Free Motion to Compel - 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 JIMMY LOWELL ROBERTS

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE LARRY A. BURNS) UNITED STATES OF AMERICA, ) ) ) ) ) ) Plaintiff, ) ) ) ) ) ) v. ) ) ) ) ) ) JIMMY LOWELL ROBERTS, ) ) ) ) ) Defendant. ) ________________________________________ ) TO: Criminal No. 08CR2433-LAB DATE: TIME: September 2, 2008 2:00 p.m.

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NOTICE OF MOTIONS AND MOTIONS TO: 1) COMPEL DISCOVERY AND PRESERVE EVIDENCE; 2) SUPPRESS STATEMENTS; 3) SUPPRESS SUGGESTIVE OUT-OF-COURT IDENTIFICATIONS; AND 4) GRANT LEAVE TO FILE FURTHER MOTIONS

KAREN P. HEWITT, UNITED STATES ATTORNEY; AND JOSEPH ORABONA, 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, JIMMY LOWELL ROBERTS, by and through his attorneys, //

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Timothy R. Garrison, and Federal Defenders of San Diego, Inc., will ask this Court to enter an order granting the motions listed below. MOTIONS JIMMY LOWELL ROBERTS, the accused in this case, by and through counsel, 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) Compel Discovery and Preserve Evidence; Suppress Statements; Suppress Suggestive Out-of-Court Identifications; 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. Roberts [email protected]

Dated: August 20, 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 08CR2433-LAB Dated: August 20, 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. Roberts Defendant Joseph J.M. Orabona [email protected],[email protected],[email protected] ) ) Plaintiff, ) ) v. ) ) JIMMY LOWELL ROBERTS, ) ) Defendant. ) _______________________________________) UNITED STATES OF AMERICA, Case No.08cr2433-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:

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1 TIMOTHY R. GARRISON

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

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

Tel: (619) 234-8467 ext. 3722 / Fax: (619) 687-2666
4 [email protected] 5 Attorneys for JIMMY LOWELL ROBERTS 6 7 8 9

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE LARRY A. BURNS) ) ) Plaintiff, ) ) v. ) ) JIMMY LOWELL ROBERTS, ) ) Defendant. ) ______________________________________ ) I. STATEMENT OF FACTS The following statement of facts has been taken from information provided to the defense through Case No. 08CR2433-LAB DATE: TIME: September 2, 2008 2:00 p.m.

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

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

19 discovery. Mr. Roberts does not adopt this statement as his own, and reserves the right to take a contrary 20 position at motions or trial. 21

On June 26, 2008, a lone male walked into the Wells Fargo, located on 3505-B Sports Arena

22 Boulevard, in San Diego, California, and approached a teller. The male suspect had a note which was 23 allegedly presented to the teller. The teller (who has not been identified to defense counsel), says that the 24 suspect had a revolver which she thought might have been a toy gun. The teller gave money to the suspect 25 and the suspect subsequently left the bank. The suspect allegedly left the bank with $9,900. 26

Eugene Francis McKenna Jr. works at the convenience store near the bank. He allegedly printed out

27 pictures of the bank surveillance photos and posted them in the convenience store. He apparently then began 28 to investigate the case himself. Evidently, an individual called McKenna and told him the bank robber was

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1 Jimmy Roberts. Mr. McKenna does not know Mr. Roberts. After finishing his investigation, Mr. McKenna 2 contacted the FBI with his results on June 28, 2008. The FBI was also investigating the case and received 3 identifications from various people that the man who robbed the bank was Jimmy Roberts. Some of these 4 identifications were accomplished by showing a lone photograph to the identifier. Some were accomplished 5 by the San Diego Police Department by using a "six pack." 6

On July 3, 2008, Mr. Roberts was arrested at a hotel in Cudahy, California. Mr. Roberts told the FBI

7 that he had used methamphetamine right before he was arrested. Mr. Roberts was subsequently transported 8 to the Maywood Police Department, allegedly read his Miranda rights, and questioned. Mr. Roberts made 9 incriminating statements. During the interview, Mr. Roberts was handcuffed. Additionally, Mr. Roberts told 10 the FBI agents that he had used methamphetamine before he was arrested and it was hard for him to think. 11 The FBI report notes that during the interview, Mr. Roberts, "said that two minutes before the FBI arrested 12 him he had snorted and swallowed a half an eight ball of speed (crystal methamphetamine)." See Exhibit A. 13

