Free Response in Opposition - District Court of California - California

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KAREN P. HEWITT United States Attorney CHRISTOPHER M. ALEXANDER Assistant U.S. Attorney California Bar. No. 201352 Federal Office Building 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-7425 /(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 Plaintiff, v. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Criminal Case No. 07CR3408-BEN HEARING DATE: TIME: March 24, 2008 2:00 p.m.

13 14 LUIS CALDERON-QUINONEZ, 15 Defendant. 16 17 18 19 20 21 22 23 24 25 26 27 28

UNITED STATES' RESPONSE TO DEFENDANT'S MOTIONS TO: (1) (2) (3) (4) COMPEL DISCOVERY/PRESERVE EVIDENCE; DISMISS DUE TO UNCONSTITUTIONAL STATUTES; DISMISS DUE TO GRAND JURY INSTRUCTIONS; AND GRANT LEAVE TO FILE FURTHER MOTIONS.

TOGETHER WITH STATEMENT OF FACTS, MEMORANDUM OF POINTS AND AUTHORITIES

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COMES NOW the plaintiff, the UNITED STATES OF AMERICA, by and through its counsel, KAREN P. HEWITT, United States Attorney, and Christopher M. Alexander, Assistant United States Attorney, and hereby files its Response and Opposition to Defendants' above-referenced motions. This Response and Opposition is based upon the files and records of the case together with the attached statement of facts and memorandum of points and authorities. I STATEMENT OF THE CASE On December 19, 2007, a Indictment was returned in the Southern District of California charging Defendant Luis Calderon-Quinonez ("Defendant") with importation of 32.54 kilograms (approximately 71.58 pounds) cocaine in violation of 21 U.S.C. §§ 952 and 960, and possession of 32.54 kilograms (approximately 71.58 pounds) cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). On December 20, 2007, the Court arraigned Defendant on the Indictment and entered a not guilty plea. The Court scheduled a motion hearing date which was continued to March 24, 2008. On January 2, 2008, the United States filed motions for reciprocal discovery and fingerprint exemplars. On January 31, 2008 and March 10, 2008, Defendant filed motions to compel discovery, dismiss, suppress, and grant leave to file further motions. The United States now responds to Defendant's motions to compel discovery and dismiss. II STATEMENT OF FACTS A. Primary Inspection

On December 5, 2007, at approximately 12:35 p.m., Defendant applied for admission into the United States via vehicle lane number nine at the Calexico, California, West Port of Entry. Defendant was the driver and sole occupant of a blue 1997 Chevrolet Silverado SUV, bearing the Baja California, Mexico license plate AHV8149 (the "vehicle"). Defendant presented his DSP-150 (B1/B2 Visa) to Customs and Border Protection Officer (CBPO) Chris Alvarado. CBPO Alvarado asked Defendant if he was bringing anything from Mexico and where he was going. Defendant gave a negative customs declaration and said he was going to Calexico to shop at Las Palmas. Defendant and the vehicle were randomly referred to secondary. 2

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B.

Secondary Inspection

Upon entering the secondary inspection area, Defendant presented his DSP-150 (B1/B2 Visa) and gave a negative customs declaration to CBPO Kathy Rivera. CBPO Rivera then went to request an agricultural specialist to obtain an agriculture declaration from Defendant. Canine Enforcement Officer (CEO) Craig Randolph screened the vehicle with his narcotic detector dog. His dog alerted to the presence of contraband concealed within the rear quarter panels. CEO Randolph informed CBPO Leslie Ledbetter of the alert. CBPO Ledbetter then began an inspection of the vehicle. CBPO Ledbetter entered the vehicle and removed the molding and pulled the paneling away from the right rear quarter panel. CBPO Ledbetter reached inside and felt a package. He then exited the vehicle, escorted Defendant to the vehicle secondary office and conducted a pat down search which was negative for contraband. CBPO Ledbetter returned to the vehicle to continue his inspection. CBPO Ledbetter probed the package and extracted a white powdery substance. At this time, Special Agent Russell H. Vensk Jr. arrived at the vehicle and told CBPO Ledbetter that ICE special agents were going to allow Defendant to leave the Port in the vehicle and follow him. CBPO Ledbetter then field-tested the white powdery substance and it field-tested positive for the presence of cocaine. C. Cold Convoy

At approximately 1:50 p.m., Defendant, who was not informed that cocaine had been found in the vehicle, was allowed to leave the Port in the vehicle and Special Agent Vensk followed him. Defendant proceed north on Imperial Avenue and turned left (east) on 3rd St. Defendant parked the vehicle on the south side of 3rd St. west of Rockwood Ave. Defendant exited the vehicle, walked to the sidewalk on the south side of the street, faced west and yelled to somebody. It could not be determined to whom Defendant yelled. Defendant then briefly talked on his cell phone before returning to the vehicle. Defendant then proceeded east on3rd St., Turned left (north) onto Heffernan Avenue, turned left (west) onto 4th Street, and turned right (north) onto Imperial Avenue. At 5th Street, Defendant made a u-turn and proceeded south on Imperial Avenue, in an attempt to abscond into Mexico. At approximately 2:00 p.m., CBPO Ledbetter saw the vehicle heading south toward the Port. CBPO Ledbetter motioned for Defendant to stop and placed a tire deflation device on front of the left 3

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front tire. CBPO Ledbetter then approached the vehicle, instructed Defendant to exit the vehicle and placed him under arrest. CBPO Ledbetter then completed his inspection of the vehicle. CBPO Ledbetter found and removed fourteen packages concealed within the right rear quarter panel and twelve packages concealed within the left rear quarter panel. The packages were wrapped in gray duct tape and brown postal tape. CBPO Ledbetter weighed the packages and they had a total net weight of 32.54 kilograms (approximately 71.58 pounds). D. Defendant's Statements

On December 5, 2007, at approximately 2:40 p.m., Defendant was escorted to the Immigration & Customs Enforcement interview room at the Calexico West Port by Special Agent Vensk. At approximately 2:55 p.m., Sergeant Gonzalo Gerardo of the Calexico, California Police Department verbally advised Defendant of his constitutional rights per Miranda in the Spanish language, which was witnessed by Vensk. The advisement of rights was video-recorded. Defendant was also provided an advisement of rights form in Spanish to enable him to read each right. Defendant acknowledged that he understood his rights by stating "si" after each right was read and then placing his initials next to each right on the advisement of rights form. Defendant invoked his right to remain silent. The interview was terminated. A CBPO advised Defendant in the Spanish language of his right to have the Mexican consul informed o f his arrest. Defendant declined. III MOTION TO COMPEL DISCOVERY The United States has and will continue to fully comply with its discovery obligations under Brady v. Maryland, 373 U.S. 83 (1963), the Jencks Act (19 U.S.C. § 3500), and Rule 16 of the Federal Rules of Criminal Procedure. The United States has already delivered discovery to defense counsel including investigative reports and Defendant's statements. Nevertheless, Defendant makes a series of discovery requests. The following is the United States' response to Defendant's various discovery requests.

