sixth Amendments to the United States Constitution, Federal Rules of Criminal Procedure and all other applicable statutes, case law and local rules, hereby moves this court for an order: 1) 2) 3) 4) 5) 6) 7) Dismiss the Indictment for Failure to Allege all Elements of the Charged Offense; Dismiss the Indictment for Violation of Mr. Contreras-Mesa's Right to Presentment; Strike Surplusage from Indictment; Produce Grand Jury Transcripts; Suppress Statements; Compel Discovery and Preserve Evidence; and Grant 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/ Timothy R. Garrison TIMOTHY R. GARRISON Federal Defenders of San Diego, Inc. Attorneys for Mr. Contreras-Mesa [email protected]

Dated: August 12, 2008

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 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 3 08-CR-1353-LAB Dated: August 12, 2008 /s/ Timothy R. Garrison TIMOTHY R. GARRISON Federal Defenders of San Diego, Inc. 225 Broadway, Suite 900 San Diego, CA 92101-5030 (619) 234-8467 (tel) (619) 687-2666 (fax) E-mail: [email protected] mailed to: Mr. Contreras-Mesa ) ) Plaintiff, ) ) v. ) ) BENITO CONTRERAS-MESA, ) ) Defendant. ) _______________________________________) UNITED STATES OF AMERICA, Case No.08-CR-1353-LAB CERTIFICATE OF SERVICE

Counsel for Defendant certifies that the foregoing pleading, is true and accurate to the best of his information and belief, and that a copy of the foregoing has been electronically served this day upon: Aaron B Clark [email protected],[email protected],[email protected]

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1 TIMOTHY R. GARRISON

California State Bar No. 228105
2 FEDERAL DEFENDERS OF SAN DIEGO, INC.

225 Broadway, Suite 900
3 San Diego, CA 92101-5008

(619) 234-8467/Fax: (619) 687-2666
4 E-Mail: [email protected] 5 Attorneys for BENITO CONTRERAS-MESA 6 7 8 9 10

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE LARRY A. BURNS) ) ) Plaintiff, ) ) v. ) ) BENITO CONTRERAS-MESA, ) ) Defendant. ) ______________________________________ ) I. STATEMENT OF FACTS The following statement of facts is based on materials provided by the government. Mr. ContrerasCase No. 08-CR-2412-LAB DATE: TIME: September 2, 2008 2:00 p.m.

11 UNITED STATES OF AMERICA, 12 13 14 15 16 17 18 19

STATEMENT OF FACTS AND M E M O R A N D U M O F P O IN T S A N D AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTIONS

20 Mesa does not accept this statement of facts as his own, and reserves the right to take a contrary position at 21 motion hearings and trial. The facts alleged in these motions are subject to amplification and/or modification 22 at the time these motions are heard. 23

Mr. Contreras-Mesa was arrested on June 25, 2008. On July 23, 2008, the government filed a one

24 count indictment charging a violation of 8 U.S.C. § 1326. 25 26 / / / 27 / / / 28 / / /

These motions follow.

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II. DISMISS THE INDICTMENT BECAUSE IT FAILS TO ALLEGE ALL ELEMENTS OF THE CHARGED OFFENSE The indictment must be dismissed because the government has failed to properly allege all elements

5 of the offense. The Fifth Amendment requires that "[n]o person shall be held to answer for a capital, or 6 otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . .." Consistent with this 7 Constitutional requirement, the Supreme Court has held that an indictment must "fully, directly, and 8 expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense 9 intended to be punished." United States v. Carll, 105 U.S. 611, 612-13 (1881) (emphasis added). It is black 10 letter law that an indictment that does not allege an element of an offense, even an implied element, is 11 defective, and should be dismissed. See, e.g., Russell v. United States, 369 U.S. 749, 769-72 (1962); Stirone 12 v. United States, 361 U.S. 212, 218-19 (1960); United States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir. 1999); 13 United States v. Keith, 605 F.2d 462, 464 (9th Cir. 1979). 14

In this case, the indictment charges a violation of Title 8, United States Code, Sections 1326(a) and

15 (b). In United States v. Salazar-Lopez, 506 F.3d 748, 751 (9th Cir. 2007), the Ninth Circuit indicated that to 16 be sufficient, an indictment charging a violation of section 1326(b) must allege either that the defendant has 17 been previously removed subsequent to a conviction (i.e., for a misdemeanor, a felony, an aggravated felony, 18 or a crime of violence), or it must allege a specific date of the prior removal. In this case, the indictment only 19 alleges that Mr. Contreras-Mesa "was removed from the United States subsequent to January 10, 2008." 20 The indictment does not allege either that this "removal" occurred subsequent to a conviction or allege a 21 specific date of the prior removal. Therefore, because the indictment does not allege all elements of section 22 1326(b), the indictment must be dismissed. 23

