Free Motion for Discovery - District Court of California - California

Case 3:08-cr-02420-WQH

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GERALD T. McFADDEN (SBN 87446) Attorney at Law 2366 Front Street San Diego, CA 92101 (619) 338-0507 E-mail: [email protected] Attorney for Defendant JOSE MARTIN MEDINA-AGUIRRE

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HON. WILLIAM Q. HAYES) UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) ) JOSE MARTIN MEDINA-AGUIRRE, ) ) Defendant. ) ____________________________________) TO: Crim. Case No. 08CR2420-WQH NOTICE OF MOTIONS AND MOTIONS FOR DISCOVERY AND LEAVE TO FILE FURTHER MOTIONS

NCD: September 8, 2008 at 2:00 p.m.

KAREN P. HEWITT, UNITED STATES ATTORNEY, STEPHEN F. MILLER, ASSISTANT UNITED STATES ATTORNEY PLEASE TAKE NOTICE that on Monday, September 8, 2008, at 2:00 p.m., or as soon

thereafter as counsel may be heard, the defendant, JOSE MARTIN MEDINA-AGUIRRE, through his appointed counsel, Gerald T. McFadden, will bring the following motions.

MOTIONS The defendant, JOSE MARTIN MEDINA-AGUIRRE, by and through his appointed counsel, Gerald T. McFadden, and pursuant to the provisions of Rules 12 and 16 of the Federal Rules of Criminal Procedure and the Fourth, Fifth and Sixth Amendments to the United States' Constitution, hereby moves this Court: for discovery; for leave to file further pretrial motions and a further hearing date.

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These motions are based upon the instant motions and notice of motions, the attached statement of facts and points and authorities in support of these motions, and any and all matters that may come to the Court's attention prior to or at the time of the hearing of these motions. Respectfully submitted,

Dated: August 4, 2008

s/Gerald T. McFadden GERALD T. McFADDEN, Attorney for Defendant JOSE MARTIN MEDINA-AGUIRRE E-mail: [email protected]

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GERALD T. McFADDEN (SBN 87446) Attorney at Law 2366 Front Street San Diego, CA 92101 (619) 338-0507 E-mail: [email protected] Attorney for Defendant JOSE MARTIN MEDINA-AGUIRRE

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HON. WILLIAM Q. HAYES) ) ) Plaintiff, ) ) v. ) ) JOSE MARTIN MEDINA-AGUIRRE, ) ) Defendant. ) ____________________________________) UNITED STATES OF AMERICA, Crim. Case No. 08CR2420-WQH STATEMENT OF FACTS AND POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS

NCD: September 8, 2008 at 2:00 p.m.

I. STATEMENT OF FACTS The defendant, JOSE MARTIN MEDINA-AGUIRRE, is charged with attempted entry into the United States on May 29, 2008, after deportation subsequent to June 30, 1989, in violation of 8 U.S.C. § 1326. Some discovery has been made available. Discovery also is outstanding including review of the defendant's "A" file. The defense requests leave to file substantive motions after review of discovery and investigation. II. POINTS AND AUTHORITIES A. DISCOVERY.

On July 24, 2008, defense counsel made a written request for discovery which is attached hereto as Exhibit A. The defense requests that the discovery requested in Exhibit A be provided and that this Court enter appropriate orders under F.R.Cr.P. 16. Rule 16 proscribes the minimum amount

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of discovery to which the parties are entitled. This Court has the power to order broader discovery; including the identity of the witnesses. United States v. Cadet, 727 F.2d 1453, 1468-1469 (9th Cir 1984); United States v. Sims, 637 F.2d 625, 629 (9th Cir. 1980); United States v. Armstrong, 621 F.2d 951, 954-55 (9th Cir. 1980); United States v. Richter, 488 F.2d 170, 173-75 (9th Cir. 1973). The defense further requests that government agent rough notes be preserved and made available at the time of the pretrial motion hearing. The defense requests that this Court order the disclosure of the Grand Jury transcripts in this case pursuant to F.R.Cr.P. 6(e)(3)(C)(i), its supervisory power, and the common-law right of access to public records. This request involves two separate categories of disclosure. First, the defense requests a transcript of the Court's instructions or explanation regarding the law governing the cases to the Grand Jury and any prosecution explanations of the law to the Grand Jury. The transcript of the instructions does not implicate any of the reasons underlying the general rule of secrecy of Grand Jury proceedings. Douglas Oil Co. of Cal. v. Petrol Stops Etc., 441 U.S. 211, 218-19, 99 S.Ct. 1667, 1672-73 (1979); 8 Moore's Federal Practice ¶6.05(1). A need for secrecy of this aspect of the transcript or Grand Jury proceeding itself is nonexistent. As the concept of particularized need is a balance of the need for secrecy and the need for disclosure, 8 Moore's Federal Practice ¶6.05(3), and there is no secrecy need to weigh here, disclosure should be granted. Moreover, since this aspect of the Grand Jury proceeding and transcript does not presently implicate any of the purposes or reasons involved in the doctrine of Grand Jury secrecy, this Defendant has a common-law right to access to this aspect of the proceedings which may not be denied absent specific and substantial reasons for a refusal of access. Such reasons for refusal do not exist here. See, In Re Special Grand Jury (For Anchorage, Alaska), 674 F.2d 778 (1982). There is no secrecy interest here and such transcripts should be produced, United States v. Alter, 482 F.2d 1016, 1029 n.21 (9th Cir. 1973). In United States v. Alter, supra, involving the appeal from a civil contempt adjudication stemming from a refusal to answer questions by a federal grand jury, the Ninth Circuit stated:

