Free Motion for Discovery - District Court of California - California

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1 JEREMY D. WARREN California Bar No. 177900 2 105 West F Street, Suite 215 San Diego, California 92101 3 (619) 234-4433 4 Attorney for Defendant 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) Case No. 08cr1096-LAB

10 UNITED STATES OF AMERICA, 11 12 v. 13 ARTURO RIOS-MENDOZA, 14 15 16 17 Defendant. Plaintiff,

STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTIONS I. Introduction

According to the discovery, on March 11, 2008, Border Patrol Agent Whittier was driving on

18 Highway 94 near Tecate, California, when he was flagged down by a pedestrian, Arturo Rios-Mendoza 19 ("Mr. Rios"). Mr. Rios said he was tired and wanted to go home. He acknowledged to the agent that he 20 was a Mexican citizen without papers permitting him to be in the United States. The agent arrested Mr. 21 Rios and took him to the Border Patrol Station. There, the agent discovered a criminal record and Mr. 22 Rios was held for prosecution as a deported alien found in the United States. 23 The government made no meaningful pretrial offer to Mr. Rios. Instead, the case was presented to

24 the grand jury, which returned the instant indictment charging 8 U.S.C. § 1326(a) and (b). 25 // 26 // 27 // 28 // 1 08cr1096-LAB

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II. Motion for Access to the Immigration A-File In addition to a general discovery motion (infra), Mr. Rios makes this specific request for an order

4 compelling the government to provide him with access to his immigration A-File. As the Court knows, 5 while for years such access was routinely granted upon informal request, the government recently decided 6 that it would not provide the defense with an opportunity to review the A-File without a court order. 7 The A-File typically contains documents relating to any deportation proceedings, prior

8 applications for citizenship or other immigration documents permitting entry into or residence in the 9 United States. Mr. Rios needs access to these documents to assist him formulate a challenge to the legality 10 of any prior deportations as well as to determine if there is a defense based on derivative citizenship or on 11 other grounds. Defense access to the A-File is thus essential to preparation of the defense. 12 Further, the government routinely offers evidence at trial regarding the non-existence of

13 application for re-admission into the United States. It would be fundamentally unfair to permit the 14 government to rely on such evidence absent an opportunity for Mr. Rios, through counsel, to review the 15 file. Although the certificate might be admissible, the question of the thoroughness of the search 16 conducted by the Government of the A-file is, and should be, open to cross-examination. United States v. 17 Sager, 227 F.3d 1138, 1145 (2000) (error not to allow jury to "grade the investigation."). Mr. Rios should 18 be able to review his A-file in order to see whether any application for lawful admission exists. Moreover, 19 Mr. Rios should also be able to verify whether other documents that would ordinarily be in the A-file are 20 "non-existent," or otherwise missing from his A-file. Mr. Rios may assert a defense that his application 21 for lawful entry was lost or otherwise misplaced by the Government. He must be allowed the opportunity 22 to review his A-file and the manner in which it is being maintained by the Government in order to present 23 this defense. 24 // 25 // 26 // 27 // 28 2 08cr1096-LAB

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III. Motion to Compel Discovery/Preserve Evidence This request is not limited to those items that the prosecutor knows of, but rather includes all

4 discovery listed below that is in the custody, control, care, or knowledge of any "closely related 5 investigative [or other] agencies" under United States v. Bryan, 868 F.2d 1032 (9th Cir. 1989), and 6 discovery of which the government attorney may become aware through the exercise of due diligence: 7 (1) The Defendant's Statements. Mr. Rios requests disclosure of all copies of any written or

8 recorded statement made by the defendant; any written record containing the substance of any oral 9 statements made by the defendant and any written summaries of the defendant's oral statements contained 10 in the handwritten or rough notes of the government agent; any response to any Miranda warnings which 11 may have been given to the defendant; any response by the defendant to interrogation; as well as any other 12 statements by the defendant. Fed. R. Crim. P. 16(a)(1)(A). 13 (2) Arrest Reports, Notes and Dispatch Tapes. Mr. Rios also specifically requests the