Moreover, the indictment fails to allege the following elements necessary to convict Mr. Contreras-

24 Mesa of the offense: that Mr. Contreras-Mesa knew he was in the United States, he failed to undergo 25 inspection and admission by an immigration officer at the nearest inspection point, and that he voluntarily 26 entered the United States. As a consequence, it must be dismissed. See e.g., Nyrienda v. I.N.S., 279 F.3d 620 27 (8th Cir. 2002) (setting forth the components of an entry under the immigration law); see also United States 28

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1 v. Pernillo-Fuentes, 252 F.3d 1030 (9th Cir. 2001); United States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir. 2 1999).1 3 4 5 6

III. DISMISS THE INDICTMENT BECAUSE IT VIOLATES MR. CONTRERAS-MESA'S RIGHT TO PRESENTMENT. Mr. Contreras-Mesa has a Fifth Amendment right to have a grand jury pass upon those facts

7 necessary to convict him at trial. In the indictment, the government included the language: "It is further 8 alleged that defendant Benito Contreras-Mesa, was removed from the United States subsequent to January 9 10."2 The indictment in this case violates Mr. Contreras-Mesa's right to presentment in two ways. First, the 10 language added by the government does not ensure that the grand jury actually found probable cause that Mr. 11 Contreras-Mesa was deported after January 10, 2008, as opposed to simply being physically removed from 12 the United States. Second, that the grand jury found probable cause to believe that Mr. Contreras-Mesa was 13 removed "subsequent to January 10" does not address the possibility that the government may at trial rely on 14 a deportation that was never presented to, or considered by, the grand jury. 15

The Fifth Amendment provides that "[n]o person shall be held to answer for a capital, or otherwise

16 infamous crime, unless on a presentment or indictment of a Grand Jury." U.S. Const. Amend. V. The 17 Sixth Amendment provides that "[i]n all criminal prosecutions the accused shall enjoy the right . . . to be 18 informed of the nature and cause of the accusation . . .." U.S. Const. Amend. VI. Thus, a defendant has a 19 constitutional right to have the charges against him presented to a grand jury and to be informed of the 20 grand jury's findings via indictment. See Russell v. United States, 369 U.S. 749, 763 (1962) (An indictment 21 22 23 24 25 26 27 28

These issues were decided against Mr. Contreras-Mesa in United States v. Rivera-Sillas, 376 F.3d 887 (9th Cir. 2004). However, these issues remain open in the Supreme Court. To reserve these issues for further review, Mr. Contreras-Mesa incorporates the arguments made by the defendant in Rivera-Sillas. If the Court wants full briefing on these issues, Mr. Contreras-Mesa will provide it. Presumably, the government added this language in an attempt to comply with the Ninth Circuit's decision in United States v. Covian-Sandoval, 462 F.3d 1090 (9th Cir. 2006). In Covian-Sandoval, the Ninth Circuit held that it is an Apprendi violation for a court to increase a person's statutory maximum under 8 U.S.C. § 1326(b) via a court-finding that a person had been removed from the United States following a conviction. As indicated above, however, this language, however, does not cure the problems with this indictment. Should sentencing become necessary, Mr. Contreras-Mesa will file further briefing on this issue. 3 08-CR-2412-LAB
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1 must "contain[] the elements of the offense intended to be charged, and sufficiently apprise[] the defendant 2 of what he must be prepared to meet."). 3

To be sufficient, an indictment must allege every element of the charged offense. See United States

4 v. Morrison, 536 F.2d 286, 287 (9th Cir. 1976) (citing United States v. Debrow, 346 U.S. 374 (1953)). 5 Indeed, in order to be sufficient, an indictment must include implied elements not present in the statutory 6 language. See Du Bo, 186 F.3d at 1179. "If an element is necessary to convict, it is also necessary to indict, 7 because elements of a crime do not change as criminal proceedings progress." United States v. Hill, 279 F.3d 8 731, 741 (9th Cir. 2002). An indictment's failure to "recite an essential element of the charged offense is not 9 a minor or technical flaw . . . but a fatal flaw requiring dismissal of the indictment." Du Bo, 186 F.3d at 1179. 10

