Free Motion for Reciprocal Discovery - District Court of California - California

Case 3:08-cr-00799-BEN

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KAREN P. HEWITT United States Attorney AARON B. CLARK Assistant U.S. Attorney California State Bar No. 239764 United States Attorney's Office 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-6787/(619) 235-2757 (Fax) Email: [email protected] Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT

8 SOUTHERN DISTRICT OF CALIFORNIA 9 UNITED STATES OF AMERICA, 10 Plaintiff, 11 v. 12 GILBERTO PLACENCIA-MEDINA, 13 Defendant(s). 14 15 16 17 18 19 COMES NOW the plaintiff, UNITED STATES OF AMERICA, by and through its counsel, 20 Karen P. Hewitt, United States Attorney, and Aaron B. Clark, Assistant U.S. Attorney, and hereby 21 files its Motions in the above-referenced case. Said Motions are based upon the files and records 22 of this case together with the attached statement of facts and memorandum of points and 23 authorities. 24 25 26 27 28 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Criminal Case No. 08CR0799BEN DATE: May 5, 2008 TIME: 2:00 p.m. Before Honorable Roger T. Benitez UNITED STATES' MOTIONS FOR: (1) (2) (3) RECIPROCAL DISCOVERY FINGERPRINT EXEMPLARS; AND LEAVE TO FILE FURTHER MOTIONS

TOGETHER WITH STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES

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DATED: April 25, 2008. Respectfully submitted, KAREN P. HEWITT United States Attorney s/ Aaron B. Clark AARON B. CLARK Assistant United States Attorney

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KAREN P. HEWITT United States Attorney AARON B. CLARK Assistant U.S. Attorney California State Bar No. 239764 United States Attorney's Office 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-6787/(619) 235-2757 (Fax) Email: [email protected] Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, ) ) ) ) ) ) ) ) ) ) ) Criminal Case No. 08CR0799JM DATE: May 5, 2008 TIME: 2:00 p.m. Before Honorable Roger T. Benitez UNITED STATES' STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES

11 Plaintiff, 12 v. 13 GILBERTO PLACENCIA-MEDINA, 14 Defendant(s). 15 16 17 18 19 20 21 22 23 24 25 26 27 28

I STATEMENT OF THE CASE On March 19, 2008, a federal grand jury in the Southern District of California returned a true bill of Indictment charging Gilberto Placencia-Medina ("Defendant") with one count of Attempted Entry After Deportation in violation of Title 8, United States Code, § 1326(a) and (b). Defendant was arraigned on the indictment on March 20, 2008 and entered a plea of "not guilty." // // // //

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. INSTANT OFFENSE 7-10-98 USDC SDCA 8-29-03 USDC SDCA 5-10-04 USDC SDCA A.

II STATEMENT OF FACTS IMMIGRATION HISTORY Defendant is a Mexican citizen who was ordered removed by an immigration judge on September 14, 2005. Defendant has also been physically removed from the United States on numerous occasions. His latest removal occurred on February 16, 2008, by foot, through the San Ysidro, California Port of Entry. B. RAP SHEET SUMMARY CHART
COURT OF CONVICTION CHARGE TERM

CONVICT DATE

6-26-06

USDC SDCA

8 U.S.C. 1326 ­ Deported Alien Found in the United States 18 U.S.C. 1001 ­ False Statement to a Federal Officer Supervised Release Revocation (8-7-06) 18 U.S.C. 1001 ­ False Statement to a Federal Officer Supervised Release Revocation (8-6-04) Supervised Release Revocation (8-11-06) 8 U.S.C. 1326 ­ Deported Alien Found in the United States

18 months

10 months

12 months

6 months

6 months

6 months

60 days

On February 18, 2008, at approximately 1:50 a.m., United States Border Patrol Agent ("BPA") Jarod Schulick was conducting line watch operations in the Imperial Border Patrol 4