On October 1, 2003, the grand jury returned a two-count indictment, charging Mr. Roberts with two

14 violations of 18 U.S.C. § 2113(a) - Bank Robbery. 15 16 17

II. MOTION TO COMPEL DISCOVERY/PRESERVE EVIDENCE Mr. Roberts moves for the production of all discovery listed below. This request is not limited to

18 those items that the prosecutor knows of, but rather includes all discovery listed below that is in the custody, 19 control, care, or knowledge of any "closely related investigative [or other] agencies." See United States v. 20 Bryan, 868 F.2d 1032 (9th Cir. 1989). If the government fails to produce said discovery prior to the motion 21 hearing, Mr. Roberts asks the government be precluded from using it at all in trial. 22

(1)

The Defendant's Statements. The government must disclose to the defendant all copies of

23 any written or recorded statements made by the defendant; the substance of any statements made by the 24 defendant which the government intends to offer in evidence at trial -- either in its case-in-chief or in rebuttal; 25 see Fed. R. Crim. P. 16, any response by the defendant to interrogation; the substance of any oral statements 26 which the government intends to introduce at trial and any written summaries of the defendant's oral 27 statements contained in the handwritten notes of the government agent; any response to any Miranda warnings 28 which may have been given to the defendant; as well as any other statements by the defendant. Fed. R. Crim.

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1 P. 16(a)(1)(A)1. The Advisory Committee Notes and the 1991 Amendments to Rule 16 make clear that the 2 Government must reveal all the defendant's statements, whether oral or written, regardless of whether the 3 government intends to make any use of those statements. Federal Rule of Criminal Procedure 16 is designed 4 "to protect the defendant's rights to a fair trial." United States v. Rodriguez, 799 F.2d 649 (11th Cir. 1986); 5 see also United States v. Noe, 821 F.2d 604, 607 (11th Cir. 1987) (reversing conviction for failure to provide 6 statements offered in rebuttal -- government's failure to disclose statements made by the defendant is a serious 7 detriment to preparing trial and defending against criminal charges). 8

(2)

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

9 over all arrest reports, notes and TECS records not already produced that relate to the circumstances 10 surrounding his arrest or any questioning. This request includes, but is not limited to, any rough notes, 11 records, reports, transcripts, referral slips, or other documents in which statements of the defendant or any 12 other discoverable material is contained. Such material is discoverable under Fed. R. Crim. P. 16(a)(1)(A) 13 and Brady v. Maryland. The government must produce arrest reports, investigators' notes, memos from 14 arresting officers, sworn statements, and prosecution reports pertaining to the defendant. See Fed. R. Crim. 15 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 16 notes with suspect or witness must be preserved); see also United States v. Anderson, 813 F.2d 1450, 1458 17 (9th Cir. 1987) (reaffirming Harris' holding). 18

(3)

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

19 tangible evidence favorable to the defendant on the issue of guilt and/or which affects the credibility of the 20 government's case.

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

21 impeachment, as well as exculpatory evidence, falls within the definition of evidence favorable to the accused. 22 See also United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 427 U.S. 97 (1976). This 23 includes information obtained from other investigations which exculpates Mr. Roberts. 24

(4)

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

25 government must also produce this information under Brady v. Maryland. This request includes any 26 cooperation or attempted cooperation by the defendant, as well as any information, including that obtained 27 28

Of course, any of Mr. Roberts's statements, which are exculpatory, must be produced, as well. See Brady v. Maryland, 373 U.S. 83 (1963). 3 08CR2433-LAB

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1 from other investigations or debriefings, that could affect any base offense level or specific offense 2 characteristic under Chapter Two of the Guidelines. The defendant also requests any information relevant 3 to a Chapter Three adjustment, a determination of the defendant's criminal history, and information relevant 4 to any other application of the Guidelines. 5

(5)

