Free Motion for Discovery - District Court of California - California

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1 ROBERT H. REXRODE, III California State Bar No. 230024 2 427 C Street, Suite 300 San Diego, California 92101 3 Telephone: (619) 233-3169, Ext. 13 Facsimile: (619) 684-3553 4 [email protected] 5 Attorney for Mr. Jose Baudilo Gastelum 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 (HONORABLE JANIS L. SAMMARTINO) 10 UNITED STATES OF AMERICA, 11 12 Plaintiff, 13 v. 14 15 JOSE BAUDILIO GASTELUM, 16 Defendant. 17 18 19 20 21 22 23 TO: 24 25 KAREN P. HEWITT, UNITED STATES ATTORNEY, CHARLOTTE KAISER, ASSISTANT UNITED STATES ATTORNEY PLEASE TAKE NOTICE that on August 21, 2008, at 9:00 a.m., or as soon thereafter ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. DATE: TIME: 08cr2032-JLS August 21, 2008 9:00 a.m.

NOTICE OF MOTIONS: TO COMPEL DISCOVERY; TO PRESERVE EVIDENCE; TO SUPPRESS EVIDENCE UNDER THE FOURTH AMENDMENT (4) TO SUPPRESS STATEMENTS UNDER THE FIFTH AMENDMENT; (5) TO SEVER COUNTS; (6) TO DISMISS THE INDICTMENT DUE TO MISINSTRUCTION (7) TO PRODUCE GRAND JURY INSTRUCTIONS; AND, (8) FOR LEAVE TO FILE FURTHER MOTIONS. ________________________________ (1) (2) (3)

26 as counsel may be heard, the defendant, Jose Gastelum, by and through his counsel, Robert 27 Rexrode, will ask this Court to enter an order granting the following motions. 28 //

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MOTIONS The defendant, Jose Gastelum, by and through his attorney, Robert Rexrode, pursuant

3 to the United States Constitution, the Federal Rules of Criminal Procedure, and all other 4 applicable statutes, case law and local rules, hereby moves this Court for an order: 5 6 7 8 9 These motions are based upon the instant motions and notice of motions, the attached 10 statement of facts and memorandum of points and authorities, and all other materials that 11 may come to this Court's attention at the time of the hearing on these motion. 12 13 Respectfully submitted, 14 15 Dated: August 10, 2008 16 17 18 19 20 21 22 23 24 25 26 27 28 2 08cr2032 /s/ Robert H. Rexrode ROBERT H. REXRODE, III Attorney for Mr. Gastelum [email protected] 1) to compel discovery; 2) to preserve evidence; 3) to suppress evidence under the Fourth Amendment; 4) to suppress statements under the Fifth Amendment; 5) to sever counts; 6) to dismiss the indictment due to misinstruction; 7) to produce grand jury transcripts; and, 8) granting leave to file further motions.

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1 ROBERT H. REXRODE, III California State Bar No. 230024 2 427 C Street, Suite 300 San Diego, California 92101 3 Telephone: (619) 233-3169, Ext. 13 Facsimile: (619) 684-3553 4 [email protected] 5 Attorney for Mr. Jose Baudilo Gastelum 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 (HONORABLE JANIS L. SAMMARTINO) 10 UNITED STATES OF AMERICA, 11 Plaintiff, 12 v. 13 JOSE BAUDILIO GASTELUM, 14 15 16 17 18 19 1. I. FACTUAL HISTORY1 Overview of Case & Charges Defendant. _________________________________ ) ) ) ) ) ) ) ) ) CASE NO. 08cr2032-JLS STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTIONS.

Agents arrested Mr. Gastelum on June 5, 2008. They did so after using a spike-strip

20 (euphemistically described by agents as a Controlled Tire Deflation Device) to puncture the tires of 21 a car allegedly driven by Mr. Gastelum. Once agents stopped the car, they discovered six 22 undocumented immigrants. Agents chose to retain three of these immigrants. At the request of 23 Mr. Gastelum, the government retained a fourth immigrant from the car. Agents then sent the 24 remaining two immigrants back to Mexico. 25 // 26 27 The following facts are based on information provided by the government. Mr. Gastelum 28 does not admit their accuracy and reserves the right to challenge them.
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The government has charged Mr. Gastelum, via indictment, with eight counts of violating

2 8 U.S.C. § 1324. Four of those charges allege that Mr. Gastelum "transported" four illegal 3 immigrants, in violation of 8 U.S.C. § 1324 (a)(1)(A)(ii) and (v)(II). 4 The four other charges allege that Mr. Gastelum "brought" four illegal immigrants to the

5 United States, in violation of 8 U.S.C. § 1324 (a)(2)(B)(ii). For these four "bring-to" counts, the 6 government alleged, under 18 U.S.C. § 2, that Mr. Gastelum aided and abetted in the violation of 7 the substantive counts. 8 The government has also inserted, into its indictment, an "allegation" that Mr. Gastelum

9 committed "the offenses charged in Counts 1 thru 8 while he was on pretrial release for felony 10 charges in Criminal Case No. 07CR3318-JLS, and therefore is subject to an enhanced penalty of not 11 more than one year[,]" under 18 U.S.C. § 3147. 12 13 2. Events Leading to Arrest

According to information provided by the government, the events leading to Mr. Gastelum's

14 arrest began about 7:11 a.m. on June 5, 2008. At that time, agents patrolling the area around 15 Calexico, California, received a call from security agents at the Calexico Port of Entry that six people 16 had gotten into a white sedan. These six people had gotten into the car in an area in the United 17 States, near the border with Mexico. 18 A border patrol agent, Jay Catalioto, spotted a white sedan with several people in it, and

19 began to follow the car. Following the car onto Interstate 8, Agent Catalioto conferred with other 20 agents over the radio, and coordinated the setting-up of a Controlled Tire Deflation Device (CTDD), 21 otherwise known as a spike-strip. 22 About ten minutes after first receiving the call regarding the people getting into the car,

23 agents threw the spike-strip across Interstate 8. According to Agent Catalioto, he turned on his car's 24 emergency lights and sirens before another agent threw the spike-strip. After the car drove over the 25 spike-strip, the car's tires went flat and the car out of control. 26 27 3. Post-Arrest Statement by Mr. Gastelum

Following his arrest, Mr. Gastelum made inculpatory statements in response to questioning

28 by agents. Agents documented some of their exchange with Mr. Gastelum on videotape. This video 2 08cr2032

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1 begins about an hour after Mr. Gastelum's arrest. On the video, a supervising agent, Nelson Antiles, 2 begins by advising Mr. Gastelum of his rights under Miranda. Mr. Gastelum asks to speak with an 3 attorney and agents turn off the videotape. About two minutes later, the video is turned back on, and 4 Agent Antiles asks Mr. Gastelum if he "voluntarily" wants to speak with agents. Mr. Gastelum says 5 he does, and Agent Antiles then interrogates Mr. Gastelum for about twenty minutes. During this 6 interrogation, Mr. Gastelum gives a series of inculpatory statements, but also tells agents that he had 7 been forced into driving the car that day. 8 9 4. The Material Witnesses

Agents chose to retain three of the immigrants involved in this case. At the request of Mr.

