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

Case 3:08-cr-02422-WQH

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KAREN P. HEWITT United States Attorney JOSEPH J.M. ORABONA Assistant U.S. Attorney California State Bar No. 223317 United States Attorney's Office 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-7736 Facsimile: (619) 235-2757 Email: [email protected] Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) ) PEDRO MERGIL-VARGAS, ) T/N Arnulfo Martinez-Segovia, ) ) ) Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ______________________________________) Criminal Case No. 08CR2422-WQH Date: September 2, 2008 Time: 2:00 p.m. Place: Courtroom 4 The Honorable William Q. Hayes UNITED STATES' NOTICE OF MOTIONS AND MOTIONS FOR: (1) (2) (3) FINGERPRINT EXEMPLARS; RECIPROCAL DISCOVERY; AND LEAVE TO GRANT FURTHER MOTIONS

PLEASE TAKE NOTICE that on September 2, 2008, at 2:00 p.m., or as soon thereafter as counsel may be heard, plaintiff, UNITED STATES OF AMERICA, by and through its counsel, Karen P. Hewitt, United States Attorney, and Joseph J.M. Orabona, Assistant United States Attorney, will move the Court to enter an order granting the following motions. // // MOTIONS
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The plaintiff, UNITED STATES OF AMERICA, by and through its counsel, KAREN P. HEWITT, United States Attorney, and Joseph J.M. Orabona, Assistant United States Attorney, hereby moves this Court for an order granting the following motions for: 1. 2. 3. Fingerprint Exemplars; Reciprocal Discovery; and Leave to File Further Motions

The motions noted above are based on the files and records of this case, together with the a separately captioned statement of facts and memorandum of points and authorities. DATED: August 11, 2008 Respectfully submitted, KAREN P. HEWITT United States Attorney /s/ Joseph J.M. Orabona JOSEPH J.M. ORABONA Assistant United States Attorney

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KAREN P. HEWITT United States Attorney JOSEPH J.M. ORABONA Assistant U.S. Attorney California State Bar No. 223317 Federal Office Building 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-7736 Facsimile: (619) 235-2757 Email: [email protected] Attorneys for Plaintiff United States of America

UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ) ) ) Plaintiff, ) ) v. ) ) ) PEDRO MERGIL-VARGAS, ) T/N Arnulfo Martinez-Segovia, ) ) Defendant. ) ) ) ) ) _____________________________________ ) UNITED STATES OF AMERICA, Criminal Case No. 08CR2422-WQH Date: September 2, 2008 Time: 2:00 p.m. Place: Courtroom 4 The Honorable William Q. Hayes STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES

The plaintiff, UNITED STATES OF AMERICA, by and through its counsel, KAREN P. HEWITT, United States Attorney, and Joseph J.M. Orabona, Assistant United States Attorney, hereby files its Motions in the above-referenced case for (1) Fingerprint Exemplars; (2) Reciprocal Discovery; and (3) Leave to File Further Motions. These motions are based on the files and records of this case together with the attached statement of facts and memorandum of points and authorities. // // //

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I STATEMENT OF THE CASE On July 23, 2008, a federal grand jury in the Southern District of California returned an Indictment charging Pedro Martinez-Vargas, true name Arnulfo Martinez-Segovia ("Defendant"), with attempted entry after deportation in the United States, in violation of 8 U.S.C. § 1326(a) and (b). On July 25, 2008, Defendant was arraigned on the Indictment and pled not guilty. The United States hereby files the following motions for fingerprint exemplars, reciprocal discovery and leave to file further motions. II STATEMENT OF FACTS OFFENSE CONDUCT 1. Apprehension at "The 76 Road"

On June 2, 2008, at approximately 1:50 a.m., Border Patrol Agent L. Contreras responded to a call in reference to a subject heading north of the area known as "The 76 Road." Border Patrol agents know that this area is commonly used by illegal aliens trying to further their entrance into the United States. "The 76 Road" is approximately four miles west of the San Ysidro, California, Port of Entry and approximately two hundred yards north of the United States/Mexico international border fence. After arriving in the area, Agent Contreras walked along the brush line for a few hundred yards when he came upon an individual trying to conceal themselves in the brush. Agent Contreras identified himself as a United States Border Patrol Agent and asked the individual what country he was a citizen of and whether he had any documents to enter or remain in the United States legally. The individual, later identified himself as Pedro Mergil-Vargas, Defendant, freely admitted that he was a citizen and national of Mexico without any immigration documents that would allow him to enter or remain in the United States legally. At approximately 2:00 a.m., Agent Contreras placed Defendant under arrest and transported to the Imperial Beach Border Patrol Station for processing. 2. Post-Arrest Statements

On June 2, 2008, at approximately 7:00 a.m., Agent Z. Legler, with Agents M. Quintero and J. Beaulieu present, informed Defendant of his Miranda rights in the Spanish language. Defendant stated