In the indictment, the government here has added the language: "It is further alleged that defendant

11 Benito Contreras-Mesa, was removed from the United States subsequent to January 10, 2008." There is no 12 indication from this "allegation" that the grand jury was charged with the legal meaning of the word 13 "removal" applicable in this context, as opposed to being simply removed from the United States in a 14 colloquial sense. It is clear from Covian-Sandoval that in order to trigger the enhanced statutory maximum 15 contained in section 1326(b), the government must prove that a person was removed--as that term is used 16 in the immigration context--after having suffered a conviction. 462 F.3d at 1097-1098 (noting as part of its 17 analysis that immigration proceedings have fewer procedural protections that criminal proceedings). A 18 deportation has the following elements: "(1) that a deportation proceeding occurred as to [the] defendant and 19 as a result, [(2)] a warrant of deportation was issued and [(3)] executed by the removal of the defendant from 20 the United States." See United States v. Castillo-Basa, 483 F.3d 890 (9th Cir. 2007) (citing, without 21 contesting, the elements of a deportation provided by the district court.) As this is the type of removal the 22 government must prove before a petite jury, it is necessary that the government allege such a removal before 23 the grand jury. As returned, however, there is no assurance from the face of the indictment that the grand jury 24 in this case was charged with the type of removal necessary to increase a person's statutory maximum under 25 section 1326(b). 26

As such, there is no fair assurance that the grand jury will have passed upon those facts necessary

27 to convict Mr. Contreras-Mesa. Additionally, as charged, there is no fair assurance that the indictment will 28 contain those allegations the government will attempt to prove at trial. If the government alleged before the

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1 grand jury that Mr. Contreras-Mesa was removed (in a colloquial sense), but offers proof at trial that 2 Mr. Contreras-Mesa was removed (in an immigration sense), there will be a constructive amendment of the 3 indictment at trial. See Stirone v. United States, 361 U.S. 212, 217-19 (1960). Either scenario represents a 4 violation of Mr. Contreras-Mesa's right to presentment. Stirone, 361 U.S. at 218-19. 5

A second problem with the indictment is that there is no indication which (if any) deportation the

6 government presented to the grand jury. In most cases, the government will have a choice of deportations to 7 present to the grand jury to support an allegation that a person had been deported after a specific date.3 This 8 renders it a very real possibility that the government alleged one deportation to the grand jury to sustain its 9 allegation that Mr. Contreras-Mesa was removed from the United States, but will attempt to prove at trial a 10 wholly different deportation to sustain its trial proof. If this were to turn out to be the case, Mr. Contreras11 Mesa's right to have the grand jury pass on all facts necessary to convict him would be violated. See Du Bo, 12 186 F.3d 1179. 13 14 15

IV. MOTION TO STRIKE SURPLUSAGE FROM THE INDICTMENT The above arguments to dismiss the indictment based on the government's failure to comply with

16 Mr. Contreras-Mesa's Fifth and Sixth Amendment rights is premised on Covian-Sandoval having read into 17 section 1326 an additional element--a deportation that occurred at a particular time--that the government 18 must plead to the grand jury and prove to a jury. To the extent the government argues that Covian-Sandoval 19 did not create an additional element, the indictment contains surplusage. In other words, if the government 20 argues that the timing of a person's deportation is not a element of section 1326, but rather a sentencing factor 21 under subsection (b) of section 1326, the indictment alleges a fact--the timing of a person's deportation--the 22 Supreme Court has clearly held to be decided by a judge. 23

The Ninth Circuit has "repeatedly held that language [in an indictment] that describes elements

24 beyond what is required under statute is surplusage and need not be proved at trial." Bargas v. Burns, 25 179 F.3d 1207, 1216 n. 6 (9th Cir. 1999). Surplusage in an indictment is subject to being struck at the request 26 of the defendant. United States v. Fernandez, 388 F.3d 1199, 1220-21 (9th Cir. 2004). In this case, if the 27 government argues that the date of a person's deportation is not a required element of section 1326, the 28
3

At this time, the government has provided no discovery on any alleged deportation. 5 08-CR-2412-LAB

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1 indictment contains language beyond that which is necessary to convict Mr. Contreras-Mesa of violating 2 section 1326. If the date of a person's deportation is not an element of section 1326, then the language in the 3 indictment-- "It is further alleged that defendant BENITO CONTRERAS-MESA, was removed from the 4 United States subsequent to January 10, 2008."--is surplusage. So too is the government's allegation in the 5 indictment that Mr. Contreras-Mesa violated section 1326, subsection (b). 6