10 Gastelum, the government retained a fourth immigrant from the car. Agents then sent the remaining 11 two immigrants back to Mexico. 12 13 a. those retained by the government Of the four immigrants retained in this case, Agents spoke to all four. None of these people

14 recall hearing sirens or seeing emergency lights before the car rolled over the spike-strip. When 15 interviewed by agents on the day of their detention, all four of these people told the agents that the 16 person who guided them across the border stayed in Mexico and that no guide had crossed the border 17 with them. Months later, in an interview with agents in late September, one of the immigrants 18 changed her story. This immigrant now claims that a foot-guide accompanied them across the border 19 and was in the car with them. During this September interview, this immigrant purportedly 20 identified the foot-guide from a photographic display. 21 22 b. those returned to Mexico The agents in this case returned two of the immigrants involved back to Mexico before

23 defense counsel had an opportunity to interview them. According to information provided by the 24 government, the: "male subject was processed for reinstatement of deportation. The other remaining 25 smuggled (sic) did not make any exculpatory statements concerning the driver." 26 27 5. Indictment

The government secured it indictment against Mr. Gastelum from the January 2007 Grand

28 Jury, which received its initial instructions from District Judge Larry A. Burns. 3 08cr2032

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II. MOTION COMPEL DISCOVERY2 Mr. Gastelum requests the following discovery. His request is not limited to those items that

4 the prosecutor knows of. It includes all discovery listed below that is in the custody, control, care, 5 or knowledge of any "closely related investigative [or other] agencies." See United States v. Bryan, 6 868 F.2d 1032 (9th Cir. 1989). 7 (1) Brady Information. The defendant requests all documents, statements, agents' reports,

8 and tangible evidence favorable to the defendant on the issue of guilt and/or which affects the 9 credibility of the government's case. Under Brady v. Maryland, 373 U.S. 83 (1963), impeachment 10 as well as exculpatory evidence falls within the definition of evidence favorable to the accused. 11 United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 427 U.S. 97 (1976). 12 (2) Any Proposed 404(b) Evidence. The government must produce evidence of prior similar

13 acts under Fed. R. Crim. P. 16(a)(1) and Fed. R. Evid. 404(b) and any prior convictions which would 14 be used to impeach as noted in Fed. R. Crim. P. 609. In addition, under Fed. R. Evid. 404(b), "upon 15 request of the accused, the prosecution . . . shall provide reasonable notice in advance of trial . . . of 16 the general nature" of any evidence the government proposes to introduce under Fed. R. Evid. 404(b) 17 at trial. The defendant requests notice two weeks before trial to give the defense time to investigate 18 and prepare for trial. 19 (3) Request for Preservation of Evidence. The defendant requests the preservation of all

20 physical evidence that may be destroyed, lost, or otherwise put out of the possession, custody, or care 21 of the government and which relate to the arrest or the events leading to the arrest in this case. This 22 request includes, but is not limited to, the results of any fingerprint analysis, the defendant's personal 23 effects, and any evidence seized from the defendant or any third party. 24 25 Mr. Gastelum has previously filed a motion to compel discovery in this case. He did so on June 13, 2008, under the then-numbered magistrate case, 08mj8509. Even though some of this 27 earlier motion is now moot, due to discovery provided by the government, Mr. Gastelum nonetheless incorporates the previously filed motion by reference in order to preserve any appellate issues, should 28 they arise. The earlier filed motion is attached as Exhibit A.. 26 4 08cr2032
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(4) Defendant's Statements. The defendant requests disclosure and production of all

2 statements made by the defendant. This request includes, but is not limited to, the substance of any 3 oral statement made by the defendant, Fed. R. Crim. P. 16(a)(1)(A), and any written or recorded 4 statement made by the defendant. Fed. R. Crim. P. 16(a)(1)(B)(i)-(iii). 5 (5) Tangible Objects. The defendant seeks to inspect and copy as well as test, if necessary,

6 all other documents and tangible objects, including photographs, books, papers, documents, alleged 7 narcotics, fingerprint analyses, vehicles, or copies of portions thereof, which are material to the 8 defense or intended for use in the government's case-in-chief or were obtained from or belong to the 9 defendant. Fed. R. Crim. P. 16(a)(1)(E). 10 (6) Expert Witnesses. The defendant requests the name, qualifications, and a written

11 summary of the testimony of any person that the government intends to call as an expert witness 12 during its case in chief. Fed. R. Crim. P. 16(a)(1)(G). 13 (7) Witness Addresses. The defendant requests access to the government's witnesses. Thus,

14 counsel requests a witness list and contact phone numbers for each prospective government witness. 15 Counsel also requests the names and contact numbers for witnesses to the crime or crimes charged 16 (or any of the overt acts committed in furtherance thereof) who will not be called as government 17 witnesses. 18 (8) Jencks Act Material. Mr. Gastelum requests production in advance of trial of material

19 discoverable under the Jencks Act, 18 U.S.C. § 3500. Advance production will avoid needless 20 delays at pretrial hearings and at trial. This request includes any "rough" notes taken by the agents 21 in this case. This request also includes production of transcripts of the testimony of any witness 22 before the grand jury. See 18 U.S.C. § 3500(e)(1)-(3). 23 (9) Informants and Cooperating Witnesses. Mr. Gastelum requests disclosure of the

24 name(s), address(es), and location(s) of all informants or cooperating witnesses used or to be used 25 in this case, and in particular, disclosure of any informant who was a percipient witness in this case 26 or otherwise participated in the crime charged against Mr. Gastelum. Roviaro v. United States, 353 27 U.S. 52, 61-62 (1957). The government must disclose any information derived from informants 28 which exculpates or tends to exculpate Mr. Gastelum. Brady v. Maryland, 373 U.S. 83 (1963). The 5 08cr2032

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1 government must disclose any information indicating bias on the part of any informant or 2 cooperating witness. Id. 3 4 5 (10) Specific Discovery Requests a. request for "tecs." Mr. Gastelum requests production of any "tecs" related to the car he was arrested

6 in, or any such "tec" searches run. This information is discoverable under United States v. Vega, 188 7 F.3d 1150 (9th Cir. 1999). Alternatively, it is discoverable under Fed. R. Crim. P. 16 (1)(E)(i). 8 9 b. request to view the car. Mr. Gastelum requests access to the car in which he was arrested. See Fed. R.

