Free Motion for Fingerprint Exemplars - District Court of California - California

Case 3:08-cr-01722-L

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KAREN P. HEWITT United States Attorney NICOLE ACTON JONES Assistant U.S. Attorney California State Bar No. 231929 United States Attorney's Office 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-5482 E-mail: [email protected] Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA ) ) Plaintiff, ) ) ) v. ) ) ) JORGE ANTONIO ) RODRIGUEZ-BARRON, ) ) ) Defendant. ) ) ) ) ) ____________________________________) Criminal Case No. 08CR1722-L GOVERNMENT'S MOTION FOR: (1) FINGERPRINT EXEMPLARS (2) RECIPROCAL DISCOVERY TOGETHER WITH STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES Date: June 30, 2007 Time: 2:00 p.m.

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COMES NOW the plaintiff, UNITED STATES OF AMERICA, by and through its counsel, 21 Karen P. Hewitt, United States Attorney, and Nicole Acton Jones, Assistant United States Attorney, and 22 hereby files its Motion for Fingerprint Exemplars and Reciprocal Discovery in the above-referenced 23 case. Said motions are based upon the files and records of this case together with the attached statement 24 of facts and memorandum of points and authorities. 25 // 26 // 27 // 28 // //

Case 3:08-cr-01722-L

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I STATEMENT OF THE CASE On May 28, 2008, a federal grand jury in the Southern District of California returned a single count Indictment charging defendant Jorge Antonio Rodriguez-Barron with Attempted Entry After Deportation, in violation of Title 8, United States Code, Section 1326. On May 29, 2008, Defendant was arraigned on the Indictment and entered a plea of not guilty. II STATEMENT OF FACTS DEFENDANT'S APPREHENSION On May 1, 2008, Border Patrol Agent Quintero was conducting line watch duties in the "Wrucks Canyon" area. This location is about 2.5 miles east of the San Ysidro Port of Entry and is about 250 yards north of the border. At about 1:39 a.m., a remote video surveillance operator advised agents in the field that he had observed five people cross the primary and secondary border fence and run north into the "Wrucks Canyon" area. With the help of the RVSS operator and air support, Agent Quintero found the group of individuals. All five, including Defendant, admitted to being citizens of Mexico without immigration documents. At the station, Defendant's biographical information, fingerprints and photograph were entered into the IDENT and IAFIS computer databases, which revealed Defendant's criminal and immigration history. On May 1, 2008, at about 4:50 a.m., Defendant was advised of his Miranda rights. Defendant elected to invoke his right to counsel. Defendant was advised of his right to speak to consular office and declined B. DEFENDANT'S CRIMINAL HISTORY In June 2006, Defendant was convicted of felony evasion of police with disregard to safety and sentenced to 16 months in custody. In February 2005, Defendant was convicted of a DUI and being a felon in possession of a firearm and was sentenced to probation. In November 1995, Defendant was convicted of a DUI and sentenced to five days in jail and probation. In August 1993, Defendant was convicted of willful discharge of a firearm and carrying a concealed weapon in a vehicle and was sentenced to 90 days in jail. In July 1990, Defendant was convicted of possession of a controlled 2 08CR1722-L

Case 3:08-cr-01722-L

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substance for sale and was sentenced to 2 years in prison. In February 1986, Defendant was convicted of petty theft and received probation. The United States believes that Defendant has at least 7 criminal history points and is a criminal history category IV. C. DEFENDANT'S IMMIGRATION HISTORY On July 7, 2005, an immigration judge ordered that Defendant be deported from the United States to Mexico. The judge specifically found that Defendant's claim to United States citizenship was not supported by the record to rebut his alienage established by his birth in Mexico. On April 28, 2007, Defendant was physically removed from the United to Mexico through the San Ysidro Port of Entry. Defendant was most recently removed from the United States on April 28, 2007. III UNITED STATES' MOTIONS A. FINGERPRINT EXEMPLARS The United States requests that the Court order that Defendant make himself available for fingerprinting by the United States' fingerprint expert. See United States v. Ortiz-Hernandez, 427 F.3d 567, 576-77 (9th Cir. 2005) (Government may have defendant fingerprinted and use criminal and immigration records in Section 1326 prosecution). The privilege against self-incrimination only applies to testimonial evidence. See Schmerber v. California, 384 U.S. 757, 761 (1966) (withdrawal of blood is not testimonial). Identifying physical characteristics, including fingerprints, are not testimonial in nature and the collection and use of such evidence does not violate Defendant's Fifth Amendment right against self-incrimination. United States v. DePalma, 414 F.2d 394, 397 (9th Cir. 1969). B. RECIPROCAL DISCOVERY The Government has and will continue to fully comply with its discovery obligations. To date, the Government has provided Defendant with 309 pages of discovery. The Government has provided Defendant with a complete copy of his A-File. The Government will provide counsel with the audiotape from Defendant's hearing before an Immigration Judge as soon as the tape is received and a duplicate has been made. Furthermore, the Government will request that the arresting agency

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preserve any evidence the Government intends to introduce in its case-in-chief or that may be material to the defense. The Government moves the Court to order Defendant to provide all reciprocal discovery to which the United States is entitled under Rules 16(b) and 26.2. Rule 16(b)(2) requires Defendant to disclose to the United States all exhibits and documents which Defendant "intends to introduce as evidence in chief at the trial" and a written summary of the names, anticipated testimony, and bases for opinions of experts the defendant intends to call at trial under Rules 702, 703, and 705 of the Federal Rules of Evidence. IV CONCLUSION For the foregoing reasons, the Government respectfully requests that its motions be granted. DATED: June 20, 2008.

Respectfully Submitted, KAREN P. HEWITT United States Attorney /s/ Nicole Acton Jones NICOLE ACTON JONES Assistant U.S. Attorney

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Case 3:08-cr-01722-L

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 None 19 20 21 22 23 24 25 26 27 28 5 08CR1722-L the last known address, at which place there is delivery service of mail from the United States Postal Service. I declare under penalty of perjury that the foregoing is true and correct. Executed on June 20, 2008. /s/ Nicole Acton Jones NICOLE ACTON JONES Assistant U.S. Attorney v. JORGE ANTONIO RODRIGUEZ-BARRON, Defendant. ___________________________________ IT IS HEREBY CERTIFIED THAT: I, NICOLE ACTON JONES, am a citizen of the United States and am at least eighteen years of age. My business address is 880 Front Street, Room 6293, San Diego, California 92101-8893. I am not a party to the above-entitled action. I have caused service of GOVERNMENT'S MOTION FOR FINGERPRINT EXEMPLARS AND RECIPROCAL DISCOVERY on the following parties by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically notifies them. 1. Lee Plummer I hereby certify that I have caused to be mailed the foregoing, by the United States Postal Service, to the following non-ECF participants on this case: UNITED STATES OF AMERICA, Plaintiff, ) Criminal Case No. 08CR1722-L ) ) ) ) ) ) ) CERTIFICATE OF SERVICE ) ) ) ) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA