Free Motion to Compel - District Court of California - California

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1 ROBERT R. HENSLER, ESQ. 2 FEDERAL DEFENDERS OF SAN DIEGO, INC. 3 San Diego, CA 92101-5008 4 E-Mail: [email protected]

California State Bar No. 216165 225 Broadway, Suite 900

(619) 234-8467/Fax: (619) 687-2666

5 Attorneys for Pedro De La Rosa-Soto 6 7 8 9 10

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE MARILYN L. HUFF) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 08CR2031-H DATE: July 7, 2008 TIME: 2:00 p.m. NOTICE OF MOTIONS AND MOTIONS TO: 1) COMPEL DISCOVERY/ 2) PRESERVE EVIDENCE 3) SUPPRESS STATEMENTS; 4) DISMISS THE INDICTMENT DUE TO MISINSTRUCTION OF THE GRAND JURY; AND 5) GRANT LEAVE TO FILE FURTHER MOTIONS

11 UNITED STATES OF AMERICA, 12 13 v. 14 PEDRO DE LA ROSA-SOTO, 15 16 17 18 ___________________________________ 19 TO: 20 21

Plaintiff,

Defendant.

KAREN P. HEWITT, UNITED STATES ATTORNEY

PLEASE TAKE NOTICE that, on July 7, 2008, at 2:00 p.m. or as soon thereafter as counsel may

22 be heard, the defendant, Pedro De La Rosa-Soto, by and through his counsel, Robert R. Henssler, Jr., and 23 Federal Defenders of San Diego, Inc., will ask this Court to enter an order granting the following motions. 24 // 25 // 26 // 27 // 28 //

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MOTIONS The defendant, Pedro De La Rosa-Soto, by and through his attorneys, Robert R. Henssler, Jr., and

3 Federal Defenders of San Diego, Inc., pursuant to the United States Constitution, the Federal Rules of 4 Criminal Procedure, and all other applicable statutes, case law and local rules, hereby moves this Court for 5 an order to: 6 7 8 9 10 11

1) 2) 3) 4) 5)

Compel Discovery; Preserve Evidence; Suppress Statements; Dismiss the Indictment Due to Misinstruction of the Grand Jury; and Grant Leave to File Further Motions.

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

12 facts and memorandum of points and authorities, and all other materials that may come to this Court's 13 attention at the time of the hearing on these motions. 14 15 16 DATED: May 23, 2008 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted,

/s/ Robert R. Hensler ROBERT R. HENSLER Federal Defenders of San Diego, Inc. Attorneys for Pedro De La Rosa-Soto

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CERTIFICATE OF SERVICE Counsel for Defendant certifies that the foregoing pleading is true and accurate to the best of his

3 information and belief, and that a copy of the foregoing document has been served this day upon: 4 U.S. Attorney 5 6 7 8 DATED: June 23, 2008 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

[email protected] Respectfully submitted,

/s/ Robert R. Hensler ROBERT R. HENSLER Federal Defenders of San Diego, Inc. Attorneys for Pedro De La Rosa-Soto

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1 ROBERT R. HENSSLER, JR. 2 FEDERAL DEFENDERS OF SAN DIEGO, INC. 3 San Diego, CA 92101-5008 4 E-Mail: [email protected]

California State Bar No. 216165 225 Broadway, Suite 900

(619) 234-8467/Fax: (619) 687-2666

5 Attorneys for Pedro De La Rosa-Soto 6 7 8 9 10

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE MARILYN L. HUFF) ) ) ) ) ) ) ) ) ) ) ) Case No. 08CR2031-H

11 UNITED STATES OF AMERICA, 12 13 v. 14 PEDRO DE LA ROSA-SOTO, 15

Plaintiff,

STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES

Defendant.

16 ___________________________________ 17 18 19

I. INTRODUCTION The following statement of facts is based, in part, on the complaint filed in this case. Mr. De La

20 Rosa-Soto does not accept this statement of facts as his own, and reserves the right to take a contrary position 21 at motion hearings and trial. Mr. De La Rosa-Soto reserves the right to challenge the truth and accuracy of 22 these facts in any subsequent pleadings or during any further proceedings. 23

On April 13, 2008, at approximately 10:00 p.m., United States Border Patrol agents arrested Mr. De

24 La Rosa-Soto near the Tecate, California, Port of Entry. Mr. De La Rosa-Soto was initially questioned 25 without being given Miranda warnings. Subsequently, Mr. De La Rosa-Soto was advised he had a right to 26 contact the Mexican consulate and apparently was questioned again without Miranda warnings. Then, at 27 approximately 11:35 a.m., on April 14, 2008, more than 13 hours after his arrest, Mr. De La Rosa-Soto was 28 //