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

6 Fed. R. Crim. P. 16(a)(1)(B). 7

(6)

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

8 under Fed. R. Crim. P. 16(a)(1)(C) and Fed. R. Evid. 404(b) and 609. In addition, "upon request of the 9 accused, the prosecution . . . shall provide reasonable notice in advance of trial . . . of the general nature" of 10 any evidence the government proposes to introduce under Fed. R. Evid. 404(b) at trial and the purpose for 11 which introduction is sought. This applies not only to evidence which the government may seek to introduce 12 in its case-in-chief, but also to evidence which the government may use as rebuttal. See United States v. Vega, 13 188 F.3d 1150 (9th Cir. 1999). The defendant is entitled to "reasonable notice" so as to "reduce surprise," 14 preclude "trial by ambush" and prevent the "possibility of prejudice." Id.; United States v. Perez-Tosta, 36 15 F.3d 1552, 1560-61 (11th Cir. 1994). If the Court chooses not to exclude such evidence because it was not 16 produced or noticed prior to the instant motion hearing, Mr. Roberts requests such reasonable notice and 17 discovery be produced at least two weeks before trial so as to adequately investigate and prepare for trial. 18

(7)

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

19 search, either warrantless or with a warrant. Fed. R. Crim. P. 16(a)(1)(E). 20

(8)

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

21 of any and all physical evidence that may be destroyed, lost, or otherwise put out of the possession, custody, 22 or care of the government and which relates to the arrest or the events leading to the arrest in this case. This 23 request includes, but is not limited to, the results of any fingerprint analysis, the defendant's personal effects, 24 and any evidence seized from the defendant or any third party in relation to this case. Specifically, Mr. 25 Roberts moves to preserve the following evidence: the vehicle seized, the drugs seized including any 26 packaging, any personal effects of the defendants; the cell phones seized, and the agents notes of the 27 interrogation. 28

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1

(9)

Henthorn Material. Mr. Roberts requests that the Assistant United States Attorney assigned

2 to this case oversee a review of all personnel files of each agent involved in the present case for impeachment 3 material. Kyles, 514 U.S. at 419; United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991); United States v. 4 Lacy, 896 F. Supp. 982 (N.D. Ca. 1995). At a minimum, the prosecutor has the obligation to inquire of his 5 agents in order to ascertain whether or not evidence relevant to veracity or other impeachment exists. 6

(10)

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

7 if necessary, all other documents and tangible objects, including photographs, books, papers, documents, 8 fingerprint analyses, vehicles, or copies of portions thereof, which are material to the defense or intended for 9 use in the government's case-in-chief or were obtained from or belong to the defendant. Fed. R. Crim. 10 P. 16(a)(1)(E). Specifically, to the extent they were not already produced, the defendant requests copies of 11 all photographs in the government's possession, including, but not limited to, the defendant and any other 12 photos taken in connection with this case. 13

(11)

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

14 of the testimony of any person that the government intends to call as an expert witness during its case in chief. 15 Fed. R. Crim. P. 16(a)(1)(G). The defense requests that notice of expert testimony be provided at a minimum 16 of two weeks prior to trial so that the defense can properly prepare to address and respond to this testimony, 17 including obtaining its own expert and/or investigating the opinions and credentials of the government's 18 expert. Also pursuant to Fed. R. Crim. P. 16(a)(1)(G), the defense requests summaries of any expert witness 19 the government intends to call, along with the identities of those witnesses and the specific materials relied 20 upon by its experts in formulating the opinion. United States v. Fort, 472 F.3d 1106, 1121 (9th Cir. 21 2007)("materials on which a proposed expert witness relies [in developing his opinions] must be produced 22 to Defendants in discovery). The defense also requests a hearing in advance of trial to determine the 23 admissibility of qualifications of any expert. See Kumho v. Carmichael Tire Co. 119 S. Ct. 1167, 1176 (1999) 24 (trial judge is "gatekeeper" and must determine reliability and relevancy of expert testimony and such 25 determinations may require "special briefing or other proceedings . . .."). 26

(12) Reports of Scientific Tests or Examinations. Pursuant to Fed. R. Crim. P. 16(a)(1)(F), the

27 defense requests the reports of all tests and examinations conducted upon the evidence in this case that is 28 within the possession, custody, or control of the government, the existence of which is known, or by the

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1 exercise of due diligence may become known, to the attorney for the government, and which are material to 2 the preparation of the defense or which are intended for use by the government as evidence in chief at the trial. 3 Specifically, the defense requests the DEA-7. 4

(13)

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

5 government witness is biased or prejudiced against the defendant, or has a motive to falsify or distort his or 6 her testimony. 7

(14)

Impeachment Evidence.

