Free Motion to Take Deposition - District Court of California - California

Case 3:08-cr-02053-WQH

Document 10

Filed 06/13/2008

Page 1 of 2

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

THOMAS G. GILMORE, ESQ. State Bar No. 91984 LAW OFFICES OF THOMAS G. GILMORE 3232 FOURTH AVENUE SAN DIEGO, CALIFORNIA 92103 (619) 426-4444 Attorney for Material Witnesses

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (Honorable Jan M. Adler) UNITED STATES OF AMERICA, ) ) ) Plaintiff, ) ) vs. ) ) Enrique RIVERA-Garcia, ) Richardo PERALTA-Zazueta, ) ) ) ) Defendants. ) ______________________________) CASE NO. 08MJ1643 JMA NOTICE OF MOTION; MOTION FOR VIDEOTAPE DEPOSITION AND SUBSEQUENT VOLUNTARY DEPORTATION OF MATERIAL WITNESS; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION OF THOMAS G. GILMORE IN SUPPORT THEREOF DATE: June 24, 2008 TIME: 2:00 p.m. PLACE: Courtroom of Magistrate Jan M. Adler ATTORNEYS OF

TO: UNITED STATES ATTORNEY; DEFENDANTS AND THEIR RECORD:

PLEASE TAKE NOTICE that on June 24, 2008 at 2.00 p.m. or as soon thereafter as the matter may be heard, material witnesses Jose Luis GOMEZ-Torres, Eduardo Alejandro RAMIREZ-Hernandez, Oscar David LOPEZ-Torres, and Juan Luis HERNANDEZ-Morales will move the Court for an Order that they be subjected to a videotape deposition prior to trial and subsequent voluntary deportation. This motion will be based on 18 U.S.C. 3144 in that the witnesses testimony can be adequately secured by deposition and 1

Case 3:08-cr-02053-WQH

Document 10

Filed 06/13/2008

Page 2 of 2

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

further detention is not necessary to prevent a failure of justice. This motion is further based on this notice of motion, the memorandum of points and authorities and declaration of Thomas G. Gilmore filed herewith, and as such other and further evidence as may be presented at the hearing of the motion. Respectfully submitted, DATED: 6/13/08 /ss/Thomas G. Gilmore THOMAS G. GILMORE, Attorney for Material Witnesses

2

Case 3:08-cr-02053-WQH

Document 10-2

Filed 06/13/2008

Page 1 of 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

THOMAS G. GILMORE, ESQ. State Bar No. 91984 LAW OFFICES OF THOMAS G. GILMORE 3232 FOURTH AVENUE SAN DIEGO, CALIFORNIA 92103 (619) 426-4444 Attorney for Material Witnesses

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (Honorable Jan M. Adler) UNITED STATES OF AMERICA, ) ) ) Plaintiff, ) ) vs. ) ) Enrique RIVERA-Garcia, ) Richardo PERALTA-Zazueta, ) ) ) Defendants. ) ______________________________) CASE NO. 08MJ1643 JMA DECLARATION OF THOMAS G. GILMORE IN SUPPORT OF MOTION FOR VIDEOTAPE DEPOSITION AND SUBSEQUENT VOLUNTARY DEPORTATION OF MATERIAL WITNESSES DATE: June 24, 2008 TIME: 2:00 p.m. PLACE: Courtroom of Magistrate Jan M. Adler

I, Thomas G. Gilmore declare: 19 I am an attorney duly licensed to practice before all the 20 courts of this State, District and Circuit, and am the attorney of 21 record for the material witnesses in the above action, 22 GOMEZ-Torres, 23 LOPEZ-Torres, and Juan Luis HERNANDEZ-Morales. 24 I have personal knowledge of the facts set forth in this action 25 and could testify competently thereto if called. 26 My clients in this action have been in federal custody since 27 May 24, 2008 because they cannot locate anyone to post bond for 28 them. 1 Eduardo Alejandro RAMIREZ-Hernandez, Oscar David Jose Luis

Case 3:08-cr-02053-WQH

Document 10-2

Filed 06/13/2008

Page 2 of 2

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 be

My clients entered the United States to find work to support family members at home in their country of origin. Each day they

remain in custody is an additional hardship on themselves and their families. Based on the above it respectfully requested that this motion granted, that said depositions take place at the earliest

possible time, and that my clients be allowed to voluntarily return home to their country of origin immediately thereafter. I declare under the penalty of perjury under the laws of the State of California that the foregoing is true and correct of my own personal knowledge except as to those matters stated to be based upon information and belief and, as to those matters, I am informed and believe that they are true and correct. Executed this 13th day of June, 2008, in San Diego, California. /ss/ Thomas G. Gilmore THOMAS G. GILMORE, Attorney for Material Witnesses

2

Case 3:08-cr-02053-WQH

Document 10-3

Filed 06/13/2008

Page 1 of 3

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

THOMAS G. GILMORE, ESQ. State Bar No. 91984 LAW OFFICES OF THOMAS G. GILMORE 3232 FOURTH AVENUE SAN DIEGO, CALIFORNIA 92103 (619) 426-4444 Attorney for Material Witnesses