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1 advised that his Administrative Rights would no longer apply because he was being charged criminally. Mr. 2 De La Rosa-Soto was then advised of his Miranda rights and questioned for a third time. 3 4 5

II. MOTION TO COMPEL DISCOVERY/PRESERVE EVIDENCE Defendant moves for the production of the following discovery. This request is not limited to those

6 items that the prosecutor knows of, but rather includes all discovery listed below that is in the custody, control, 7 care, or knowledge of any "closely related investigative [or other] agencies." See United States v. Bryan, 868 8 F.2d 1032 (9th Cir. 1989). 9

(1) The Defendant's Statements. The government must disclose to the defendant all copies of any

10 written or recorded statements made by the defendant; the substance of any statements made by the defendant 11 which the government intends to offer in evidence at trial; any response by the defendant to interrogation; the 12 substance of any oral statements which the government intends to introduce at trial and any written summaries 13 of the defendant's oral statements contained in the handwritten notes of the government agent; any response 14 to any Miranda warnings which may have been given to the defendant; as well as any other statements by the 15 defendant. Fed. R. Crim. P. 16(a)(1)(A) and 16(a)(1)(B). The Advisory Committee Notes and the 1991 16 amendments to Rule 16 make clear that the Government must reveal all the defendant's statements, whether 17 oral or written, regardless of whether the government intends to make any use of those statements. See also 18 United States v. Bailleaux, 685 F.2d 1105, 1113-1114 (9th Cir. 1982). 19

(2) Arrest Reports, Notes and Dispatch Tapes. Defendant also specifically requests the government

20 to turn over all arrest reports, notes, dispatch or any other tapes, and TECS records that relate to the 21 circumstances surrounding the defendant's arrest and any questioning. This request includes, but is not 22 limited to, any rough notes, records, reports, transcripts or other documents in which statements of the 23 defendant or any other discoverable material is contained. Such material is discoverable under Fed. R. Crim. 24 P. 16(a)(1)(A), Fed. R. Crim. P. 16(a)(1)(B), and Brady v. Maryland, 373 U.S. 83 (1963). The government 25 must produce arrest reports, investigator's notes, memos from arresting officers, dispatch tapes, sworn 26 statements, and prosecution reports pertaining to the defendant. See Fed. R. Crim. P. 16(a)(1)(E), Fed. R. 27 Crim. P. 26.2, and United States v. Riley, 189 F.3d 802, 806-808 (9th Cir. 1999). Preservation of rough notes 28 is requested, whether or not the government deems them discoverable.

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(3) Brady Material. The defendant requests all documents, statements, agents' reports, and tangible

2 evidence favorable to the defendant on the issue of guilt and/or which affects the credibility of the 3 government's case. Under Brady, impeachment as well as exculpatory evidence falls within the definition 4 of evidence favorable to the accused. United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 5 427 U.S. 97 (1976). 6

(4) Any Information That May Result in a Lower Sentence Under The Guidelines. The government

7 must produce this information under Brady v. Maryland, 373 U.S. 83 (1963). 8

(5) The Defendant's Prior Record. The defendant requests disclosure of all alleged prior criminal

9 convictions and law enforcement contacts, if any. Fed. R. Crim. P. 16(a)(1)(D). 10

(6) Any Proposed 404(b) Evidence. To the extent that there is any such evidence, the government

11 must produce evidence of prior similar acts under Fed. R. Evid. 404(b) and "shall provide reasonable notice 12 in advance of trial . . . of the general nature" of any evidence the government proposes to introduce under Fed. 13 R. Evid. 404(b) at trial.

See United States v. Vega, 188 F. 3d 1150, 1154-1155 (9th Cir. 1999). The

14 defendant requests that such notice be given three weeks before trial in order to give the defense time to 15 adequately investigate and prepare for trial. 16

(7) Evidence Seized. The defendant requests production of evidence seized as a result of any search,

17 either warrantless or with a warrant. Fed. R. Crim. P. 16(a)(1)(D). 18

(8) Request for Preservation of Evidence. The defense specifically requests that all dispatch tapes

19 or any other physical evidence that may be destroyed, lost, or otherwise put out of the possession, custody or 20 care of the government and which relate to the arrest or the events leading to the arrest in this case be 21 preserved. 22

(9) Henthorn Material. The defendant requests that the Assistant United States Attorney ("AUSA")

