Free Trial Brief - District Court of California - California

Case 3:08-cr-00802-JAH

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KAREN P. HEWITT United States Attorney PAUL L. STARITA Assistant U.S. Attorney California Bar No. 219573 United States Attorney's Office 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-6507/5528 Attorneys for Plaintiff UNITED STATES OF AMERICA

UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ) ) Plaintiff, ) ) ) v. ) ) ) JOSE JUAN FERNANDEZ, ) ) Defendant. ) _________________________________ ) UNITED STATES OF AMERICA, CRIMINAL CASE NO. 08CR0802-JAH DATE: TIME: PLACE: JUDGE: June 24, 2008 9:00 a.m. Courtroom 11 (2nd Floor) Hon. John A. Houston

UNITED STATES' TRIAL MEMORANDUM

COMES NOW, the plaintiff, UNITED STATES OF AMERICA, by and through its counsel, KAREN P. HEWITT, United States Attorney, and Paul L. Starita, Assistant United States Attorney, and hereby files its trial memorandum in the above-referenced case. // // // // // // // // //

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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 G. E. A. THE INDICTMENT

I STATEMENT OF THE CASE

On March 19, 2008, a federal grand jury in the Southern District of California returned a twocount Indictment charging defendant JOSE JUAN FERNANDEZ ("Defendant") with (i) importing approximately 52.40 kilograms (115.28 pounds) of marijuana into the United States in violation of 21 U.S.C. §§ 952 and 960, and (ii) possessing approximately 52.40 kilograms (115.28 pounds) of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(2). Defendant was arraigned on the Indictment on March 20, 2008, and pleaded not guilty. B. TRIAL STATUS The Court set the Jury Trial for June 24, 2008. The United States expects its case-in-chief to last approximately one and a half days. C. STATUS OF COUNSEL David M. C. Peterson, Esq., Federal Defenders of San Diego, Inc., has been appointed to represent Defendant. D. DEFENDANT'S CUSTODY STATUS Defendant has been in custody since his arrest. INTERPRETER It is anticipated that Defendant will require the assistance of a Spanish-speaking interpreter. The United States does not anticipate that any of its witnesses will require the assistance of an interpreter. F. JURY WAIVER Defendant has not filed a jury waiver. PRETRIAL MOTIONS On May 27, 2008, the Court denied Defendant's motions to dismiss the indictment and suppress statements. The Court reserved on Defendant's motion to suppress evidence stemming from a border search of Defendant's cellular telephone. The Court granted Defendant's motion to preserve evidence. On June 13, 2008, the Court ruled on the United States' and Defendant's motions in limine. Of note, the Court granted the United States' motions to admit expert testimony regarding the nature and 2

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value of the narcotics seized in this case, to limit character evidence, to preclude self-serving hearsay, and to prohibit reference to punishment, etc. Also, of note, the Court granted Defendant's motions to exclude evidence related to the personal use of narcotics including a narcotics scale, to exclude testimony regarding modus operandi of drug couriers, and to exclude bulk marijuana from the courtroom. Further, the Court denied Defendant's previous motion to suppress evidence. H. STIPULATIONS To date, the parties have not entered into any stipulations. I. STATUS OF DISCOVERY The United States has complied and will continue to comply with its discovery obligations. To date, Defendant has provided no reciprocal discovery. II STATEMENT OF THE FACTS A. PRIMARY INSPECTION AREA On March 5, 2008, at approximately 6:30 a.m., Defendant, the driver and sole occupant of a 1986 Toyota pick-up truck bearing California license plates (# 4EWU768), attempted to enter the United States from Mexico through the Secure Electronic Network for Travelers Rapid Inspection ("SENTRI") lane number three at the San Ysidro, California, Port of Entry. Since Defendant was not authorized to use the SENTRI lanes, he was redirected to the standard primary inspection lanes. When Defendant arrived at the primary booth, he presented his I-551 Lawful Permanent Resident ("LPR") card to Customs and Border Protection ("CBP") Officer Exconde. CBP Officer Exconde explained to Defendant that he was not authorized to use the SENTRI lanes and referred Defendant and his vehicle to the secondary inspection area for further processing. B. SECONDARY INSPECTION AREA After arriving in the Secondary Inspection Area, Defendant presented his LPR card to CBP Officer Boutwell, who asked Defendant a series of standard questions. Defendant stated that he was the owner of the Toyota pick-up truck, that he had bought the truck a couple of days before, and that he had nothing to declare. Upon inspection of the vehicle registration provided by Defendant, CBP Officer Boutwell believed it to be altered or counterfeit. As such, CBP Officer Boutwell requested that a 3

