Free Motion for Discovery - District Court of California - California

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1 JOHN C. ELLIS, JR.

California State Bar No. 228083
2 FEDERAL DEFENDERS OF SAN DIEGO, INC.

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

(619) 234-8467/Fax: (619) 687-2666
4 E-Mail: [email protected] 5 Attorneys for Juan Diego Emiliano-Loya 6 7 8 9 10

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE IRMA E. GONZALEZ) ) ) Plaintiff, ) ) v. ) ) JUAN DIEGO EMILIANO-LOYA, ) ) Defendant. ) ) ______________________________________ ) Case No. 08CR2124-IEG DATE: TIME: August 4, 2008 2:00 p.m.

11 UNITED STATES OF AMERICA, 12 13 14 15 16

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

17 TO: 18 19

KAREN P. HEWITT, UNITED STATES ATTORNEY; AND ALESSANDRA P. SERANO, ASSISTANT UNITED STATES ATTORNEY: PLEASE TAKE NOTICE that, on Monday, August 4, 2008, at 2:00 p.m., or as soon thereafter as

20 counsel may be heard, the accused, Juan Diego Emiliano-Loya, by and through his attorneys, John C. Ellis, 21 Jr., and Federal Defenders of San Diego, Inc., will ask this Court to enter an order granting the motions listed 22 below. 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / /

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MOTIONS Juan Diego Emiliano-Loya, the accused in this case, by and through his attorneys, John C. Ellis, Jr.,

3 and Federal Defenders of San Diego, Inc., pursuant to the United States Constitution, Federal Rules of 4 Criminal Procedure, and all other applicable statutes, case law and local rules, hereby moves this Court for 5 an Order: 6 7 8

1) 2)

To Compel Further Discovery and Preserve Evidence; and To Grant Leave to File Further Motions.

These motions are based upon the instant motions and notice of motions, the attached statement of

9 facts and memorandum of points and authorities, and any and all other materials that may come to this Court's 10 attention at the time of the hearing on these motions. 11 12 13 DATED: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted,

August 1, 2008

/s/ John C. Ellis, Jr. JOHN C. ELLIS, JR. Federal Defenders of San Diego, Inc. Attorneys for Juan Diego Emiliano-Loya

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1 JOHN C. ELLIS, JR.

California State Bar No. 228083
2 FEDERAL DEFENDERS OF SAN DIEGO, INC.

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

(619) 234-8467/Fax: (619) 687-2666
4 E-Mail: [email protected] 5 Attorneys for Juan Diego Emiliano-Loya 6 7 8 9 10

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE IRMA E. GONZALEZ) ) ) Plaintiff, ) ) v. ) ) JUAN DIEGO EMILIANO-LOYA, ) ) Defendant. ) ______________________________________ ) I. STATEMENT OF FACTS The following statement of facts is based on materials received from the government. Mr. EmilianoCase No. 08CR2124-IEG DATE: TIME: August 4, 2008 2:00 p.m.

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

STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTIONS

20 Loya does not accept this statement of facts as his own, and reserves the right to take a contrary position at 21 motion hearings and trial. The facts alleged in these motions are subject to amplification and/or modification 22 at the time these motions are heard. 23

Mr. Emiliano-Loya was arrested on June 4, 2008. On June 25, 2008, the government filed an

24 indictment charging a violation of 8 U.S.C. § 1326(a) and (b). 25 26 / / / 27 / / / 28

These motions follow.

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II. MOTION TO COMPEL DISCOVERY/PRESERVE EVIDENCE Mr. Emiliano-Loya moves for the production of the following discovery. This request is not limited

4 to those items that the prosecutor knows of, but rather includes all discovery listed below that is in the 5 custody, control, care, or knowledge of any "closely related investigative [or other] agencies." 6 United States v. Bryan, 868 F.2d 1032 (9th Cir. 1989). 7

See

(1)

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

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

(2)

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

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

Of course, any of Mr. Emiliano-Loya's statements, which are exculpatory, must be produced, as well. See Brady v. Maryland, 373 U.S. 83 (1963). 2 08cr2124-IEG

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

(3)

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

6 tangible evidence favorable to the defendant on the issue of guilt and/or which affects the credibility of the 7 government's case. Kyles v. Whitley, 514 U.S. 419 (1995). Under Brady, Kyles and their progeny, 8 impeachment, as well as exculpatory evidence, falls within the definition of evidence favorable to the 9 accused. See also United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 427 U.S. 97 (1976). 10 This includes information obtained from other investigations which exculpates Mr. Emiliano-Loya. 11

(4)

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

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

(5)

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

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

(6)

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

21 under Fed. R. Crim. P. 16(a)(1)(C) and Fed. R. Evid. 404(b) and 609. In addition, "upon request of the 22 accused, the prosecution . . . shall provide reasonable notice in advance of trial . . . of the general nature" of 23 any evidence the government proposes to introduce under Fed. R. Evid. 404(b) at trial and the purpose for 24 which introduction is sought. This applies not only to evidence which the government may seek to introduce 25 in its case-in-chief, but also to evidence which the government may use as rebuttal. See United States v. 26 Vega, 188 F.3d 1150 (9th Cir. 1999). The defendant is entitled to "reasonable notice" so as to "reduce 27 surprise," preclude "trial by ambush" and prevent the "possibility of prejudice." Id.; United States v. Perez28 / / /