10 Crim. P. 16 (1)(E)(I). 11 12 c. identities and contact information of those in the car Mr. Gastelum requests disclosure of the identities and contact information of the two

13 undocumented immigrants involved in this case who were returned by agents to Mexico. These 14 people are percipient witnesses to the alleged crime committed by Mr. Gastelum and their identities 15 are thus discoverable. See, e.g., Roviaro v. United States, 353 U.S. 52, 61-62 (1957). Defense 16 counsel also has a good-faith belief that their observations may be material to the preparation of Mr. 17 Gastelum's defense, and thus any documents or data related to these individuals are discoverable 18 under Federal Rule of Criminal Procedure, Rule 16 (a)(1)(E)(i). Additionally, the government has 19 an affirmative duty to disclose information which exculpates or tends to exculpate Mr. Gastelum. 20 Brady v. Maryland, 373 U.S. 83 (1963). And last, as a matter of simple fairness and due process, 21 the government should disclose those people are witnesses to the events that led to Mr. Gastlum's 22 arrest, particularly when Mr. Gastelum does not have the ability to ascertain the identities or location 23 of these witnesses. 24 25 d. reports concerning those immigrants returned to Mexico The agents in this case returned two of the immigrants involved back to Mexico before

26 defense counsel had an opportunity to interview them. According to information provided by the 27 government, the: "male subject was processed for reinstatement of deportation. The other remaining 28 smuggled (sic) did not make any exculpatory statements concerning the driver." Mr. Gastelum 6 08cr2032

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1 requests production of any reports--whether formal or inputted into the immigration service's 2 computer system--concerning the interviews conducted of these two people. To the degree 3 statements made by these two support Mr. Gastelum's Fourth Amendment motion, and to the degree 4 statements made by these two support Mr. Gastelum's theory that the government must rely on an 5 aiding and abetting theory to prosecute four of the counts in the indictment, this material is 6 exculpatory, material, and thus discoverable. See Fed. R. Crim. P. 16 (1)(E)(I); Brady, 373 U.S. 83; 7 United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 427 U.S. 97 (1976). 8 9 e. information concerning the September interview When interviewed by agents on the day of their detention, all four of the retained immigrants

10 told the agents that the person who guided them across the border stayed in Mexico and that no guide 11 had crossed the border with them. Months later, in an interview with agents in late September, one 12 of the immigrants changed her story. This immigrant now claims that a foot-guide accompanied 13 them across the border and was in the car with them. During this September interview, this 14 immigrant purportedly identified the foot-guide from a photographic display. Mr. Gastelum requests 15 discovery regarding this September interview--including the circumstances surrounding how this 16 interview came to pass and the circumstances surrounding the immigrant's putative identification 17 of the foot-guide who purportedly came into the United States. This information is material, and 18 thus discoverable, for three reasons: 1) it will go toward whether the government must rely on an 19 aiding and abetting theory for four of the counts in the indictment; 2) it will go towards the potential 20 impeachment of this immigrant; and 3) it may provide a basis for suppression of the identification 21 on due process grounds as unduly suggestive. See Fed. R. Crim. P. 16 (1)(E)(I); Brady, 373 U.S. 83; 22 Bagley, 473 U.S. 667; Agurs, 427 U.S. 97. 23 24 f. Gigilio/Henthorn material Mr. Gastelum specifically requests that the Assistant United States Attorney assigned to this

25 case oversee a review of all personnel files of each agent involved in the present case for 26 impeachment material. Kyles v. Whitley, 115 S. Ct. 1555 (1995); United States v. Henthorn, 931 27 F.2d 29 (9th Cir. 1991); but see United States v. Herring, 83 F.3d 1120 (9th Cir. 1996). 28 7 08cr2032

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1 Mr. Gastelum requests this review, and production of any such material, sufficiently in advance of 2 the motion-hearing date to be useful at the anticipated evidentiary hearing. 3 (11) Residual Request. Mr. Gastelum 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 5 Constitution and laws of the United States. 6 7 8 9 III. MOTION TO PRESERVE EVIDENCE3 1. Car Allegedly Driven by Mr. Gastelum Mr. Gastelum requests the government preserve the car allegedly driven by Mr. Gastelum

10 in this case. See Fed. R. Crim. P. (a)(1)(E)(i). 11 12 2. Law Enforcement Communications Related to the Arrest The government has disclosed an audio compact-disc of communications between agents on

13 the day of Mr. Gastelum's arrest. From this compact-disc, it appears that agents communicated 14 electronically with each other by means other than the communications memorialized on this 15 compact-disc. Mr. Gastelum thus requests preservation of all recorded communications between 16 agents as they relate to Mr. Gastelum's arrest on June 5, 2008. Defense counsel has a good-faith 17 belief that these communications may be material to the preparation of Mr. Gastelum's defense, and 18 thus are discoverable under Federal Rule of Criminal Procedure, Rule 16 (a)(1)(E)(i). 19 20 21 A. 22 IV. MOTION TO SUPPRESS EVIDENCE UNDER THE FOURTH AMENDMENT Introduction Government agents seized Mr. Gastelum in violation of the Fourth Amendment. Agents

23 lacked reasonable suspicion to seize Mr. Gastelum, they lacked probable cause to seize Mr. 24 Gastelum, and they used excessive force when seizing Mr. Gastelum. 25 26 Mr. Gastelum has previously filed a motion to preserve evidence in this case. He did so on 27 June 13, 2008, under the then-numbered magistrate case, 08mj8509. Even though some of this 28 earlier motion is now moot, due to discovery provided by the government, Mr. Gastelum nonetheless incorporates the previously filed motion by reference in order to preserve any appellate issues, should they arise. The earlier filed motion is attached as Exhibit A.. 8 08cr2032
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For these reasons,

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1 Mr. Gastelum moves to suppress all physical evidence discovered as a result of his unlawful seizure. 2 Mr. Gastelum also moves, for the same reasons, to suppress any statements made by him following 3 his unlawful seizure. 4 B. 5 The government bears the burden of justifying this warrantless seizure Agents seized Mr. Gastelum without a warrant. That seizure is therefore presumptively

6 unreasonable. See United States v. Hawkins, 249 F.3d 867, 872 (9th Cir. 2001). It is the 7 government's burden to demonstrate that its agents complied with the Fourth Amendment. See id. 8 C. 9 Agents lacked reasonable suspicion Although, as discussed below, Mr. Gastelum's position is that agents needed (at a minium)

10 probable cause to seize him in the manner they chose to do so, agents nonetheless lacked even 11 reasonable suspicion to seize Mr. Gastelum. Because they lacked reasonable suspicion to seize Mr. 12 Gastelum, agents violated the Fourth Amendment when seizing Mr. Gastelum. 13 The Fourth Amendment proscribes "unreasonable searches and seizures." U.S. Const.,

14 amend IV. Temporary detention of individuals during the stop of an automobile, even if only for a 15 brief period and for a limited purpose, constitutes a "seizure" within the meaning of the Fourth 16 Amendment, and must be supported by at least reasonable suspicion. See Delaware v. Prouse, 440 17 U.S. 648, 653 (1979); United States v. Martinez-Fuerte, 428 U.S. 543, 556 (1976). Reasonable 18 suspicion requires that the agent making the stop be "aware of specific, articulable facts which, when 19 considered with objective and reasonable inferences, form a basis for particularized suspicion." 20 United States v. Montero-Camargo, 208 F.3d 1122, 1129 (9th Cir. 2000) (en banc). 21 The Fourth Amendment protection from unreasonable searches and seizures applies to

22 persons in moving vehicles. See United States v. Cortez, 449 U.S. 411, 417 (1981). These 23 protections also apply to persons driving near the United States' border with Mexico. Roving border 24 patrol agents must have reasonable suspicion, based on specific and articulable facts, in order to 25 initiate a stop. United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975); Gonzalez-Rivera v. 26 I.N.S., 22 F.3d 1441, 1445 (1994). "Reasonable suspicion requires that the specific facts and 27 inferences create suspicion `that the particular person detained is engaged in criminal activity.'" 28 United States v. Rodriguez-Sanchez, 23 F.3d 1488, 1493 (9th Cir. 1994). 9 08cr2032

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In assessing reasonable suspicion, this Court looks to the "`totality of the circumstances' of