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narcotics detection dog screen Defendant's truck. The narcotics detection dog screened the truck and alerted to the front wall of the truck's bed. CBP Officer Boutwell then lifted the camper shell off the bed of the truck and discovered a non-factory compartment containing cellophane wrapped packages. CBP Officer Garza completed the inspection of Defendant's truck and found 11 cellophane wrapped packages concealed in the non-factory compartment and 4 additional cellophane wrapped packages concealed in the camper shell. CBP Officer Garza probed one of the packages and found a green leafy substance. This substance field tested positive for the presence of marijuana. Later this same morning, at approximately 8:55 a.m., CBP Officer Garza had a towing company contractor remove the rear tires from Defendant's truck for further inspection. The rear tires of the truck were cut open revealing 10 additional cellophane wrapped packages (5 in each tire). CBP Officers found a total of 25 packages which were all wrapped in duct tape, cellophane, grease or oil, packaging tape, and wrapping paper with Kyocera tape (depicting flowers). The total weight of these packages was approximately 52.40 kilograms (115.28 pounds). C. DEFENDANT'S POST-MIRANDA STATEMENT On this same day, at approximately 9:58 a.m., Immigration and Customs Enforcement ("ICE") Special Agent Roberts advised Defendant that marijuana had been found in his truck and that he was under arrest. Special Agent Roberts then advised Defendant of his Miranda rights in the English language with the assistance of an acknowledgment and waiver of rights form. Defendant stated that he understood his rights and was willing to answer questions. Defendant then appeared to not understand the term "waiver" on the rights waiver form. The term was explained to Defendant and he invoked his right to counsel. At this point, all questioning of Defendant ceased. The advisement of rights and Defendant's invocation were recorded on a digital video disk ("DVD"). III WITNESSES The United States expects to call the following witnesses, although it reserves the right to change the order of these witnesses, substitute witnesses, add, or omit one or more witnesses. 1. 2. Special Agent Jeffrey Roberts, Immigration and Customs Enforcement Officer Gernan E. Exconde, Customs and Border Protection 4

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3. 4. 5. 6. 7.

Officer Jason Boutwell, Customs and Border Protection Officer Stacy Smithson, Customs and Border Protection Officer David Garza, Customs and Border Protection Special Agent Andrew Flood, Immigration and Customs Enforcement Ms. Sandra R. Cruz, Drug Enforcement Administration

Furthermore, the United States will have rebuttal witnesses prepared to testify to rebut any case put on by Defendant. Since Defendant has declined to identify an alibi, the United States remains in compliance with Fed.R.Crim.P. 12.1. See United States v. Gering, 716 F.2d 615, 621 (9th Cir.1983) (it is well-settled that the government "is not ordinarily required to disclose [rebuttal] witnesses."); see also United States v. Dischner, 974 F.2d 1502, 1522 (9th Cir.1992), cert. denied, 507 U.S. 923, 113 S.Ct. 1290, 122 L.Ed.2d 602 (1993); United States v. Angelini, 607 F.2d 1305, 1308-09 (9th Cir.1979); cf. United States v. Portillo, 633 F.2d 1313, 1324 (9th Cir.1980) (The administration of Rule 12.1 is left to the discretion of the district court). IV EXHIBITS The United States requests that defense counsel examine the exhibits before trial to expedite the proceedings. Counsel for the United States also requests time to examine the defense exhibits before trial. Although the United States may introduce the following exhibits, it reserves the right to add or omit exhibits: 1. 2. 3. 4. 5. Marijuana samples; Photographs of the vehicle, bulk marijuana, and Port of Entry; Vehicle Registration; Certified California DMV records; and Drug value chart (demonstrative only).

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 b. 16 17 18 19 20 21 22 23 24 25 26 27 28 9th Cir. Crim. Jury Instruction 9.13 (2007). A.

V JURY INSTRUCTIONS The United States will file its proposed jury instructions under separate cover. VI LEGAL ISSUES ELEMENTS OF THE CHARGED OFFENSES 1. Title 21, United States Code Sections 952, 960

The elements for the offense of importing Marijuana are: a. b. Defendant intentionally brought marijuana into the United States; and Defendant knew that it was marijuana or some other prohibited drug.

9th Cir. Crim. Jury Instruction 9.27 (2007). 2. Title 21, United States Code, Section 841(a)(1)

The elements of the offense of possessing marijuana with the intent to distribute are: a. Defendant knowingly possessed marijuana or some other prohibited drug in a measurable or detectable amount; and Defendant possessed marijuana with the intent to deliver it to another person.

It does not matter whether a defendant knew that the substance was marijuana. It is sufficient that a defendant knew that it was some kind of prohibited drug. See 9th Cir. Crim. Jury Instruction 9.13 (2007). With regard to possession, the United States notes that possession may be actual or constructive, and it may be proved by direct or circumstantial evidence. See United States v. Magallon-Jimenez, 219 F.3d 1109, 1112-1113 (9th Cir. 2000). Moreover, a defendant's mere possession of a substantial quantity of a controlled substance may show that the defendant knowingly possessed the substance. See United States v. Diaz Cardenas, 351 F.3d 404, 407 (9th Cir. 2003)(holding that jury could infer knowledge when an individual is the driver and sole occupant of a vehicle containing 9.48 pounds of methamphetamine (4.31 kilograms) and 17.65 pounds of cocaine (8.02 kilograms) concealed in the air bag of the vehicle); United States v. Sanchez-Lopez, 879 F.2d 541, 555 (9th Cir. 1989) (finding 2.5 kilograms of cocaine sufficient to show knowledge and intent to distribute and noting that a secret 6