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1.

Statements of Defendant

The United States has already produced reports disclosing the substance of Defendant's oral and written statements. The United States will continue to produce discovery related to Defendant's statements made in response to questions by agents. Relevant oral statements of Defendant are included in the reports already provided. Agent rough notes, if any exist, will be preserved, but they will not be produced as part of Rule 16 discovery. A defendant is not entitled to rough notes because they are not "statements" within the meaning of the Jencks Act unless they comprise both a substantially verbatim narrative of a witness' assertions and they have been approved or adopted by the witness. United States v. Bobadilla-Lopez, 954 F.2d 519 (9th Cir. 1992); United States v. Spencer, 618 F.2d 605 (9th Cir. 1980); see also United States v. Alvarez, 86 F.3d 901, 906 (9th Cir. 1996); United States v. Griffin, 659 F.2d 932 (9th Cir. 1981). 2. Arrest Reports and Notes

The United States has provided the Defendant with arrest reports. As noted previously, agent rough notes, if any exist, will be preserved, but they will not be produced as part of Rule 16 discovery. The United States is unaware of any dispatch tapes regarding Defendant's apprehension. Defendant also requests TECS reports. The United States objects to this request. The United States does not intend to provide Defendant with Custom's TECS information unless the United States decides to introduce such evidence pursuant to Rule 404(b). See United States v. Vega, 188 F.3d 1150, 1153 (9th Cir. 1999). Otherwise, such evidence is only available to the defendant if it is "relevant to the development of a possible defense," United States v. Mandel, 914 F.2d 1215, 1219 (9th Cir. 1990) (citations and quotations omitted), or it "enable[s] the accused to substantially alter the quantum of proof in his favor." United States v. Marshall, 532 F.2d 1279,1285 (9th Cir. 1976). Defendant has shown neither. 3. Brady Material

Again, the United States is well aware of and will continue to perform its duty under Brady v. Maryland, 373 U.S. 83 (1963) and United States v. Agurs, 427 U.S. 97 (1976) to disclose exculpatory evidence within its possession that is material to the issue of guilt or punishment. Defendant, however, is not entitled to all evidence known or believed to exist which is, or may be, favorable to the accused, 5

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or which pertains to the credibility of the United States' case. As stated in United States v. Gardner, 611 F.2d 770 (9th Cir. 1980), it must be noted that: [T]he prosecution does not have a constitutional duty to disclose every bit of information that might affect the jury's decision; it need only disclose information favorable to the defense that meets the appropriate standard of materiality. [Citation omitted.] Id. at 774-775. The United States will turn over evidence within its possession which could be used to properly impeach a witness who has been called to testify. Although the United States will provide conviction records, if any, which could be used to impeach a witness, the United States is under no obligation to turn over the criminal records of all witnesses. United States v. Taylor, 542 F.2d 1023, 1026 (8th Cir. 1976). When disclosing such information, disclosure need only extend to witnesses the United States intends to call in its case-inchief. United States v. Gering, 716 F.2d 615, 621 (9th Cir. 1983); United States v. Angelini, 607 F.2d 1305, 1309 (9th Cir. 1979). Finally, the United States will continue to comply with its obligations pursuant to United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991). 4. Sentencing Information

Defendant claims that the United States must disclose any information affecting Defendant's sentencing guidelines because such information is discoverable under Brady v. Maryland, 373 U.S. 83 (1963). The United States respectfully contends that it has no such disclosure obligation. The United States is not obligated under Brady to furnish a defendant with information which he already knows. United States v. Taylor, 802 F.2d 1108, 1118 n.5 (9th Cir. 1986). Brady is a rule of disclosure, and therefore, there can be no violation of Brady if the evidence is already known to the defendant. In such case, the United States has not suppressed the evidence and consequently has no Brady obligation. See United States v. Gaggi, 811 F.2d 47, 59 (2d Cir. 1987). But even assuming Defendant does not already possess the information about factors which might affect his guideline range, the United States would not be required to provide information bearing on Defendant's mitigation of punishment until after Defendant's conviction or plea of guilty and prior to his sentencing date. See United States v. Juvenile Male, 864 F.2d 641, 647 (9th Cir. 1988) ("No 6

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[Brady] violation occurs if the evidence is disclosed to the defendant at a time when the disclosure remains in value."). Accordingly, Defendant's demand for this information is premature. 5. Defendant's Prior Record

The United States has already provided Defendant with a copy of Defendant's criminal record in accordance with Federal Rule of Criminal Procedure 16(a)(1)(D). 6. Proposed 404(b) Evidence

Should the United States seek to introduce any similar act evidence pursuant to Federal Rules of Evidence 404(b) or 609, the United States will provide Defendant with notice of its proposed use of such evidence and information about such bad act at the time the United States' trial memorandum is filed. However, to avoid any arguments concerning lack of notice, the United States intends to introduce Defendant's prior crossing as evidence of knowledge and lack of mistake. 7. Evidence Seized

The United States has, and will continue to comply with Rule 16(a)(1)(E) in allowing Defendant an opportunity, upon reasonable notice, to examine, copy and inspect physical evidence which is within the possession, custody or control of the United States, and which is material to the preparation of Defendant's defense or are intended for use by the United States as evidence in chief at trial, or were obtained from or belong to Defendant, including photographs. The United States, however, need not produce rebuttal evidence in advance of trial. United States v. Givens, 767 F.2d 574, 584 (9th Cir. 1984). 8. Tangible Objects

Again, the United States is well aware of and will fully perform its duty under Brady v. Maryland, 373 U.S. 83 (1963) and United States v. Agurs, 427 U.S. 97 (1976), to disclose exculpatory evidence within its possession that is material to the issue of guilt or punishment. Defendant, however, is not entitled to all documents known or believed to exist, which is, or may be, favorable to the accused, or which pertains to the credibility of the United States' case. The United States has, and will continue to comply with Rule 16(a)(1)(E) in allowing Defendant an opportunity, upon reasonable notice, to examine, copy and inspect physical evidence which is within the possession, custody or control of the United States, and which is material to the preparation of 7

