Free Motion to Compel - District Court of California - California

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1 GREGORY MURPHY California State Bar No. 245505 2 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 3 San Diego, California 92101-5030 Telephone: (619) 234-8467 4 [email protected] 5 Attorneys for Mr. Barrie Dempsey 6 7 8 9 10 11 12 UNITED STATES OF AMERICA, 13 14 v. 15 16 BARRIE DEMPSEY, 17 18 19 TO: 20 21 PLEASE TAKE NOTICE that on June 20, 2008, at 1:30 p.m., or as soon thereafter as Defendant. Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 08-cr-1723-JLS DATE: TIME: June 20, 2008 1:30 p.m. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE JANIS L. SAMMARTINO)

NOTICE OF MOTIONS AND MOTIONS: (1) (2) TO COMPEL DISCOVERY; AND FOR LEAVE TO FILE FURTHER MOTIONS

__________________________________

KAREN P. HEWITT, UNITED STATES ATTORNEY; AND CAROLINE HAN, ASSISTANT UNITED STATES ATTORNEY:

22 counsel may be heard, the defendant, Barrie Dempsey, by and through his counsel, 23 Gregory T. Murphy and Federal Defenders of San Diego, Inc., will ask this Court to enter an order 24 granting the following motions. 25 // 26 // 27 // 28 //

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MOTIONS The defendant, Barrie Dempsey, by and through his attorneys, Gregory Murphy and Federal

3 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 5 Court for an order: 6 7 8 1) compelling discovery; and 2) for leave to file further motions. These motions are based upon the instant motions and notice of motions, the attached

9 statement of facts and memorandum of points and authorities, and all other materials that may come 10 to this Court's attention at the time of the hearing on these motions. 11 12 13 Dated: June 11, 2008 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Respectfully submitted, /s/ Gregory Murphy GREGORY MURPHY Federal Defenders of San Diego, Inc. Attorneys for Mr. Barrie Dempsey [email protected]

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1 GREGORY MURPHY California State Bar No. 245505 2 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 3 San Diego, California 92101-5030 Telephone: (619) 234-8467 4 [email protected] 5 Attorneys for Mr. Dempsey 6 7 8 9 10 11 12 UNITED STATES OF AMERICA, 13 14 v. 15 BARRY DEMPSEY 16 17 18 19 20 I. STATEMENT OF FACTS The government alleges Mr. Dempsey brought an undocumented immigrant to the Defendant _________________________________ Plaintiff, ) ) ) ) ) ) ) ) ) ) CASE NO. 08-cr-1723-JLS STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTIONS UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE JANIS L. SAMMARTINO)

21 United States with the intent to violate the immigration laws and for the purpose of commercial 22 advantage or private financial gain. 23 24 25 II. MOTION TO COMPEL DISCOVERY Mr. Dempsey requests the following discovery. His request is not limited to those items

26 of which the prosecutor is aware. It includes all discovery listed below that is in the custody, control, 27 care, or knowledge of any "closely related investigative [or other] agencies." See United States v. 28 Bryan, 868 F.2d 1032 (9th Cir. 1989).

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The Defendant's Statements. The government must disclose to Mr. Dempsey all copies

2 of any written or recorded statements made by Mr. Dempsey; the substance of any statements made 3 by Mr. Dempsey that the government intends to offer in evidence at trial; any response by 4 Mr. Dempsey to interrogation; the substance of any oral statements that the government intends to 5 introduce at trial and any written summaries of Mr. Dempsey's oral statements contained in the 6 handwritten notes of the government agent; any response to any Miranda warnings that may have 7 been given to Mr. Dempsey; and any other statements by Mr. Dempsey. Fed. R. Crim. P. 8 16(a)(1)(A) and (B). The Advisory Committee Notes and the 1991 amendments to Rule 16 make 9 clear that the government must reveal all Mr. Dempsey's statements, whether oral or written, 10 regardless of whether the government intends to make any use of those statements. 11 2. Arrest Reports, Notes and Dispatch Tapes. Mr. Dempsey also specifically requests that