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (Honorable Jan M.Adler) UNITED STATES OF AMERICA, ) ) ) Plaintiff, ) ) vs. ) ) Enrique RIVERA-Garcia, ) Richardo PERALTA-Zazueta, ) ) ) ) Defendants. ) ______________________________) CASE NO. 08MJ1643 JMA MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF VIDEOTAPE DEPOSITION AND SUBSEQUENT VOLUNTARY DEPORTATION OF MATERIAL WITNESSES

DATE: June 24, 2008 TIME: 2:00 p.m. PLACE: Courtroom of Magistrate I Jan M. Adler

BY STATUTE AND CASE LAW, THE MOTION SHOULD BE GRANTED According to 18 U.S.C. 3144, "no material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can be adequately secured by deposition and if further detention is not necessary to prevent a failure of justice". Furthermore, Fed R. Crim P. 15(a) specifies that a material witness may make a motion requesting such a deposition and the district court has the authority 1 to order the taking of the

Case 3:08-cr-02053-WQH

Document 10-3

Filed 06/13/2008

Page 2 of 3

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

deposition and thereafter to discharge the detained witness from custody. As the Fifth Circuit stated In Aguilar-Ayala v. Ruiz, 973 F.2d 411 (1992) at page 413: Read together, Rule 15(a) and section 3144 provide a detained witness with a mechanism for securing his own release. He must file a "written motion", Fed. R. Crim. P. 15(a), requesting that he be deposed. The motion must demonstrate that his "testimony can adequately be secured by deposition" and that"further detention is not necessary to prevent a failure of justice" 18 U.S.C. section 3144. Upon such showing, the district court must order his deposition and prompt release. Id. ("No material witness may be detained" if he makes such a showing). Although Rule 15(a) is couched in the permissive "May" not the mandatory "shall", Fed R. Crim. P. 15(a) ("the court...may direct that the witness' deposition be taken"), it is clear from a conjunctive reading with section 3144 that the discretion to deny the motion is limited to those instances in which the deposition would not serve as an adequate substitute for the witness' live testimony: that a "failure of justice" would ensue were the witness released...absent a "failure of justice", the witness must be released. Any ambiguity in Rule 15(a) was resolved when the statute was amended in 2002 to differentiate between motions for depositions brought by other parties as opposed to such motions brought by the material witness themself. The new statutory language holds that

when a material witness files their own motion for a deposition, they do not even need to show any "exceptional circumstances" exist. The amended statute has already been upheld on appeal, United States v. Chen (N.D. Cal. 2003) 214 F.R.D. 578. This is also the law in the Ninth Circuit as demonstrated by the case of Torres -Ruiz v. United States District Court for the Southern District of California, 97 CDOS 5335 (July 7, 1997). The

court "agreed with the reasoning of [Aguilar-Ayala, supra]" and reversed Judge Huff who had denied a motion for a deposition on 2

Case 3:08-cr-02053-WQH

Document 10-3

Filed 06/13/2008

Page 3 of 3

1 2 3 4 5 6 7 8 9 10

facts virtually identical to the instant action . stated:

As the court

In the instant case, two young men ages 19 and 22, have apparently been randomly selected out of a group of 27 undocumented aliens and detained for a period of over 60 days as material witnesses in a straightforward and uncomplicated alien smuggling prosecution. These young men state without opposition by either party to this case that they are the sole support for their respective families in Mexico, and that every day they remain in custody is a tremendous hardship on those family members. (Kilpatrick Declaration at 2) Neither petitioner is able to provide a surety for $1000.00 bond. It is exactly circumstances such as these for which section 3144 appears to be designed. Respectfully submitted, LAW OFFICES OF THOMAS G. GILMORE

11 DATED:6/13/08 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 By: /ss/ Thomas G. Gilmore Thomas G. Gilmore, Esq. Attorney for Material Witnesses

Case 3:08-cr-02053-WQH

Document 10-4

Filed 06/13/2008

Page 1 of 1

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

THOMAS G. GILMORE, ESQ. State Bar No. 91984 LAW OFFICES OF THOMAS G. GILMORE 3232 FOURTH AVENUE SAN DIEGO, CALIFORNIA 92103 (619) 426-4444 Attorney for Material Witnesses

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (Honorable Jan M. Adler) UNITED STATES OF AMERICA, ) ) ) Plaintiff, ) ) vs. ) ) Enrique RIVERA-Garcia, ) Richardo PERALTA-Zazueta, ) ) ) ) Defendants. ) ______________________________) CASE NO. 08MJ1643 JMA CERTIFICATE OF SERVICE

DATE: June 24, 2008 TIME: 2:00 p.m. PLACE: Courtroom of Magistrate Jan M. Adler

I, hereby certify that on today's date, I electronically filed the attached documents with the Clerk of the Court using the CM/ECF system, which will automatically send electronic notification of such filing and a copy of such filings to the following: Candis Lea Mitchell, Esq. - [email protected] William R. Burgener, Esq. - [email protected] [email protected] Date: June 13, 2008 By: /ss/Thomas G. Gilmore THOMAS G. GILMORE, Attorney for Material Witnesses 1