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Defendant's defense or are intended for use by the United States as evidence in chief at trial, or were obtained from or belong to Defendant, including photographs. The United States, however, need not produce rebuttal evidence in advance of trial. United States v. Givens, 767 F.2d 574, 584 (9th Cir. 1984). 9. Bias or Motive to Lie

The United States is unaware of any evidence indicating that a prospective witness is biased or prejudiced against Defendant. The United States is also unaware of any evidence that prospective witnesses have a motive to falsify or distort testimony. 10-11. Impeachment and Evidence of Criminal Investigation As stated previously, the United States will turn over evidence within its possession which could be used to properly impeach a witness who has been called to testify. Although the United States will provide conviction records, if any, which could be used to impeach a witness, the United States is under no obligation to turn over the criminal records of all witnesses. United States v. Taylor, 542 F.2d 1023, 1026 (8th Cir. 1976). When disclosing such information, disclosure need only extend to witnesses the United States intends to call in its case-inchief. United States v. Gering, 716 F.2d 615, 621 (9th Cir. 1983); United States v. Angelini, 607 F.2d 1305, 1309 (9th Cir. 1979). 12. Evidence Affecting Perception, Etc.

The United States is unaware of any evidence indicating that a prospective witness has a perception, recollection, communication, or truth telling problem. 13. Witness Addresses

The United States will provide Defendant with a list of all witnesses which it intends to call in its case-in-chief at the time the United States' trial memorandum is filed, although delivery of such a list is not required. See United States v. Dischner, 960 F.2d 870 (9th Cir. 1992); United States v. Culter, 806 F.2d 933, 936 (9th Cir. 1986); United States v. Mills, 810 F.2d 907, 910 (9th Cir. 1987). Defendant, however, is not entitled to the production of addresses or phone numbers of possible witnesses of the United States. See United States v. Hicks, 103 F.3d 837, 841 (9th Cir. 1996); United States v.

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Thompson, 493 F.2d 305, 309 (9th Cir. 1977). Defendant has already received access to the names of potential witnesses in this case in the investigative reports. 14. Witnesses Favorable to Defendant

The United States is not aware of any witness who made a favorable statement concerning Defendant. 15. Statements Favorable to Defendant

The United States is not aware of any witness who made a favorable statement concerning Defendant. 16. Jencks Act Material

As stated previously, the United States will comply with its obligations pursuant to Brady v. Maryland, 373 U.S. 83 (1963), United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991), and the Jencks Act. 17. Giglio Information

As stated previously, the United States will comply with its obligations pursuant to Brady v. Maryland, 373 U.S. 83 (1963), the Jencks Act, United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991), and Giglio v. United States, 405 U.S. 150 (1972). 18. Agreements Between the Government and Witnesses

The United States is unaware of the existence of any agreements between the Government and witnesses in this case. 19. Informants and Cooperating Witnesses

Defendant incorrectly asserts that Roviaro v. United States, 353 U.S. 52 (1957), establishes a per se rule that the United States must disclose the identity and location of confidential informants used in a case. Rather, the United States Supreme Court held that disclosure of an informer's identity is required only where disclosure would be relevant to the defense or is essential to a fair determination of a cause. Id. at 60-61. Moreover, in United States v. Jones, 612 F.2d 453 (9th Cir. 1979), the Ninth Circuit held: The trial court correctly ruled that the defense had no right to pretrial discovery of information regarding informants and prospective government witnesses under the Federal Rules of Criminal Procedure, the Jencks Act, 18 U.S.C. § 3500, or Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). 9
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1 Id. at 454. As such, the United States is not obligated to make such a disclosure, if there is in fact 2 anything to disclosure, at this point in the case. 3 That being said, the United States is unaware of the existence of an informant in this case. 4 However, as previously stated, the United States will provide Defendant with a list of all witnesses 5 which it intends to call in its case-in-chief at the time the United States' trial memorandum is filed, 6 although delivery of such a list is not required. See United States v. Dischner, 960 F.2d 870 (9th Cir. 7 1992); United States v. Culter, 806 F.2d 933, 936 (9th Cir. 1986); United States v. Mills, 810 F.2d 907, 8 910 (9th Cir. 1987). Defendant, however, is not entitled to the production of addresses or phone 9 numbers of possible witnesses of the United States. See United States v. Hicks, 103 F.3d 837, 841 (9th 10 Cir. 1996); United States v. Thompson, 493 F.2d 305, 309 (9th Cir. 1977). Defendant has already 11 received access to the names of potential witnesses in this case in the investigative reports previously 12 provided. 13 20. 14 The United States is unaware of the existence of an informant in this case. 15 21. 16 The United States will review the personnel files of all federal law enforcement individuals who 17 will be called as witnesses in this case for Brady material. Pursuant to United States v. Henthorn, 931 18 F.2d 29 (9th Cir. 1991) and United States v. Cadet, 727 F.2d 1452 (9th Cir. 1984), the United States 19 agrees to "disclose information favorable to the defense that meets the appropriate standard of 20 materiality . . ." Cadet, 727 F.2d at 1467, 1468. Further, if counsel for the United States is uncertain 21 about the materiality of the information within its possession in such personnel files, the information 22 will be submitted to the Court for in camera inspection and review. 23 The United States objects to this request. Defendant has not shown how any personnel records 24 of the arresting officers are relevant to this case. Defense counsel has no constitutional right to conduct 25 a search of agency files to argue relevance. See Pennsylvania v. Ritchie, 480 U.S. 39, 59-60 (1987) 26 (citing Weatherford v. Bursey, 429 U.S. 545, 559 (1977) ("There is no general constitutional right to 27 discovery in a criminal case, and Brady did not create one")). Thus, the United States will review these 28 records for impeachment information, but will not provide these records as Rule 16 discovery. 10
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Personnel Records of Officers Involved in the Arrest

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To support his request, Defendant cites Pitchess v. Superior Court, 11 Cal.3d 531, 539 (1974). In Pitchess, the California Supreme Court was addressing California Evidence Codes which permit the disclosure of public entity personnel records provided that certain requirements are followed.1/ Id. However, no such code exists under the Federal Rules of Evidence. 22. Expert Witnesses

