Free Motion to Compel - District Court of California - California

Case 3:08-cr-00711-JLS

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Filed 04/04/2008

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1 ERICK L. GUZMAN California State Bar No. 244391 2 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 3 San Diego, California 92101-5008 Telephone No. (619) 234-8467 4 Email: [email protected] 5 Attorneys for Mr. De la Concha 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 (HON. JANIS L. SAMMARTINO) 9 UNITED STATES OF AMERICA, 10 11 12 13 v. 14 FRANCISCO DE LA CONCHA, 15 16 I. 17 18 19 On February 13, 2008, Border Patrol Agent Spear was patrolling the Imperial Beach area, STATEMENT OF FACTS1 Defendant. Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) Criminal No. 08CR0711-JLS DATE: April 18, 2008 TIME: 9:00 A.M. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTIONS

20 approximately one mile north of the international border. At approximately 6:30 in the morning, Agent Spear 21 notices some individuals. He then stormed those individuals, pronouncing his status as a Border Patrol agent. 22 Agent Spear then arrested Mr. De la Concha and interrogated him. 23 Agents took Mr. De la Concha to the Imperial Beach Border Patrol station, and attempted to re-

24 interrogate him. Before advising Mr. De la Concha of Miranda , the agents asked him questions that they 25 26 27 These "facts" are based on discovery provided by the government. Mr. De la Concha does not 28 concede the veracity of any of these allegations.
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1 deemed to be biographical in nature. Amongst other things, Mr. De la Concha informs the agents that he is 2 suffering from pain from a lower hernia. 3 The agents then informed Mr. Dr. la Concha of his Fifth Amendment right to remain silent, which

4 he exercised. 5 Mr. De la Concha was ultimately housed in the Metropolitan Correctional Center ("MCC"). Upon

6 arriving, he continued to complain of sever pain caused from a hernia, and has requested appropriate medical 7 attention. 8 9 10 II. COMPEL ALL DISCOVERABLE MATERIAL Mr. De la Concha requests all discoverable material pursuant to Federal Rule of Criminal Procedure

11 16, Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972). This includes 12 material that may support any defense pre-trial motions. See United States v. Cedano-Arellano, 332 F.3d 13 568 (9th Cir. 2003) (Rule 16 applies to discovery material to defense pre-trial motions); United States v. 14 Gamez-Orduno, 235 F.3d 453, 462 (9th Cir. 2000) (Brady applies to material supporting defense pre-trial 15 motions). Mr. De la Concha also requests any evidence that the government may potentially attempt to enter 16 vis-a-vis rule Federal Rule of Evidence 404(b). 17 Mr. De la Concha also requests the court to order access to his "A-File" pursuant to Rule 16(a)(1)(B)

18 of the Federal Rule of Criminal Procedure, which provides that "upon request of the defendant, the 19 government shall furnish to the defendant such copy of his prior criminal record, if any, as is within the 20 possession, custody, or control of the government . . . ." 21 Mr. De la Concha requests all arrest reports, investigator's notes, memos from arresting officers,

22 dispatch tapes, sworn statements, and prosecution reports pertaining to Mr. De la Concha and available under 23 Fed. R. Crim. P. 16(a)(1)(B) and (C), Fed. R. Crim. P. 26.2 and 12(I). Mr. De la Concha specifically requests 24 that all dispatch tapes or any other audio or visual tape recordings which exist and which relate in any way 25 to his case and or his arrest be preserved and provided in their entirety. 26 Specifically, Mr. De la Concha requests a copy of the audiotape of any deportation hearing, as well

27 as a transcript of any such proceeding. 28

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III. LEAVE TO FILE FURTHER MOTIONS Mr. De la Concha has not yet received all requested discovery nor viewed his "A-File." After doing

4 so, it is likely that Mr. De la Concha will need to file additional motions. Mr. De la Concha respectfully 5 requests the court leave to file further motions if necessary. 6 7 8 9 10 11 Dated: April 4, 2008 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /s/ ERICK L. GUZMAN ERICK L. GUZMAN Federal Defenders of San Diego, Inc. Attorneys for Mr. De la Concha IV. CONCLUSION Mr. De la Concha requests that the Court to grant the above motions. Respectfully submitted,