23 assigned to this case oversee (not personally conduct) a review of all personnel files of each agent involved 24 in the present case, and produce to him any exculpatory information and impeachment material at least two 25 weeks prior to trial and one week prior to the motion hearing. See Kyles v. Whitley, 514 U.S. 437, 438 (1995) 26 (holding that "the individual prosecutor has a duty to learn of any favorable evidence known to the others 27 acting on the government's behalf in the case, including the police"); United States v. Henthorn, 931 F.2d 29 28 (9th Cir. 1991); see also United States v. Jennings, 960 F.2d 1488 (9th Cir. 1992) (AUSA may not be ordered

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1 to personally conduct examination of records; appropriate government agency may review files and notify 2 AUSA of contents as long as AUSA makes the determination regarding material to be disclosed); United 3 States v. Herring, 83 F.3d 1120 (9th Cir. 1996) (accord). In addition, the defendant requests that if the 4 government is uncertain whether certain information is to be turned over pursuant to this request, that it 5 produce such information to the Court in advance of the trial and the motion hearing for an in camera 6 inspection. 7

(10) Tangible Objects. The defendant requests the opportunity to inspect, copy, and test, as necessary,

8 all other documents and tangible objects, including photographs, books, papers, documents, alleged narcotics, 9 fingerprint analyses, vehicles, or copies of portions thereof, which are material to the defense or intended for 10 use in the government's case-in-chief or were obtained from or belong to the defendant. Fed. R. Crim. P. 11 16(a)(1)(E). Specifically, defendant requests copies of his immigration file as well as any recordings of 12 his alleged prior removal. 13

(11) Expert Witnesses. Defendant requests the name, qualifications, and a written summary of the

14 testimony of any person that the government intends to call as an expert witness during its case in chief. Fed. 15 R. Crim. P. 16(a)(1)(G). Defendant requests the notice of expert testimony be provided at a minimum of two 16 weeks prior to trial so that the defense can properly prepare to address and respond to this testimony, including 17 obtaining its own expert and/or investigating the opinions, credentials of the government's expert and a 18 hearing in advance of trial to determine the admissibility of qualifications of any expert. See Kumho v. 19 Carmichael Tire Co., 526 U.S. 137, 119 S.Ct. 1167, 1176 (1999) (trial judge is "gatekeeper" and must 20 determine, reliability and relevancy of expert testimony and such determinations may require "special briefing 21 or other proceedings"). 22

(12) Impeachment Evidence. The defendant requests any evidence that any prospective government

23 witness has engaged in any criminal act whether or not resulting in a conviction and whether any witness has 24 made a statement favorable to the defendant. See Fed. R. Evid. 608, 609 and 613; Brady v. Maryland, 373 25 U.S. 83 (1963); United States v. Strifler, 851 F.2d 1197, 1201-1202 (9th Cir. 1988); Thomas v. United States, 26 343 F.2d 49, 53-54 (9th Cir. 1965). 27 // 28 //

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(13) Evidence of Criminal Investigation of Any Government Witness. The defendant requests any

2 evidence that any prospective witness is under investigation by federal, state or local authorities for any 3 criminal conduct. 4

(14) Evidence of Bias or Motive to Lie. Defendant requests any evidence that any prospective

5 Government witness is biased or prejudiced against Defendant, or has a motive to falsify or distort his or her 6 testimony. Pennsylvania v. Ritchie, 480 U.S. 39, 57-58 (1987); United States v. Strifler, 851 F.2d 1197, 12017 1202 (9th Cir. 1988). 8

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

9 defense requests any evidence, including any medical or psychiatric report or evaluation, that tends to show 10 that any prospective witness' ability to perceive, remember, communicate, or tell the truth is impaired, and 11 any evidence that a witness has ever used narcotics or other controlled substance, or has ever been an 12 alcoholic. See United States v. Strifler, 851 F.2d 1197, 1201-1202 (9th Cir. 1988). 13

(16) Witness Addresses. The defendant requests the name and last known address of each prospective

14 government witness. See United States v. Cook, 608 F.2d 1175, 1181 (9th Cir. 1979) (defense counsel has 15 equal right to talk to witnesses). The defendant also requests the name and last known address of every 16 witness to the crime or crimes charged (or any of the overt acts committed in furtherance thereof) who will 17 not be called as a government witness. United States v. Cadet, 727 F.2d 1453 (9th Cir. 1984). 18

(17) Name of Witnesses Favorable to the Defendant. The defendant requests the name of any witness

19 who made an arguably favorable statement concerning the defendant or who could not identify him or who 20 was unsure of his identity, or participation in the crime charged. 21