12 all arrest reports, notes and dispatch or any other tapes that relate to the circumstances surrounding 13 his arrest or any questioning, if such reports have not already been produced in their entirety, be 14 turned over to him. This request includes, but is not limited to, any rough notes, records, reports, 15 transcripts or other documents in which statements of Mr. Dempsey or any other discoverable 16 material is contained. Mr. Dempsey includes in this request any redacted portions of the Report of 17 Investigation ("ROI") and any subsequent ROIs that the case agent or any other agent has written. 18 This is all discoverable under Fed. R. Crim. P. 16(a)(1)(A) and (B) and Brady v. Maryland, 373 U.S. 19 83 (1963). See also Loux v. United States, 389 F.2d 911 (9th Cir. 1968). Arrest reports, 20 investigator's notes, memos from arresting officers, dispatch tapes, sworn statements, and 21 prosecution reports pertaining to Mr. Dempsey are available under Fed. R. Crim. P. 16(a)(1)(A) and 22 (B), Fed. R. Crim. P. 26.2 and 12(I). Preservation of rough notes is requested, whether or not the 23 government deems them discoverable. 24 3. Brady Material. Mr. Dempsey requests all documents, statements, agents' reports, and

25 tangible evidence favorable to him on the issue of guilt and/or that affects the credibility of the 26 government's case. Impeachment and exculpatory evidence both fall within Brady's definition of 27 evidence favorable to the accused. United States v. Bagley, 473 U.S. 667 (1985); United States v. 28 Agurs, 427 U.S. 97 (1976). 2

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Any Information That May Result in a Lower Sentence. As discussed above, any

2 information that may result in a more favorable sentence must also be disclosed pursuant to Brady, 3 373 U.S. 83. The government must disclose any cooperation or attempted cooperation by Mr. 4 Dempsey, as well as any information that could affect any base offense level or specific offense 5 characteristic under Chapter Two of the United States Sentencing Commission Guidelines Manual 6 ("Guidelines"). Also included in this request is any information relevant to a Chapter Three 7 adjustment, a determination of Mr. Dempsey's criminal history, or any other application of the 8 Guidelines. 9 5. The Defendant's Prior Record. Evidence of a prior record is available under Fed. R.

10 Crim. P. 16(a)(1)(D). Mr. Dempsey specifically requests a complete copy of any criminal record. 11 6. Any Proposed 404(b) Evidence. Evidence of prior similar acts is discoverable under Fed.

12 R. Crim. P. 16(a)(1)(D) and Fed. R. Evid. 404(b) and 609. In addition, under Fed. R. Evid. 404(b), 13 "upon request of the accused, the prosecution . . . shall provide reasonable notice in advance of trial 14 . . . of the general nature . . . ." of any evidence the government proposes to introduce under Fed. R. 15 Evid. 404(b) at trial. Sufficient notice requires the government to "articulate precisely the evidential 16 hypothesis by which a fact of consequence may be inferred from the other acts evidence." United 17 States v. Mehrmanesh, 689 F.2d 822, 830 (9th Cir. 1982) (emphasis added; internal citations 18 omitted); see also United States v. Brooke, 4 F.3d 1480, 1483 (9th Cir. 1993) (reaffirming 19 Mehrmanesh and reversing convictions). 20 This includes any "TECS" records (records of prior border crossings) that the government

21 intends to introduce at trial, whether in its case-in-chief, impeachment, or rebuttal. Although there 22 is nothing intrinsically improper about prior border crossings, they are nonetheless subject to 404(b), 23 as they are "other acts" evidence that the government must produce before trial. United States v. 24 Vega, 188 F.3d 1150, 1154-1155 (9th Cir. 1999). Mr. Dempsey requests that such notice be given 25 three weeks before trial to give the defense time to adequately investigate and prepare for trial. 26 7. Evidence Seized. Evidence seized as a result of any search, either warrantless or with a

