Free Motion for Discovery - District Court of California - California

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JOSEPH M. MCMULLEN California State Bar No. 246757 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 San Diego, California 92101-5030 Telephone: (619) 234-8467 Facsimile: (619) 687-2666 Email: [email protected] Attorneys for Mr. Tarabay

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE THOMAS J. WHELAN) UNITED STATES OF AMERICA, Plaintiff, v. RAUL TARABAY, Defendant. _________________________________ ) ) ) ) ) ) ) ) ) ) I. STATEMENT OF FACTS1 A. Inspection On March 4, 2008, at approximately 12:15 a.m., Raul Tarabay, a United States citizen, arrived at the San Ysidro Port of Entry driving a Ford F-150 pickup. At the primary inspection booth, Customs and Border Protection Officer Benson noticed that Mr. Tarabay's hand was trembling and instructed him to open the toolbox located in the bed of the truck. When Mr. Tarabay was unable to open the toolbox, he was sent to secondary inspection. A search of the truck at secondary inspection revealed 34 packages containing marijuana CASE NO. 08CR1280-W STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTIONS

The statement of facts is based on information provided by the government. Mr. Tarabay does not admit its accuracy and reserves the right to challenge it at a later time. 08CR1280-W

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concealed in various parts of the vehicle. Mr. Tarabay was placed under arrest. B. First Interrogation At around 1:40 a.m. on the morning of the arrest, the Case Agent in this case, Immigration and Customs Enforcement (ICE) Special Agent Mario Hernandez advised Mr. Tarabay that marijuana had been found in his vehicle and that he was under arrest. He then advised Mr. Tarabay of his Miranda rights. Mr. Tarabay stated that he understood his rights and requested to speak with an attorney. Agent Hernandez ended the interrogation due to the invocation of the right to counsel, and Mr. Tarabay was transported to the Alvarado Medical Center in San Diego, California, where he remained in the custody of the United States Marshals to await arraignment. C. Appointment of Counsel Later that morning, on March 4, 2008, prosecution of Mr. Tarabay was initiated with the filing of a complaint charging him with violations of 21 U.S.C. §§ 952 and 960 for importation of a controlled substance. The United States Marshals did not bring Mr. Tarabay to court that day for arraignment, but the Honorable Magistrate Judge Cathy A. Bencivengo provisionally appointed Federal Defenders of San Diego, Inc. to represent Mr. Tarabay in this case on March 4, 2008. D. Second Interrogation One week later, on March 11, 2008, Mr. Tarabay was medically cleared to be transported from Alvarado Medical Center to the Metropolitan Correctional Center (MCC) in the custody of the United States Marshals Service. However, instead of being transported by the Marshals Service, ICE Case Agent Hernandez was contacted and came to Alvarado Medical Center to personally transport Mr. Tarabay to the MCC. On the ride over to the MCC, Agent Hernandez interrogated Mr. Tarabay about the case and obtained a confession. E. Subsequent Proceedings On March 12, 2008, Mr. Tarabay was arraigned on the complaint before the Honorable Magistrate Judge Louisa S. Porter and confirmed previously appointed defense counsel. An indictment was filed in this case on April 23, 2008 charging Mr. Tarabay with importing marijuana in violation of 21 U.S.C. § 952 and 960, and possessing marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). These motions follow. 2 08CR1280-W

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II. MOTION TO COMPEL DISCOVERY/PRESERVE EVIDENCE Mr. Tarabay was arrested on March 4, 2008. Defense counsel sent government counsel a letter requesting discovery on March 5, 2008 and followed up with a voice mail message to government counsel on March 14, 2008. Although Mr. Tarabay has since received some discovery, he hereby moves to compel production of the specific discovery set out below. First, Mr. Tarabay requests copies of the registration documents for the 1997 Ford F-150 contained in the truck. Second, because the government produced the investigatory still photographs taken with respect to this case in black-and-white photocopy form, many of those photos are indiscernible. Mr. Tarabay requests that the Court compel production of color photographs, either in disc or paper form. Third, additional items were collected from the truck driven by Mr. Tarabay. He requests that the Court order the government to provide an inventory indicating from where items were seized. Finally, defense counsel will want to inspect and photograph the 1997 Ford F-150. He asks that the Court enter an order for the government to make reasonable accommodations in that regard. A proposed order has been electronically mailed to the Court to facilitate this request. III. MOTION TO PRESERVE AND RE-WEIGH NARCOTIC EVIDENCE Mr. Tarabay requests an order for the U.S. Government and its agents to preserve the narcotic evidence in this case and permit the defense to re-weigh any narcotic evidence. For the Court's convenience, a proposed order has been electronically mailed to the Court to facilitate this request. IV. MOTION TO DISMISS THE INDICTMENT DUE TO MISINSTRUCTION OF THE GRAND JURY Mr. Tarabay recognizes that his argument below has been rejected by an en banc court of the Ninth Circuit. See United States v. Navarro-Vargas, 408 F.3d 1184 (9th Cir. 2005) (en banc), cert. 3 08CR1280-W

