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

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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 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 14 15 16 17 Defendant. 18 19 20 21 22 23 24 25 26 27 28 v. JIMMY LOWELL ROBERTS, UNITED STATES OF AMERICA, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Criminal Case No. 08CR2433-LAB Date: September 2, 2008 Time: 2:00 p.m. Place: Courtroom 9 The Honorable Larry A. Burns NOTICE OF MOTIONS AND MOTIONS FOR: (A) (B) (C) (D) FINGERPRINT EXEMPLARS; HANDWRITING EXEMPLARS; RECIPROCAL DISCOVERY; AND LEAVE TO FILE 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. // // //

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MOTIONS 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. 4. Fingerprint Exemplars; Handwriting Exemplars; Reciprocal Discovery; and Leave to File Further Motions

These 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 13, 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 Plaintiff, 14 v. 15 16 17 Defendant. 18 19 20 21 22 23 24 25 26 27 28 JIMMY LOWELL ROBERTS, UNITED STATES OF AMERICA, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Criminal Case No. 08CR2433-LAB Date: September 2, 2008 Time: 2:00 p.m. Place: Courtroom 9 The Honorable Larry A. Burns 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 (A) Fingerprint Exemplars; (B) Handwriting Exemplars; (C) Reciprocal Discovery; and (D) 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 Jimmy Lowell Roberts ("Defendant") with bank robbery, in violation of 18 U.S.C. § 2113(a). On July 24, 2008, Defendant was arraigned on the Indictment and pled not guilty. The United States hereby files the following motions for fingerprint exemplars, handwriting exemplars, reciprocal discovery and leave to file further motions. II STATEMENT OF FACTS OFFENSE CONDUCT 1. Bank Robbery At Wells Fargo Bank In San Diego

On June 26, 2008, at approximately 2:40 p.m., Defendant entered the Wells Fargo Bank at 3505-B Sports Arena Boulevard, in San Diego, California. Defendant approached the victim teller and handed a handwritten note to the victim teller that said: "Put the money in the BAG! And no one gets Hurt. You put a Die Pack in the Bag and you Die! Look if you don't believe me." When the victim teller hesitated in complying with Defendant's demands, Defendant lifted his jacket and the victim teller could see that Defendant had a gun in his waistband. The victim teller said the gun was silver with a black handle. The victim teller added that the gun appeared damaged and that it might have been a toy gun. The victim teller used the code words to signal that a robbery was taking place, and one of her colleagues came over to assist. However, neither the victim teller nor her colleague was able to push the panic button. The victim teller then provided Defendant with $10,000.00, which she was about to take to the vault, and that was sitting on her counter. Defendant took the money and quickly exited the Wells Fargo Bank. On the Defendant's way out of the bank, he dropped a $100.00 bill on the floor, which was picked up by a customer and returned to the bank. 2. Statements By Other Material Witnesses

On June 26, 2008, several customers and bank employees were working at Wells Fargo when Defendant robbed the bank. J. Milton, a frequent customer, was standing behind Defendant when he was at the victim teller's window robbing the bank. Mr. Milton overheard Defendant, in a loud and rude

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voice, tell the victim teller: "Go! Go! Go!." Mr. Milton saw the victim teller push a large sum of money through the teller window and as Defendant turned around to exit the bank, Mr. Milton saw a gun in Defendant's hand and a large sum of money in the other hand. M. Cortez, a bank employee, was working at teller station number 3, when she heard Defendant tell the victim teller to "Hurry up! Hurry up!" Ms. Cortez looked over at Defendant and saw that Defendant had a gun. Ms. Cortez described the gun as real small. Ms. Cortez said Defendant was pointing the gun under the slot in the teller window at the victim teller. E. Patterson, a bank customer, was standing at teller station number 3, when he overheard a man say: "Let go. Come on." Mr. Patterson looked over and saw a man taking out a brownish-colored revolver from his pants. Mr. Patterson said the gun was small and had a black handle. Mr. Patterson saw the man stuff the money he received from the victim teller into his shirt and exit the bank. V. Medina, a bank employee, was working at teller station number 7, when she heard the victim teller use the duress phrase. Ms. Medina looked over and saw a man standing in front of the victim teller's window holding a gun. Ms. Medina did not look at the man's face, but just stared at the gun. Ms. Medina heard the man yell: "Now! Now!" as he banged on the counter. Ms. Medina backed away from her station and called 911. A six-pack photo lineup was shown to three witnesses and each witness positively identified Defendant as the person that robbed the Wells Fargo Bank on June 26, 2008. Two of the witnesses were bank tellers and the other witness was Defendant's wife, Mrs. Roberts. Several of the other witnesses at the bank on the day it was robbed provided physical descriptions that matched Defendant's physical description. 3. Investigation Into The Identity of the Robber