27 warrant, is discoverable under Fed. R. Crim. P. 16(a)(1)(E). 28 // 3

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Request for Preservation of Evidence. The defense specifically requests that all dispatch

2 tapes or any other physical evidence that may be destroyed, lost, or otherwise put out of the 3 possession, custody, or care of the government and that relate to the arrest or the events leading to 4 the arrest in this case be preserved. This request includes, but is not limited to vehicle involved in 5 the case, Mr. Dempsey's personal effects, the alleged marijuana, and any evidence seized from Mr. 6 Dempsey or any third party. This request also includes any material or percipient witnesses who 7 might be deported or otherwise likely to become unavailable (e.g. undocumented aliens and 8 transients). Mr. Dempsey requests that the prosecutor be ordered to question all the agencies and 9 individuals involved in the prosecution and investigation of this case to determine if such evidence 10 exists, and if it does exist, to inform those parties to preserve any such evidence. 11 9. Henthorn Material. Mr. Dempsey requests that the Assistant United States Attorney

12 ("AUSA") assigned to this case oversee (not personally conduct) a review of all personnel files of 13 each agent involved in the present case for impeachment material. See Kyles v. Whitley, 514 U.S. 14 437, 438 (1995) (holding that "the individual prosecutor has a duty to learn of any favorable 15 evidence known to the others acting on the government's behalf in the case, including the police"); 16 United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991). This request includes, but is not limited to, 17 any complaints filed (by a member of the public, by another agent, or any other person) against the 18 agent, whether or not the investigating authority has taken any action, as well as any matter for which 19 a disciplinary review was undertaken, whether or not any disciplinary action was ultimately 20 recommended. Mr. Dempsey further requests production of any such information at least one week 21 prior to the motion hearing and two weeks prior to trial. If the prosecutor is uncertain whether 22 certain information should be disclosed pursuant to this request, this information should be produced 23 to the Court in advance of the motion hearing and the trial for an in camera inspection. 24 10. Tangible Objects. Mr. Dempsey requests the opportunity to inspect, copy, and test, as

25 necessary, all other documents and tangible objects, including photographs, books, papers, 26 documents, alleged narcotics, fingerprint analyses, vehicles, or copies of portions thereof, that are 27 material to the defense or intended for use in the government's case-in-chief or were obtained from 28 or belong to Mr. Dempsey. Fed. R. Crim. P. 16(a)(1)(E). Specifically, Mr. Dempsey requests color 4

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1 copies of all photographs in the government's possession of the alleged narcotics and the vehicle in 2 which the narcotics were found. 3 11. Expert Witnesses. Mr. Dempsey requests the name, qualifications, and a written

4 summary of the testimony of any person that the government intends to call as an expert witness 5 during its case in chief. Fed. R. Crim. P. 16(a)(1)(G). This summary should include a description 6 of the witness' opinion(s), as well as the bases and the reasons for the opinion(s). See United States 7 v. Duvall, 272 F.3d 825 (7th Cir. 2001) (finding that government's written expert notice did not 8 adequately summarize or describe police detective's testimony in drug prosecution where notice 9 provided only a list of the general subject matters to be covered and failed to identify what opinion 10 the expert would offer on those subjects). This request includes, but is not limited to, disclosure of 11 the qualifications of any government witness who will testify that he understands and/or speaks 12 Spanish or any other foreign language that may have been used during the course of an interview 13 with Ms. Dempsey or any other witness. Mr. Dempsey requests the notice of expert testimony be 14 provided at a minimum of three weeks prior to trial so that the defense can properly prepare to 15 address and respond to this testimony, including obtaining its own expert and/or investigating the 16 opinions, credentials of the government's expert and obtain a hearing in advance of trial to determine 17 the admissibility of qualifications of any expert. See Kumho v. Carmichael Tire Co., 526 U.S. 137, 18 119 S.Ct. 1167, 1176 (1999) (trial judge is "gatekeeper" and must determine, reliability and 19 relevancy of expert testimony and such determinations may require "special briefing or other 20 proceedings") 21 12. Impeachment evidence. Mr. Dempsey requests any evidence that any prospective