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that he understood his Miranda rights and he agreed to answer questions without the presence of an attorney. Defendant admitted that he is a citizen and national of Mexico and that he did not have immigration documents that would allow him to enter or remain in the United States legally. At approximately 9:40 a.m., Defendant was advised that he was being charged criminally, and Agent Legler again advised Defendant of his Miranda rights prior to recording Defendant's sworn statement. Defendant agreed to waive his rights and speak with the agents without the presence of counsel. Defendant executed a sworn written statement. Defendant stated that his true and correct name was Pedro Mergil-Vargas, and admitted that he had used other names ­ particularly Arnulfo MartinezSegovia. Defendant said he was a citizen of Mexico and was born on March 4, 1955 in Rodeo, Durango, Mexico. Defendant admitted he had been previously deported from the United States to Mexico. Defendant also admitted that he had not applied for nor received any prior authorization from the United States to return after his last deportation. 3. Defendant Informed the Court of His True Name

On July 15, 2008, Defendant informed Magistrate Judge Leo S. Papas that his true and correct name was Arnulfo Martinez-Segovia, and not Pedro Mergil-Vargas, as he had told the Border Patrol agents, in his sworn statement, on June 2, 2008. According to Defendant's criminal history, Defendant has used approximately thirty-seven different aliases. B. DEFENDANT'S IMMIGRATION HISTORY

A records check confirmed that Defendant is a citizen and national of Mexico, and that Defendant was ordered excluded, deported, and removed from the United States to Mexico pursuant to an order issued by an immigration judge on February 18, 1993. Defendant was physically removed from the United States to Mexico on at least ten prior occasions ­ most recently on September 4, 2007. After Defendant's last deportation, there is no evidence in the reports and records maintained by the Department of Homeland Security that Defendant applied to the U.S. Attorney General or the Secretary of the Department of Homeland Security to lawfully return to the United States. As detailed in the criminal history below, Defendant has multiple aggravated felonies over the past thirty years, including robbery and possession of a controlled substance for sale. //

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C.

DEFENDANT'S CRIMINAL HISTORY

Defendant has an extensive criminal history. The United States, propounds that Defendant has at least thirteen criminal history points placing him in Criminal History Category VI. CONVICT DATE 07/16/1975 07/20/1978 05/24/1979 COURT OF CONVICTION CASC Los Angeles CASC Los Angeles CASC Los Angeles CHARGE Cal. PC § 381 ­ Inhalation of Poisonous Fumes (Misdemeanor) Cal. PC § 459 ­ Second-Degree Burglary (Felony) Cal. H&S § 11355 ­ Possession of a Controlled Substance (Misdemeanor) 05/22/1980: Probation revoked 11/27/1979 11/05/1984 CASC Los Angeles CASC Los Angeles Cal. PC § 211 ­ Robbery (Felony) Cal. PC § 487.1 ­ Grand Theft of Property (Felony) 04/30/1986: Probation revoked 02/10/1986 CAMC Huntington Park CAMC Huntington Park CASC Los Angeles CAMC Huntington Park CAMC Downey CAMC Downey CASC Los Angeles CASC Los Angeles CASC Los Angeles CASC Downey Cal PC § 484(A) ­ Petty Theft (Misdemeanor) Cal H&S § 11550(B) ­ Under Influence of Controlled Substance (Misdemeanor) Cal H&S § 11351 ­ Possess Controlled Substance for Sale (Felony) Cal PC § 459 ­ Burglary (Misdemeanor) Cal PC § 148.9(A) ­ False ID (Misd.) 06/28/1990 10/17/1990 01/08/1992 10/24/1994 11/28/1994 05/26/2004 Cal PC § 484(A) ­ Theft of Personal Property (Misdemeanor) Cal PC § 484(A) ­ Theft (Misdemeanor) Cal PC § 484(A) and 666 ­ Petty Theft with Prior Jail (Felony) Cal PC § 459 ­ Second-Degree Burglary with Prior (Felony) Cal PC § 484 and 666 ­ Petty Theft with Prior (Felony) Cal PC § 484 and 666 ­ Petty Theft with Prior (Felony) 10/24/2007: Parole violated 4 TERM 3 days jail, 2 yrs probation 120 days jail, 3 yrs probation 1 yrs probation (ss) 270 days jail 2 years prison 365 days jail, 5 yrs probation 2 years prison 20 days jail 120 days jail, 3 yrs probation 3 years prison 90 days jail (ss) 30 days jail (ss) 60 days jail (ss), 1 yr probation 4 days jail (ss), 1 yr probation 2 years prison 7 years prison 7 years prison (concurrent) 32 months prison Finish term
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III MEMORANDUM OF POINTS AND AUTHORITIES MOTION FOR FINGERPRINT EXEMPLARS

