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 FELIX OVIEDO MANCILLA

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE DANA M. SABRAW) ) ) ) ) Plaintiff, ) ) v. ) ) FELIX OVIEDO MANCILLA, ) ) Defendant. ) ________________________________________ ) UNITED STATES OF AMERICA, Criminal No. 08CR2349-DMS DATE: TIME: August 29, 2008 11:00 a.m.

NOTICE OF MOTIONS AND MOTIONS TO: 1) COMPEL DISCOVERY AND PRESERVE EVIDENCE; AND 2) GRANT LEAVE TO FILE FURTHER MOTIONS

TO:

KAREN P. HEWITT, UNITED STATES ATTORNEY; AND DALE BLANKENSHIP, ASSISTANT UNITED STATES ATTORNEY: PLEASE TAKE NOTICE that on August 29, 2008, at 11:00 a.m., or as soon thereafter as

counsel may be heard, the accused, FELIX OVIEDO MANCILLA, by and through his attorneys, Timothy R. Garrison, and Federal Defenders of San Diego, Inc., will ask this Court to enter an order granting the motions listed below. /// /// /// ///

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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 Dated: August 27, 2008

MOTIONS FELIX OVIEDO MANCILLA, 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) Compel Discovery and Preserve Evidence; 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]

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 1 UNITED STATES OF AMERICA, 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 08CR2349-DMS Dated: August 27, 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: ) ) Plaintiff, ) ) v. ) ) FELIX OVIEDO MANCILLA, ) ) Defendant. ) _______________________________________) Case No.08CR2349-DMS 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: Arnold Dale Blankenship [email protected],[email protected],[email protected] Mr. Mancilla Defendant

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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 FELIX OVIEDO MANCILLA 6 7 8 9 10

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE DANA M. SABRAW) ) ) Plaintiff, ) ) v. ) ) FELIX OVIEDO MANCILLA, ) ) Defendant. ) ______________________________________ ) I. STATEMENT OF FACTS To the extent the following statement of facts is based upon materials provided by the government, Case No. 08CR2349-DMS DATE: TIME: August 29, 2008 11:00 a.m.

11 UNITED STATES OF AMERICA, 12 13 14 15 16 17 18 19

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

20 Mr. Mancilla reserves the right to take a contrary position at motion hearings and trial. The facts alleged in 21 these motions are subject to amplification and/or modification at the time these motions are heard. 22

Mr. Mancilla was arrested on June 29, 2008 in Border Field State Park. Agents of the government

23 allege Mr. Mancilla was knowingly transporting the illegal alien on horseback and that he was involved in 24 bringing the alien to the United States. On July 16, 2008, the government filed a two count indictment 25 charging a violations of 8 U.S.C. §1324, and 18 U.S.C. §2. 26 27 / / / 28 / / /

These motions follow.

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

4 those items that the prosecutor knows of, but rather includes all discovery listed below that is in the custody, 5 control, care, or knowledge of any "closely related investigative [or other] agencies." See United States v. 6 Bryan, 868 F.2d 1032 (9th Cir. 1989). If the government fails to produce said discovery prior to the motion 7 hearing, Mr. Mancilla asks the government be precluded from using it at all in trial. 8

(1)

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

9 any written or recorded statements made by the defendant; the substance of any statements made by the 10 defendant which the government intends to offer in evidence at trial -- either in its case-in-chief or in rebuttal; 11 see Fed. R. Crim. P. 16, any response by the defendant to interrogation; the substance of any oral statements 12 which the government intends to introduce at trial and any written summaries of the defendant's oral 13 statements contained in the handwritten notes of the government agent; any response to any Miranda warnings 14 which may have been given to the defendant; as well as any other statements by the defendant. Fed. R. Crim. 15 P. 16(a)(1)(A)1. The Advisory Committee Notes and the 1991 Amendments to Rule 16 make clear that the 16 Government must reveal all the defendant's statements, whether oral or written, regardless of whether the 17 government intends to make any use of those statements. Federal Rule of Criminal Procedure 16 is designed 18 "to protect the defendant's rights to a fair trial." United States v. Rodriguez, 799 F.2d 649 (11th Cir. 1986); 19 see also United States v. Noe, 821 F.2d 604, 607 (11th Cir. 1987) (reversing conviction for failure to provide 20 statements offered in rebuttal -- government's failure to disclose statements made by the defendant is a serious 21 detriment to preparing trial and defending against criminal charges). 22

(2)

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

23 over all arrest reports, notes and TECS records not already produced that relate to the circumstances 24 surrounding his arrest or any questioning. This request includes, but is not limited to, any rough notes, 25 records, reports, transcripts, referral slips, or other documents in which statements of the defendant or any 26 other discoverable material is contained. Such material is discoverable under Fed. R. Crim. P. 16(a)(1)(A) 27 28

Of course, any of Mr. Mancilla's statements, which are exculpatory, must be produced, as well. See Brady v. Maryland, 373 U.S. 83 (1963). 2 08CR2349-DMS

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1 and Brady v. Maryland. The government must produce arrest reports, investigators' notes, memos from 2 arresting officers, sworn statements, and prosecution reports pertaining to the defendant. See Fed. R. Crim. 3 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 4 notes with suspect or witness must be preserved); see also United States v. Anderson, 813 F.2d 1450, 1458 5 (9th Cir. 1987) (reaffirming Harris' holding). 6

(3)

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

7 tangible evidence favorable to the defendant on the issue of guilt and/or which affects the credibility of the 8 government's case.