22 government witness has engaged in any criminal act whether or not resulting in a conviction and 23 whether any witness has made a statement favorable to Mr. Dempsey. See Fed. R. Evid. 608, 609 24 and 613. Such evidence is discoverable under Brady, 373 U.S. 83. See United States v. Strifler, 851 25 F.2d 1197 (9th Cir. 1988) (witness' prior record); Thomas v. United States, 343 F.2d 49 (9th Cir. 26 1965) (evidence that detracts from a witness' credibility). 27 // 28 // 5

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Evidence of Criminal Investigation of Any Government Witness. Mr. Dempsey requests

2 any evidence that any prospective witness is under investigation by federal, state or local authorities 3 for any criminal conduct. United States v. Chitty, 760 F.2d 425 (2d Cir. 1985). 4 14. Evidence of Bias or Motive to Lie. Mr. Dempsey requests evidence that any prospective

5 government witness is biased or prejudiced against Mr. Dempsey, or has a motive to falsify or distort 6 his or her testimony. Pennsylvania v. Ritchie, 480 U.S. 39 (1987); Strifler, 851 F.2d 1197. 7 15. Evidence Affecting Perception, Recollection, Ability to Communicate, or Veracity.

8 Ms. Flores requests any evidence, including any medical or psychiatric report or evaluation, tending 9 to show that any prospective witness's ability to perceive, remember, communicate, or tell the truth 10 is impaired; and any evidence that a witness has ever used narcotics or other controlled substance, 11 or has ever been an alcoholic. Strifler, 851 F.2d 1197; Chavis v. North Carolina, 637 F.2d 213, 224 12 (4th Cir. 1980). 13 16. Witness Addresses. Mr. Dempsey requests the name and last known address of each

14 prospective government witness. See United States v. Napue, 834 F.2d 1311 (7th Cir. 1987); United 15 States v. Tucker, 716 F.2d 576 (9th Cir. 1983) (failure to interview government witnesses by counsel 16 is ineffective); United States v. Cook, 608 F.2d 1175, 1181 (9th Cir. 1979) (defense has equal right 17 to talk to witnesses). Mr. Dempsey also requests the name and last known address of every witness 18 to the crime or crimes charged (or any of the overt acts committed in furtherance thereof) who will 19 not be called as a government witness. United States v. Cadet, 727 F.2d 1453 (9th Cir. 1984). 20 17. Names of Witnesses Favorable to the Defendant. Mr. Dempsey requests the name of any

21 witness who made any arguably favorable statement concerning Mr. Dempsey or who could not 22 identify him or who was unsure of his identity or participation in the crime charged. Jackson v. 23 Wainwright, 390 F.2d 288 (5th Cir. 1968); Chavis, 637 F.2d at 223; Jones v. Jago, 575 F.2d 24 1164,1168 (6th Cir.1978); Hudson v. Blackburn, 601 F.2d 785 (5th Cir. 1979), cert. denied, 444 U.S. 25 1086 (1980). 26 18. Statements Relevant to the Defense. Mr. Dempsey requests disclosure of any statement

27 that may be "relevant to any possible defense or contention" that he might assert. United States v. 28 // 6

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1 Bailleaux, 685 F.2d 1105 (9th Cir. 1982). This includes grand jury transcripts that are relevant to 2 the defense motion to dismiss the indictment. 3 19. Jencks Act Material. Mr. Dempsey requests production in advance of the motion hearing