The defendant requests any evidence that any prospective

8 government witness has engaged in any criminal act whether or not resulting in a conviction and whether any 9 witness has made a statement favorable to the defendant. See Fed. R. Evid. 608, 609 and 613; Brady v. 10 Maryland. 11

(15)

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

12 any evidence that any prospective witness is under investigation by federal, state or local authorities for any 13 criminal conduct. 14

(16)

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

15 defense requests any evidence, including any medical or psychiatric report or evaluation, that tends to show 16 that any prospective witness' ability to perceive, remember, communicate, or tell the truth is impaired, and 17 any evidence that a witness has ever used narcotics or other controlled substance, or has ever been an 18 alcoholic. 19

(17)

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

20 including any tapes, which the government must produce pursuant to the Jencks Act, 18 U.S.C. § 3500; 21 Fed. R. Crim. P. 26.2. Advance production will avoid the possibility of delay at the request of the defendant 22 to investigate the Jencks material. A verbal acknowledgment that "rough" notes constitute an accurate account 23 of the witness' interview is sufficient for the report or notes to qualify as a statement under section 3500(e)(1). 24 Campbell v. United States, 373 U.S. 487, 490-92 (1963); see also United States v. Boshell, 952 F.2d 1101 (9th 25 Cir. 1991) (holding that, where an agent goes over interview notes with subject, interview notes are subject 26 to Jencks Act). 27

(18)

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

28 requests all statements and/or promises, express or implied, made to any government witnesses, in exchange

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1 for their testimony in this case, and all other information which could arguably be used for the impeachment 2 of any government witnesses. 3

(19)

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

4 identification of any cooperating witnesses who have committed crimes, but were not charged, so that they 5 may testify for the government in this case. The defendant also requests discovery regarding any express or 6 implicit promise; understanding; offer of immunity; past, present, or future compensation; or any other kind 7 of agreement or understanding, including any implicit understanding relating to criminal or civil income tax, 8 forfeiture or fine liability between any prospective government witness and the government (federal, state 9 and/or local). This request also includes any discussion with a potential witness about, or advice concerning, 10 any contemplated prosecution, or any possible plea bargain, even if no bargain was made, or the advice not 11 followed. 12

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

13 statements made, either personally or through counsel, at any time, which relate to the witnesses' statements 14 regarding this case, any promises -- implied or express -- regarding punishment/prosecution or detention of 15 these witnesses, any agreement sought, bargained for or requested, on the part of the witness at any time. 16

(20)

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

17 other tip leading to a TECS hit in this case, the defendant requests disclosure of the names and addresses of 18 all informants or cooperating witnesses used, or to be used, in this case, and in particular, disclosure of any 19 informant who was a percipient witness in this case or otherwise participated in the crime charged against 20 Mr. Carrasco-Rivera. The government must disclose the informant's identity and location, as well as the 21 existence of any other percipient witness unknown or unknowable to the defense. Roviaro v. United States, 22 353 U.S. 53, 61-62 (1957). The government must disclose any information derived from informants which 23 exculpates or tends to exculpate the defendant. 24

(21)

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

25 information indicating bias on the part of any informant or cooperating witness. Giglio v. United States. Such 26 information would include what, if any, inducements, favors, payments or threats were made to the witness 27 to secure cooperation with the authorities. 28

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1

(22)

Residual Request. Mr. Roberts intends, by this discovery motion, to invoke her rights to

2 discovery to the fullest extent possible under the Federal Rules of Criminal Procedure and the Constitution 3 and laws of the United States. Mr. Roberts requests that the government provide her attorney with the above4 requested material sufficiently in advance of trial to avoid unnecessary delay prior to cross-examination. 5 6 7