On June 26, 2008, San Diego Police detectives and agents with the Federal Bureau of Investigation (FBI) arrived at the Wells Fargo Bank to conduct an investigation concerning the robbery. Law enforcement agents used a photograph from the surveillance video, which clearly shows Defendant handing over a note to the victim teller, to help identify the robber. On June 28, 2008, FBI agents interviewed E. McKenna, the operations manager at the ARCO AM/PM Convenient Store, which is near the bank that was robbed. Mr. McKenna told agents that a

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customer identified the robber from a photograph that Mr. McKenna had posted at his store. The customer said the robber was "Jimmy Roberts" and that Roberts' family resided at St. Vincent's DePaul Shelter in San Diego. On or about June 30, 2008, FBI agents contacted Defendant's spouse, F. Roberts (a.k.a. F. Flores), who resides with her seven children at St. Vincent's DePaul Shelter. Ms. Roberts positively identified the robber depicted in the bank surveillance video as her husband, Jimmy Lowell Roberts. Ms. Roberts provided FBI agents with Defendant's cellular telephone number. Ms. Roberts also informed agents that she had purchased a Greyhound bus ticket for Defendant, in the name of "Jaime Flores," on June 30, 2008, to travel from San Diego to Los Angeles. 4. Apprehension of Defendant in Los Angeles

On July 3, 2008, at approximately 4:01 p.m., FBI agents arrested Defendant at the Florence Hotel in Los Angeles, California. At the time of his arrest, FBI agents found in the hotel room a black knife with a 3.5 inch blade and approximately $770.00 (seven $100 bills, three $20 bills, one $5 bill, five $1 bills), and the cellular telephone that FBI agents called when contacting Defendant. 5. Defendant's Post-Arrest Statements

On July 3, 2008, at approximately 5:17 p.m., Defendant was advised of his Miranda rights, acknowledged that he understood his rights, and agreed to waive his rights and speak with agents without the presence of counsel. Defendant admitted that he entered the Wells Fargo Bank on Sports Arena Boulevard in San Diego, handed the teller a note that he had handwritten, and told the teller to hurry up because he was not playing around. Defendant admitted that he possessed an unregistered firearm, namely, a starter pistol, that he had concealed in his waistband during the robbery. Defendant acknowledged that the teller had looked down at his waistband and he thought she had seen the gun during the robbery. Defendant stated that the starter pistol fell out of his waistband when he was walking by the ARCO station and he did not turn around to retrieve it. When FBI agents later searched the area around the ARCO station, they were unable to find the starter pistol. When asked how much money he believed he stole during the robbery, Defendant said it was between eight and ten thousand dollars. Defendant admitted that he gave some of the robbery money to his spouse, Mrs. Roberts, however, he could not recall how much he gave her.

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B.

DEFENDANT'S CRIMINAL HISTORY

Defendant has an extensive criminal history. The United States, propounds that Defendant has at least twelve criminal history points placing him in Criminal History Category V.