4 or trial of all material, including dispatch tapes, that the government must produce pursuant to the 5 Jencks Act, 18 U.S.C. § 3500 and Fed. R. Crim. P. 26.2. A verbal acknowledgment that "rough" 6 notes constitute an accurate account of the witness' interview is sufficient for the report or notes to 7 qualify as a statement under section 3500(e)(1). Campbell v. United States, 373 U.S. 487, 490-92 8 (1963); see also United States v. Boshell, 952 F.2d 1101 (9th Cir. 1991) (holding that interview notes 9 constitutes Jencks material when an agent reviews notes with the subject of the interview); see also 10 United States v. Riley, 189 F.3d 802, 806-808 (9th Cir. 1999). Advance production will avoid the 11 possibility of delay of the motion hearing or trial to allow Mr. Dempsey to investigate the Jencks 12 material. Mr. Dempsey requests pre-trial disclosure of such statements to avoid unnecessary recesses 13 and delays and to allow defense counsel to prepare for, and use properly any Jencks statements 14 during cross-examination.0 15 20. Giglio Information. Pursuant to Giglio v. United States, 405 U.S. 150 (1972),

16 Mr. Dempsey requests all statements and/or promises, expressed or implied, made to any 17 government witnesses, in exchange for their testimony in this case, and all other information that 18 could arguably be used for the impeachment of any government witnesses. 19 21. Agreements Between the Government and Witnesses. Mr. Dempsey requests discovery

20 regarding any express or implicit promise, understanding, offer of immunity, of past, present, or 21 future compensation, or any other kind of agreement or understanding, including any implicit 22 understanding relating to criminal or civil income tax, forfeiture or fine liability, between any 23 prospective government witness and the government (federal, state and/or local). This request also 24 includes any discussion with a potential witness about or advice concerning any immigration 25 benefits, any contemplated prosecution, or any possible plea bargain, even if no bargain was made 26 or the advice not followed. 27 22. Informants and Cooperating Witnesses. Mr. Dempsey requests disclosure of the names

28 and addresses of all informants or cooperating witnesses used or to be used in this case, and in 7

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1 particular, disclosure of any informant who was a percipient witness in this case or otherwise 2 participated in the crime charged against Mr. Dempsey. The government must disclose the 3 informant's identity and location, as well as disclose the existence of any other percipient witness 4 unknown or unknowable to the defense. Roviaro v. United States, 353 U.S. 52, 61-62 (1957). The 5 government must disclose any information derived from informants that exculpates or tends to 6 exculpate Mr. Dempsey. 7 23. Bias by Informants or Cooperating Witnesses. Mr. Dempsey requests disclosure of any

8 information indicating bias on the part of any informant or cooperating witness. Giglio, 405 U.S. 9 24. Such information would include what, if any, inducements, favors, payments or threats

10 were made to the witness to secure cooperation with the authorities. 11 25. Personnel Records of Government Officers Involved in the Arrest. Mr. Dempsey

12 requests all citizen complaints and other related internal affairs documents involving any of the 13 immigration officers or other law enforcement officers who were involved in the investigation, arrest 14 and interrogation of Mr. Dempsey. See Pitchess v. Superior Court, 11 Cal. 3d 531, 539 (1974). 15 Because of the sensitive nature of these documents, defense counsel will be unable to procure them 16 from any other source. 17 26. Training of Relevant Law Enforcement Officers. Mr. Dempsey requests copies of all

18 written videotaped or otherwise recorded policies or training instructions or manuals issued by all 19 law enforcement agencies involved in the case (United States Customs Service, Border Patrol, INS, 20 Department of Homeland Security, etc.) to their employees regarding: (a) the handling of vehicles 21 suspected to be transporting contraband across the port of entry; (b) the referral to secondary 22 inspection of persons within those vehicles; © the detention of individuals within those vehicles; 23 (d) the search of those vehicles and the occupants of those vehicles, including the proper means of 24 obtaining consent to search and what constitutes consent to search; (e) the informing of suspects of 25 their Constitutional rights; (f) the questioning of suspects and witnesses. Mr. Dempsey also requests 26 all written or otherwise attainable information regarding the training of Customs agents at ports of 27 entry in California to detect or discover contraband in vehicles entering the United States, including 28 // 8

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1 any training offered to Border Patrol, INS, or officers of Homeland Security Department, by the DEA 2 or other law enforcement agencies or individuals. 3 27. Performance Goals and Policy Awards. Mr. Dempsey requests disclosure of information