2 each case," keeping in mind that "an officer's reliance on a mere `hunch' is insufficient to justify a 3 stop." United States v. Arvizu, 534 U.S. 266, 273-74 (2002). It is well-settled that factors that 4 describe too many legitimate individuals do not create reasonable suspicion. Sigmond-Ballesteros, 5 285 F.3d 1117; Salinas, 940 F.2d 392 (9th Cir. 1991); Hernandez-Alvarado, 891 F.2d 1414 6 (9th Cir. 1989). See also Rodriguez-Sanchez, 23 F.3d at 1492 (reasonable suspicion may not be 7 "based on broad profiles which cast suspicion on entire categories of people without any individual 8 suspicion of the particular person to be stopped"), overruled in part on other grounds by Montero9 Camargo, 208 F.3d at 1131-32. When viewed in their totality, the factors undergirding the agents' 10 stop of Mr. Gastelum are constitutionally deficient. 11 The "totality of the circumstances" in this case includes the following: 1) Agents had a report

12 that six people got into a car near the border; 2) agents saw a car matching the one reported; 3) an 13 agent saw people in that car and what the agent believed was the driver speaking with them. These 14 circumstances do not add up to reasonable suspicion to seize a person. Allowing a seizure under 15 these circumstances would allow for officers to sweep too many people into an investigative net. 16 On the day agents seized Mr. Gastelum, he was driving on paved roadways near a busy Port of Entry. 17 He lawfully entered a major interstate thoroughfare--Interstate 8. Mr. Gastelum's actions that day 18 mirror those of any person driving in the area. Even when viewed in their totality, those factors 19 present here describe far too many legitimate individuals to support a "reasonable suspicion." 20 United States v. Rodriguez, 976 F.2d 592, 595-96 (9th Cir. 1992); United States v. Salinas, 940 F.2d 21 392, 393-95 (9th Cir. 1991); United States v. Hernandez-Alvarado, 891 F.2d 1414, 1418 (9th Cir. 22 1989). 23 D. 24 Agents lacked probable cause Even assuming for the sake of argument that agents had reasonable suspicion to seize Mr.

25 Gastelum, the manner in which agents chose to seize Mr. Gastelum warranted at least a level of 26 suspicion of at least probable cause. As agents lacked probable cause to arrest Mr. Gastelum, they 27 violated the Fourth Amendment. 28 // 10 08cr2032

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As the Ninth Circuit has observed, "[t]he line between an arrest without probable cause and

2 an investigatory stop based on founded suspicion is blurred and often difficult to determine[.]" 3 United States v. Beck, 598 F.2d 497, 500 (9th Cir. 1979). Although "a suspicious individual may 4 be briefly stopped and detained for purposes of limited inquiry . . . . the dimensions of an encounter 5 between the individual and officer may be sufficiently constrictive to cause the average person, 6 innocent of crime, to reasonably think he was being arrested." Id. (footnote omitted). In determining 7 whether an arrest has occurred, "a significant consideration is the extent that freedom of movement 8 is curtailed." Id. at 500-01 (citing Sibron v. New York, 392 U.S. 40, 67 (1968)). "The other critical 9 consideration is the degree and manner of force used in the stop and detention." Id. at 501. 10 Agents clearly arrested Mr. Gastelum when the spike-strip they laid in front of the car he was

11 driving violently brought the car to a stop. At the moment the car ran over the spike-strip, Mr. 12 Gastelum's freedom of movement was seriously curtailed. Indeed, for a moment, Mr. Gastelum 13 completely lost control of his freedom of movement. Suddenly, unexpectantly and without warning, 14 Mr. Gastelum went from driving down a major interstate on four good tires to having the car's tires 15 taken out from underneath him. After coming to rest off the interstate, Mr. Gastelum's freedom of 16 movement had changed dramatically. No longer could he drive on his way. Had agents not found 17 anything incriminating in the car, Mr. Gastelum would have been stuck on Interstate 8, miles from 18 a garage that might be able to repair the damage wrought by the agents. This type of seizure, almost 19 by definition, will always constitute an abridgement of movement more similar to an arrest than an 20 investigatory stop. Cf. Florida v. Royer, 460 U.S. 491, 503 (1983) (fact that agents had control of 21 an airline passenger's luggage and ticket eviscerated consensual nature of earlier encounter between 22 the passenger and agents, contributed to passenger being, "[a]s a practical matter [] under arrest"); 23 United States v. Place, 462 U.S. 696, 708-08 (1983) ("The person whose luggage is detained is 24 technically still free to continue his travels or carry out other personal activities pending release of 25 the luggage. . . . Nevertheless, such a seizure can effectively restrain the person since he is subjected 26 to the possible disruption of his travel plans in order to remain with his luggage or to arrange for its 27 return."). A reasonable person, having had federal agents seriously damage their car on a major 28 interstate, would have reasonably believed he or she had been arrested by those agents. Cf. id. At 11 08cr2032

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1 a minimum, under these circumstances, a reasonable person engaged in no illegality would not have 2 felt free to leave once he or she had answered the agent's initial questions--the damage done to the 3 car made that impossible. See United States v. Chavez-Valenzuela, 268 F.3d 719, 724 (2001) ("An 4 officer must initially restrict the questions he asks during a stop to those that are reasonably related 5 to the justification for the stop."); see also Place, 462 U.S. at 708-08. 6 By violently stopping Mr. Gastelum, agents effectuated an arrest. As agents arrested Mr.

7 Gastelum when they spike-stripped the car he was driving, the question becomes whether that arrest 8 was reasonable within the meaning of the Fourth Amendment. See Beck v. Ohio, 379 U.S. 89, 91 9 (1964). Whether an arrest is "constitutionally valid depends in turn upon whether, at the moment 10 the arrest was made, the officers had probable cause to make it--whether at that moment the facts 11 and circumstances within their knowledge and of which they had reasonably trustworthy information 12 were sufficient to warrant a prudent man in believing that the petitioner had committed or was 13 committing an offense." Id. For those reasons discussed above in the section discussing whether 14 the agents had reasonable suspicion to seize Mr. Gastelum, circumstances known to agents when 15 they arrested Mr. Gastelum were insufficient to support a finding of probable cause. His arrest 16 consequently violated the Fourth Amendment. See United States v. Beck, 598 F.2d at 502. 17 E. 18 Agents used excessive force Even assuming for the sake of argument that agents had probable cause to seize

19 Mr. Gastelum, agents used excessive force in seizing Mr. Gastelum. In doing so, agents violated the 20 Fourth Amendment when seizing Mr. Gastelum. 21 Where "excessive force claims arise[] in the context of an arrest or investigatory stop of a

22 free citizen, it is most properly characterized as one invoking the protections of the Fourth 23 Amendment . . . ." Graham v. Connor, 490 U.S. 386, 394 (1989). The "`reasonableness' of a 24 particular seizure depends not only on when it is made, but also on how it is carried out." Id. at 395 25 (emphasis in original) (citing Tennessee v. Garner, 471 U.S. 1, 7-8 (1985)). "Determining whether 26 the force used to effect a particular seizure is `reasonable' under the Fourth Amendment requires a 27 careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment 28 interests against the countervailing governmental interests at stake." Connor, 490 U.S. at 396. This, 12 08cr2032