At one time, the Ninth Circuit considered subsection (b) of section 1326 a separate offense from

7 subsection (a). See United States v. Corona-Sanchez, 291 F.3d 1201, 1203 (9th Cir. 2002) (en banc). This 8 changed, however, following the Supreme Court's decision in Almendarez-Torres v. United States, 9 523 U.S. 224 (1998). See Corona-Sanchez, 291 F.3d at 1203. In Almendarez-Torres, the Supreme Court 10 decided that subsection (b) of section 1326 described a sentencing provision, to be determined by a judge, 11 rather than a substantive offense. See id. Following Almendarez-Torres, the Ninth Circuit rethought the way 12 in which subsection (b) should be viewed, to the extent that indictments and judgements that reflect a 13 violation of both subsection (a) and subsection (b) of section 1326 should have the reference to subsection (b) 14 struck to "unambiguously reflect that the defendant was convicted of only one punishable offense 15 pursuant . . .." Id. 16

Although an allegation of a particular date of deportation would likely be an appropriate response

17 on the government's part to the holding of Covian-Sandoval, the government here has chosen to include in 18 the indictment an allegation that goes solely towards an allegation under subsection (b) of section 1326. 19 Indeed, the government has chosen to actually allege a violation of subsection (b) of section 1326 in the 20 indictment.

As Almendarez-Torres makes clear, however, Congress clearly intended findings under

21 subsection (b) of section 1326 to made by a judge, rather than a jury. Almendarez-Torres, 523 U.S. at 235 22 ("we believe that Congress intended to set forth a sentencing factor in subsection (b)(2) and not a separate 23 criminal offense). 24

Although the Ninth Circuit is free to overrule its own precedent regarding whether Congress intended

25 a statutory provision to be decided by a judge, rather than a jury, see, e.g., United States v. Buckland, 26 289 F.3d 558, 564-68 (9th Cir. 2002) (en banc) (discussing enhanced penalties under 21 U.S.C. § 841), it has 27 not seen fit to overrule the Supreme Court's decision in Almendarez-Torres. See, e.g., United States v. 28

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1 Weiland, 420 F.3d 1062, 1079 n. 16 (9th Cir. 2005). For these reasons, to the degree the government argues 2 that Covian-Sandoval did not create an additional element of section 1326, the government has pled in the 3 indictment an allegation that Congress intended to be decided by judge, rather than a jury.4 Therefore, 4 pursuant to Federal Rule of Criminal Procedure 7(d), Mr. Contreras-Mesa moves to strike this surplusage 5 from the indictment. 6 7 8

V. MOTION TO PRODUCE GRAND JURY TRANSCRIPTS Mr. Contreras-Mesa hereby moves this Court to compel the government to produce all grand jury

9 transcripts in this case. See U.S. CONST. AMENDS V & VI5. Federal Rule of Criminal Procedure 6(e)(3)(E)(ii) 10 allows disclosure "at the request of a defendant who shows that a ground may exist to dismiss the indictment 11 because of a matter that occurred before the grand jury." Given the arguments raised above, it is clear that 12 "a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury." 13 Fed. R. Crim. P 6(e)(3)(E)(ii). Mr. Contreras-Mesa requests the Court "authorize disclosure" of the grand jury 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

The holdings in Covian-Sandoval and Almendarez-Torres also render subsection (b) of section 1326 unconstitutional. In Covian-Sandoval, the Ninth Circuit held that a jury must determine the timing of a person's deportation to trigger subsection (b)'s enhanced statutory maximum. Covian-Sandoval, 462 F.3d 1097-1098. In Almendarez-Torres, however, the Supreme Court held that Congress intended subsection (b) to be a sentencing provision to be determined by a judge. Almendarez-Torres, 523 U.S. at 235. It is thus clear that subsection (b), as written and construed by the Supreme Court, violates Apprendi. The Supreme Court has found that "[t]he grand jury is an integral part of our constitutional heritage which was brought to this country with the common law. The Framers, most of them trained in the English law and traditions, accepted the grand jury as a basic guarantee of individual liberty . . . the grand jury continues to function as a barrier to reckless or unfounded charges. 'Its adoption in our Constitution as the sole method for preferring charges in serious criminal cases shows the high place it held as an instrument of justice.' Costello v. United States, 350 U.S. 359, 362 (1956). Its historic office has been to provide a shield against arbitrary or oppressive action, by insuring that serious criminal accusations will be brought only upon the considered judgment of a representative body of citizens acting under oath and under judicial instruction and guidance. " United States v. Manduano, 425 U.S. 564, 571 (1976). In order to ensure that the criminally accused are safeguarded from reckless and unfounded charges, judges must take their duty to provide guidance seriously and not simply pay lip service to the assurances of the government. It is curious why the government, in this district in particular, fights so hard to keep grand jury proceedings sealed. Interestingly, in many cases, the "witness" who "testifies" before the grand jury is a border patrol agent who neither participated in the arrest or the investigation. He is only called to read a report which has been prepared by others. Such a practice does not allow for the considered judgment of grand jurors. Thus, the release of transcripts is appropriate. 7 08-CR-2412-LAB
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1 transcript to allow Mr. Contreras-Mesa to adequately prepare for trial and to perfect his appellate record. 2 See id. 3 4 5