Defendant requests written reports and summaries of any expert testimony pursuant to Federal Rules of Criminal Procedure 16(a)(1)(G). The United States will disclose to Defendant the name, qualifications, and a written summary of testimony of any expert the United States intends to use during its case-in-chief at trial pursuant to Fed. R. Evid. 702, 703, or 705. At trial, the United States will offer the testimony of a valuation expert and forensic chemist. Moreover, the United States may offer the testimony of a Fingerprint Expert to establish Defendant's identity and prior history. The United States will provide a summary, and qualifications of the experts when they are available. Although not expected to give expert opinions based upon specialized knowledge, the United States may also offer the testimony of a records custodian to introduce documents from Defendant's AFile. See Fed. R. Evid. 701 (such testimony is "helpful to a clear understanding of the determination of a fact in issue"); United States v. VonWillie, 59 F.3d 922, 929 (9th Cir. 1995) (in a drug case, the court found that "[t]hese observations are common enough and require such a limited amount of expertise, if any, that they can, indeed, be deemed lay witness opinion"); United States v. LoyolaDominguez, 125 F.3d 1315, 1317 (9th Cir. 1997) (agent "served as the conduit through which the government introduced documents from INS' Alien Registry File".). This testimony will consist of

Under California Evidence Code § 1040, a public entity has an absolute privilege against disclosure of official information. However, under section 1043 disclosure may be sought by a written motion to the court after providing written notice to the public entity which has custody of the records sought, supported by an affidavit showing good cause for discovery including materiality to the subject matter involved in the pending litigation. Once good cause for discovery is established, section 1045 requires the court to examine the information in camera to determine relevance to the case; as part of this in camera process, the court must exclude from disclosure certain categories of information, including complaints more than five years old, the conclusions of any officer investigating a complaint, and facts are so remote as to make disclosure of little or no practical benefit. Section 1045 also establishes general criteria to guide the court's determination and insure the privacy interests of the officers subject to the motion are protected. 11
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explaining the purpose of the A-File, what documents are contained within the A-File, and the purpose of those documents. 23. Residual Requests

The United States objects to this request. The United States has and will continue to comply with its discovery obligations. IV PRESERVATION AND INSPECTION OF EVIDENCE The United States will preserve all evidence to which Defendant is entitled to pursuant to the relevant discovery rules. However, the United States objects to Defendant's blanket request to preserve items of physical evidence through the exercise of Defendant's appellate rights. The United States has, and will continue to comply with Rule 16(a)(1)(E) in allowing Defendant an opportunity, upon reasonable notice, to examine, copy and inspect physical evidence which is within the possession, custody or control of the United States, and which is material to the preparation of Defendant's defense or are intended for use by the United States as evidence in chief at trial, or were obtained from or belonging to Defendant, including photographs. The United States has made the evidence available to Defendant and Defendant's investigators and will comply with any request for inspection. Thus, an order is unnecessary. V THE DRUG STATUTES ARE CONSTITUTIONAL Without citing any authority, Defendant urges this Court to dismiss the Indictment based on the unconstitutionality of the drug statutes. While Defendant may be seeking to preserve this issue for appeal, Defendant should cite controlling authority which he knows contradicts his argument. The Ninth Circuit has already repeatedly rejected Defendant's claim that Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) rendered the federal drug laws, including 21 U.S.C. §§ 841, 952 and 960, facially unconstitutional. See United States v. Hernandez, 314 F.3d 430, 437 (9th Cir. 2002); United States v. Marcucci, 299 F.3d 1156, 1165 (9th Cir. 2002); United States v. Carranza, 289 F.3d 634, 643 (9th Cir. 2002); United States v. Buckland, 289 F.3d 558, 562 (9th Cir. 2002) (en banc). Thus, Defendant's motion to dismiss based upon the drug statutes being unconstitutional should be denied. 12

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Next, Defendant argues that the Court should dismiss the Indictment because the Indictment fails to allege that Defendant knew that the vehicle contained the exact amount of drugs at issue here. Defendant's mens rea argument has already been rejected by the Ninth Circuit's decision in United States v. Carranza, 289 F.3d 634 (9th Cir. 2002), which reaffirmed a long line of cases holding that a "defendant charged with importing or possessing a drug is not required to know the type and amount of drug." Id. at 644. Moreover, Defendant's mens rea argument was rejected again by the Ninth Circuit. See United States v. Hernandez, 314 F.3d 430, 437 (9th Cir. 2002). Accordingly, there is no mens rea requirement as argued by Defendant and his motion should be denied. Finally, Defendant moves for production of the grand jury transcripts based upon speculation about what might have happened. His motion should be denied. The need for grand jury secrecy remains paramount unless the defendant can show "a particularized need" that outweighs the policy of grand jury secrecy. United States v. Walczak, 783 F.2d 852, 857 (9th Cir. 1986); United States v. Murray, 751 F.2d 1528, 1533 (9th Cir. 1985). Defendant has not shown a particularized need. Defendant simply speculates that the instructions to the grand jury might be deficient, and might provide a basis for further motions. However, the Ninth Circuit has held that there is no constitutional right to have any legal instruction provided to the grand jury, United States v. Kenny, 645 F. 2d 1323, 1347 (9th Cir. 1981), so obtaining the grand jury instructions would not in any way help "to avoid a possible injustice" in another legal proceeding, as required under the test set forth by the Supreme Court, in the case of Douglas Oil Co. v. Petrol Stops Northwest, 441, U.S. 211, 222 (1979). As the Supreme Court has stated, "an indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on its merits." Costello v. United States, 350 U.S. 359, 363 (1956). Moreover, it is well settled that the grand jury may indict someone based on inadmissible evidence or evidence obtained in violation of the rights of the accused. See United States v. Mandujano, 425 U.S. 564 (1976) (indictment brought based on evidence obtained in violation of defendant's right against self-incrimination); United States v. Calandra, 414 U.S. 338, 343 (1974); United States v. Blue, 384 U.S. 251 (1966) (indictment brought based on evidence obtained in violation of defendant's right 13

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against self-incrimination); Lawn v. United States, 355 U.S. 339 (1958); Costello v. United States, 350 U.S. 359, 363 (1956) ("neither the Fifth Amendment nor any other constitutional provision prescribes the kind of evidence upon which grand juries must act"); see also Reyes v. United States, 417 F.2d 916, 919 (9th Cir. 1969); Johnson v. United States, 404 F.2d 1069 (9th Cir. 1968); Wood v. United States, 405 F.2d 423 (9th Cir. 1968); Huerta v. United States, 322 F.2d 1 (9th Cir. 1963). The Ninth Circuit has recognized the grand jury's unique history, secrecy, and role. See United States v. Navarro-Vargas, 408 F.3d 1184, 1188-1201 (9th Cir. 2005). Tracing the history of the grand jury from English common law, the Supreme Court has observed that grand jurors were not hampered by technical or evidentiary laws, and traditionally could return indictments based not on evidence presented to them at all, but on their own knowledge of the facts. See Costello, 350 U.S. at 363. In light of this tradition, the Court held that "neither the Fifth Amendment nor any other constitutional provision prescribes the kind of evidence upon which grand juries must act," and that grand jury indictments could not be challenged based on the insufficiency or incompetence of the evidence. Id. Besides Defendant's speculation, there is no basis upon which to dismiss the Indictment due to improper conduct before the grand jury. As such, his request for transcripts should be denied. VI THE GRAND JURY WAS PROPERLY INSTRUCTED A. Introduction