CONVICTION DATE 2/21/1984 8/19/1986 12/5/1994

COURT OF CONVICTION CASC - Norwalk CASC - Los Angeles CASC - Los Angeles

CHARGE Cal. Penal Code § 211 ­ Robbery (J) Cal. Penal Code § 415 ­ Fight/Noise (M) Cal. Penal Code § 273.5 ­ Inflict Corporal Injury on a Spouse (M) 3/22/1995: Probation revoked 9/8/1995: Probation revoked

TERM OF IMPRISONMENT Juvenile Hall Infraction (ss) 45 days jail, 3 yrs probation 30 days jail 180 days jail 2 days jail, 3 yrs probation 15 days jail, 1 yr probation 16 months prison 16 months prison

1/30/1995 4/13/1995 10/7/1996 4/8/1999

CASC - Monrovia CASC - Alhambra CASC - Los Angeles CASC - Los Angeles

Cal. Penal Code § 484(a) ­ Petty Theft (M) Cal. Penal Code § 484(a) ­ Petty Theft (M) Cal. Penal Code § 12021(a) ­ Felon/Addict in Possession of a Firearm (F) Cal. H&S Code § 11350(a) ­ Possession of Controlled Substance (F) 8/1/2000 ­ Violation of Parole

Finish term 16 months prison Finish term Finish term Finish term Finish term

16 17 18 19 20 21 22 23 24 25 26 27 28

4/26/2001

CASC - Pasadena

Cal. Penal Code § 459 ­ Second Degree Burglary 7/31/2003 ­ Violation of Parole 12/31/2003 ­ Violation of Parole 10/26/2006 ­ Violation of Parole 1/10/2008 ­ Violation of Parole

III MEMORANDUM OF POINTS AND AUTHORITIES A. 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

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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). Here, fingerprints were found at the scene of the robbery. Defendant's fingerprints are relevant since Defendant has been identified as the robber by several witnesses, including his wife. B. MOTION FOR HANDWRITING EXEMPLARS

The United States requests that the Court order that Defendant make himself available for a handwriting exemplar with the United States' handwriting expert. See Gilbert v. California, 388 U.S. 263, 266 (1967) (taking of handwriting exemplar did not violate fifth amendment privilege against self-incrimination); Schmerber, 384 U.S. at 761 (fifth amendment privilege against self-incrimination did not apply to order requiring withdrawal of blood sample; privilege applies only to evidence of a testimonial or communicative nature); United States v. Dionisio, 410 U.S. 1, 5-7 (1976) (voice and handwriting exemplars are identifying physical characteristics outside the protection of the Fifth Amendment); United States v. Mara, 410 U.S. 19, 21 (1973) ("Handwriting, like speech, is repeatedly shown to the public, and there is no more expectation of privacy in the physical characteristics of a person's script than there is in the tone of his voice."). Here, the bank robber gave the victim teller a handwritten note, which was also found at the scene of the robbery. Defendant's handwriting is relevant because he admitted to FBI agents that he wrote a note and gave it to the victim teller. C. 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 123 pages of discovery (including reports of the arresting officers and agents, a criminal history report, documents concerning Defendant's prior), 1 CD-ROM containing Defendant's audiotaped, post-arrest statement and the ARCO surveillance video, and 1 CD-ROM containing the Wells Fargo Bank surveillance video. 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 6
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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 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. D. 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, Handwriting Exemplars, Reciprocal Discovery and Leave to File Further Motions. DATED: August 13, 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. ) ) JIMMY LOWELL ROBERTS, ) ) 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 Notice of Motions and Motions for Fingerprint Exemplars, Handwriting Exemplars, Reciprocal Discovery and 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. Timothy Garrison Federal Defenders of San Diego, Inc. 225 Broadway, Suite 900 San Diego, California 92101-5030 Tel: (619) 234-8467 Fax: (619) 687-2666 E-mail: [email protected] Lead Attorney for Defendant I declare under penalty of perjury that the foregoing is true and correct. Executed on August 13, 2008. /s/ Joseph J.M. Orabona JOSEPH J.M. ORABONA Assistant United States Attorney Criminal Case No. 08CR2433-LAB CERTIFICATE OF SERVICE

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