III. MOTION TO SUPPRESS STATEMENTS Mr. Roberts moves to suppress his statements on the grounds of an invalid Miranda waiver and

8 voluntariness. According to the government, Mr. Roberts was made a post -arrest statement. 9 A. 10

The Government Must Demonstrate Compliance with Miranda. In order for any statements made by Mr. Roberts to be admissible against him, the government must

11 demonstrate that they were obtained in compliance with the Miranda decision. The government must establish 12 that Mr. Roberts's waiver of his Miranda rights was voluntary, knowing, and intelligent. See Schneckloth v. 13 Bustamonte, 412 U.S. 218 (1973). When interrogation continues without the presence of an attorney, and a 14 statement results, the government has a heavy burden to demonstrate that the defendant has intelligently and 15 voluntarily waived his privilege against self-incrimination. Miranda, 384 U.S. at 475. The court must indulge 16 every reasonable presumption against waiver of fundamental constitutional rights, so the burden on the 17 government is great. United States v. Heldt, 745 F. 2d 1275, 1277 (9th Cir. 1984). 18

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

19 of the circumstances surrounding the case. Edwards v. Arizona, 451 U.S. 477 (1981); United States v. 20 Garibay, 143 F.3d 534 (9th Cir. 1998). The Ninth Circuit has held that determination of the validity of a 21 Miranda waiver requires a two prong analysis: the waiver must be both (1) voluntary and (2) knowing and 22 intelligent. Derrick v. Peterson, 924 F. 2d 813 (9th Cir. 1990). The second prong requires an inquiry into 23 whether "the waiver [was] made with a full awareness both of the nature of the right being abandoned and 24 the consequences of the decision to abandon it." Id. at 820-821 (quoting Colorado v. Spring, 479 U.S. 564, 25 573 (1987)). Not only must the waiver be uncoerced, then, it must also involve a "requisite level of 26 comprehension" before a court may conclude that Miranda rights have been legitimately waived. Id. (quoting 27 Colorado v. Spring, 479 U.S. at 573). Unless and until Miranda warnings and a knowing and intelligent 28

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1 waiver are demonstrated by the prosecution, no evidence obtained as a result of the interrogation can be used 2 against the defendant. Miranda, 384 U.S. at 479. 3

Here, Mr. Roberts was alone with two FBI agents. He was handcuffed and under the influence of

4 a deadly drug, crystal methamphetamine. It is up to the government to prove prove that Mr. Roberts waived 5 his rights intelligently and voluntarily. Mr. Roberts disputes any allegation any waiver was knowing, 6 intelligent, and voluntarily. 7 B. 8

Mr. Roberts's Statements Must Be Voluntary. Even if this Court determines that Mr. Roberts validly waived his Miranda rights, it must still make

9 a determination that any statements are voluntary. Under 18 U.S.C. § 3501(a), this Court is required to 10 determine, whether any statements made by Mr. Roberts are voluntary. In addition, section 3501(b) requires 11 this Court to consider various enumerated factors, including whether Mr. Roberts understood the nature of 12 the charges against him and whether he understood his rights. Without such evidence, this Court cannot 13 adequately consider these statutorily mandated factors. 14

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

15 determination is required, Fed. R. Crim. P. 12 obligates courts to make factual findings. See United States 16 v. Prieto-Villa, 910 F.2d 601, 606-10 (9th Cir. 1990). Because "`suppression hearings are often as important 17 as the trial itself,'" id. at 610 (quoting Waller v. Georgia, 467 U.S. 39, 46 (1984)), these findings should be 18 supported by evidence, not merely an unsubstantiated recitation of purported evidence in a prosecutor's 19 responsive pleading. 20 21 22

IV. THE SUGGESTIVE OUT-OF-COURT IDENTIFICATIONS MUST BE SUPPRESSED A suggestive pre-trial identification may so taint subsequent out-of-court and in-court identifications

23 that an accused is denied due process of law if the witness is permitted to make the in-court identification. 24 United States v. Love, 746 F.2d 477, 478 (9th Cir. 1984). An unnecessarily suggestive pre-trial identification 25 procedure will cause identifications to be excluded at trial where the pre-trial procedure was so impermissibly 26 suggestive as to give rise to a substantial likelihood of irreparable misidentification.