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denied, Navarro-Vargas v. United States, 126 S. Ct. 736 (2005). As the Supreme Court has ordered the government to respond to the same issue in another case litigated by Federal Defenders of San Diego, Mr. Tarabay nonetheless raises it to preserve the issue. Mr. Tarabay moves to dismiss the Indictment due to misinstruction of the Grand Jury. Mr. Tarabay's arguments are essentially those set out in Judge Hawkins' dissent in United States v. Marcucci, 299 F.3d 1156 (9th Cir. 2002), cert. denied, 1538 U.S. 934 (2003), Judge Kozinski's dissent in United States v. Navarro-Vargas, 367 F.3d 896 (9th Cir. 2004), opinion vacated by United States v. Navarro-Vargas, 367 F.3d 920 (9th Cir. 2004), and Judge Hawkins' dissent in United States v. Navarro-Vargas, 408 F.3d 1184 (9th Cir. 2005) (en banc). Mr. Tarabay incorporates those arguments by reference. However, if the Court would like further briefing on this issue, Mr. Tarabay is willing to provide it. V. MOTION TO SUPPRESS MR. TARABAY'S STATEMENTS PURSUANT TO THE FIFTH AND SIXTH AMENDMENTS, AND 18 U.S.C. § 3501 The government bears the burden of demonstrating that a defendant's statement is voluntary and that any alleged waiver of the defendant's rights under the Fifth and Sixth Amendments is voluntarily, knowingly, and intelligently made. See United States v. Harrison, 34 F.3d 886, 890 (9th Cir. 1994); see also United States v. Dickerson, 530 U.S. 428, 439-41 (2000) (discussing constitutional underpinnings of Miranda v. Arizona, 384 U.S. 436, 444 (1966) and the need to safeguard "precious Fifth Amendment rights"); Michigan v. Harvey, 494 U.S. 344, 350 (1990) ( ; 18 U.S.C. § 3501. Because Mr. Tarabay's rights under the Fifth and Sixth Amendments were violated, his statements must be suppressed. A. Violation of Mr. Tarabay's Fifth Amendment Rights Requires Suppression. "When an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated interrogation even if he has been advised of his rights." Edwards v. Arizona, 451 U.S. 477, 484 (1981) (emphasis added). "Edwards thus established another prophylactic rule designed to prevent police from badgering a defendant into waiving his previously 4 08CR1280-W

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asserted Miranda rights." Harvey, 494 U.S. at 350 (citing Oregon v. Bradshaw, 462 U.S. 1039, 1044 (1983)) (emphasis added). Once a defendant invokes his Fifth Amendment right to counsel, subsequent waiver of that right, even if voluntary, knowing and intelligent under traditional standards is presumed invalid if secured pursuant to police-initiated contact. Id. At the time of his arrest on March 4, 2008, Mr. Tarabay unequivocally invoked his right to counsel at the outset of Case Agent Hernandez's interrogation. Mr. Tarabay was then sent to Alvarado Medical Center, where he remained in the custody of the U.S. Marshals Service for a week. Case Agent Hernandez then re-initiated contact with Mr. Tarabay. Instead of simply allowing the Marshals Service to transport Mr. Tarabay to the MCC, Case Agent Hernandez personally came to the hospital to transport Mr. Tarabay to the MCC. While Case Agent Hernandez had Mr. Tarabay back in his custody in his vehicle, he was able to obtain Mr. Tarabay's confession. Given such a flagrant violation of Miranda, the Fifth Amendment, and the Edwards prophylactic rule by reinitiating contact despite a prior invocation of the right to counsel, Mr. Tarabay's statements should be suppressed. B. Violation of Mr. Tarabay's Sixth Amendment Rights Requires Suppression. The Supreme Court has held that the Sixth Amendment right to counsel during any interrogation after initiation of adversarial proceedings against the defendant requires at least as must protection as the Fifth Amendment right to counsel at any custodial interrogation. Harvey, 494 U.S. at 350; Brewer v. Williams, 430 U.S. 387, 398 (1977). "Transposing the reasoning of Edwards v. Arizona, 451 U.S. 477 (1981), [the Supreme Court] decided that after a defendant requests assistance of counsel, any waiver of Sixth Amendment rights given in a discussion initiated by police is presumed invalid." Harvey, 494 U.S. at 349 (citing Michigan v. Jackson, 475 U.S. 625, 636 (1986)) (emphasis added). Mr. Tarabay invoked his right to assistance of counsel to Case Agent Hernandez on March 4, 2008. That same morning, Mr. Tarabay was appointed defense counsel by the Honorable Magistrate Judge Cathy A. Bencivengo. One week later, Case Agent Hernandez drove to Alvarado Medical Center and reinitiated contact with Mr. Tarabay outside of the presence of counsel and obtained incriminating statements. Any purported waiver of Mr. Tarabay's right to counsel is 5 08CR1280-W