4 regarding standards used for measuring, compensating or reprimanding the conduct of all law 5 enforcement officers involved in the case (Customs, Border Patrol, INS, etc.) to the extent such 6 information relates to the detection of contraband. This request specifically includes information 7 concerning performance goals, policy awards, and the standards used by Customs for commending, 8 demoting, or promoting agents for their performance at the port of entry and their success or failure 9 to detect illegal narcotics in general. 10 28. Reports of Scientific Tests or Examinations. Pursuant to Fed. R. Crim. P. 16(a)(1)(F),

11 Mr. Dempsey requests the reports of all tests and examinations conducted upon the evidence in this 12 case, including, but not limited to, any fingerprint testing done upon any evidence seized in this case, 13 that is within the possession, custody, or control of the government, the existence of which is known, 14 or by the exercise of due diligence may become known, to the attorney for the government, and that 15 are material to the preparation of the defense or are intended for use by the government as evidence 16 in chief at the trial. 17 29. Brady Information. The defendant requests all documents, statements, agents' reports,

18 and tangible evidence favorable to the defendant on the issue of guilt and/or which affects the 19 credibility of the government's case. Under Brady v. Maryland, 373 U.S. 83 (1963), impeachment 20 as well as exculpatory evidence falls within the definition of evidence favorable to the accused. 21 United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 427 U.S. 97 (1976). 22 30. Any Proposed 404(b) Evidence. The government must produce evidence of prior similar

23 acts under Fed. R. Crim. P. 16(a)(1) and Fed. R. Evid. 404(b) and any prior convictions which would 24 be used to impeach as noted in Fed. R. Crim. P. 609. In addition, under Fed. R. Evid. 404(b), "upon 25 request of the accused, the prosecution . . . shall provide reasonable notice in advance of trial . . . of 26 the general nature" of any evidence the government proposes to introduce under Fed. R. Evid. 404(b) 27 at trial. The defendant requests notice two weeks before trial to give the defense time to investigate 28 and prepare for trial. 9

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

2 to discovery to the fullest extent possible under the Federal Rules of Criminal Procedure and the 3 Constitution and laws of the United States. 4 5 6 III. MOTION FOR LEAVE TO FILE FURTHER MOTIONS Mr. Dempsey has not yet viewed the government's physical evidence against him.

7 Additionally, defense counsel has not yet met with the material witness in this case. As new 8 information surfaces ­ via discovery provided by government, defense investigation, or an order of 9 this court ­ the defense may need to file further motions or to supplement existing motions. 10 Accordingly, Mr. Dempsey requests leave to file further motions at a later date. 11 12 13 14 15 16 Dated: June 11, 2008 17 18 19 20 21 22 23 24 25 26 27 28 10 IV. CONCLUSION For the reasons stated, Mr. Dempsey requests this Court grant his motions. Respectfully submitted, /s/ Gregory Murphy GREGORY MURPHY Federal Defenders of San Diego, Inc. Attorneys for Mr. Dempsey [email protected]

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GREGORY T. MURPHY California State Bar No. 245505 2 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 3 San Diego, CA 92101-5008 (619) 234-8467/Fax: (619) 687-2666 4 E-Mail: [email protected]
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Attorneys for Barrie Dempsey

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE JANIS L. SAMMARTINO) ) ) Plaintiff, ) ) v. ) ) BARRIE DEMPSEY, ) ) Defendant. ) ________________________________________ ) UNITED STATES OF AMERICA, Case No. 08CR1723-JLS

CERTIFICATE OF SERVICE

Counsel for Defendant certifies that the foregoing pleading is true and accurate to the best of his information and belief, and that a copy of the foregoing document has been served this day upon: U.S. Attorney CR [email protected]; and Robert E. Schroth, Jr. [email protected],[email protected] Respectfully submitted,

DATED:

June 11, 2008

/s/ Gregory T. Murphy GREGORY T. MURPHY Federal Defenders of San Diego, Inc. Attorneys for Barrie Dempsey