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1 in turn, depends upon "the facts and circumstances of each particular case, including the severity of 2 the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or 3 others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id.; Tatum 4 v. City and County of San Francisco, 441 F.3d 1090, 1095 (9th Cir. 2006). 5 In seizing Mr. Gastelum, agents used excessive force. Without gainsaying the government's

6 interest in interdicting drug and immigrant smugglers, the nature of a spike-strip's intrusion on an 7 individual's right to travel is considerable. Not merely an inconvenience, as opposed to a traffic 8 stop, falling victim to a spike-strip entails serious consequences. There is the potential for serious 9 injury. More mundanely, there is the cost and inconvenience of replacing damaged tires. There is 10 also the elongated seizure inherent in a method of detaining a person by destroying the tires of his 11 or her car. When agents use a spike-strip to seize someone, the intrusion visited on that person far 12 exceeds that associated with a traffic stop. 13 Nor do the particular facts of Mr. Gastelum's case warrant such a use of force. Without a

14 clear idea of what they were dealing with, the agents here cannot have made a reasoned decision that 15 the severity of the crime warranted such a use of force. Nor did Mr. Gastelum pose an immediate 16 threat to officers. Whether an individual poses an "immediate threat to the safety of the officers or 17 others" is a relevant consideration when an agent decides to use force. Connor, 490 U.S. at 396 18 (emphasis added). Here, however, the agents had no reason to believe that Mr. Gastelum posed an 19 immediate threat to anyone. He did not flee from officers. He did not know they were there. Even 20 crediting the incredible--that Agent Catalioto activated his emergency light and sirens before the 21 spike-strip was deployed--an interval of mere seconds does not constitute a "flight" from officers 22 that justifies the use of such a dangerous tactic. Under these circumstances, agents used an 23 unreasonable amount of force. In doing so, they violated the Fourth Amendment. 24 F. 25 26 Relief Sought 1. Suppression

Mr. Gastelum requests that all physical evidence discovered following his seizure be

27 suppressed. Evidence obtained in violation of the Fourth Amendment cannot be used in criminal 28 proceedings. Weeks v. United States, 232 U.S. 383, 398 (1914). 13 08cr2032

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1

Mr. Gastelum also requests that any statements made by him following his illegal seizure be

2 suppressed. Statements obtained as a result of a Fourth Amendment violation must be suppressed. 3 United States v. Johnson, 626 F.2d 753, 759 (9th Cir. 1980). They are suppressible regardless of 4 whether they are "voluntary" for Fifth Amendment purposes, and regardless of whether Miranda 5 warnings preceded them. Id. at 757-58. To vindicate Fourth Amendment interests, if a statement 6 is causally connected to a Fourth Amendment violation it must be suppressed. Id. 7 In determining if a statement is causally connected to a Fourth Amendment violation, courts

8 look to three factors: (1) the "temporal proximity" between the violation and the statement; (2) the 9 presence of any intervening circumstances; and (3) "the purpose and flagrancy of the official 10 misconduct." Johnson, 626 F.2d at 758. Mr. Gastelum's statements are causally related to his illegal 11 seizure. They occurred about an hour after Mr. Gastelum was illegally seized. Mr. Gastelum was 12 in continuous custody during that time period. There were thus no intervening circumstances that 13 would break the causal connection between the illegal arrest of Mr. Gastelum and his statements. 14 As for the third factor, "the purpose and flagrancy of the official misconduct," it is relevant only in 15 relation to how it motivates the defendant. See id. at 758. That is, the third factor only serves to 16 inform a finding of casual connection between the illegality and the statement. Flagrant misconduct 17 is not required for suppression. See id. at 759 (suppressing statement on the basis of the first two 18 factors alone). Nonetheless, the agents' conduct here was flagrant. Without sufficient warning or 19 sufficient cause, they violently stopped the car driven by Mr. Gastelum. 20 21 22 A. 23 V. MOTION TO SUPPRESS STATEMENTS UNDER THE FIFTH AMENDMENT Introduction Following his arrest, Mr. Gastelum made inculpatory statements in response to questioning

24 by agents. During this interrogation, Mr. Gastelum gives a series of inculpatory statements, but also 25 tells agents that he had been forced into driving the car that day. Nr. Gastelum moves to suppress 26 these statements on two grounds: the agents' violation of Miranda and an inadequate showing that 27 Mr. Gastelum's statements were voluntarily made. 28 // 14 08cr2032

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1 B. 2

Violation of Miranda In order for any statements made by Mr. Gastelum to be admissible against him, the

3 government must demonstrate that they were obtained in compliance with Miranda v. Arizona, 384 4 U.S. 436 (1966). . The government must establish that Mr. Gastelum' waiver of his Miranda rights 5 was voluntary, knowing, and intelligent. See Schneckloth v. Bustamonte, 412 U.S. 218 (1973). 6 When interrogation continues without the presence of an attorney, and a statement results, the 7 government has a heavy burden to demonstrate that the defendant has intelligently and voluntarily 8 waived his privilege against self-incrimination. Miranda, 384 U.S. at 475. The court must indulge 9 every reasonable presumption against waiver of fundamental constitutional rights, so the burden on 10 the government is great. United States v. Heldt, 745 F. 2d 1275, 1277 (9th Cir. 1984). 11 There should be no dispute that Mr. Gastelum invoked his right to counsel under Miranda.

12 Agents documented some of their interrogation with Mr. Gastelum on videotape. On the video, a 13 supervising agent, Nelson Antiles, begins by advising Mr. Gastelum of his rights under Miranda. 14 Mr. Gastelum asks to speak with an attorney and agents turn off the videotape. 15 According to discovery provided by the government, however, agents state that Mr. Gastelum

16 "began to speak freely" about his case after requesting an attorney. After this, about two minutes 17 later, the video is turned back on, and Agent Antiles asks Mr. Gastelum if he "voluntarily" wants to 18 speak with agents. Mr. Gastelum says he does, and Agent Antiles then interrogates Mr. Gastelum 19 for about twenty minutes. Mr. Gastelum assumes the government will argue that Mr. Gastelum "re20 initiated" a conversation after he invoked his right to counsel. 21 "[W]hen an accused has invoked his right to counsel present during custodial interrogation,

22 a valid waiver of that right cannot be established by showing only that he responded to further 23 police-initiated custodial interrogation even if he has been advised of his rights." Edwards v. 24 Arizona, 451 U.S. 477, 484 (1981). Once a person has "expressed his desire to deal with police only 25 through counsel, [he] is not subject to further interrogation by authorities until counsel has been 26 made available to him, unless the accused himself initiates further communication, exchanges, or 27 conversations with the police." Id at 484-85. 28 // 15 08cr2032

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1

This rule, know as the Edwards rule, is "designed to prevent police from badgering a

2 defendant into waiving his previously asserted Miranda rights." United States v. Michaud, 268 F.3d 3 728, 737 (9th Cir. 2001) (bracket in original quote omitted to restore male gender to sentence) 4 (quoting Michigan v. Harvey, 494 U.S. 344, 350 (1990)). In short, "if the accused invoked his right 5 to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated 6 further discussions with the police, and (b) knowingly and intelligently waived the right he had 7 invoked." Smith v. Illinois, 469 U.S. 91, 95 (1984). 8 The government has not met its burden to demonstrate that Mr. Gastelum initiated further