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presumptively invalid and his statements should be suppressed as they were obtained in violation of Mr. Tarabay's Sixth Amendment right to counsel. C. The Government Bears the Burden of Proving Mr. Tarabay's Statements Were Made Voluntarily. A defendant in a criminal case is deprived of due process of law if the conviction is founded upon an involuntary confession. Arizona v. Fulminante, 499 U.S. 279 (1991); Jackson v. Denno, 378 U.S. 368, 387 (1964). This is so even when the procedural safeguards of Miranda have been satisfied. Id. The government bears the burden of proving by a preponderance of the evidence that a confession is voluntary. Lego v. Twomey, 404 U.S. 477, 483 (1972). In order to be voluntary, a statement must be the product of a rational intellect and free will. Blackburn v. Alabama, 361 U.S. 199, 208 (1960). In determining whether a defendant's will was overborne in a particular case, the totality of the circumstances must be considered. Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). Some factors taken into account have included the age of the accused, his lack of education, his low intelligence, the lack of any advice to the accused of his constitutional rights, the length of the detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep. Id. A confession is deemed involuntary whether coerced by physical intimidation or psychological pressure. Townsend v. Sain, 372 U.S. 293, 307 (1962). "The test is whether the confession was extracted by any sort of threats or violence, [or] obtained by any direct or implied promises, however slight, [or] by the exertion of any improper influence.'" Hutto v. Ross, 429 U.S. 28, 30 (1976) (quoting Bram v. United States, 168 U.S. 532, 542-43 (1897)). See also United States v. Tingle, 658 F.2d 1332, 1335 (9th Cir. 1981). Until the government meets its burden of showing all statements of Mr. Tarabay that it intends to use at trial were voluntary, his statements must be suppressed as involuntary. 18 U.S.C. § 3501(a). // // // 6 08CR1280-W

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D.

Mr. Tarabay's Statements Should be Suppressed Because the Interrogation Occurred Well Beyond the Six Hour Safe Harbor of 18 U.S.C. § 3501(a). Title 18 U.S.C. § 3501(c) provides a six-hour "safe-harbor" period after an arrest and before

the arraignment during which a confession will not be excluded solely because of delay. "The safe harbor may be extended beyond six hours if the delay is reasonable and is due to the means of transportation and the distance to the nearest magistrate." United States v. Padilla-Mendoza, 157 F.3d 730, 731 (9th Cir. 1998) (citing United States v. Wilson, 838 F.2d 1081, 1084 (9th Cir. 1988) (emphasis added). Although confessions obtained beyond this period are not inadmissible per se, "[s]tatements made outside the six-hour `safe harbor' may be excluded solely for delay." United States v. Van Poyck, 77 F.3d 285, 288 (9th Cir. 1996); see also Wilson, 838 F.2d at 1084 (9th Cir. 1988) ("Discretion remains in the trial judge, under subsection 3501(b), to exclude confessions as involuntary solely because of delay in arraignment during which a confession is given, that exceeds six hours."). The Ninth Circuit has determined that notwithstanding delay in contravention of the safe harbor, a statement may be admitted if:(1) if the delay was reasonable, or (2) if public policy concerns weigh in favor of admission. Padilla-Mendoza, 157 F.3d at 731. "The public policy concerns include discouraging officers from unnecessarily delaying arraignments, preventing the admission of involuntary confessions, and encouraging early processing of defendants." Id. In United States v. Gamez, 301 F.3d 1138 (9th Cir. 2002), the court upheld the district court's finding that the defendant's statement given after an overnight detention was admissible under both the reasonableness and public policy standards. Id. at 1143. The defendant, a Spanish-speaking Mexican national, was arrested along with several other suspects found near the Arizona-Mexico border shortly after the fatal shooting of a Border Patrol agent. Id. at 1141. Although it would have been standard procedure for the FBI to take the defendant to the federal prison in Tuscon the night he was arrested, the FBI could not do so because all agents in the area were involved in the murder investigation. Id. at 1142. The next morning, the defendant was interrogated when the first available Spanish-speaking FBI agent arrived at the Border Patrol station. Id. at 1143. Given the circumstances of the shooting which involved multiple suspects, "[i]t was impossible to determine 7 08CR1280-W