Defendant makes contentions relating to two separate instructions given to the grand jury during its impanelment by District Judge Larry A. Burns on January 10, 2007. Although recognizing that the Ninth Circuit in United States v. Navarro-Vargas, 408 F.3d 1184 (9th Cir. 2005) (en banc) generally found the two grand jury instructions constitutional, Defendant here contends Judge Burns went beyond the text of the approved instructions, and by so doing rendered them improper to the point that the Indictment should be dismissed. In making his arguments concerning the two separate instructions Defendant urges this Court to dismiss the Indictment on two separate bases relating to grand jury procedures, both of which were discussed in United States v. Isgro, 974 F.2d 1091 (9th Cir. 1992). Concerning the first attacked instruction, Defendant urges this Court to dismiss the Indictment by exercising its supervising powers 14

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over grand jury procedures.

This is a practice the Supreme Court discourages as Defendant

acknowledges, citing United States v. Williams, 504 U.S. 36, 50 (1992) ("Given the grand jury's operational separateness from its constituting court, it should come as no surprise that we have been reluctant to invoke the judicial supervisory power as a basis for prescribing modes of grand jury procedure."). Isgro reiterated: [A] district court may draw on its supervisory powers to dismiss an indictment. The supervisory powers doctrine "is premised on the inherent ability of the federal courts to formulate procedural rules not specifically required by the Constitution or Congress to supervise the administration of justice." Before it may invoke this power, a court must first find that the defendant is actually prejudiced by the misconduct. Absent such prejudice-that is, absent "`grave' doubt that the decision to indict was free from the substantial influence of [the misconduct]"-a dismissal is not warranted. 974 F.2d at 1094 (citation omitted, emphasis added). Concerning the second attacked instruction, in an attempt to dodge the holding in Williams, Defendant appears to base his contentions on the Constitution as a reason to dismiss the Indictment. (Def.'s Mot. at 18 ("A grand jury so badly misguided is no grand jury at all under the Fifth Amendment.").) Concerning that kind of a contention Isgro stated: [A] court may dismiss an indictment if it perceives constitutional error that interferes with the grand jury's independence and the integrity of the grand jury proceeding. "Constitutional error is found where the `structural protections of the grand jury have been so compromised as to render the proceedings fundamentally unfair, allowing the presumption of prejudice' to the defendant." Constitutional error may also be found "if [the] defendant can show a history of prosecutorial misconduct that is so systematic and pervasive that it affects the fundamental fairness of the proceeding or if the independence of the grand jury is substantially infringed." 974 F.2d at 1094 (citation omitted).2/ The portions of the two relevant instructions approved in Navarro-Vargas were: You cannot judge the wisdom of the criminal laws enacted by Congress, that is, whether or not there should or should not be a federal law designating certain activity as criminal. That is to be determined by Congress and not by you. 408 F.3d at 1187, 1202. The United States Attorney and his Assistant United States Attorneys will provide you with important service in helping you to find your way when confronted with complex legal problems. It is entirely proper that you should receive this assistance. If past experience is any indication of what to expect in the future, then you In Isgro the defendants choose the abrogation of constitutional rights route when asserting that prosecutors have a duty to present exculpatory evidence to grand juries. They did not prevail. 974 F.2d at 1096 (relying on Williams, the appellate court stated that "we find that there was no abrogation of constitutional rights sufficient to support the dismissal of the indictment."). 15
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can expect candor, honesty, and good faith in matters presented by the government attorneys. 408 F.3d at 1187, 1206. Concerning the "wisdom of the criminal laws" instruction, the court stated it was constitutional because, among other things, "[i]f a grand jury can sit in judgment of wisdom of the policy behind a law, then the power to return a no bill in such cases is the clearest form of `jury nullification.'"3/ 408 F.3d at 1203 (footnote omitted). "Furthermore, the grand jury has few tools for informing itself of the policy or legal justification for the law; it receives no briefs or arguments from the parties. The grand jury has little but its own visceral reaction on which to judge the `wisdom of the law.'" Id. Concerning the "United States Attorney and his Assistant United States Attorneys" instruction, the court stated: We also reject this final contention and hold that although this passage may include unnecessary language, it does not violate the Constitution. The "candor, honesty, and good faith" language, when read in the context of the instructions as a whole, does not violate the constitutional relationship between the prosecutor and grand jury. . . . The instructions balance the praise for the government's attorney by informing the grand jurors that some have criticized the grand jury as a "mere rubber stamp" to the prosecution and reminding them that the grand jury is "independent of the United States Attorney[.]" 408 F.3d at 1207. Id. "The phrase is not vouching for the prosecutor, but is closer to advising the grand jury of the presumption of regularity and good faith that the branches of government ordinarily afford each other." Id. B. The Expanded "Wisdom of the Criminal Laws" Instruction Was Proper

Concerning whether the new grand jurors should concern themselves with the wisdom of the criminal laws enacted by Congress, Judge Burns' full instruction stated: You understood from the questions and answers that a couple of people were excused, I think three in this case, because they could not adhere to the principle that I'm about to tell you.