VI. MOTION TO SUPPRESS STATEMENTS Mr. Contreras-Mesa moves to suppress his statements on the grounds of an invalid Miranda waiver

6 and voluntariness. According to the government, Mr. Contreras-Mesa was made a post -arrest statement. 7 A. 8

The Government Must Demonstrate Compliance with Miranda. In order for any statements made by Mr. Contreras-Mesa to be admissible against him, the

9 government must demonstrate that they were obtained in compliance with the Miranda decision. The 10 government must establish that Mr. Contreras-Mesa's waiver of his Miranda rights was voluntary, knowing, 11 and intelligent. See Schneckloth v. Bustamonte, 412 U.S. 218 (1973). When interrogation continues without 12 the presence of an attorney, and a statement results, the government has a heavy burden to demonstrate that 13 the defendant has intelligently and voluntarily waived his privilege against self-incrimination. Miranda, 384 14 U.S. at 475.

The court must indulge every reasonable presumption against waiver of fundamental

15 constitutional rights, so the burden on the government is great. United States v. Heldt, 745 F. 2d 1275, 1277 16 (9th Cir. 1984). 17

In determining whether a waiver is voluntary, knowing, and intelligent, the court looks to the totality

18 of the circumstances surrounding the case. Edwards v. Arizona, 451 U.S. 477 (1981); United States v. 19 Garibay, 143 F.3d 534 (9th Cir. 1998). The Ninth Circuit has held that determination of the validity of a 20 Miranda waiver requires a two prong analysis: the waiver must be both (1) voluntary and (2) knowing and 21 intelligent. Derrick v. Peterson, 924 F. 2d 813 (9th Cir. 1990). The second prong requires an inquiry into 22 whether "the waiver [was] made with a full awareness both of the nature of the right being abandoned and 23 the consequences of the decision to abandon it." Id. at 820-821 (quoting Colorado v. Spring, 479 U.S. 564, 24 573 (1987)). Not only must the waiver be uncoerced, then, it must also involve a "requisite level of 25 comprehension" before a court may conclude that Miranda rights have been legitimately waived. Id. (quoting 26 Colorado v. Spring, 479 U.S. at 573). Unless and until Miranda warnings and a knowing and intelligent 27 waiver are demonstrated by the prosecution, no evidence obtained as a result of the interrogation can be used 28 against the defendant. Miranda, 384 U.S. at 479. The government in this case must prove that Mr. Contreras-

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1 Mesa waived his rights intelligently and voluntarily. Mr. Contreras-Mesa disputes any allegation any waiver 2 was knowing, intelligent, and voluntarily. 3 B. 4

Mr. Contreras-Mesa's Statements Must Be Voluntary. Even if this Court determines that Mr. Contreras-Mesa validly waived his Miranda rights, it must

5 still make a determination that any statements are voluntary. Under 18 U.S.C. § 3501(a), this Court is 6 required to determine, whether any statements made by Mr. Contreras-Mesa are voluntary. In addition, 7 section 3501(b) requires this Court to consider various enumerated factors, including whether Mr. Contreras8 Mesa understood the nature of the charges against him and whether he understood his rights. Without such 9 evidence, this Court cannot adequately consider these statutorily mandated factors. 10

Moreover, section 3501(a) requires this Court to make a factual determination. Where a factual