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with what kind of offense [the defendant] would be charged prior to interrogating him." Id. Accordingly, the post-safe-harbor interrogation was both reasonable and did not contravene public policy, and the court upheld the admissibility of the defendant's statements. Id. In contrast, the Ninth Circuit reversed the district court's finding that defendant's statements during an FBI interrogation conducted more than six hours after his arrest were admissible in Wilson. 838 F.2d at 1084, 1087. The defendant, who was the sole suspect in the FBI's investigation of the aggravated battery of the child of his common law wife, was arrested at night and detained overnight at the tribal jail. Id. at 1083. The next morning, FBI agents came to the jail and conducted an interrogation of the defendant for two hours in the afternoon. Id. Because he was being questioned, the defendant missed the regularly scheduled arraignment calendar on that day and had to be specially arraigned in the judge's chambers. Id. The Ninth Circuit rejected as clearly erroneous the district court's finding that the delay was reasonable: Even assuming that the delay overnight was reasonable, there is no reasonable excuse why [the defendant] was not promptly arraigned at the beginning of the arraignment calendar the next day. The desire of the officers to complete the interrogation is, perhaps, the most unreasonable excuse possible under § 3501(c). Id. at 1085 (emphasis added). The court went on to find that the defendant's statements were made involuntarily based on the five factors to be considered in determining voluntariness under § 3501(b), giving considerable weight to the fact that the interrogation was conducted beyond the six-hour safe harbor period: The fact that unreasonable delay, alone, beyond six hours may support a finding of involuntariness suggests that unreasonable delay is the most important factor of all. Id. at 1086. Finally, the court emphasized the importance of preventing law enforcement officers from violating the six-hour safe harbor provision: The purposes embedded in § 3501 ­ to prevent confessions extracted due to prolonged pre-arraignment detention and interrogation, and to supervise the processing of defendants from as early a point in the criminal process as is practicable ­ are frustrated when the arraignment of a defendant who has been in custody for more than six hours is further delayed for no purpose other than to allow further interrogation of the defendant. If we countenance the police procedure followed here, we give officers a free hand to postpone any arraignment until a confession is obtained. That was not the legislative intent behind § 3501. It was error to deny the suppression motion. 8 08CR1280-W

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Id. at 1087. Thus, except in cases in which it is impossible to properly arraign a defendant until after he has been interrogated, such as in complex cases involving multiple suspects, statements obtained from interrogations conducted after the six-hour safe harbor period has expired should not be admitted under § 3501(c). As the interrogation of Mr. Tarabay did not occur until a full week after his arrest, his statements should be suppressed. E. This Court Must Conduct An Evidentiary Hearing to Determine the Voluntariness of Mr. Tarabay's Statements. This Court must make a factual determination as to whether a confession was voluntarily given prior to its admission into evidence. 18 U.S.C. § 3501(a). Where a factual determination is required, courts are obligated by Federal Rule of Criminal Procedure 12 to make factual findings. See United States v. Prieto-Villa, 910 F.2d 601, 606-10 (9th Cir. 1990). Because "`suppression hearings are often as important as the trial itself,'" id. at 609-10 (quoting Waller v. Georgia, 467 U.S. 39, 46 (1984)), these findings should be supported by evidence, not merely an unsubstantiated recitation of purported evidence in a prosecutor's responsive pleading. Under section 3501(b), this Court must consider "all the circumstances surrounding the giving of the confession," including: (1) the time elapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment, (2) whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession, (3) whether or not such defendant was advised or knew that he was not required to make any statement and that any such statement could be used against him, (4) whether or not such defendant had been advised prior to questioning of his right to the assistance of counsel, and (5) whether or not such defendant was without the assistance of counsel when questioned and when giving such confession. 18 U.S.C. § 3501(b). Without the presentation of evidence, this Court cannot adequately consider these statutorily mandated factors. Accordingly, Mr. Tarabay requests that this Court conduct an evidentiary hearing pursuant to 18 U.S.C. § 3501(a), to determine, outside the presence of the jury, whether any statements made by Mr. Tarabay were voluntary. // // 9 08CR1280-W

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VI. LEAVE TO FILE FURTHER MOTIONS At this time Mr. Tarabay has received only limited discovery. As new information surfaces ­ via discovery provided by government, defense investigation, or an order of this court ­ the defense may need to file further motions, or to supplement existing motions. For this reason, defense counsel requests leave to file further motions. VII. CONCLUSION For the reasons stated, Mr. Tarabay requests that this Court grant his motions. Respectfully Submitted,

11 12 Dated: May 19, 2008 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 08CR1280-W /s/ Joseph M. McMullen JOSEPH M. MCMULLEN Federal Defenders of San Diego, Inc. Attorneys for Mr. Tarabay

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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: Luella Mendoza Caldito [email protected], [email protected], [email protected]

/s/ Joseph McMullen JOSEPH McMULLEN Federal Defenders of San Diego, Inc. 225 Broadway, Suite 900 San Diego, CA 92101-5030 (619) 234-8467 (tel) (619) 687-2666 (fax) e-mail: [email protected]

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