The Court acknowledged that as a matter of fact jury nullification does take place, and there is no way to control it. "We recognize and do not discount that some grand jurors might in fact vote to return a no bill because they regard the law as unwise at best or even unconstitutional. For all the reasons we have discussed, there is no post hoc remedy for that; the grand jury's motives are not open to examination." 408 F.3d at 1204 (emphasis in original). 16
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But it's not for you to judge the wisdom of the criminal laws enacted by congress; that is, whether or not there should be a federal law or should not be a federal law designating certain activity is criminal is not up to you. That's a judgment that congress makes. And if you disagree with the judgment made by congress, then your option is not to say "Well I'm going to vote against indicting even though I think that the evidence is sufficient" or "I'm going to vote in favor of even though the evidence may be insufficient." Instead, your obligation is to contact your congressman or advocate for a change in the laws, but not to bring your personal definition of what the law ought to be and try to impose that through applying it in a grand jury setting. Partial Transcript pp. 8-9. Defendant acknowledges that Judge Burns failed to limit the instruction consistent with NavarroVargas. Defendant contends that this addition to the approved instruction, "flatly bars the grand jury from declining to indict because the grand jurors disagree with a proposed prosecution." (Def.'s Mot. at 10.) In concocting his theory of why Judge Burns erred, Defendant posits that the expanded instruction renders irrelevant the debate about what the word "should" means. (Def.'s Mot. at 10.) This argument mixes-up two of the holdings in Navarro-Vargas in the hope they will blend into one. They do not. Navarro-Vargas does permit flatly barring the grand jury from disagreeing with the wisdom of the criminal laws. The statement, "[y]ou cannot judge the wisdom of the criminal laws enacted by Congress," (emphasis added) authorized by Navarro-Vargas, 408 F.3d at 1187, 1202, is not an expression of discretion. Jury nullification is forbidden although acknowledged as a sub rosa fact in grand jury proceedings. 408 F.3d at 1204. In this respect Judge Burns was absolutely within his rights, and within the law, when he excused the three prospective grand jurors because of their expressed inability to apply the laws passed by Congress. Similarly, it was proper for him to remind the impaneled grand jurors that they could not question the wisdom of the laws. As we will establish, this reminder did not pressure the grand jurors to give up their discretion not to return an indictment. Judge Burns' words cannot be parsed to say that they flatly barred the grand jury from declining to indict because the grand jurors disagree with a proposed prosecution, because they do not say that. That aspect of a grand jury's discretionary power (i.e. disagreement with the prosecution) was dealt with in Navarro-Vargas

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in its discussion of another instruction wherein the term "should" was germane.4/ 408 F.3d at 1204-06 ("`Should' Indict if Probable Cause Is Found"). This other instruction bestows discretion on the grand jury not to indict.5/ In finding this instruction constitutional, the court stated in words that ring true here, "It is the grand jury's position in the constitutional scheme that gives it its independence, not any instructions that a court might offer." 408 F.3d at 1206. The other instruction was also given by Judge Burns in his own fashion as follows: The function of the grand jury, in federal court at least, is to determine probable cause. That's the simple formulation that I mentioned to a number of you during the jury selection process. Probable cause is just an analysis of whether a crime was committed and there's a reasonable basis to believe that and whether a certain person is associated with the commission of that crime, committed it or helped commit it. If the answer is yes, then as grand jurors your function is to find that the probable cause is there, that the case has been substantiated, and it should move forward. If conscientiously, after listening to the evidence, you say "No, I can't form a reasonable belief has anything to do with it, then your obligation, of course, would be to decline to indict, to turn the case away and not have it go forward. Partial Transcript pp. 3-4. Probable cause means that you have an honestly held conscientious belief and that the belief is reasonable that a federal crime was committed and that the person to be indicted was somehow associated with the commission of that crime. Either they committed it themselves or they helped someone commit it or they were part of a conspiracy, an illegal agreement, to commit that crime.
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That instruction is not at issue here. It read as follows:

[Y]our task is to determine whether the government's evidence as presented to you is sufficient to cause you to conclude that there is probable cause to believe that the accused is guilty of the offense charged. To put it another way, you should vote to indict where the evidence presented to you is sufficiently strong to warrant a reasonable person's believing that the accused is probably guilty of the offense with which the accused is charged. 408 F.3d at 1187.
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The court upheld the instruction stating:

This instruction does not violate the grand jury's independence. The language of the model charge does not state that the jury "must" or "shall" indict, but merely that it "should" indict if it finds probable cause. As a matter of pure semantics, it does not "eliminate discretion on the part of the grand jurors," leaving room for the grand jury to dismiss even if it finds probable cause. 408 F.3d at 1205 (confirming holding in United States v. Marcucci, 299 F.3d 1156, 1159 (9th Cir. 2002) (per curiam)). "In this respect, the grand jury has even greater powers of nonprosecution than the executive because there is, literally, no check on a grand jury's decision not to return an indictment." 408 F.3d at 1206. 18
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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 Partial Transcript p. 11. 19 Concerning the new grand jurors' relationship to the United States Attorney and the Assistant U.S. Attorneys, Judge Burns variously stated: [T]here's a close association between the grand jury and the U.S. Attorney's Office. . . . . You'll work closely with the U.S. Attorney's Office in your investigation of cases. Partial Transcript p. 23. While the new grand jurors were told by Judge Burns that they could not question the wisdom of the criminal laws per Navarro-Vargas, they were also told by Judge Burns they had the discretion not to return an indictment per Navarro-Vargas. Further, if a potential grand juror could not be dissuaded from questioning the wisdom of the criminal laws, that grand juror should be dismissed as a potential jury nullification advocate. See Merced v. McGrath, 426 F.3d 1076, 1079-80 (9th Cir. 2005). Thus, there was no error requiring dismissal of this Indictment or any other indictment by this Court exercising its supervisory powers. Further, a reading of the dialogues between Judge Burns and the three excused jurors reflects a measured, thoughtful, almost mutual decision, that those three individuals should not serve on the grand jury because of their views. Judge Burns' reference back to those three colloquies cannot be construed as pressuring the impaneled grand jurors, but merely bespeaks a reminder to the grand jury of their duties. Finally, even if there was an error, Defendant has not demonstrated he was actually prejudiced thereby, a burden he has to bear. "Absent such prejudice--that is, absent `grave' doubt that the decision to indict was free from the substantial influence of [the misconduct]--a dismissal is not warranted." Isgro, 974 F.2d at 1094. C. The Addition to the "United States Attorney and his Assistant United States Attorneys" Instruction Did Not Violate the Constitution To put it another way, you should vote to indict when the evidence presented to you is sufficiently strong to warrant a reasonable person to believe that the accused is probably guilty of the offense which is proposed.