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

9 impeachment, as well as exculpatory evidence, falls within the definition of evidence favorable to the accused. 10 See also United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 427 U.S. 97 (1976). This 11 includes information obtained from other investigations which exculpates Mr. Mancilla. 12

(4)

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

13 government must also produce this information under Brady v. Maryland. This request includes any 14 cooperation or attempted cooperation by the defendant, as well as any information, including that obtained 15 from other investigations or debriefings, that could affect any base offense level or specific offense 16 characteristic under Chapter Two of the Guidelines. The defendant also requests any information relevant 17 to a Chapter Three adjustment, a determination of the defendant's criminal history, and information relevant 18 to any other application of the Guidelines. 19

(5)

The Defendant's Prior Record. The accused requests disclosure of his prior record.

20 Fed. R. Crim. P. 16(a)(1)(B). 21

(6)

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

22 under Fed. R. Crim. P. 16(a)(1)(C) and Fed. R. Evid. 404(b) and 609. In addition, "upon request of the 23 accused, the prosecution . . . shall provide reasonable notice in advance of trial . . . of the general nature" of 24 any evidence the government proposes to introduce under Fed. R. Evid. 404(b) at trial and the purpose for 25 which introduction is sought. This applies not only to evidence which the government may seek to introduce 26 in its case-in-chief, but also to evidence which the government may use as rebuttal. See United States v. Vega, 27 188 F.3d 1150 (9th Cir. 1999). The defendant is entitled to "reasonable notice" so as to "reduce surprise," 28 preclude "trial by ambush" and prevent the "possibility of prejudice." Id.; United States v. Perez-Tosta, 36

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1 F.3d 1552, 1560-61 (11th Cir. 1994). If the Court chooses not to exclude such evidence because it was not 2 produced or noticed prior to the instant motion hearing, Mr. Mancilla requests such reasonable notice and 3 discovery be produced at least two weeks before trial so as to adequately investigate and prepare for trial. 4

(7)

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

5 search, either warrantless or with a warrant. Fed. R. Crim. P. 16(a)(1)(E). 6

(8)

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

7 of any and all physical evidence that may be destroyed, lost, or otherwise put out of the possession, custody, 8 or care of the government and which relates to the arrest or the events leading to the arrest in this case. This 9 request includes, but is not limited to, the results of any fingerprint analysis, the defendant's personal effects, 10 and any evidence seized from the defendant or any third party in relation to this case. Specifically, 11 Mr. Mancilla moves to preserve the following evidence: the horse seized, any personal effects of the 12 defendant; any cell phones seized, and the agents notes of the interrogation. 13

(9)

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

14 to this case oversee a review of all personnel files of each agent involved in the present case for impeachment 15 material. Kyles, 514 U.S. at 419; United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991); United States v. 16 Lacy, 896 F. Supp. 982 (N.D. Ca. 1995). At a minimum, the prosecutor has the obligation to inquire of his 17 agents in order to ascertain whether or not evidence relevant to veracity or other impeachment exists. 18

(10)

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

19 if necessary, all other documents and tangible objects, including photographs, books, papers, documents, 20 fingerprint analyses, vehicles, or copies of portions thereof, which are material to the defense or intended for 21 use in the government's case-in-chief or were obtained from or belong to the defendant. Fed. R. Crim. 22 P. 16(a)(1)(E). Specifically, to the extent they were not already produced, the defendant requests copies of 23 all photographs in the government's possession, including, but not limited to, the defendant and any other 24 photos taken in connection with this case. 25

(11)

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

26 of the testimony of any person that the government intends to call as an expert witness during its case in chief. 27 Fed. R. Crim. P. 16(a)(1)(G). The defense requests that notice of expert testimony be provided at a minimum 28 of two weeks prior to trial so that the defense can properly prepare to address and respond to this testimony,

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1 including obtaining its own expert and/or investigating the opinions and credentials of the government's 2 expert. Also pursuant to Fed. R. Crim. P. 16(a)(1)(G), the defense requests summaries of any expert witness 3 the government intends to call, along with the identities of those witnesses and the specific materials relied 4 upon by its experts in formulating the opinion. United States v. Fort, 472 F.3d 1106, 1121 (9th Cir. 5 2007)("materials on which a proposed expert witness relies [in developing his opinions] must be produced 6 to Defendants in discovery). The defense also requests a hearing in advance of trial to determine the 7 admissibility of qualifications of any expert. See Kumho v. Carmichael Tire Co. 119 S. Ct. 1167, 1176 (1999) 8 (trial judge is "gatekeeper" and must determine reliability and relevancy of expert testimony and such 9 determinations may require "special briefing or other proceedings . . .."). 10

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

11 defense requests the reports of all tests and examinations conducted upon the evidence in this case that is 12 within the possession, custody, or control of the government, the existence of which is known, or by the 13 exercise of due diligence may become known, to the attorney for the government, and which are material to 14 the preparation of the defense or which are intended for use by the government as evidence in chief at the trial. 15 Specifically, the defense requests the DEA-7. 16

(13)

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

17 government witness is biased or prejudiced against the defendant, or has a motive to falsify or distort his or 18 her testimony. 19

(14)

Impeachment Evidence.