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compartment within a vehicle used to conceal illegal substances can raise an inference concerning knowledge of the substance). Knowledge may also be proved by reasonable inferences from the high street value of the narcotics. See United States v. Ogbuehi, 18 F.3d 807, 812 (9th Cir. 1994) ("DEA agents can testify as to the street value of narcotics, . . . and counsel can argue reasonable inferences from it") (citation omitted); United States v. Golden, 532 F.2d 1244, 1247 (9th Cir.1976) (holding that "value of the heroin found in the bags was relevant to both appellants' knowledge of the presence of the heroin and intent to distribute"); Gaylor v. United States, 426 F.2d 233, 235 (9th Cir. 1970) (testimony as to the selling price of cocaine was relevant to issue of knowledge, since it tended to refute "the possibility that a stranger could have placed such a valuable cargo in a vehicle in the hope that the vehicle could be followed and the cocaine later recovered in the United States"). With regard to distribution/delivery, the United States may prove the "intent to deliver" element based on the following: a large quantity of contraband (United States v. Diaz Cardenas, 351 F.3d at 407); the manner in which the controlled substance was packaged (United States v. Glenn, 667 F.2d 1269, 1292 (9th Cir. 1982)); and the street value of the narcotics (United States v. Davila-Escovedo, 36 F.3d 840, 843 (9th Cir. 1994)); United States v. Savinovich, 845 F.2d 834, 838 (9th Cir. 1988) (evidence of $100,000 street value of cocaine was relevant to proving defendant's intent to distribute); United States v. Ramirez-Rodriguez, 552 F.2d 883, 885 (9th Cir. 1977) (evidence of resale value of drug probative of intent to distribute). VII VOIR DIRE The United States respectfully requests that the following voir dire questions be addressed to the jury panel in addition to the Court's standard jury questions: 1. The Court will instruct you about the law. Will you follow the law as given by the Court and disregard any idea or notion you have about what the law is or should be? 2. The United States will be calling witnesses employed by the Department of Homeland Security, Customs and Border Protection and Immigration and Customs Enforcement. Does anyone have family members or close friends who work, or have worked, for these 7

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agencies? Would that prevent you from being fair and impartial? Does anyone have any negative views of these agencies that would prevent you from being fair and impartial? Has anyone had an unpleasant or negative experience with any law enforcement personnel? Would that cause you to be biased against law enforcement? Has anyone ever had any disputes with any agency of the United States Government? If so, please describe. Have you or any relatives or close friends ever been accused of, or charged with, a similar crime? Has anyone had any training in the law? If so, please explain. Will you be able to put aside any feeling of sympathy or pity for the defendant(s) when deciding the facts of this case? Does everybody understand that a defendant is entitled to a fair trial? Does everybody understand that the United States is also entitled to a fair trial? Does anybody have any moral or religious reservations that might prevent him/her from standing in judgment of other human beings? The defendant in this case is charged with importation of a controlled substance. Does anybody have strong feelings or opinions about U.S. narcotics laws that would prevent him/her from viewing the evidence impartially? The law requires the government to prove its case against the defendant beyond a reasonable doubt. If you are selected, would you want the government to prove its case by a higher standard of proof, say beyond any possible doubt? Certain events in this case took place at the San Ysidro, California, Port of Entry. Have any of you been sent to secondary inspection or had your vehicle searched at the San Ysidro Port or another port of entry? Have any of you had any strongly positive or strongly negative experiences at the San Ysidro Port or another port of entry? Do you believe that this experience might prevent you from viewing the evidence in this case impartially?

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13.

Is anyone here involved in criminal defense work? Does anyone have any friends or family members who are involved in criminal defense work? Is anyone here involved in law enforcement? Does anyone have any friends or family members who are involved in law enforcement?

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Regardless of any position you may have on the legalization or criminalization of marijuana, if you become a juror in this federal trial, will you be able to follow the federal law of the United States as it presently stands and as the judge instructs you regarding the criminal importation and possession of marijuana?

The United States respectfully requests and reserves the right to submit additional questions prior to trial or in accordance with the Court's scheduling orders. DATED: June 17, 2008 Respectfully Submitted, KAREN P. HEWITT United States Attorney

/s/ Paul L. Starita
PAUL L. STARITA Assistant U.S. Attorney

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1 2 3 4 5 6 7 8 v. JOSE JUAN FERNANDEZ,

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, ) ) ) ) ) ) ) ) ) ) Case No. 08CR0802-JAH

CERTIFICATE OF SERVICE

Defendant. IT IS HEREBY CERTIFIED THAT:

9 10 11 12 13 14 15 16 17 18 I declare under penalty of perjury that the foregoing is true and correct. 19 Executed on June 17, 2008. 20 21 22 23 24 25 26 27 28 10 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: N/A the last known address, at which place there is delivery service of mail from the United States Postal Service. I, PAUL L. STARITA, 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 the UNITED STATES' TRIAL MEMORANDUM 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. David M. C. Peterson, Esq., Federal Defenders of San Diego, Inc. Attorneys for Defendant

/s/ Paul L. Starita
PAUL L. STARITA

08CR0802-JAH