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[I]n my experience here in the over 20 years in this court, that kind of tension does not exist on a regular basis, that I can recall, between the U.S. Attorney and the grand juries. They generally work together. Partial Transcript p. 12. Now, again, this emphasizes the difference between the function of the grand jury and the trial jury. You're all about probable cause. If you think that there's evidence out there that might cause you to say "well, I don't think probable cause exists," then it's incumbent upon you to hear that evidence as well. As I told you, in most instances, the U.S. Attorneys are duty-bound to present evidence that cuts against what they may be asking you to do if they're aware of that evidence. Partial Transcript p. 20.6/ As a practical matter, you will work closely with government lawyers. The U.S. Attorney and the Assistant U.S. Attorneys will provide you with important services and help you find your way when you're confronted with complex legal matters. It's entirely proper that you should receive the assistance from the government lawyers. But at the end of the day, the decision about whether a case goes forward and an indictment should be returned is yours and yours alone. If past experience is any indication of what to expect in the future, then you can expect that the U.S. Attorneys that will appear in front of you will be candid, they'll be honest, that they'll act in good faith in all matters presented to you. Partial Transcript pp. 26-27. Defendant cites the phrase, "the U.S. Attorneys are duty-bound to present evidence that cuts against what they may be asking you to do if they're aware of that evidence." (Def.'s Mot. at 17.) Defendant then ties this statement to the later instruction which "advis[ed] the grand jurors that they `can expect that the U.S. Attorneys that will appear in front of [them] will be candid, they'll be honest, and . . . they'll act in good faith in all matters presented to you.'" (Def.'s Mot. at 17.) From this lash-up Defendant contends: These instructions create a presumption that, in cases where the prosecutor does not present exculpatory evidence, no exculpatory evidence exists. A grand juror's reasoning, in a case in which no exculpatory evidence was presented, would proceed along these lines: (1) I have to consider evidence that undercuts probable cause.

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Just prior to this instruction, Judge Burns had informed the grand jurors that:

[T]hese proceedings tend to be one-sided necessarily. . . . Because it's not a full-blown trial, you're likely in most cases not to hear the other side of the story, if there is another side to the story. Partial transcript p. 19. 20
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(2) The candid, honest, duty-bound prosecutor would, in good faith, have presented any such evidence to me, if it existed. (3) Because no such evidence was presented to me, I may conclude that there is none. Even if some exculpatory evidence were presented, a grand juror would necessarily presume that the evidence presented represents the universe of all available exculpatory evidence; if there was more, the duty-bound prosecutor would have presented it. The instructions therefore discourage investigation--if exculpatory evidence were out there, the prosecutor would present it, so investigation is a waste of time and provide additional support to every probable cause determination: i.e., this case may be weak, but I know that there is nothing on the other side of the equation because it was not presented. A grand jury so badly misguided is no grand jury at all under the Fifth Amendment. (Def.'s Mot. at 18.) (Emphasis added.)7/ Frankly, Judge Burns' statement that "the U.S. Attorneys are duty-bound to present evidence that cuts against what they may be asking you to do if they're aware of that evidence," is directly contradicted by United States v. Williams, 504 U.S. 36, 51-53 (1992) ("If the grand jury has no obligation to consider all `substantial exculpatory' evidence, we do not understand how the prosecutor can be said to have a binding obligation to present it."8/ (emphasis added)). See also, United States v. Haynes, 216 F.3d 789, 798 (9th Cir. 2000) ("Finally, their challenge to the government's failure to introduce evidence impugning Fairbanks's credibility lacks merit because prosecutors have no

The term "presumption" is too strong a word in this setting. The term "inference" is more appropriate. See McClean v. Moran, 963 F.2d 1306 (9th Cir. 1992) which states there are (1) permissive inferences; (2) mandatory rebuttable presumptions; and (3) mandatory conclusive presumptions, and explains the difference between the three. 963 F.2d at 1308-09 (discussing Francis v. Franklin, 471 U.S. 314 (1985); Sandstrom v. Montana, 442 U.S. 510 (1979); and Ulster County Court v. Allen, 442 U.S. 140, 157 & n. 16 (1979)). See also United States v. Warren, 25 F.3d 890, 897 (9th Cir. 1994).
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Note that in Williams the Court established:

Respondent does not contend that the Fifth Amendment itself obliges the prosecutor to disclose substantial exculpatory evidence in his possession to the grand jury. Instead, building on our statement that the federal courts "may, within limits, formulate procedural rules not specifically required by the Constitution or the Congress," he argues that imposition of the Tenth Circuit's disclosure rule is supported by the courts' "supervisory power." 504 U.S. at 45 (citation omitted). The Court concluded, "we conclude that courts have no authority to prescribe such a duty [to present exculpatory evidence] pursuant to their inherent supervisory authority over their own proceedings." 504 U.S. at 55. See also, United States v. Haynes, 216 F.3d 789, 797-98 (9th Cir. 2000). However, the Ninth Circuit in Isgro used Williams' holding that the supervisory powers would not be invoked to ward off an attack on grand jury procedures couched in constitutional terms. 974 F.2d at 1096. 21
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obligation to disclose `substantial exculpatory evidence' to a grand jury." (citing Williams) (emphasis added)). However, the analysis does not stop there. Prior to assuming his judicial duties, Judge Burns was a member of the United States Attorney's Office, and made appearances in front of the federal grand jury.9/ As such he was undoubtedly aware of the provisions in the United States Attorneys' Manual ("USAM").10/ Specifically, it appears he is aware of USAM Section 9-11.233 thereof which reads: In United States v. Williams, 112 S.Ct. 1735 (1992), the Supreme Court held that the Federal courts' supervisory powers over the grand jury did not include the power to make a rule allowing the dismissal of an otherwise valid indictment where the prosecutor failed to introduce substantial exculpatory evidence to a grand jury. It is the policy of the Department of Justice, however, that when a prosecutor conducting a grand jury inquiry is personally aware of substantial evidence that directly negates the guilt of a subject of the investigation, the prosecutor must present or otherwise disclose such evidence to the grand jury before seeking an indictment against such a person. While a failure to follow the Department's policy should not result in dismissal of an indictment, appellate courts may refer violations of the policy to the Office of Professional Responsibility for review. (Emphasis added.)11/ This policy was reconfirmed in USAM 9-5.001, Policy Regarding Disclosure of Exculpatory and Impeachment Information, Paragraph "A," "this policy does not alter or supersede the