(18) Statements Relevant to the Defense. The defendant requests disclosure of any statement relevant

22 to any possible defense or contention that he might assert. United States v. Bailleaux, 685 F.2d 1105 (9th Cir. 23 1982). This includes all statements by percipient witnesses. 24

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

25 including dispatch tapes, which the government must produce pursuant to the Jencks Act, 18 U.S.C. § 3500 26 and Fed. R. Crim. P. 26.2. Advance production will avoid the possibility of delay at trial to allow the 27 defendant to investigate the Jencks material. A verbal acknowledgment that "rough" notes constitute an 28 accurate account of the witness' interview is sufficient for the report or notes to qualify as a statement under

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1 section 3500(e)(1). Campbell v. United States, 373 U.S. 487, 490-92 (1963). In United States v. Boshell, 952 2 F.2d 1101 (9th Cir. 1991) the Ninth Circuit held that when an agent goes over interview notes with the subject 3 of the interview the notes are then subject to the Jencks Act. See also United States v. Riley, 189 F.3d 802, 4 806-808 (9th Cir. 1999). Defendant requests pre-trial disclosure of such statements to avoid unnecessary 5 recesses and delays for defense counsel to properly use any Jencks statements and prepare for cross6 examination. 7

(20) Giglio Information & Agreements Between the Government and Witnesses. Pursuant to Giglio

8 v. United States, 405 U.S. 150 (1972), the defendant requests all statements and/or promises, express or 9 implied, made to any witness, in exchange for their testimony in this case, and all other information which 10 could be used for impeachment. 11

(21) Agreements Between the Government and Witnesses. The defendant requests discovery

12 regarding any express or implicit promise, understanding, offer of immunity, of past, present, or future 13 compensation, or any other kind of agreement or understanding, including any implicit understanding relating 14 to criminal or civil income tax, forfeiture or fine liability, between any prospective government witness and 15 the government (federal, state and/or local). This request also includes any discussion with a potential witness 16 about or advice concerning any contemplated prosecution, or any possible plea bargain, even if no bargain 17 was made, or the advice not followed. 18

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

19 addresses of all informants or cooperating witnesses used or to be used in this case, and in particular, 20 disclosure of any informant who was a percipient witness in this case or otherwise participated in the crime 21 charged against the defendant. The government must disclose the informant's identity and location, as well 22 as disclose the existence of any other percipient witness unknown or unknowable to the defense. Roviaro v. 23 United States, 353 U.S. 52, 61-62 (1957). The government must disclose any information derived from 24 informants which exculpates or tends to exculpate the defendant. 25

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

26 information indicating bias on the part of any informant or cooperating witness. Giglio v. United States, 27 405 U.S. 150 (1972). Such information would include what, if any, inducements, favors, payments or threats 28 were made to the witness to secure cooperation with the authorities.

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(24) Personnel Records of Government Officers Involved in the Arrest. Defendant requests all citizen

2 complaints and other related internal affairs documents involving any of the immigration officers or other law 3 enforcement officers who were involved in the investigation, arrest and interrogation of Defendant. See 4 Pitchess v. Superior Court, 11 Cal. 3d 531, 539 (1974). Because of the sensitive nature of these documents, 5 defense counsel will be unable to procure them from any other source. 6

(25) Training of Relevant Law Enforcement Officers. Defendant requests copies of all written,

7 videotaped or otherwise recorded policies or training instructions or manuals issued by all law enforcement 8 agencies involved in the case (United States Customs Service, Border Patrol, DHS, Imperial Beach Sheriff's 9 Department, etc.) to their employees regarding: (1) the informing of suspects of their Constitutional rights; 10 (2) the questioning of suspects and witnesses. 11

(26) Residual Request. The defendant intends by this discovery motion to invoke his rights to

12 discovery to the fullest extent possible under the Federal Rules of Criminal Procedure and the Constitution 13 and laws of the United States. The defendant requests that the government provide him and his attorney with 14 the above requested material sufficiently in advance of trial to avoid unnecessary delay prior to cross15 examination. 16 17 18 19 A. 20

III. THE COURT MUST SUPPRESS MR. DE LA ROSA-SOTO'S STATEMENTS UNDER THE FIFTH AMENDMENT Introduction Mr. De La Rosa-Soto's alleged statements in the field and his recorded statements taken over 13 hours

