Free Motion for Fingerprint Exemplars - District Court of California - California

Case 3:07-cr-03212-LAB

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Filed 12/17/2007

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KAREN P. HEWITT United States Attorney WILLIAM A. HALL, JR. Assistant U.S. Attorney California State Bar No. Pending United States Attorney's Office 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-7046/(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, ) ) ) ) ) ) ) ) ) ) ) I STATEMENT OF THE CASE The Defendant, Luis Armando Prado-Franquez (hereinafter "Defendant"), was charged by a grand jury on November 28, 2007, with violating 8 U.S.C. § 1326, deported alien found in the United States. Defendant was arraigned on the Indictment on November 29, 2007, and entered a plea of not guilty. II STATEMENT OF FACTS Defendant was apprehended on the morning of October 29, 2007, by a Border Patrol Agent ("BPA") five miles north of the United States/Mexico International Boundary and approximately twelve miles east of the Otay Mesa, California Port of Entry. There, at approximately 4:00 a.m Criminal Case No. 07CR3212-LAB DATE: January 7, 2007 TIME: 2:00 p.m. Before Honorable Larry A. Burns UNITED STATES' STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES

11 Plaintiff, 12 v. 13 LUIS ARMANDO PRADO-FRANQUEZ, 14 Defendant(s). 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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that day, a BPA responded to a seismic intrusion sensor activation and arrived to the area. He followed footprints on a trail that is only used by illegal aliens to further their entry into the United States. After approximately twenty-five minutes, the BPA observed eleven individuals walking on the trail in front of him. The BPA caught up to the group of eleven and identified himself; three of the eleven individuals fled and were not caught. The BPA individually questioned the remaining eight individuals, one of which was Defendant, concerning their citizenship. There, Defendant admitted that he was a citizen of Mexico with no documents entitling him to enter or remain in the United States. Defendant was transported to the Brown Field Border Patrol Station's processing center. At the center, BPAs used Defendant's fingerprints to perform a computerized check of Defendant's criminal and immigration history. Soon thereafter, Defendant was advised of his Miranda rights and stated that he understood them and was willing to answer questions without the presence of an attorney. Defendant admitted to being a citizen and national of Mexico without any

immigration documents allowing him to enter or remain in the United States legally. He further admitted that he has been previously removed from the United States, stated that he entered the United States by walking through the mountains, and admitted that he has never applied for permission to re-enter the United States since his removal. B. DEFENDANT'S CRIMINAL AND IMMIGRATION HISTORY Preliminary criminal history reports show that Defendant has felony convictions in California. Arising out of one incident, Defendant was convicted in 1994 in Los Angeles of Attempted Murder, in violation of Cal. PC § 187 and 664; Assault With a Deadly Weapon, in violation of Cal. PC § 245(A)(1); and Robbery, in violation of Cal. PC § 211. He was sentenced to 23 years incarceration. Defendant also has a prior misdemeanor conviction. Defendant's was last removed to Mexico on December 27, 2006.

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07CR3212-LAB

Case 3:07-cr-03212-LAB

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Filed 12/17/2007

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III UNITED STATES' MOTIONS FINGERPRINT EXEMPLARS The United States requests that the Court order that Defendant make himself available for fingerprinting by the United States' fingerprint expert. See United States v. Ortiz-Hernandez, 427 F.3d 567, 576-77 (9th Cir. 2005) (government may have defendant fingerprinted and use criminal and immigration records in Section 1326 prosecution). Defendant's fingerprints are not testimonial evidence. See Schmerber v. California, 384 U.S. 757 (1966). Using identifying physical characteristics, such as fingerprints, does not violate Defendant's Fifth Amendment right against self-incrimination. United States v. DePalma, 414 F.2d 394, 397 (9th Cir. 1969); see also United States v. St. Onge, 676 F. Supp. 1041, 1043 (D. Mont. 1987). B. RECIPROCAL DISCOVERY To date, the United States has provided Defendant with 32 pages of discovery, including reports of his arrest, his rap sheet, and copies of immigration and conviction documents. The United States also agrees to schedule an A-file viewing at a time that is mutually convenient for defense counsel and the United States' case agent. The government moves the Court to order Defendant to provide all reciprocal discovery to which the United States is entitled under Rules 16(b) and 26.2. Rule 16(b)(2) requires Defendant to disclose to the United States all exhibits and documents which Defendant "intends to introduce as evidence in chief at the trial" and 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. // // // // //

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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 5 07CR3212-LAB s/ William A. Hall, Jr. WILLIAM A. HALL, JR. Assistant United States Attorney DATED: December 17, 2007. Respectfully submitted, KAREN P. HEWITT United States Attorney IV CONCLUSION For the foregoing reasons, the government respectfully requests that its motions be granted.