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"Alter was entitled to know the content of the court's charges to the grand jury. The proceedings before the grand jury are secret, but the ground rules by which the grand jury conducts those proceedings are not. E.g., U. S. Judicial Conference Committee on the Operation of the Jury System, Handbook for Federal Grand Jurors 10 (1971)." Finally, such transcripts could bear upon potential defense motions to dismiss. It is of course possible that the Court instruction (apart from any instructions by government counsel which are also requested) may be the same or similar to that involved in United States v. Marcucci, 299 F.3d 1156, 1159 (9th Cir. 2002), cert. denied, 538 U.S. 934, 123 S.Ct. 1600 (2003). Even if so, there are issues arising from such an instruction that were not resolved in the Marcucci decision. Second, defense requests the transcript of the testimony of witnesses before the Grand Jury. There is of course no question that the defense is entitled to the transcript of the Grand Jury testimony of a witness after such a witness's direct examination at trial. Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840 (1966). Most of the reasons for the secrecy of Grand Jury proceedings do not exist at all after the indictment has been disclosed. To the extent that any reason for secrecy is still applicable at this stage, it does not outweigh a defendant's right and interest in adequate preparation for trial after the indictment has been disclosed and the defendant brought before the Court -- at least insofar as access to the transcript of testimony before the Grand Jury by an individual who will be a government witness at trial. B. LEAVE TO FILE FURTHER PRETRIAL MOTIONS AND FURTHER HEARING

The defense requests leave to file further pretrial motions and a further hearing date as the facts are further developed and the defense has had the opportunity to review discovery. III. CONCLUSION For these reasons and any further reasons which come to this Court's attention prior to or at

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the time of the hearing of these motions, counsel respectfully requests that this Court grant these motions. Respectfully submitted, Dated: August 4, 2008 s/Gerald T. McFadden GERALD T. McFADDEN, Attorney for Defendant JOSE MARTIN MEDINA-AGUIRRE E-mail: [email protected]

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GERALD T. McFADDEN (SBN 87446) Attorney at Law 2366 Front Street San Diego, CA 92101 (619) 338-0507 E-mail: [email protected] Attorney for Defendant JOSE MARTIN MEDINA-AGUIRRE

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HON. WILLIAM Q. HAYES) ) ) Plaintiff, ) ) v. ) ) JOSE MARTIN MEDINA-AGUIRRE, ) ) Defendant. ) ____________________________________) IT IS HEREBY CERTIFIED THAT: I, GERALD T. McFADDEN, am a citizen of the United States and am at least eighteen years of age. My business address is 2366 Front Street, San Diego, California 92101. I am not a party to the above-entitled action. I have caused service of the NOTICE OF MOTIONS AND MOTIONS FOR DISCOVERY; AND LEAVE TO FILE FURTHER PRETRIAL MOTIONS AND FURTHER HEARING DATE; STATEMENT OF FACTS AND POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS, and CERTIFICATE OF SERVICE on the following parties by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically notified them 1. Assistant United States Attorney Stephen F. Miller UNITED STATES OF AMERICA, Crim. Case No. 08CR2420-WQH CERTIFICATE OF SERVICE

NCD: September 8, 2008 at 2:00 p..m.

I declare under penalty of perjury that the foregoing is true and correct. Executed on August 4, 2008. s/Gerald T. McFadden GERALD T. McFADDEN, Attorney for Defendant JOSE MARTIN MEDINA-AGUIRRE E-mail: [email protected]