11 determination is required, Fed. R. Crim. P. 12 obligates courts to make factual findings. See United States 12 v. Prieto-Villa, 910 F.2d 601, 606-10 (9th Cir. 1990). Because "`suppression hearings are often as important 13 as the trial itself,'" id. at 610 (quoting Waller v. Georgia, 467 U.S. 39, 46 (1984)), these findings should be 14 supported by evidence, not merely an unsubstantiated recitation of purported evidence in a prosecutor's 15 responsive pleading. 16 17 18

VII. MOTION TO COMPEL DISCOVERY/PRESERVE EVIDENCE (1) The Defendant's Statements. The government must disclose to the defendant all copies of

19 any written or recorded statements made by the defendant; the substance of any statements made by the 20 defendant which the government intends to offer in evidence at trial -- either in its case-in-chief or in rebuttal; 21 see Fed. R. Crim. P. 16, any response by the defendant to interrogation; the substance of any oral statements 22 which the government intends to introduce at trial and any written summaries of the defendant's oral 23 statements contained in the handwritten notes of the government agent; any response to any Miranda warnings 24 which may have been given to the defendant; as well as any other statements by the defendant. Fed. R. Crim. 25 P. 16(a)(1)(A)6. The Advisory Committee Notes and the 1991 Amendments to Rule 16 make clear that the 26 Government must reveal all the defendant's statements, whether oral or written, regardless of whether the 27 28

Of course, any of Mr. Contreras-Mesa's statements, which are exculpatory, must be produced, as well. See Brady v. Maryland, 373 U.S. 83 (1963). 9 08-CR-2412-LAB

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1 government intends to make any use of those statements. Federal Rule of Criminal Procedure 16 is designed 2 "to protect the defendant's rights to a fair trial." United States v. Rodriguez, 799 F.2d 649 (11th Cir. 1986); 3 see also United States v. Noe, 821 F.2d 604, 607 (11th Cir. 1987) (reversing conviction for failure to provide 4 statements offered in rebuttal -- government's failure to disclose statements made by the defendant is a serious 5 detriment to preparing trial and defending against criminal charges). 6

(2)

Arrest Reports and Notes. The defendant also specifically requests that the government turn

7 over all arrest reports, notes and TECS records not already produced that relate to the circumstances 8 surrounding his arrest or any questioning. This request includes, but is not limited to, any rough notes, 9 records, reports, transcripts, referral slips, or other documents in which statements of the defendant or any 10 other discoverable material is contained. Such material is discoverable under Fed. R. Crim. P. 16(a)(1)(A) 11 and Brady v. Maryland. The government must produce arrest reports, investigators' notes, memos from 12 arresting officers, sworn statements, and prosecution reports pertaining to the defendant. See Fed. R. Crim. 13 P. 16(a)(1)(B) and (C), 26.2 and 12(I); United States v. Harris, 543 F.2d 1247, 1253 (9th Cir. 1976) (original 14 notes with suspect or witness must be preserved); see also United States v. Anderson, 813 F.2d 1450, 1458 15 (9th Cir. 1987) (reaffirming Harris' holding). 16

(3)

Brady Material. The defendant requests all documents, statements, agents' reports, and

17 tangible evidence favorable to the defendant on the issue of guilt and/or which affects the credibility of the 18 government's case.

Kyles v. Whitley, 514 U.S. 419 (1995). Under Brady, Kyles and their progeny,

19 impeachment, as well as exculpatory evidence, falls within the definition of evidence favorable to the accused. 20 See also United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 427 U.S. 97 (1976). This 21 includes information obtained from other investigations which exculpates Mr. Contreras-Mesa. 22

(4)

Any Information That May Result in a Lower Sentence Under The Guidelines. The

23 government must also produce this information under Brady v. Maryland. This request includes any 24 cooperation or attempted cooperation by the defendant, as well as any information, including that obtained 25 from other investigations or debriefings, that could affect any base offense level or specific offense 26 characteristic under Chapter Two of the Guidelines. The defendant also requests any information relevant 27 to a Chapter Three adjustment, a determination of the defendant's criminal history, and information relevant 28 to any other application of the Guidelines.

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(5)

The Defendant's Prior Record. The defendant requests disclosure of his prior record.