14 government to turn over all arrest reports, notes, dispatch or any other tapes, and TECS records that relate 15 to the circumstances surrounding his arrest or any questioning. This request includes, but is not limited to, 16 any rough notes, records, reports, transcripts or other documents which contain statements of the 17 defendant or any other discoverable material. Fed. R. Crim. P. 16(a)(1)(A); Brady v. Maryland, 373 U.S. 18 83 (1963). The government must produce arrest reports, investigator's notes, memos from arresting 19 officers, dispatch tapes, sworn statements, and prosecution reports pertaining to the defendant. Fed. R. 20 Crim. P. 16(a)(1)(B) and (C); Fed. R. Crim. P. 26.2 and 12(I). 21 (3) Criminal Record Evidence of criminal record is available under Fed. R. Crim. P. 16(a)(1)(B).

22 Evidence of other "similar" acts is discoverable under Fed. R. Crim. P. 16(a)(1)(B) and Fed. R. Evid. 23 404(b) and 609; Mr. Rios requests all his rap sheets and any other evidence discoverable under these 24 rules. Mr. Rios requests all evidence, documents, records of judgments and convictions, photographs and 25 tangible evidence, and information pertaining to any arrests and convictions or bad acts he has suffered or 26 known of by the government. He makes an identical request for all pertinent records of government 27 witnesses including informants. 28 3 08cr1096-LAB

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(4) Evidence Seized. Mr. Rios requests production of evidence seized as a result of any search,

2 either with or without a warrant. Fed. R. Crim. P. 16(a)(1)(C). 3 (5) Tangible Objects. Mr. Rios requests the opportunity to inspect and copy as well as test, if

4 necessary, all documents and tangible objects, including photographs, books, papers, documents, alleged 5 narcotics or narcotics related items, fingerprint analyses, vehicles, or copies of portions thereof, which are 6 material to the defense or intended for use in the government's case-in-chief or were obtained from or 7 belong to the defendant. Fed. R. Crim. P. 16(a)(1)(C). 8 (6) Request for Preservation of Evidence. Mr. Rios specifically requests the preservation of all

9 dispatch tapes, agents' rough notes, any documents, and any other physical evidence that may be 10 destroyed, lost, or otherwise put out of the possession, custody, or care of the government and which 11 relate to the arrest or the events leading to the arrest in this case. This request includes, but is not limited 12 to seized weapons, the results of any fingerprint analysis, Mr. Rios's personal effects, and any evidence 13 seized from the defendant or any other party. 14 (7) Reports Of Examinations And Tests. Mr. Rios requests the opportunity to inspect and copy

15 any reports of physical and mental examinations and any scientific tests which are material to the 16 preparation of the defense or intended for use in the government's case-in-chief. Fed. R. Crim. P. 17 16(a)(1)(D). 18 (8) Expert Witnesses. Mr. Rios requests the name, qualifications, and a written summary of the

19 opinion/testimony and bases thereon of any person that the government intends to call as an expert 20 witness. Fed. R. Crim. P. 16(a)(1)(E). 21 (9) Brady Material. Mr. Rios requests all documents, statements, agents' reports, and tangible

22 evidence favorable to the defendant on the issue of guilt, which affects the credibility of the government's 23 case, or which may result in a lower sentence under the United States Sentencing Guidelines. Under 24 Brady, impeachment as well as exculpatory evidence falls within the definition of evidence favorable to 25 the accused. United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 427 U.S. 97 (1976). 26 (10) Giglio Information. Mr. Rios requests all statements and/or promises, express or implied,

27 made to any government witnesses in exchange for their testimony in this case, and all other information 28 which could arguably be used for the impeachment of any government witnesses. Giglio v. United States, 4 08cr1096-LAB

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1 405 U.S. 150 (1972). 2 (11) Informants and Cooperating Witnesses. Mr. Rios requests disclosure of the name(s),