21 after his arrest should be suppressed for failure to comply with Miranda, violation of the McNabb-Mallory 22 rule, and involuntariness. Mr. De La Rosa-Soto's alleged statements in the field must be suppressed because 23 he was in custody at the time he was questioned and had not been advised of his Miranda rights. And, Mr. 24 De La Rosa-Soto's recorded statements, taken over 13 hours later must also be suppressed. Although the 25 agents read Mr. De La Rosa-Soto his rights prior to the questioning, the rights were insufficient to dissipate 26 the taint of the inconsistent administrative rights that were previously read to him or the fact that his prior 27 statements were elicited without the benefit of Miranda warnings. In addition to the inadequacy of the 28 //

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1 warnings themselves, this Court should also suppress the statements based on the time that elapsed prior to 2 the interrogation. 3 B. 4

The Agents Failed to Comply with Miranda or the Safe Harbor Rule. The prosecution may not use statements, whether exculpatory or inculpatory, stemming from a

5 custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to 6 secure the privilege against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 444 (1966).1 Custodial 7 interrogation is questioning initiated by law enforcement officers after a person has been taken into custody 8 or otherwise deprived of his freedom of action in any significant way. Id. See Orozco v. Texas, 394 U.S. 324, 9 327 (1969). 10

Once a person is in custody, Miranda warnings must be given prior to any interrogation. See

11 United States v. Estrada-Lucas, 651 F.2d 1261, 1265 (9th Cir. 1980). Those warnings must advise the 12 defendant of each of his or her "critical" rights. United States v. Bland, 908 F.2d 471, 474 (9th Cir. 1990). 13 In order for the warning to be valid, the combination or the wording of its warnings cannot be affirmatively 14 misleading. United States v. San Juan Cruz, 314 F.3d 384, 387 (9th Cir. 2003). The warning must be clear 15 and not susceptible to equivocation. Id. (vacating illegal entry conviction where defendant was advised of his 16 administrative rights from an I-826 form and later advised of his Miranda rights). If a defendant indicates that 17 he wishes to remain silent or requests counsel, the interrogation must cease. Miranda, 384 U.S. at 474; see 18 also Edwards v. Arizona, 451 U.S. 484 (1981). 19 20

1.

Field Statements

Mr. De La Rosa-Soto was in custody at the time of the alleged questioning as he had been deprived

21 of his freedom by the agents. Mr. De La Rosa-Soto was not provided Miranda warnings prior to this 22 questioning. Therefore, the Court should suppress any statements made by Mr. De La Rosa-Soto in the field. 23 // 24 // 25 // 26 27
1

In Dickerson v. United States, 530 U.S. 428, 120 S. Ct. 2326 (2000), the Supreme Court held that

28 Miranda rights are no longer merely prophylactic, but are of constitutional dimension. Id. at 2336 ("we

conclude that Miranda announced a constitutional rule"). 8 08cr2031-H

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2.

Recorded Statements Taken Over Thirteen Hours After Arrest a. Violation of United States v. San Juan Cruz.

In United States v. San Juan Cruz, 314 F.3d 384, 387-88 (9th 2002), two different and conflicting

4 sets of warning were read to the defendant. First, Mr. San Juan was informed of his Administrative Rights 5 pursuant to 8 C.F.R. § 287.3. Id. Mr. San Juan was then advised, under Miranda, that if he could not afford 6 an attorney, one would be appointed for him. Id. The Ninth Circuit unambiguously held: 7 8 9

[T]o be valid, a Miranda warning must convey clearly to the arrested party that he or she possesses the right to have an attorney present prior to and during questioning. The warning also must make clear that if the arrested party would like to retain an attorney but cannot afford one, the Government is obligated to appoint an attorney for free.

10 Id. at 388 (citation omitted, emphasis in original). The Ninth Circuit determined that the two sets of warnings 11 were confusing because the defendant could not reasonably ascertain from the warnings provided whether he 12 could or could not retain the services of an attorney for free. Id. To rectify the situation, the interrogating 13 agent should have clarified his statements or advised San Juan to disregard the Administrative Rights in favor 14 of those read to him under Miranda. Id. at 389. 15

According to discovery, a second statement was taken from Mr. De La Rosa-Soto after advising him

16 of his rights under Miranda. This final statement was recorded on a DVD and produced in discovery. The 17 DVD provided by the government demonstrates that the agents did not clearly tell Mr. De La Rosa-Soto that 18 his administrative rights no longer applied and that he was entitled to an attorney during this round of 19 interrogation. Because the agents failed to clearly advise Mr. De La Rosa-Soto that his administrative rights 20 no longer applied, his statements must be suppressed. 21 22 23

b.

Mr. De La Rosa-Soto's Statements Should Be Suppressed Because the Agents Violated Missouri v. Seibert.