The United States requests that the Court order that Defendant make himself available for fingerprinting by the United States' fingerprint expert. See United States v. Ortiz-Hernandez, 427 F.3d 567, 576-77 (9th Cir. 2005) (Government may have defendant fingerprinted and use criminal and immigration records in Section 1326 prosecution). Identifying physical characteristics, including fingerprints, are not testimonial in nature and the collection and use of such evidence would not violate Defendant's Fifth Amendment right against self-incrimination. United States v. DePalma, 414 F.2d 394, 397 (9th Cir. 1969). See also Schmerber v. California, 384 U.S. 757, 761 (1966) (withdrawal of blood is not testimonial). B. MOTION FOR RECIPROCAL DISCOVERY

The United States hereby requests Defendant deliver all material to which the United States may be entitled under Fed. R. Crim. P. 16(b) and 26.2. 1. Defendant's Disclosures Under Fed R. Crim. P. 16(b)

The United States has voluntarily complied and will continue to comply with the requirements of Fed. R. Crim. P. 16(a). As of the date of this Motion, the United States has produced 78 pages of discovery (including reports of the arresting officers and agents, criminal history reports, documents concerning Defendant's prior convictions and immigration history) and one DVD-ROM containing Defendant's videotaped, post-arrest statements. As of the date of this Motion, the United States is awaiting receipt of Defendant's Alien File ("A-File") and has ordered tapes of Defendant's prior deportation. As such, the United States intends to provide additional discovery after it has had an opportunity to review Defendant's A-File and deportation tapes. As of the date of this Motion, the United States has not received any reciprocal discovery from Defendant. Therefore, the United States invokes Fed. R. Crim. P. 16(b), requiring that reciprocal discovery be provided to the United States. The United States hereby requests Defendant permit the United States to inspect, copy, and photograph any and all books, papers, documents, photographs, tangible objects, or make copies of portions thereof, which are within the possession, custody or control

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of Defendant and which Defendant intends to introduce as evidence in his case-in-chief at trial. The United States further requests that it be permitted to inspect and copy or photograph any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with this case, which are in the possession or control of Defendant, which he intends to introduce as evidence-in-chief at the trial, or which was prepared by a witness whom Defendant intends to call as a witness. Because the United States will comply with Defendant's request for delivery of reports of examinations, the United States is entitled to the items listed above under Fed. R. Crim. P. 16(b)(1). The United States also requests that the Court make such order as it deems necessary under Fed. R. Crim. P. 16(d)(1) and (2) to ensure that the United States receives the discovery to which it is entitled. 2. Witness Statements Under Fed. R. Crim. P. 26.2

Fed. R. Crim. P. 26.2 requires the production of prior statements of all witnesses, except a statement made by Defendant. Fed. R. Crim. P. 26.2 requires reciprocal production of statements, in accordance with the Jencks Act. The timeframe established by Fed. R. Crim. P. 26.2 requires the statement to be provided after the witness has testified. In order to expedite trial proceedings, the United States hereby requests Defendant be ordered to supply all prior statements of defense witnesses by a reasonable date before trial to be set by the Court. Such an order should include any form in which these statements are memorialized, including but not limited to, tape recordings, handwritten or typed notes and/or reports. C. MOTION FOR LEAVE TO FILE FURTHER MOTIONS

Should new information or legal issues arise, the United States respectfully requests the opportunity to file such further motions as may be appropriate. // // // // // //

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IV CONCLUSION For the foregoing reasons, the United States requests the Court grant the United States' Motions for Fingerprint Exemplars, Reciprocal Discovery and Leave to File Further Motions. DATED: August 11, 2008 Respectfully submitted, KAREN P. HEWITT United States Attorney /s/ Joseph J.M. Orabona JOSEPH J.M. ORABONA Assistant United States Attorney

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA ) ) Plaintiff, ) ) v. ) ) PEDRO MERGIL-VARGAS, ) T/N Arnulfo Martinez-Segovia, ) ) Defendant. ) ____________________________________) IT IS HEREBY CERTIFIED that: I, Joseph J.M. Orabona, am a citizen of the United States and am at least eighteen years of age. My business address is 880 Front Street, Room 6293, San Diego, California 92101-8893. I am not a party to the above-entitled action. I have caused service of the United States' Notice of Motions and Motions For (1) Fingerprint Exemplars; (2) Reciprocal Discovery; and (3) Leave to File Further Motions; together with the separately captioned Statement of Facts and Memorandum of Points and Authorities on the following parties by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically notifies them. Gary Edwards Law Offices of Gary Edwards 6445 Avenida Cresta La Jolla, California 92037 Tel: (858) 456-4403 Email: [email protected] Lead Attorney for Defendant I declare under penalty of perjury that the foregoing is true and correct. Criminal Case No. 08CR2422-WQH CERTIFICATE OF SERVICE

22 23 24 25 26 27 28 Executed on August 11, 2008. /s/ Joseph J.M. Orabona JOSEPH J.M. ORABONA Assistant United States Attorney

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