3 address(es), criminal record and location(s) of all informants or cooperating witnesses used or potentially 4 to be used in this case, and in particular, disclosure of any informant who was a percipient witness in this 5 case or otherwise participated in the crime charged. Roviaro v. United States, 353 U.S. 52, 61-62 (1957). 6 The government must disclose any information derived from informants which exculpates or tends to 7 exculpate the defendant. Brady v. Maryland, 373 U.S. 83 (1963). The government must disclose any 8 information indicating bias on the part of any informant or cooperating witness. Id. Mr. Rios also 9 requests that the government disgorge any information in its possession regarding other parties culpable in 10 this matter as these individuals are highly relevant and material to Mr. Rios's defense. 11 (12) Jencks Act Material. Mr. Rios requests production in advance of trial of all material,

12 including dispatch tapes, which the government must produce pursuant to 18 U.S.C. § 3500. Advance 13 production will avoid the possibility of delay at the request of defendant to investigate the Jencks material. 14 A verbal acknowledgment that "rough" notes constitute an accurate account of the witness' interview is 15 sufficient for the report or notes to qualify as a statement under §3500(e)(1). Campbell v. United States, 16 373 U.S. 487, 490-92 (1963). In United States v. Boshell, 952 F.2d 1101 (9th Cir. 1991), the Ninth 17 Circuit held that when an agent goes over interview notes with the subject of the interview the notes are 18 then subject to the Jencks Act. 19 (13) Any Potential 404(b)/609 Evidence. Mr. Rios requests prior notice of any other crimes or

20 bad acts that the government intends to introduce, whether in its case in chief, for impeachment or 21 rebuttal. Fed. R. Crim. P. 16(a)(1)(C); Fed. R. Evid. 404(b) and 609(b). Mr. Rios requests such notice at 22 least one month before trial in order to give the defense time to investigate and prepare for trial. 23 (14) Any Information That May Result In A Lower Sentence Under The Guidelines As discussed

24 above, this information is discoverable under Brady v. Maryland, 373 U.S. 83(1963). This request 25 includes any cooperation or attempted cooperation by the defendant, as well as any information that could 26 affect any base offense level or specific offense characteristic under Chapter Two of the Guidelines. Also 27 included in this request is any information relevant to a Chapter Three adjustment, a determination of the 28 defendant's criminal history, or any other application of the Guidelines. Additionally, Mr. Rios 5 08cr1096-LAB

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1 specifically requests any evidence the government intends to use at sentencing to establish his status as a 2 career offender or for any other enhancement to his sentence; 3 (15) Evidence of Bias or Motive to Lie Mr. Rios requests any evidence that any prospective

4 government witness, including a cooperating defendant, is biased or prejudiced against the defendant, or 5 has a motive to falsify or distort her or her testimony. Pennsylvania v. Ritchie, 480 U.S. 39 (1987); 6 United States v. Strifler, 851 F.2d 1197 (9th Cir. 1988); 7 (16) Impeachment evidence Mr. Rios requests any evidence that any prospective government

8 witness has engaged in any criminal act whether or not resulting in a conviction and whether any witness 9 has made a statement favorable to the defendant. See Fed. R. Evid. 608, 609 and 613. Such evidence is 10 discoverable under Brady v. Maryland, supra. See United States v. Strifler, 851 F.2d 1197(9th Cir. 11 1988)(witness' prior record); Thomas v. United States, 343 F.2d 49 (9th Cir. 1965)(evidence that detracts 12 from a witness' credibility); 13 (17) Evidence of Criminal Investigation of Any Government Witness Mr. Rios requests any

14 evidence that any prospective witness is under investigation by federal, state or local authorities for any 15 criminal conduct. United States v. Chitty, 760 F.2d 425 (2d Cir.) cert. denied, 474 U.S. 945 (1985); 16 (18) Evidence Affecting Perception, Recollection, Ability to Communicate, or Truth Telling Mr.