9 questioning by agents. Nor has the government met its burden that Mr. Gastelum knowingly and 10 intelligently waived his previously invoked right to counsel. Although Mr. Gastelum's invocation 11 of his right to counsel is on video, the two minutes within which agents say he "began to speak 12 freely" are curiously missing from the videotape. An agent's cursory statement about what occurred 13 when the videotape was not running is insufficient to meet the government's burden to demonstrate 14 that Mr. Gastelum validly waived his rights under Miranda. 15 C. 16 Voluntariness of Statement Even if this Court determines that Mr. Gastelum validly waived his Miranda rights, it must

17 still make a determination that any statements made were voluntary. Under 18 U.S.C. § 3501(a), this 18 Court is required to determine, whether any statements made by Mr. Gastelum were voluntary. In 19 addition, section 3501(b) requires this Court to consider various enumerated factors, including 20 whether Mr. Gastelum understood the nature of the charges against him and whether he understood 21 his rights. Without such evidence, this Court cannot adequately consider these statutorily mandated 22 factors. Moreover, section 3501(a) requires this Court to make a factual determination. Where a 23 factual determination is required, Fed. R. Crim. P. 12 obligates courts to make factual findings. See 24 United States v. Prieto-Villa, 910 F.2d 601, 606-10 (9th Cir. 1990). Because "`suppression hearings 25 are often as important as the trial itself,'" id. at 610 (quoting Waller v. Georgia, 467 U.S. 39, 46 26 (1984)), these findings should be supported by evidence, not merely an unsubstantiated recitation 27 of purported evidence in a prosecutor's responsive pleading. 28 // 16 08cr2032

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1 2 3 A. 4 Introduction

VI. MOTION TO SEVER COUNTS

The Grand Jury returned an eight-count indictment against Mr. Gastelum. Four of those

5 charges allege that Mr. Gastelum "transported" four illegal immigrants, in violation of 8 U.S.C. § 6 1324 (a)(1)(A)(ii) and (v)(II). The four other charges allege that Mr. Gastelum "brought" four illegal 7 immigrants to the United States, in violation of 8 U.S.C. § 1324 (a)(2)(B)(ii). For these four "bring8 to" counts, the government alleged, under 18 U.S.C. § 2, that Mr. Gastelum aided and abetted in the 9 violation of the substantive counts. Mr.Gastelum moves to sever these groups of four from each 10 other. The basis for this severance is the impracticability of instructing the jury, and having the jury 11 be able to follow the Court's instructions, on a duress defense. 12 B. 13 Legal Standard For Severance The government may charge Mr. Gastelum with multiple counts if those counts "are based

14 on the same act or transaction, or are connected with or constitute parts of a common scheme or 15 plan." Fed. R. Crim. P. 8(a). Because the Grand Jury alleged that Mr. Gastelum committed all 16 counts at roughly the same time, the eight counts alleged by the Grand Jury against Mr. Gastelum 17 appear to meet this standard. Nonetheless, even when counts are properly joined under Federal Rule 18 of Criminal Procedure 8(a), severance may still be available under Federal Rule of Criminal 19 Procedure 14(a). See United States v. Lewis, 787 F.2d 1318, 1320-21. Under Federal Rule of 20 Criminal Procedure 14(a), a court may order severance if "joinder of offenses . . . appears to 21 prejudice a defendant or the government . . . ." Fed. R. Crim. P. 14(a). It would do so here. 22 C. 23 Varying Burdens in Duress Cases As the government is aware, it is likely that the defense of duress will be at issue should this

24 case go to trial. Mr. Gastelum contends that depending on the charge, either the transportation 25 charges or the aiding and abetting charges--different parties will have to carry the burden on whether 26 Mr. Gastelum acted under duress. 27 Until January 2007, the Ninth Circuit had two very different jury instructions relevant to a

28 duress defense. See Ninth Circuit Model Jury Instruction ("Model Jury Instruction") No. 6.5 (West 17 08cr2032

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1 2003); Model Jury Instruction No. 6.6 (West 2003); see also United States v. Dominguez-Mestas, 2 929 F.2d 1379, 1384 (1991); id. at n.3; United States v. Meraz-Soloman, 3 F.3d 298, 299-300 (9th 3 Cir. 1993). These two jury instructions allocated the burden of proof on the issue of duress based 4 on the nature of the crime charged. For example, where a "defense of duress does not involve 5 refutation of any of the elements of the offense . . . it is proper to place the burden of proving that 6 defense by a preponderance of the evidence on the defendant." Dominguez-Mestas, 929 F.2d 1379. 7 Model Jury Instruction 6.6 expressed this rule of law and was used to charge juries on duress where 8 "the offense charged does not have a mens rea element[.]" See Model Jury Instruction No. 6.6 (West 9 2003) (text and comment). However, when the offense charged had a mens rea element and duress 10 is raised to rebut this element, the government must "prove the absence of duress beyond a 11 reasonable doubt[.]" Model Jury Instruction No. 6.5 (West 2003) (text and comment) (citing United 12 States v. Dominguez-Mestas, 929 F.2d 1379, 1381 (9th Cir. 1991)). In other words, depending on 13 the nature of the charge against a defendant, either the defendant or the government may bear the 14 burden of proving, or disapproving, the existence of duress. 15 Complicating this state of affairs, some Ninth Circuit Model Jury Instructions were changed

16 in January 2007. One of those changed at that time was the duress instruction relevant to where a 17 duress defense refuted an element of the offense. See Model Jury Instruction No. 6.5 (2008), 18 available at http://207.41.19.15/web/sdocuments.nsf/crim, last visited Aug. 6, 2008. In this change, 19 the committee which writes the model instructions shifted the burden on the issue of duress from the 20 government to the defendant. Id. The committee did so on the basis of an intervening Supreme 21 Court case. Id. (at first comment). As the committee put it: "In Dixon v. United States, 126 S. Ct. 22 2437 (2006), the Supreme Court decided the burden of proof announced in this instruction, changing 23 what had previously been the law in the Ninth Circuit." Id. Problem is, Dixon did no such thing. 24 In Dixon, the Supreme Court addressed which party should bear the burden on the issue of

25 duress in the context of a statute that required only two mental states: that the defendant had 26 knowledge of the facts that constituted the offense, and knowledge that her actions were illegal. 126 27 S. Ct. at 2241. That is all the Court decided. The Court explicitly stated that it was not holding that 28 a defendant must bear the burden on a duress defense for all crimes. Id. ("existence of duress 18 08cr2032

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1 normally does not controvert any elements of the offense itself"); see also id. at 2242, n.4. Indeed, 2 in summing up the scope of its holding, the Court stated: 3 4 5 6 In light of Congress' silence on the issue, however, it is up to the federal courts to effectuate the affirmative defense of duress as Congress "may have contemplated" it in an offense-specific context. In the context of the firearms offenses at issue--as will normally be the case, given the long established common-law rule--we presume that Congress intended the petitioner to bear the burden of proving the defense of duress by a preponderance of the evidence.