The statements must also be suppressed because, assuming the Miranda warnings were effectively

24 given, they were withheld until after Mr. De La Rosa-Soto had already been questioned and confessed. "The 25 threshold issue when interrogators question first and warn later is thus whether it would be reasonable to find 26 that in these circumstances the warnings could function `effectively' as Miranda requires." Missouri v. 27 Seibert, 124 S.Ct. 2601, 2610 (2004) (plurality). "By any objective measure" where interrogators withhold 28 warnings until after interrogation succeeds in eliciting a confession, "the warnings will be ineffective in

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1 preparing a suspect for successive interrogation, close in time and similar in content." Id. Unless the 2 warnings could place a suspect who has just been interrogated in a position to make an informed choice to 3 stop talking even if he had talked earlier, "there is no practical justification for accepting the formal warnings 4 as compliance with Miranda, or for treating the second stage of interrogation as distinct from the first. . ." 5 Id. Thus, "it would ordinarily be unrealistic to treat two spates of integrated and proximately conducted 6 questioning as independent interrogations subject to independent evaluation simply because Miranda warnings 7 formally punctuate them in the middle. Id. at 2611. 8

Here, the agents intentionally questioned Mr. De La Rosa-Soto without the benefit of Miranda

9 warnings, and after he confessed, provided him with Miranda warnings and recorded his statement. Because 10 the agents intentionally questioned Mr. De La Rosa-Soto without reading him his Miranda rights, under 11 Seibert, his later statements after Miranda warnings were provided should be suppressed. 12 13 14

c.

Mr. De La Rosa-Soto's Statements Should Be Suppressed Because They Were Obtained Outside the Safe-Harbor Period and He Was Not Arraigned Without Unnecessary Delay.

Mr. De La Rosa-Soto's post-arrest statements must be suppressed because they were taken more than

15 13 hours after his arrest and the government failed to arraign him without unnecessary delay as required under 16 Fed. R. Crim. P. 5(a)(1)(A). 17

Rule 5(a)(1)(A) of the Federal Rules of Criminal Procedure provides that "[a] person making an

18 arrest within the United States must take the defendant without unnecessary delay before a magistrate judge, 19 or before a state or local judicial officer . . . ." Fed. R. Crim. P. 5(a)(1)(A). The "[p]rovisions related to Rule 20 5(a) contemplate a procedure that allows arresting officers little more leeway than the interval between arrest 21 and the ordinary administrative steps required to bring a suspect before the nearest magistrate." Mallory v. 22 United States, 354 U.S. 449, 453 (1957). The police must "arraign the arrested person before a judicial officer 23 as quickly as possible so that he may be advised of his rights and so that the issue of probable cause may be 24 promptly determined." Id. at 454. The arrested person may be booked, "[b]ut he is not to be taken to police 25 headquarters in order to carry out a process of inquiry that lends itself, even if not so designed, to eliciting 26 damaging statements to support the arrest and ultimately his guilt." Id. 27

"If a United States magistrate is not reasonably available under Rule 5(a), the arrested person shall

28 be brought before a state or local judicial officer . . . and such officer shall inform the person of the rights

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1 specified in rule 5(c) and shall authorize the release of the arrested person . . ." Fed. R. Crim. P. 5, Advisory 2 Committee Notes, 1972 Amendment. The language of this provision "reflects the view that time is of the 3 essence." See Fed. R. Crim. P. 5, Advisory Committee Notes, 2002 Amendments. 4

"Legislation such as this requiring that the police must with reasonable promptness show legal cause

5 for detaining arrested persons, constitutes an important safeguard -- not only in assuring protection for the 6 innocent but also in securing conviction of the guilty by methods that commend themselves to a progressive 7 and self-confident society." Mallory, 354 U.S. at 452 (quoting McNabb v. United States, 318 U.S. 332, 342-44 8 (1943)). In order to adequately enforce the requirement of prompt arraignment, it is necessary to render 9 inadmissible incriminating statements elicited from defendants during a period of unlawful detention. Id. at 10 453. 11

In Mallory, for example, the Supreme Court found that "the circumstances of [the] case preclude a

12 holding that arraignment was without unnecessary delay." Id. at 455. There, the defendant was arrested in 13 the early afternoon, interrogated for approximately a half-hour, detained for an additional four hours, and 14 interrogated again. Id. The defendant was not arraigned until the next morning. Id. at 451. In finding the 15 statements inadmissible due to the unnecessary delay in arraignment, the Supreme Court emphasized that "[i]t 16 is not the function of the police to arrest, as it were, at large and to use an interrogating process at police 17 headquarters in order to determine whom they should charge before a committing magistrate . . . ." Id. at 456. 18