17 Rios requests any evidence, including any medical or psychiatric report or evaluation, tending to show that 18 any prospective witness's ability to perceive, remember, communicate, or tell the truth is impaired; and 19 any evidence that a witness has ever used narcotics or other controlled substance, or has ever been an 20 alcoholic. United States v. Strifler, 851 F.2d 1197 (9th Cir. 1988); Chavis v. North Carolina, 637 F.2d 21 213, 224 (4th Cir. 1980); 22 (19) Witness Addresses Mr. Rios requests the name and last known address of each prospective

23 government witness. See United States v. Napue, 834 F.2d 1311 (7th Cir. 1987); United States v. Tucker, 24 716 F.2d 576 (9th Cir. 1983) (failure to interview government witnesses by counsel is ineffective 25 assistance); United States v. Cook, 608 F.2d 1175, 1181 (9th Cir. 1979) (defense has equal right to talk to 26 witnesses). The defendant also requests the name and last known address of every witness to the crime or 27 crimes charged (or any of the overt acts committed in furtherance thereof) who will not be called as a 28 government witness. United States v. Cadet, 727 F.2d, 1453 (9th Cir. 1984); 6 08cr1096-LAB

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(20) Name of Witnesses Favorable to the Defendant Mr. Rios requests the name of any witness

2 who made an arguably favorable statement concerning the defendant or who could not identify him or 3 who was unsure of her identity, or participation in the crime charged. Jackson v. Wainwright, 390 F.2d 4 288 (5th Cir. 1968); Chavis v. North Carolina, 637 F.2d 213, 223 (4th Cir. 1980); Jones v. Jago, 575 F.2d 5 1164, 1168 (6th Cir.), cert. denied, 439 U.S. 883 (1978); Hudson v. Blackburn, 601 F.2d 785 (5th Cir. 6 1979), cert. denied, 444 U.S. 1086 (1980); 7 (21) Statements Relevant to the Defense Mr. Rios requests disclosure of any statement that may

8 be "relevant to any possible defense or contention" that he might assert. United States v. Bailleaux, 685 9 F.2d 1105 (9th Cir. 1982); 10 (22) Personnel Records of Government Officers Involved in the Arrest Mr. Rios requests all

11 citizen complaints and other related internal affairs documents involving any of the immigration officers 12 or other law enforcement officers who were involved in the investigation, arrest and interrogation of him, 13 pursuant to Pitchess v. Superior Court, 11 Cal. 3d 531, 539 (1974). Because of the sensitive nature of 14 such Henthorn documents, defense counsel will not be able to procure then from any other source; 15 (23) Prosecutor's Duty to Inspect Agents' Files Mr. Rios requests that the court order the

16 prosecutor to personally review the personnel files of the agents involved. 17 (24) Release of Evidence for Defense Testing. Mr. Rios requests that the government release to

18 his designated expert all weapons and other items seized so that the defense may conduct independent 19 testing of the items. 20 (25) Subpoena, Intercept and Warrant Information and Evidence. Mr. Rios requests a copy of all

21 electronic interception orders, search warrants and subpoenas, and related applications for electronic 22 interception, subpoenas and warrants, their affidavits, attachments, and inventories related to this case. 23 He also requests copies of all documents provided to or seized by the government pursuant to such court24 authorized orders. He requests copies of all recordings made by the government made pursuant to warrant 25 or order as well as line-sheets and any other documentation of such recordings. 26 (26) Immigration File and Related Documents. Mr. Rios requests a complete copy of all

27 documents related to his alienage, criminal history, and deportations. He requests access to and copies of 28 his A-file or files as well as documents related to and recordings of all deportation or removal hearings he 7 08cr1096-LAB

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1 may have been subjected to. 2 (27) Residual Discovery/All Other Relevant Materials Mr. Rios intends for this motion to cover

3 the full extent of discoverable material. She therefore requests that the government be required to 4 disgorge all other discoverable material which she otherwise has failed to request. 5 6 7 8 9 10 III. Mr. Rios Seeks Leave to File Further Motions Mr. Rios seeks leave to file further, substantive motions as relevant discovery becomes available. IV. Conclusion For the reasons stated above, the defendant, Mr. Rios, respectfully requests that this Court grant

11 the above-requested motions. 12 13 14 Dated: May 5, 2008 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 08cr1096-LAB Respectfully submitted, /s Jeremy Warren JEREMY D. WARREN Attorney for Defendant Rios