7 Id. at 2247-48 (emphasis added) (citation omitted). That is all Dixon held. In deciding that this one 8 case overturned decades of Ninth Circuit precedent, the committee that writes the model instructions 9 got it wrong. This is not terribly surprising. Cf. United States v. Hedgwood, 977 F.2d 492, 496 (9th 10 Cir. 1992) ("Had the district court merely read the model jury instruction, it would have committed 11 plain error"). As discussed below, under Ninth Circuit law, the government properly bears the 12 burden on the issue of duress for those counts that charge Mr. Gastelum with aiding and abetting the 13 bringing in of the immigrants. 14 D. 15 16 Application of Different Burdens to Mr. Gastelum's Case 1. The Transportation Charges

Under Ninth Circuit law, Mr. Gastelum will bear the burden on the issue of duress for those

17 charges involving the transportation of the immigrants. United States v. Hernandez-Franco, 189 18 F.3d 1151, 1157-58 (9th Cir. 1999). For those charges involving aiding and abetting, however, the 19 government bears the burden. 20 21 2. The Aiding and Abetting Charges

Aiding and abetting a crime requires proof that a person desired the substantive offense to

22 take place. Acting under duress necessarily negates this subjective desire that the substantive offense 23 take place. It is for this reason that the government must bear the burden on whether Mr. Gastelum 24 aided and abetted others in bringing people to the United States. 25 Under Ninth Circuit law, "if a defense negates an element of the crime, rather than mitigates

26 culpability once guilt is proven, it is unconstitutional to put the burden of proof on the defendant." 27 Hernandez-Franco, 189 F.3d at 1157 (internal quotation marks omitted). What this boils down to 28 is "whether proof of duress necessarily entails disproof of the mens rea required for a violation" of 19 08cr2032

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1 the statute charged. Id. at 1158 (internal quotation marks omitted). In turn, "[c]onviction as an aider 2 and abettor requires proof the defendant willingly associated himself with the venture and 3 participated therein as something he wished to bring about." United States v. Lopez, 484 F.3d 1186, 4 1199 (9th Cir. 2007) (en banc) (emphasis added, brackets in original). Conviction as an aider and 5 abettor requires the government to prove that a person "command[ed], counsel[ed] or otherwise 6 encourage[d] [a] perpetrator to commit the crime." Id. (brackets added, emphasis in original). In 7 other words, to sustain a conviction of an aider and abettor, the government must prove that a 8 defendant actively sought out and wanted the substantive offense to take place. 9 Needless to say, a person acting under duress is not voluntarily associating himself with a

10 venture he seeks to succeed. By definition, a person acting because of a direct threat has been 11 shanghaied, or pressed into, a venture not of his own making and not one that he desires, or wishes, 12 to bring about. A person acting under duress may know what he is doing, and that what he is doing 13 is against the law, (as was the case in Dixon, 126 S. Ct. 2437), but he cannot be said to be acting in 14 a manner that expresses his voluntary desire to see the crime occur, or "as something he wished to 15 bring about." Lopez, 484 F.3d at 1199. A person acting under duress participates in a crime because 16 of the threat, not because he has encouraged others to act. Id. For this reason, "proof of duress 17 necessarily entails disproof of the mens rea required" to sustain a conviction as an aider and abettor, 18 and thus, the government bears the burden to disprove the existence of duress. Hernandez-Franco, 19 189 F.3d at 1157-58. 20 21 3. Need for Severance

In this case, both standards relevant to a duress defense will be at play. It is too much to ask

22 of a jury to compartmentalize these conflicting burdens. Asking the jury to do so will promote 23 confusion and runs the risk of prejudicing Mr. Gastelum. For this reason he requests this Court sever 24 the transportation charges from those involving aiding and abetting. 25 // 26 // 27 // 28 // 20 08cr2032

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1 2

IV. MOTION TO DISMISS THE INDICTMENT DUE TO MISINSTRUCTION

3 A. Introduction 4 The indictment in this case was returned by the January 2007 grand jury. That grand jury was

5 instructed by the Honorable Larry A. Burns, United States District Court Judge on January 11, 2007. 6 See Reporter's Partial Transcript of the Proceedings, dated January 11, 2007.4 Judge Burns' 7 instructions deviate from the instructions at issue in the major Ninth Circuit cases challenging a form 8 grand jury instruction previously given in this district in several ways.5 9 After repeatedly emphasizing to the grand jurors that probable cause determination was their

10 sole responsibility, see Ex. A at 3, 3-4, 5,6 Judge Burns instructed the grand jurors that they were 11 forbidden "from judg[ing] the wisdom of the criminal laws enacted by Congress; that is, whether or 12 not there should be a federal law or should not be a federal law designating certain activity [as] 13 criminal is not up to you." See id. at 8. The instructions go beyond that, however, and tell the grand 14 jurors that, should "you disagree with that judgment made by Congress, then your option is not to 15 say 'well, I'm going to vote against indicting even though I think that the evidence is sufficient' or 16 'I'm going to vote in favor of even though the evidence may be insufficient.'" See id. at 8-9. Thus, 17 the instruction flatly bars the grand jury from declining to indict because the grand jurors disagree 18 with a proposed prosecution. 19 20 21 22 23 24 25 26 The following motion has been litigated extensively in this district. District Judge Barry Ted Moskowitz entered a written decision on this motion in United States v. Martinez-Covvarrubias, No. 07cr0491-BTM. Given the size of the transcripts under consideration, and as both the government and the Court likely have these transcripts, Mr. Gastelum has not attached either of the two transcripts he cites. The first transcript referred to is the Reporter's Partial Transcript of the Proceedings, dated January 11, 2007. Mr. Gastelum refers to this transcript as "Exhibit A" throughout this motion. The second transcript cited to by Mr. Gastelum is the Partially redacted, transcripts of the grand jury impanelment proceedings. Ms. Gastelum refers to this transcript as "Exhibit B" throughout this motion. Mr. Gastelum is happy to provide a copy of these transcripts.
5 4

See, e.g., United States v. Cortez-Rivera, 454 F.3d 1038 (9th Cir. 2006); United States v. Navarro-Vargas, 408 F.3d 1184 (9th Cir.) (en banc), cert. denied, 126 S. Ct. 736 (2005) (Navarro27 Vargas II); United States v. Navarro-Vargas, 367 F.3d 896 (9th Cir. 2004)(Navarro-Vargas I); 28 United States v. Marcucci, 299 F.3d 1156 (9th Cir. 2002) (per curiam).
6

See also id. at 20 ("You're all about probable cause."). 21

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1

Immediately before limiting the grand jurors' powers in the way just described, Judge Burns

2 referred to an instance in the grand juror selection process in which he excused three potential jurors. 3 See id. at 8. 4 5 6 7 Id. That "principle" was Judge Burns' discussion of the grand jurors' inability to give effect to their 8 disagreement with Congress. See id. at 8-9. Thus, Judge Burns not only instructed the grand jurors 9 on his view of their discretion; he enforced that view on pain of being excused from service as a 10 grand juror. 11 For example, in one of his earliest substantive remarks, Judge Burns makes clear that the I've gone over this with a couple of people. You understood from the questions and answers that a couple of people were excused, I think three in this case, because they could not adhere to the principle that I'm about to tell you.