Simmons v.

27 United States, 390 U.S. 377 (1968). Once a procedure is established as impermissibly suggestive, the 28 reliability of the subsequent in-court identification of evidence must be analyzed by weighing the indicia of

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1 reliability against the indicia of improper influence, that is "the corrupting tendencies of a suggestive pre-trial 2 identification procedure." United States v. Field, 625 F.2d 862, 867 (9th Cir. 1980). 3 A. 4 5

An Evidentiary Hearing Is Necessary to Determine Whether the Agents' Actions and Use of Photographs Was Overly-Suggestive. The Ninth Circuit has held that "[c]onvictions based on in-court identifications following a pre-trial

6 identification by photograph will be set aside where the photographic identification procedure was so 7 impermissibly suggestive as to give rise to a substantial likelihood of misidentification." United States v. 8 Barrett, 703 F.2d 1076, 1084 (9th Cir. 1983). 9

In Simmons v. United States, supra, the Supreme Court extended the lineup decisions of the

10 United States v. Wade, 388 U.S. 218 (1967), and Gilbert v. California, 388 U.S. 263 (1967) to cover the 11 photographic lineup procedure. Photographic identifications must, therefore, meet the due process standards 12 set forth in Stovall v. Denno, 388 U.S. 293 (1967). 13

A photographic display should not be arranged so that a particular individual's picture is in some way

14 emphasized. Furthermore, the presentation of a photographic lineup must not be conducted so as to indicate 15 or predispose the identifying party to pick out the accused. Simmons v. United States, supra, at 383. Since 16 counsel was not present at the presentation of the photographic identification and the discovery reports do not 17 indicate the exact manner in which those lineups were shown, an evidentiary hearing should be conducted to 18 ensure that the lineups comported with due process standards. 19

As with other methods of out-of-court identification, reliability is the lynchpin in determining

20 whether the photographic ID is admissible at trial. Manson v. Brathwaite, 432 U.S. 98, 106 (1977). The 21 Supreme Court has set forth five (5) factors to consider in determining the independent reliability of 22 identification testimony. Neil v. Biggers, 409 U.S. 188 (1972). The factors to be considered are: (1) the 23 opportunity of the witness to view the individual at the time of the crime; (2) the witness' degree of attention; 24 (3) the accuracy of the witness' prior description; (4) the level of certainty demonstrated by the witness at 25 confrontation; and (5) the length of time between the crime and time of confrontation. Biggers, 409 U.S. at 26 199-200. Unless the identification satisfies these criteria, it must be suppressed. In addition, two (2) factors 27 are typically added to the Biggers analysis, which focus on the indices of improper influence: 28

1)

The presence of influence; and 10 08CR2433-LAB

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1 2

2)

The conduct on the part of the government agents tending to focus the witness' attention on the defendant. United States v. Field, supra, at 866.

3 Therefore, Mr. Roberts requests the Court grant an evidentiary hearing to determine the admissibility of the 4 out-of-court identifications. 5 6 7

IV. MOTION FOR LEAVE TO FILE FURTHER MOTIONS Mr. Roberts and defense counsel have received limited discovery in this case. As new

8 information surfaces due to the government providing discovery in response to these motions, or an order 9 of this Court, defense may find it necessary to file further motions, or to supplement existing motions with 10 additional facts. The denial of this motion will result in a violation, at a minimum, of Mr. Roberts's Fifth 11 and Sixth Amendment rights. Also, it appears the government obtained the content of communications by 12 use of a pen register order. Defense counsel has not had enough time to fully research and brief 13 suppression of these communications. Therefore, defense counsel requests the opportunity to file further 14 motions. 15 16 17 DATED: 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted,

August 19, 2008

/s/ Timothy R. Garrison TIMOTHY R. GARRISON Federal Defenders of San Diego, Inc. Attorneys for Mr. Roberts [email protected]

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