According to reports provided in discovery, Mr. De La Rosa-Soto was arrested on April 13, 2008

19 around 10:00 p.m. However, he was not interrogated by the agents until approximately 11:35 a.m., on April 20 14, 2008. Finally, the government waited until April 16, 2008 to arraign Mr. De La Rosa-Soto. As such, he 21 was not taken "without unnecessary delay before a magistrate judge, or before a state or local judicial officer 22 . . . ." as required by Rule 5. Therefore, Mr. De La Rosa-Soto's statements must be suppressed. 23

Pursuant to 18 U.S.C. § 3501(c), delay in presentment, beyond six hours, requires suppression of any

24 incriminating statements made thereafter. See 18 U.S.C. § 3501(c). "The clear meaning of this provision is 25 that delay alone permits suppression when any of these requisites are not met." United States v. Perez, 733 26 F.2d 1026, 1031 (2d Cir. 1984) (emphasis in original). Thus, the Ninth Circuit has held that "there must be 27 circumstances in which delay in arraignment will require suppression of a confession regardless of the 28 voluntariness of the confession." United States v. Alvarez-Sanchez, 975 F.2d 1396, 1401 (9th Cir. 1992),

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1 overruled on other grounds, 511 U.S. 350 (1994) (holding that the exclusionary rule--due to delay in 2 arraignment--does not apply where the person is detained solely on state charges). See also Perez, 733 F.2d 3 at 1031 ("[§] 3501 leaves the McNabb-Mallory rule intact with regard to confessions obtained after a six hour 4 delay"); United States v. Robinson, 439 F.2d 553, 563-64 (same). 5

Because Mr. De La Rosa-Soto was not questioned within the 6 hour safe harbor or promptly

6 arraigned before a magistrate judge or other state or local official, his statements must be suppressed. 7 8

d.

The Court Should Suppress Mr. De La Rosa-Soto's Recorded Statements as Involuntary.

Even when the procedural safeguards of Miranda have been satisfied, a defendant in a criminal case

9 is deprived of due process of law if his conviction is founded upon an involuntary confession. Arizona v. 10 Fulminante, 499 U.S. 279 (1991); Jackson v. Denno, 378 U.S. 368, 387 (1964). The government bears the 11 burden of proving that a confession is voluntary. Lego v. Twomey, 404 U.S. 477, 483 (1972). 12

In order to be voluntary, a statement must be the product of a rational intellect and free will.

13 Blackburn v. Alabama, 361 U.S. 199, 208 (1960). In determining whether a defendant's will was overborne 14 in a particular case, this Court must consider the totality of the circumstances. Schneckloth at 226; see also 15 United States v. Bautista-Avila, 6 F.3d 1360, 1364 (9th Cir. 1993). A statement is involuntary if it is 16 "extracted by any sort of threats or violence, [or] obtained by any direct or implied promises, however slight, 17 [or] by the exertion of any improper influence." Hutto v. Ross, 429 U.S. 28, 30 (1976) (quoting Bram v. 18 United States, 168 U.S. 532, 542-43 (1897)); see also United States v. Tingle, 658 F.2d 1332, 1335 (9th Cir. 19 1981). 20

To meet its burden, the government must demonstrate that Mr. De La Rosa-Soto's statement was

21 not the result of either threats or promises made by the agents, but was made voluntarily. And, it should be 22 noted that no law or local court rule relieves the government of its burden to prove that Mr. De La Rosa23 Soto's statements were voluntary. Indeed, the Ninth Circuit recently confirmed this proposition in United 24 States v. Medina, 524 F. 3d 974 (9th Cir. April 29, 2008). In Medina, the defendant argued that because his 25 co-defendant filed a motion to suppress and the local rule said the District Court did not have to hold an 26 evidentiary hearing, then the speedy trial clock did not toll. Id. at 982-83. The Ninth Circuit disagreed and 27 specifically held that the local rule did not change the fact that this was a motion that required an evidentiary 28 //

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1 hearing. Id. at 983 ("motions to suppress statements and evidence are of the type that would normally require 2 an evidentiary hearing.") (citing United States v. Walczak, 783 F.2d 852, 857 (9th Cir. 1986)). 3

Moreover, delay in interrogating a defendant "can provide the sole basis for a finding of