The defendant requests any evidence that any prospective

20 government witness has engaged in any criminal act whether or not resulting in a conviction and whether any 21 witness has made a statement favorable to the defendant. See Fed. R. Evid. 608, 609 and 613; Brady v. 22 Maryland. 23

(15)

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

24 any evidence that any prospective witness is under investigation by federal, state or local authorities for any 25 criminal conduct. 26

(16)

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

27 defense requests any evidence, including any medical or psychiatric report or evaluation, that tends to show 28 that any prospective witness' ability to perceive, remember, communicate, or tell the truth is impaired, and

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1 any evidence that a witness has ever used narcotics or other controlled substance, or has ever been an 2 alcoholic. 3

(17)

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

4 including any tapes, which the government must produce pursuant to the Jencks Act, 18 U.S.C. § 3500; 5 Fed. R. Crim. P. 26.2. Advance production will avoid the possibility of delay at the request of the defendant 6 to investigate the Jencks material. A verbal acknowledgment that "rough" notes constitute an accurate account 7 of the witness' interview is sufficient for the report or notes to qualify as a statement under section 3500(e)(1). 8 Campbell v. United States, 373 U.S. 487, 490-92 (1963); see also United States v. Boshell, 952 F.2d 1101 (9th 9 Cir. 1991) (holding that, where an agent goes over interview notes with subject, interview notes are subject 10 to Jencks Act). 11

(18)

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

12 requests all statements and/or promises, express or implied, made to any government witnesses, in exchange 13 for their testimony in this case, and all other information which could arguably be used for the impeachment 14 of any government witnesses. 15

(19)

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

16 identification of any cooperating witnesses who have committed crimes, but were not charged, so that they 17 may testify for the government in this case. The defendant also requests discovery regarding any express or 18 implicit promise; understanding; offer of immunity; past, present, or future compensation; or any other kind 19 of agreement or understanding, including any implicit understanding relating to criminal or civil income tax, 20 forfeiture or fine liability between any prospective government witness and the government (federal, state 21 and/or local). This request also includes any discussion with a potential witness about, or advice concerning, 22 any contemplated prosecution, or any possible plea bargain, even if no bargain was made, or the advice not 23 followed. 24

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

25 statements made, either personally or through counsel, at any time, which relate to the witnesses' statements 26 regarding this case, any promises -- implied or express -- regarding punishment/prosecution or detention of 27 these witnesses, any agreement sought, bargained for or requested, on the part of the witness at any time. 28

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(20)

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

2 other tip leading to a TECS hit in this case, the defendant requests disclosure of the names and addresses of 3 all informants or cooperating witnesses used, or to be used, in this case, and in particular, disclosure of any 4 informant who was a percipient witness in this case or otherwise participated in the crime charged against 5 Mr. Carrasco-Rivera. The government must disclose the informant's identity and location, as well as the 6 existence of any other percipient witness unknown or unknowable to the defense. Roviaro v. United States, 7 353 U.S. 53, 61-62 (1957). The government must disclose any information derived from informants which 8 exculpates or tends to exculpate the defendant. 9

(21)

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

10 information indicating bias on the part of any informant or cooperating witness. Giglio v. United States. Such 11 information would include what, if any, inducements, favors, payments or threats were made to the witness 12 to secure cooperation with the authorities. 13

(22)

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

14 discovery to the fullest extent possible under the Federal Rules of Criminal Procedure and the Constitution 15 and laws of the United States. Mr. Mancilla requests that the government provide her attorney with the above16 requested material sufficiently in advance of trial to avoid unnecessary delay prior to cross-examination. 17 18 19

III. MOTION FOR LEAVE TO FILE FURTHER MOTIONS Mr. Mancilla and defense counsel have received no discovery in this case. As new information

20 surfaces due to the government providing discovery in response to these motions, or an order of this Court, 21 defense may find it necessary to file further motions, or to supplement existing motions with additional facts. 22 The denial of this motion will result in a violation, at a minimum, of Mr. Mancilla's Fifth and 23 Sixth Amendment rights. Therefore, defense counsel requests the opportunity to file further motions based 24 upon information gained from discovery. 25 / / / 26 / / / 27 / / / 28 / / /

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1 2 3 DATED: August 27, 2008 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

Respectfully submitted,

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

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