Free Motion for Reciprocal Discovery - District Court of California - California

Case 3:08-cr-02421-H

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KAREN P. HEWITT United States Attorney DOUGLAS KEEHN Assistant U.S. Attorney California Bar. No. 233686 Federal Office Building 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-6549 Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA Plaintiff, v. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Criminal Case No. 08CR2421-H HEARING DATE: TIME: September 2, 2008 2:00 p.m.

13 14 JOSE ANTONIO MEJIA-HERNANDEZ, 15 Defendant. 16 17 18 19 20 21 22 23 24 25 26 27 28

UNITED STATES' MOTIONS FOR: (1) RECIPROCAL DISCOVERY; AND (2) FINGERPRINT EXEMPLARS. TOGETHER WITH MEMORANDUM OF POINTS AND AUTHORITIES

COMES NOW the plaintiff, the UNITED STATES OF AMERICA, by and through its counsel, KAREN P. HEWITT, United States Attorney, and Douglas Keehn, Assistant United States Attorney, and hereby files its Motions for Reciprocal Discovery and Fingerprint Exemplars. These Motions are based upon the files and records of the case together with the attached memorandum of points and authorities. I STATEMENT OF THE CASE On May 22, 2008, Defendant accepted the Government's Fast-Track pre-indictment offer in the matter underlying this Indictment, and that matter was calendared for disposition on July 3, 2008. On that date Defendant requested and received a continuance to July 16, 2008. On July 10, 2008, Defendant withdrew from the Fast Track resolution. On July 23, 2008, an Indictment was returned in the Southern District of California charging Defendant Jose Antonio Mejia-Hernandez ("Defendant") with unlawful

Case 3:08-cr-02421-H

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attempted entry into the United States after deportation, in violation of 8 U.S.C. § 1326(a) and (b). On July 28, 2008, the Court arraigned Defendant on the Indictment and Defendant entered a "not guilty" plea. The Court scheduled a motion hearing date for September 2, 2008. II THE UNITED STATES' MOTION FOR RECIPROCAL DISCOVERY SHOULD BE GRANTED The United States provided 79 pages and one DVD of discovery on May 11, 2008, and a further 19 pages on July 16, 2008. The United States respectfully requests that Defendant comply with Rule 16(b) of the Federal Rules of Criminal Procedure, as well as Rule 26.2 which requires the production of prior statements of all witnesses, except for those of Defendant. The United States will object at trial and ask this Court to suppress any evidence at trial which has not been provided to the United States. III THE UNITED STATES' MOTION FOR FINGERPRINT EXEMPLARS SHOULD BE GRANTED Part of the United States' burden of proof in this case is to satisfy the jury that Defendant was an alien, previously deported, and without permission to reenter the United States. To make that showing, the United States may call an expert in fingerprint identification to match Defendant's fingerprints to relevant evidence. The most efficient and conclusive manner of establishing this information is to permit the expert witness himself to take a set of Defendant's fingerprints for comparison. A defendant's fingerprints are not testimonial evidence. See Schmerber v. California, 384 U.S. 757 (1966). Using identifying physical characteristics, such as fingerprints, does not violate a defendant's Fifth Amendment right against self-incrimination. United States v. DePalma, 414 F.2d 394, 397 (9th Cir. 1969); Woods v. United States, 397 F.2d 156 (9th Cir. 1968); see also United States v. St. Onge, 676 F. Supp. 1041, 1043 (D. Mont. 1987). The United States therefore requests that this Court order that Defendant make himself available for fingerprinting by the United States. // // 2

08CR2421-H

Case 3:08-cr-02421-H

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IV CONCLUSION For the foregoing reasons, the United States respectfully requests that the Court grant its motions for reciprocal discovery and fingerprint exemplars. DATED: August 1, 2008 Respectfully submitted, KAREN P. HEWITT United States Attorney s/ Douglas Keehn DOUGLAS KEEHN Assistant United States Attorney Attorneys for Plaintiff United States of America

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Case 3:08-cr-02421-H

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, JOSE ANTONIO MEJIA-HERNANDEZ, ) ) ) ) ) ) ) ) ) ) Criminal Case No. 08CR2421-H

CERTIFICATE OF SERVICE

6 Defendant. 7 8 9 10 11 12 13 14 1. 15 16 17 18 19 None 20 21 22 Shaffy Moeel, Esq. Attorney for Defendant IT IS HEREBY CERTIFIED THAT:

I, DOUGLAS KEEHN, 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 United States' Motions for (1) reciprocal discovery and (2) fingerprint exemplars, together with 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.

I hereby certify that I have caused to be mailed the foregoing, by the United States Postal Service, to the following non-ECF participants on this case:

the last known address, at which place there is delivery service of mail from the United States Postal Service. I declare under penalty of perjury that the foregoing is true and correct.

23 Executed on August 1, 2008. 24 25 26 27 28 4 s/ Douglas Keehn DOUGLAS KEEHN

08CR2421-H