4 involuntariness, if the delay exceeds six hours." United States v. Manuel, 706 F.2d 908, 913 (9th Cir. 1983). 5 See also United States v. Perez, 733 F.2d 1026, 1031 (2d Cir. 1984) ("delay alone permits suppression") 6 (emphasis in original). In United States v. Wilson, the Ninth Circuit stated that "the fact that unreasonable 7 delay, alone, beyond six hours may support a finding of involuntariness suggests that unreasonable delay is 8 the most important factor of all [in the 3501 analysis]." 838 F.2d 1081, 1085 (9th Cir. 1988). Wilson further 9 explains "if unreasonable delay in excess of six hours can itself form the basis for a finding of involuntariness, 10 that same delay may also suggest involuntariness of the Miranda waiver." Id. at 1086. Finally, in Alvarez11 Sanchez, 975 F.2d at 1400-01, the Ninth Circuit noted that while delay prior to obtaining a confession may 12 be a basis for finding statements to be involuntary, pre-confession delay (as opposed to pre-arraignment delay) 13 need not be unreasonable to warrant suppression. Because Mr. De La Rosa-Soto's statements were obtained 14 over thirteen hours after his arrest, this Court should find that his Miranda waiver and subsequent statements 15 were involuntary, and thus, inadmissible. 16 C. 17

This Court Must Conduct An Evidentiary Hearing Accordingly, this Court must conduct an evidentiary hearing to determine whether the government

18 can meet this burden and use Mr. De La Rosa-Soto's statements against him. 18 U.S.C. § 3501; Medina, 524 19 F. 3d at 983 (motions to suppress statements and evidence "require an evidentiary hearing."). Since 20 "`suppression hearings are often as important as the trial itself,'" these findings should be supported by 21 evidence, not merely an unsubstantiated recitation of purported evidence in a prosecutor's responsive 22 pleading. See United States v. Prieto-Villa, 910 F.2d 601, 609-610 (9th Cir. 1990) (quoting Waller v. 23 Georgia, 467 U.S. 39, 46 (1984)). Mr. De La Rosa-Soto's statements were made as a result of the coercive 24 tactics employed by the agents. Unless and until the government demonstrates that these statements were 25 made voluntarily, the statements may not be used for any purpose at trial. 26 // 27 // 28 //

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1 2 3 4

IV. THE COURT SHOULD DISMISS THE INDICTMENT DUE TO MISINSTRUCTION OF THE GRAND JURY The indictment in the instant case was returned by the January 2007 grand jury. That grand jury was

5 instructed on January 11, 2007. The instructions to the impaneled grand jury deviate from the instructions 6 at issue in the major Ninth Circuit cases challenging a form grand jury instruction previously given in this 7 district in several ways.2 First, instructing grand jurors that their singular duty is to determine whether or not 8 probable cause exists and that they have no right to decline to indict when the probable cause standard is 9 satisfied. Second, instructing grand jurors of a non-existent prosecutorial duty to present exculpatory 10 evidence. These instructions compounded by the erroneous instructions and comments to prospective grand 11 jurors during voir dire of the grand jury panel, which immediately preceded the instructions. Therefore, the 12 indictment should be dismissed. 13 14 15

V. REQUEST FOR LEAVE TO FILE FURTHER MOTIONS Mr. De La Rosa-Soto and defense counsel have not received all the discovery in this case. As new

16 information comes to light, the defense may find it necessary to file further motions. Specifically, defense 17 counsel has not yet had the opportunity to view the A-file in this case. Therefore, defense counsel requests 18 the opportunity to file further motions based upon information gained from any further discovery. 19 // 20 // 21 // 22 // 23 // 24 // 25

See, e.g., United States v. Cortez-Rivera, 454 F.3d 1038 (9th Cir. 2006); United States v. De La Rosa-Soto-Vargas, 408 F.3d 1184 (9th Cir.) (en banc), cert. denied, 126 S. Ct. 736 (2005) (De La Rosa27 Soto-Vargas II); United States v. De La Rosa-Soto-Vargas, 367 F.3d 896 (9th Cir. 2004)(De La RosaSoto-Vargas I); United States v. Marcucci, 299 F.3d 1156 (9th Cir. 2002) (per curiam). If the Court or the 28 government request further briefing on this issue, or the transcript from the grand jury proceedings, then it will be provided forthwith.
26

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1 2 3

VI. CONCLUSION For the reasons stated above, Mr. De La Rosa-Soto respectfully requests that this Court grant the

4 foregoing motions. 5 6 7 DATED: June 23, 2008 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted,

/s/ Robert R. Hensler ROBERT R. HENSLER Federal Defenders of San Diego, Inc. Attorneys for Pedro De La Rosa-Soto

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