14 policy that requires prosecutors to disclose `substantial evidence that directly negates the guilt of a 15 subject of the investigation' to the grand jury before seeking an indictment, see USAM § 9-11.233 ." 16 17 18 19 20 21 22 23 24 25 26 27 28 He recalled those days when instructing the new grand jurors. [Partial Transcript pp. 12, 1416, 17-18.] The USAM is available on-line at www.usdoj.gov/usao/eousa/foia_reading_room/ usam/index.html. See www.usdoj.gov/usao/eousa/foia_reading_room/usam/ title9/11mcrm.htm. Even if Judge Burns did not know of this provision in the USAM while he was a member of the United States Attorney's Office, because of the accessability of the USAM on the internet, as the District Judge overseeing the grand jury he certainly could determine the required duties of the United States Attorneys appearing before the grand jury from that source. See www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/5mcrm.htm. Similarly, this new section does not bestow any procedural or substantive rights on defendants. Under this policy, the government's disclosure will exceed its constitutional obligations. This expanded disclosure policy, however, does not create a general right of discovery in criminal cases. Nor does it provide defendants with any additional rights or remedies. USAM 9-5.001, ¶ "E." See www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/ 5mcrm.htm. 22
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The fact that Judge Burns' statement contradicts Williams, but is in line with self-imposed guidelines for United States Attorneys, does not create the constitutional crisis proposed by Defendant. No improper presumption/inference was created when Judge Burns reiterated what he knew to be a selfimposed duty to the new grand jurors. Simply stated, in the vast majority of the cases the reason the prosecutor does not present "substantial" exculpatory evidence, is because no "substantial" exculpatory evidence exists.13/ If it does exist, as mandated by the USAM, the evidence should be presented to the grand jury by the Assistant U.S. Attorney upon pain of possibly having his or her career destroyed by an Office of Professional Responsibility investigation. Even if there is some nefarious slant to the grand jury proceedings when the prosecutor does not present any "substantial" exculpatory evidence, because there is none, the negative inference created thereby in the minds of the grand jurors is legitimate. In cases such as Defendant's, the Government has no "substantial" exculpatory evidence generated from its investigation or from submissions tendered by the defendant.14/ There is nothing wrong in this scenario with a grand juror inferring from this state-of-affairs that there is no "substantial" exculpatory evidence, or even if some exculpatory evidence were presented, the evidence presented represents the universe of all available exculpatory evidence. Further, just as the instruction language regarding the United States Attorney attacked in Navarro-Vargas was found to be "unnecessary language [which] does not violate the Constitution," 408 F.3d at 1207, so too the "duty-bound" statement was unnecessary when charging the grand jury concerning its relationship with the United States Attorney and her Assistant U.S. Attorneys, and does not violate the Constitution. In United States v. Isgro, 974 F.2d 1091 (9th Cir. 1992), the Ninth Circuit while reviewing Williams established that there is nothing in the Constitution which requires a
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Recall Judge Burns also told the grand jurors that:

[T]hese proceedings tend to be one-sided necessarily. . . . Because it's not a full-blown trial, you're likely in most cases not to hear the other side of the story, if there is another side to the story. Partial transcript p. 19. Realistically, given "that the grand jury sits not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge [i.e. only finding probable cause]," Williams, 504 U.S. at 51 (citing United States v. Calandra, 414 U.S. 338, 343-44 (1974)), no competent defense attorney is going to preview the defendant's defense story prior to trial assuming one will be presented to a fact-finder. Therefore, defense submissions to the grand jury will be few and far between. 23
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prosecutor to give the person under investigation the right to present anything to the grand jury (including his or her testimony or other exculpatory evidence), and the absence of that information does not require dismissal of the indictment. 974 F.2d at 1096 ("Williams clearly rejects the idea that there exists a right to such `fair' or `objective' grand jury deliberations."). That the USAM imposes a duty on United States Attorneys to present "substantial" exculpatory evidence to the grand jury is irrelevant since by its own terms the USAM excludes defendants from reaping any benefits from the self-imposed policy.15/ Therefore, while the "duty-bound" statement was an interesting tidbit of information, it was unnecessary in terms of advising the grand jurors of their rights and responsibilities, and does not cast an unconstitutional pall upon the instructions which requires dismissal of the indictment in this case or any case. The grand jurors were repeatedly instructed by Judge Burns that, in essence, the United Sates Attorneys are "good guys," which was authorized by Navarro-Vargas. 408 F.3d at 1206-07 ("laudatory comments . . . not vouching for the prosecutor"). But he also repeatedly "remind[ed] the grand jury that it stands between the government and the accused and is independent," which was also required by Navarro-Vargas. 408 F.3d at 1207. In this context the unnecessary "duty-bound" statement does not mean the instructions were constitutionally defective requiring dismissal of this indictment or any indictment. The "duty bound" statement constitutional contentions raised by Defendant do not indicate that the "`structural protections of the grand jury have been so compromised as to render the proceedings fundamentally unfair, allowing the presumption of prejudice' to the defendant," and "[the] defendant can[not] show a history of prosecutorial misconduct that is so systematic and pervasive that it affects the fundamental fairness of the proceeding or if the independence of the grand jury is substantially infringed." Isgro, 974 F.2d at 1094 (citation omitted). Therefore, this Indictment, or any other indictment, need not be dismissed.

The apparent irony is that although an Assistant U.S. Attorney will not lose a case for failure to present exculpatory information to a grand jury per Williams, he or she could lose his or her job with the United States Attorney's Office for such a failure per the USAM. 24
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VII DEFENDANT'S MOTION FOR LEAVE TO FILE FURTHER MOTIONS Defendant's motion for leave to file further motions should be denied except to the extent that such motions are based on new discovery. VIII CONCLUSION For the foregoing reasons, the United States asks that the Court deny Defendant's motions, except where unopposed, limit further motions to those based on new law or facts. DATED: March 23, 2008 Respectfully submitted, KAREN P. HEWITT United States Attorney s/Christopher M. Alexander CHRISTOPHER M. ALEXANADER Assistant United States Attorney Attorneys for Plaintiff United States of America Email: [email protected]

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1 2 3 4 v. 5

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, LUIS CALDERON-QUINONEZ, ) ) ) ) ) ) ) ) ) ) Criminal Case No. 07CR3408-BEN

CERTIFICATE OF SERVICE

6 Defendant. 7 8 9 10 11 12 13 14 15 1. 16 17 18 19 20 21 22 23 24 25 None Jason Ser, Esq. Atty for Defendant IT IS HEREBY CERTIFIED THAT:

I, CHRISTOPHER ALEXANDER, 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' Response and Opposition to Defendant's Motions to (1) compel discovery/preserve evidence; (2) dismiss; and (3) grant leave to file further motions, together with memorandum of points and authorities on the following parties by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically notifies them.

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:

the last known address, at which place there is delivery service of mail from the United States Postal Service. I declare under penalty of perjury that the foregoing is true and correct. Executed on March 23, 2008. s/Christopher M. Alexander

26 CHRISTOPHER M. ALEXANDER 27 28 26

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