2 Fed. R. Crim. P. 16(a)(1)(B). 3

(6)

Any Proposed 404(b) Evidence. The government must produce evidence of prior similar acts

4 under Fed. R. Crim. P. 16(a)(1)(C) and Fed. R. Evid. 404(b) and 609. In addition, "upon request of the 5 accused, the prosecution . . . shall provide reasonable notice in advance of trial . . . of the general nature" of 6 any evidence the government proposes to introduce under Fed. R. Evid. 404(b) at trial and the purpose for 7 which introduction is sought. This applies not only to evidence which the government may seek to introduce 8 in its case-in-chief, but also to evidence which the government may use as rebuttal. See United States v. Vega, 9 188 F.3d 1150 (9th Cir. 1999). The defendant is entitled to "reasonable notice" so as to "reduce surprise," 10 preclude "trial by ambush" and prevent the "possibility of prejudice." Id.; United States v. Perez-Tosta, 36 11 F.3d 1552, 1560-61 (11th Cir. 1994). Mr. Contreras-Mesa requests such reasonable notice at least two weeks 12 before trial so as to adequately investigate and prepare for trial. 13

(7)

Evidence Seized. The defendant requests production of evidence seized as a result of any

14 search, either warrantless or with a warrant. Fed. R. Crim. P. 16(a)(1)(E). 15

(8)

Request for Preservation of Evidence. The defendant specifically requests the preservation

16 of any and all physical evidence that may be destroyed, lost, or otherwise put out of the possession, custody, 17 or care of the government and which relates to the arrest or the events leading to the arrest in this case. This 18 request includes, but is not limited to, the results of any fingerprint analysis, the defendant's personal effects, 19 and any evidence seized from the defendant or any third party in relation to this case. 20

(9)

Henthorn Material. Mr. Contreras-Mesa requests that the Assistant United States Attorney

21 assigned to this case oversee a review of all personnel files of each agent involved in the present case for 22 impeachment material. Kyles, 514 U.S. at 419; United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991); 23 United States v. Lacy, 896 F. Supp. 982 (N.D. Ca. 1995). At a minimum, the prosecutor has the obligation 24 to inquire of his agents in order to ascertain whether or not evidence relevant to veracity or other impeachment 25 exists. 26

(10)

Tangible Objects. The defendant requests the opportunity to inspect and copy, as well as test,

27 if necessary, all other documents and tangible objects, including photographs, books, papers, documents, 28 fingerprint analyses, vehicles, or copies of portions thereof, which are material to the defense or intended for

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1 use in the government's case-in-chief or were obtained from or belong to the defendant. Fed. R. Crim. 2 P. 16(a)(1)(E). Specifically, to the extent they were not already produced, the defendant requests copies of 3 all photographs in the government's possession, including, but not limited to, the defendant and any other 4 photos taken in connection with this case. 5

(11)

Expert Witnesses. The defendant requests the name, qualifications, and a written summary

6 of the testimony of any person that the government intends to call as an expert witness during its case in chief. 7 Fed. R. Crim. P. 16(a)(1)(G). The defense requests that notice of expert testimony be provided at a minimum 8 of two weeks prior to trial so that the defense can properly prepare to address and respond to this testimony, 9 including obtaining its own expert and/or investigating the opinions and credentials of the government's 10 expert. The defense also requests a hearing in advance of trial to determine the admissibility of qualifications 11 of any expert. See Kumho v. Carmichael Tire Co. 119 S. Ct. 1167, 1176 (1999) (trial judge is "gatekeeper" 12 and must determine reliability and relevancy of expert testimony and such determinations may require "special 13 briefing or other proceedings . . .."). 14

(12)

Evidence of Bias or Motive to Lie. The defendant requests any evidence that any prospective

15 government witness is biased or prejudiced against the defendant, or has a motive to falsify or distort his or 16 her testimony. 17

(13)

Impeachment Evidence.

The defendant requests any evidence that any prospective

18 government witness has engaged in any criminal act whether or not resulting in a conviction and whether any 19 witness has made a statement favorable to the defendant. See Fed. R. Evid. 608, 609 and 613; Brady v. 20 Maryland. 21

(14)

Evidence of Criminal Investigation of Any Government Witness. The defendant requests

22 any evidence that any prospective witness is under investigation by federal, state or local authorities for any 23 criminal conduct. 24

(15)

Evidence Affecting Perception, Recollection, Ability to Communicate, or Truth Telling. The

25 defense requests any evidence, including any medical or psychiatric report or evaluation, that tends to show 26 that any prospective witness' ability to perceive, remember, communicate, or tell the truth is impaired, and 27 any evidence that a witness has ever used narcotics or other controlled substance, or has ever been an 28 alcoholic.