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1 Tosta, 36 F.3d 1552, 1560-61 (11th Cir. 1994). Mr. Emiliano-Loya requests such reasonable notice at least 2 two weeks before trial so as to adequately investigate and prepare for trial. 3

(7)

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

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

(8)

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

6 of any and all physical evidence that may be destroyed, lost, or otherwise put out of the possession, custody, 7 or care of the government and which relates to the arrest or the events leading to the arrest in this case. This 8 request includes, but is not limited to, the results of any fingerprint analysis, the defendant's personal effects, 9 and any evidence seized from the defendant or any third party in relation to this case. 10

(9)

Henthorn Material. Mr. Emiliano-Loya requests that the Assistant United States Attorney

11 assigned to this case oversee a review of all personnel files of each agent involved in the present case for 12 impeachment material. Kyles, 514 U.S. at 419; United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991); 13 United States v. Lacy, 896 F.Supp. 982 (N.D. Ca. 1995). At a minimum, the prosecutor has the obligation 14 to inquire of his agents in order to ascertain whether or not evidence relevant to veracity or other 15 impeachment exists. 16

(10)

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

17 if necessary, all other documents and tangible objects, including photographs, books, papers, documents, 18 fingerprint analyses, vehicles, or copies of portions thereof, which are material to the defense or intended for 19 use in the government's case-in-chief or were obtained from or belong to the defendant. Fed. R. Crim. 20 P. 16(a)(1)(C). Specifically, to the extent they were not already produced, the defendant requests copies of 21 all photographs in the government's possession, including, but not limited to, the defendant and any other 22 photos taken in connection with this case. 23

(11)

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

24 of the testimony of any person that the government intends to call as an expert witness during its case in chief. 25 Fed. R. Crim. P. 16(a)(1)(E). The defense requests that notice of expert testimony be provided at a minimum 26 of two weeks prior to trial so that the defense can properly prepare to address and respond to this testimony, 27 including obtaining its own expert and/or investigating the opinions and credentials of the government's 28 expert. The defense also requests a hearing in advance of trial to determine the admissibility of qualifications

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1 of any expert. See Kumho v. Carmichael Tire Co. 119 S. Ct. 1167, 1176 (1999) (trial judge is "gatekeeper" 2 and must determine reliability and relevancy of expert testimony and such determinations may require 3 "special briefing or other proceedings . . .."). 4

(12)

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

(13)

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

(14)

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

(15)

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

(16)

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 23 account of the witness' interview is sufficient for the report or notes to qualify as a statement under section 24 3500(e)(1). Campbell v. United States, 373 U.S. 487, 490-92 (1963); see also United States v. Boshell, 952 25 F.2d 1101 (9th Cir. 1991) (holding that, where an agent goes over interview notes with subject, interview 26 notes are subject to Jencks Act). 27

(17)

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

(18)

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

(19)

Informants and Cooperating Witnesses. The defendant requests disclosure of the names and

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

(20)

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

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

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(21)

Inspection and Copying of A-File. Mr. Emiliano-Loya requests that this Court order the

2 government to make all A-Files relevant to Mr. Emiliano-Loya available for inspection and copying. 3

(22)

Residual Request. Mr. Emiliano-Loya intends, by this discovery motion, to invoke his rights

4 to discovery to the fullest extent possible under the Federal Rules of Criminal Procedure and the Constitution 5 and laws of the United States. Mr. Emiliano-Loya requests that the government provide his attorney with the 6 above-requested material sufficiently in advance of trial to avoid unnecessary delay prior to cross7 examination. 8 9 10

III. REQUEST FOR LEAVE TO FILE FURTHER MOTIONS Mr. Emiliano-Loya and defense counsel have received limited discovery in this case. As new

11 information surfaces due to the government providing discovery in response to these motions or an order of 12 this Court, defense will find it necessary to file further motions, or to supplement existing motions with 13 additional facts. Therefore, defense counsel requests the opportunity to file further motions based upon 14 information gained from discovery. 15 16 17 18 19 20 DATED: 21 22 23 24 25 26 27 28

IV. CONCLUSION For the reasons stated above, Mr. Emiliano-Loya moves this Court to grant his motions. Respectfully submitted,

August 1, 2008

/s/ John C. Ellis, Jr. JOHN C. ELLIS, JR. Federal Defenders of San Diego, Inc. Attorneys for Juan Diego Emiliano-Loya

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) ) JUAN DIEGO EMILIANO-LOYA, ) ) Defendant. ) _______________________________________)

Case No. 08cr2124-IEG

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 Defendant's Notice of Motions and Motions has been electronically served this day upon: Alessandra P. Serano, Assistant United States Attorney 880 Front Street San Diego, CA 92101

Dated: August 1, 2008

/s/ John C. Ellis, Jr. JOHN C. ELLIS, JR. Federal Defenders 225 Broadway, Suite 900 San Diego, CA 92101-5030 (619) 234-8467 (tel) (619) 687-2666 (fax) E-mail: [email protected]