12 grand jury's sole function is probable cause determination. 13 14 15 16 17 See Exhibit B at 8. In this passage, Judge Burns twice uses the term "should" in a context that makes 18 clear that the term is employed to convey instruction: "should" cannot reasonably be read to mean 19 optional when it addresses the obligation not to indict when the grand jury has no "reasonable belief 20 that a crime was committed" or if it has no "reasonable belief that the person that they propose that 21 we indict committed the crime." 22 Equally revealing are Judge Burns' interactions with two potential grand jurors who indicated [T]he grand jury is determining really two factors: "do we have a reasonable belief that a crime was committed? And second, do we have a reasonable belief that the person that they propose that we indict committed the crime?" If the answer is "yes" to both of those, then the case should move forward. If the answer to either of the questions is "no," then the grand jury should not hesitate and not indict.

23 that, in some unknown set of circumstances, they might decline to indict even where there was 24 probable cause. Because of the redactions of the grand jurors' names, Ms. Martinez will refer to 25 them by occupation. One is a retired clinical social worker (hereinafter CSW), and the other is a real 26 estate agent (hereinafter REA). The CSW indicated a view that no drugs should be considered 27 illegal and that some drug prosecutions were not an effective use of resources. See id. at 16. The 28 CSW was also troubled by certain unspecified immigration cases. See id. 22 08cr2032

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1

Judge Burns made no effort to determine what sorts of drug and immigration cases troubled

2 the CSW. He never inquired as to whether the CSW was at all troubled by the sorts of cases actually 3 filed in this district, such as drug smuggling cases and cases involving reentry after deportation and 4 alien smuggling. Rather, he provided instructions suggesting that, in any event, any scruples LCW 5 may have possessed were simply not capable of expression in the context of grand jury service. 6 7 8 9 10 See id. at 16-17 (emphasis added). Thus, without any sort of context whatsoever, Judge Burns let 11 the grand juror know that he would not want him or her to decline to indict in an individual case 12 where the grand juror "[didn't] like what our government is doing," see id. at 17, but in which there 13 was probable cause. See id. Such a case "should go forward." See id. Given that blanket 14 proscription on grand juror discretion, made manifest by Judge Burns' use of the pronoun "I", the 15 CSW indicated that it "would be difficult to support a charge even if [the CSW] thought the evidence 16 warranted it." See id. Again, Judge Burns' question provided no context; he inquired regarding "a 17 case," a term presumably just as applicable to possession of a small amount of medical marijuana 18 as kilogram quantities of methamphetamine for distribution. Any grand juror listening to this 19 exchange could only conclude that there was no case in which Judge Burns would permit them to 20 vote "no bill" in the face of a showing probable cause. 21 Just in case there may have been a grand juror that did not understand his or her inability to 22 exercise anything like prosecutorial discretion, Judge Burns drove the point home in his exchange 23 with REA. REA first advised Judge Burns of a concern regarding the "disparity between state and 24 federal law" regarding "medical marijuana." See id. at 24. Judge Burns first sought to address 25 REA's concerns about medical marijuana by stating that grand jurors, like trial jurors, are simply 26 forbidden from taking penalty considerations into account. 27 28 Well, those things -- the consequences of your determination shouldn't concern you in the sense that penalties or punishment, things like that -- we tell trial jurors, of course, that they cannot consider the punishment or the consequence that Congress 23 08cr2032 Now, the question is can you fairly evaluate [drug cases and immigration cases]? Just as the defendant is ultimately entitled to a fair trial and the person that's accused is entitled to a fair appraisal of the evidence of the case that's in front of you, so, too, is the United States entitled to a fair judgment. If there's probable cause, then the case should go forward. I wouldn't want you to say, "well, yeah, there's probable cause, but I still don't like what our government is doing. I disagree with these laws, so I'm not going to vote for it to go forward." If that is your frame of mind, the probably you shouldn't serve. Only you can tell me that.

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has set for these things. We'd ask you to also abide by that. We want you to make a business-like decision of whether there was a probable cause. ...

3 Id. at 24-25. Having stated that REA was to "abide" by the instruction given to trial jurors, Judge 4 Burns went on to suggest that REA recuse him or herself from medical marijuana cases. See id. at 5 25. 6 7 See id. In response to further questioning, REA disclosed REA's belief "that drugs should be legal." That disclosure prompted Judge Burns to begin a discussion that ultimately led to an

8 instruction that a grand juror is obligated to vote to indict if there is probable cause. 9 10 11 12 13 14 15 16 17 Id. at 26-27 (emphasis added). Thus, the grand juror's duty is to conduct a simple two part test, I can tell you sometimes I don't agree with some of the legal decisions that are indicated that I have to make. But my alternative is to vote for someone different, vote for someone that supports the policies I support and get the law changed. It's not for me to say, "well, I don't like it. So I'm not going to follow it here." You'd have a similar obligation as a grand juror even though you might have to grit your teeth on some cases. Philosophically, if you were a member of congress, you'd vote against, for example, criminalizing marijuana. I don't know if that's it, but you'd vote against criminalizing some drugs. That's not what your prerogative is here. You're prerogative instead is to act like a judge and say, "all right. This is what I've to deal with objectively. Does it seem to me that a crime was committed? Yes. Does it seem to me that this person's involved? It does." And then your obligation, if you find those to be true, would be to vote in favor of the case going forward.

18 which, if both questions are answered in the affirmative, lead to an "obligation" to indict. 19 Having set forth the duty to indict, and being advised that REA was "uncomfortable" with

20 that paradigm, Judge Burns then set about to ensure that there was no chance of a deviation from the 21 obligation to indict in every case in which there was probable cause. 22 23 24 25 The Court: do you think you'd be inclined to let people go in drug cases even though you were convinced there was probable cause they committed a drug offense? REA: It would depend on the case. The Court: Is there a chance that you would do that? REA: Yes. The Court: I appreciate your answers. I'll excuse you at this time.

26 Id. at 27. Two aspects of this exchange are crucial. First, REA plainly does not intend to act solely 27 on his political belief in decriminalization -- whether he or she would indict "depend[s] on the case," 28 see id., as it should. Because REA's vote "depend[s] on the case," see id., it is necessarily true that 24 08cr2032

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1 REA would vote to indict in some (perhaps many or even nearly all) cases in which there was 2 probable cause.7 Again, Judge Burns made no effort to explore REA's views; he did not ascertain 3 what sorts of cases would prompt REA to hesitate. The message is clear: it does not matter what 4 type of case might prompt REA's reluctance to indict because, once the two part test is satisfied, the 5 "obligation" is "to vote in favor of the case going forward." See id. at 27. That is why even the 6 "chance," see id., that a grand juror might not vote to indict was too great a risk to run. 7 In addition to his instructions on the authority to choose not to indict, Judge Burns also

8 assured the grand jurors that prosecutors would present to them evidence that tended to undercut 9 probable cause. See id. at 20.8 10 11 12 13 Now, again, this emphasizes the difference between the function of the grand jury and the trial jury. You're all about probable cause. If you think that there's evidence out there that might cause you to say "well, I don't think probable cause exists," then it's incumbent upon you to hear that evidence as well. As I told you, in most instances, the U.S. Attorneys are duty-bound to present evidence that cuts against what they may be asking you to do if they're aware of that evidence.

14 Id. (emphasis added).9 The district court later returned to the notion of the prosecutors and their 15 duties, advising the grand jurors that they "can expect that the U.S. Attorneys that will appear in from 16 of [them] will be candid, they'll be honest, and ... they'll act in good faith in all matters presented to 17 you." See id. at 27. 18 In the general instructions, Judge Burns posits a duty on the