Free Reply to Response - District Court of Arizona - Arizona

DANA CARPENTER Attorney at Law 2 3106 N. 16th Street Phoenix, AZ 85016 3 (602) 266-5770 phone (602) 277-1636 fax 4 [email protected] State Bar No. 007320
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Attorney for Defendant IN THE UNITED STATES DISTRICT COURT IN AND FOR DISTRICT OF ARIZONA United States of America, Plaintiff, vs. Dragan Ubiparipovic, Defendant. No. CR04-1142-PHX-DGC DEFENDANT'S REPLY TO THE GOVERNMENT'S RESPONSE TO THE DEFENDANT'S MOTION FOR DISCOVERY

Defendant, Dragan Ubiparipovic, by and through undersigned counsel, hereby Replies to the Government's Response to the Defendant's Motion for Discovery dated March 13, 2006. I. Materiality of IOM Belgrade Staff. The identity of all of the IOM Belgrade Staff during the relevant time period is material to the defendant's estoppel by entrapment investigation. The defendant went to the IOM Belgrade Staff Offices on three separate occasions. On the first two occasions, the defendant met with unknown staff members. On the third occasion he met with an IOM Caseworker whose name the defendant is now in possession of. The defendant must know the names of the IOM Belgrade Staff in order to determine which of the other IOM Belgrade employees may have spoken with the defendant. In addition, these staff members may be material because they would be able to testify whether or not it was common for staff members to advise former members of the army that they should not mention their military service on the INS

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application. If they did so advise applicants, then the defendant's credibility would be bolstered as well. Therefore, the IOM staff are material to two defense issues. II. International Organizations Immunity Act. The United States Code provides that a public international organization must be designated by the President by appropriate Executive order to be entitled to enjoy the privileges, exemptions, and immunities of 22 USC §288, et. seq. This statute is what the government refers to in its response as the International Organizations Immunity Act. In reviewing the related Federal Regulations, Executive orders which have been granted by the President are listed at 19CFR §148.87. Interestingly, the International Organization for Migration is not among the listed public international organization receiving an Executive order of approval. (See, Exhibit A). In addition, the Memorandum of Understanding relating to IOM makes no specific reference to the granting of any privileges or immunities pursuant to the United States Code. The memorandum of understanding is the agreement between the United States Government to the Department of State, represented by the Bureau of Population, Refugees, and Migration and the IOM. (See, Exhibit B). III. IOM is a Government Agent. The United States claims the requested information is not in it's possession, custody or control, unless the agency involved is a law enforcement agency or in the alternative, an agency of the United States Government. In United States v. Santiago, 46F.3d (9th Cir. 1995), the 9th Circuit set forth the applicable standard regarding the possession and control element of Rule 16(a)(1)(C). The District Court relied upon United States v. Bryan, 868 F.2d 1032 (9th Cir.), cert. denied, 493 U.S. 859 (1989), as meaning that the prosecutor will be deemed to have knowledge of and access to anything in the possession, control of any federal agency participating in the same investigation. The District Court construed this language in Bryan as establishing a requirement that the agency had at least taken part in a

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particular investigation in order for the prosecutor to be charged with knowledge of and access to the material in possession of the agency. The 9th Circuit rejected this requirement. "Seeking a fair balance of the competing concerns", the Court established that the scope of the Governments obligation turned on the extent to which the prosecutor has knowledge of and access to the documents. Significantly, the Bryan Court remanded the case for consideration not of whether the agency in question had participated in the investigation, but whether the United States Attorney had knowledge of and access to the documents. 46 F.3d at 893-94. The Court in Santiago, found that the United States Attorney's Office had knowledge of and access to inmate files held by the Bureau of Prisons. The Court noted that unlike cases in which the government lacked any idea that the documents at issue existed, the prosecution certainly knew that the prison files of the inmate witnesses existed. 43F.3d at 894. In defendant Ubiparipovic's case, Assistant United States Attorney Andrew Pacheco is obviously aware of the existence of the IOM Belgrade operations and it's staff. The Assistant United States Attorney has knowledge of the fact that IOM Belgrade had a staff and that IOM is capable of producing the names of those staffers. In addition, the United States has access to these documents simply by ordering IOM to produce those materials to it. The memorandum of understanding places IOM in an agency relationship with the United States. As a result, the prosecutor has knowledge of and access to the information which the defendant is requesting in this case. The information is clearly material to the defense. Finally, IOM is an agent of the United States Government. The Memorandum of Understanding states that IOM will perform governmental functions for the United States including the interview of applicants to determine their family histories and to obtain other relevant information needed by the United States Government to determine their eligibility for admission to the United States as refugees or immigrants.

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Wherefore, defendant requests the court enter an order compelling the United States Attorney's Office for the District of Arizona to produce the defense counsel a list of names and addresses for IOM Belgrade staff from 1999 to 2001. RESPECTFULLY SUBMITTED this 7th day of April, 2006. s/Dana Carpenter DANA CARPENTER Attorney for Defendant

I hereby certify that on April 7th, 2006, 13 I caused the attached document to be electronically transmitted to the Clerk's 14 Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing 15 to the following CM/ECF registrants:
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Andrew Pacheco 17 Assistant U.S. Attorney
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By

s/Enereida Carranza

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