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Station area of operations. At that time he received word from a Remote Video Surveillance System operator that two people were between the primary and secondary border fences in an area known as "Washerwoman's." "Washerwoman's" is approximately 2 miles east of the San Ysidro, California, Port of Entry and approximately 25 yards north of the border between the United States and Mexico. Agent Schulick responded to the area and found two people, on of whom was Defendant, holding a ladder near the secondary fence. The two people began to flee when they saw Agent Schulick. After a brief pursuit, Agent Schulick apprehended both. Upon questioning, the two individuals freely admitted they were Mexican citizens without documents to be in the United States legally. Defendant was thereafter arrested and brought to the Imperial Beach Border Patrol Station for processing. The Defendant was subsequently advised of his Miranda rights, which he elected to waive. Defendant then admitted to being a citizen of Mexico without documents to be in the United States legally. He further admitted that he had been previously deported. III MOTION FOR RECIPROCAL DISCOVERY The United States hereby moves for reciprocal discovery from Defendant. To date Defendant has not provided any. The United States, pursuant to Rule 16 of the Federal Rules of Criminal Procedure, requests that Defendant permit the United States to inspect, copy, and photograph any and all books, papers, documents, photographs, tangible objects, or make copies of portions thereof, which are within the possession, custody or control of Defendant and which Defendant intends to introduce as evidence in his case-in-chief at trial. The United States further requests that it be permitted to inspect and copy or photograph any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with this case, which are in the possession or control of Defendant, which Defendant intends to introduce as evidence-in-chief at the trial, or which were prepared by a

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witness whom Defendant intends to call as a witness. Because the United States will comply with Defendants' requests for delivery of reports of examinations, the United States is entitled to the items listed above under Rule 16(b)(1) of the Federal Rules of Criminal Procedure. The Government also requests 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. The United States also requests that the Court make such order as it deems necessary under Rules 16(d)(1) and (2) to ensure that the United States receives the discovery to which it is entitled. In addition, Rule 26.2 of the Federal Rules of Criminal Procedure requires the production of prior statements of all witnesses, except a statement made by defendant. This rule thus provides for the reciprocal production of Jencks statements. The time frame established by the rule requires the statement to be provided after the witness has testified. To expedite trial proceedings, the United States hereby requests that Defendant be ordered to supply all prior statements of defense witnesses by a reasonable date before trial to be set by the Court. Such an order should include any form in which these statements are memorialized, including but not limited to, tape recordings, handwritten or typed notes and/or reports. IV MOTION FOR FINGERPRINT EXEMPLARS As part of its burden of proof at trial, the Government must prove beyond a reasonable doubt that Defendant is the same person who was previously deported from the United States. Defendant's warrants of deportation and related documents bear fingerprints to verify his identity. In order to meet our burden of proof, the United States anticipates calling a certified fingerprint examiner to obtain fingerprint exemplars from Defendant and compare those with the fingerprints on the immigration documents. Defendant has no privilege against providing fingerprint exemplars. The Fifth Amendment privilege is limited to communications or testimonial evidence. Schmerber v.

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California, 384 U.S. 757, 763-64 (1966). The Government's use of identifying physical characteristics, such as fingerprint exemplars, does not violate a defendant's Fifth Amendment rights. See, e.g., United States v. De Palma, 414 F.2d 394, 397 (9th Cir. 1969); Woods v. United States, 397 F.2d 156 (9th Cir. 1968). Compare United States v. Jackson, 886 F.2d 838, 845 n.8 (7th Cir. 1989) ("There is no doubt that requiring a defendant to give a handwriting specimen does not violate his fifth amendment privilege against self-incrimination since the privilege reaches only compulsion of a defendant's communication."). Accordingly, the Court should order that Defendant provide fingerprint exemplars to the Government's fingerprint expert. V. LEAVE TO FILE FURTHER MOTIONS Should new information or legal issues arise, the United States respectfully requests the opportunity to file such further motions as may be appropriate. VI. CONCLUSION For the foregoing reasons, the Government respectfully requests that its motions for reciprocal discovery, fingerprint exemplars and leave to file further motions be granted. DATED: April 25, 2008. Respectfully submitted, KAREN P. HEWITT United States Attorney s/ Aaron B. Clark AARON B. CLARK Assistant United States Attorney

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff CERTIFICATE OF SERVICE GILBERTO PLACENCIA-MEDINA, Defendant(s). Case No. 08CR0799-BEN

IT IS HEREBY CERTIFIED THAT: I, AARON B. CLARK, 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 UNITED STATES' MOTIONS 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. Robert R. Henssler I declare under penalty of perjury that the foregoing is true and correct. Executed on April 25, 2008. s/ Aaron B. Clark AARON B. CLARK