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1

(16)

Jencks Act Material. The defendant requests production in advance of trial of all material,

2 including any tapes, which the government must produce pursuant to the Jencks Act, 18 U.S.C. § 3500; 3 Fed. R. Crim. P. 26.2. Advance production will avoid the possibility of delay at the request of the defendant 4 to investigate the Jencks material. A verbal acknowledgment that "rough" notes constitute an accurate account 5 of the witness' interview is sufficient for the report or notes to qualify as a statement under section 3500(e)(1). 6 Campbell v. United States, 373 U.S. 487, 490-92 (1963); see also United States v. Boshell, 952 F.2d 1101 (9th 7 Cir. 1991) (holding that, where an agent goes over interview notes with subject, interview notes are subject 8 to Jencks Act). 9

(17)

Giglio Information. Pursuant to Giglio v. United States, 405 U.S. 150 (1972), the defendant

10 requests all statements and/or promises, express or implied, made to any government witnesses, in exchange 11 for their testimony in this case, and all other information which could arguably be used for the impeachment 12 of any government witnesses. 13

(18)

Agreements Between the Government and Witnesses. In this case, the defendant requests

14 identification of any cooperating witnesses who have committed crimes, but were not charged, so that they 15 may testify for the government in this case. The defendant also requests discovery regarding any express or 16 implicit promise; understanding; offer of immunity; past, present, or future compensation; or any other kind 17 of agreement or understanding, including any implicit understanding relating to criminal or civil income tax, 18 forfeiture or fine liability between any prospective government witness and the government (federal, state 19 and/or local). This request also includes any discussion with a potential witness about, or advice concerning, 20 any contemplated prosecution, or any possible plea bargain, even if no bargain was made, or the advice not 21 followed. 22

Pursuant to United States v. Sudikoff, 36 F.Supp.2d 1196 (C.D. Cal. 1999), the defense requests all

23 statements made, either personally or through counsel, at any time, which relate to the witnesses' statements 24 regarding this case, any promises -- implied or express -- regarding punishment/prosecution or detention of 25 these witnesses, any agreement sought, bargained for or requested, on the part of the witness at any time. 26

(19)

Informants and Cooperating Witnesses. To the extent that there was any informant, or any

27 other tip leading to a TECS hit in this case, the defendant requests disclosure of the names and addresses of 28 all informants or cooperating witnesses used, or to be used, in this case, and in particular, disclosure of any

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1 informant who was a percipient witness in this case or otherwise participated in the crime charged against 2 Mr. Contreras-Mesa. The government must disclose the informant's identity and location, as well as the 3 existence of any other percipient witness unknown or unknowable to the defense. Roviaro v. United States, 4 353 U.S. 53, 61-62 (1957). The government must disclose any information derived from informants which 5 exculpates or tends to exculpate the defendant. 6

(20)

Bias by Informants or Cooperating Witnesses. The defendant requests disclosure of any

7 information indicating bias on the part of any informant or cooperating witness. Giglio v. United States. Such 8 information would include what, if any, inducements, favors, payments or threats were made to the witness 9 to secure cooperation with the authorities. 10

(21)

Inspection and Copying of A-File. Mr. Contreras-Mesa requests that this Court order the

11 government to make all A-Files relevant to Mr. Contreras-Mesa available for inspection and copying. 12

(22)

Residual Request. Mr. Contreras-Mesa intends, by this discovery motion, to invoke his rights

13 to discovery to the fullest extent possible under the Federal Rules of Criminal Procedure and the Constitution 14 and laws of the United States. Mr. Contreras-Mesa requests that the government provide his attorney with 15 the above-requested material sufficiently in advance of trial to avoid unnecessary delay prior to cross16 examination. 17 18 19

VIII. MOTION FOR LEAVE TO FILE FURTHER MOTIONS Mr. Contreras-Mesa and defense counsel have received limited discovery in this case. Specifically,

20 after viewing the a-file, Mr. Contreras-Mesa will be filing a motion attacking the validity of his alleged 21 deportation. Additionally, as new information surfaces due to the government providing discovery in 22 response to these motions, or an order of this Court, defense may find it necessary to file further motions, or 23 to supplement existing motions with additional facts. The denial of this motion will result in a violation, at 24 a minimum, of Mr. Contreras-Mesa's Fifth and Sixth Amendment rights. Therefore, defense counsel requests 25 the opportunity to file further motions based upon information gained from discovery. 26 // 27 // 28 //

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1 2 3 DATED: August 12, 2008 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

Respectfully submitted,

/s/ TIMOTHY R. GARRISON TIMOTHY R. GARRISON Federal Defenders of San Diego, Inc. Attorneys for BENITO CONTRERAS-MESA [email protected]

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