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U.S. v. BARRERA-LOPEZ

United States District Court, S.D. California


August 10, 2005.

UNITED STATES OF AMERICA, Plaintiff,
v.
DANIEL EDUARDO BARRERA-LOPEZ, Defendant.

The opinion of the court was delivered by: BARRY MOSKOWITZ, District Judge

STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTIONS
I.
STATEMENT OF FACTS
Mr. Barrera-Lopez does not accept the statement as his own, and reserves the right to take a contrary position at motions and trial.

  On July 20, 2005, the June 2005 Grand Jury for the Southern District of California returned a six-count indictment, charging Mr. Barrera-Lopez with violations of 8 U.S.C. §§ 1324(a)(2)(B)(ii), and 18 U.S.C. § 2. He pled not guilty and denied all allegations.

  II.

  MOTION TO COMPEL FURTHER DISCOVERY

  Mr. Barrera-Lopez has received 106 pages of discovery in this case and requests the following:

  (1) The Defendant's Statements. The defendant requests disclosure of all copies of any written or recorded statement made by her, any written record containing the substance of any oral statements made by her and any written summaries of her oral statements contained in the handwritten notes of the government agent, any response to any Miranda warnings which may have been given to her, any response by her to interrogation, as well as any other statements by her. Fed.R.Crim.P. 16(a)(1)(A). To date, defense counsel has not received any video-taped statement of Mr. Barrera-Lopez.

  (2) Arrest Reports, Notes and Dispatch Tapes. The defendant also specifically requests the government to turn over all arrest reports, notes, dispatch or any other tapes that relate to the circumstances surrounding her arrest or any questioning. This request includes, but is not limited to, any rough notes, records, reports, transcripts, or other documents which contain statements of the defendant or any other discoverable material. Fed.R.Crim.P. 16(a)(1)(A); Brady v. Maryland, 373 U.S. 83 (1963). The government must produce arrest reports, investigator's notes, memos from arresting officers, dispatch tapes, sworn statements, and prosecution reports pertaining to the defendant. Fed.R.Crim.P. 16(a)(1)(B) and (C); Fed.R.Crim.P. 26.2 and 12(i).

  (3) The Defendant's Prior Record. The defendant requests disclosure of her prior record, if one exists. Fed.R.Crim.P. 16(a)(1)(B).

  (4) Evidence Seized. The defendant requests production of evidence seized as a result of any search, either warrantless or with a warrant. Mr. Barrera-Lopez also requests any photographs that may have been taken of the vehicle that she was allegedly driving. Fed.R.Crim.P. 16(a)(1)(C).

  (5) Tangible Objects. The defendant requests the opportunity to inspect and copy as well as test, if necessary, all other documents and tangible objects, including photographs, books, papers, documents, fingerprint analyses, vehicles, or copies of portions thereof, which are material to the defense or intended for use in the government's case or were obtained from or belong to her. Fed.R.Crim.P. 16(a)(1)(C).

  (6) Request for Preservation of Evidence. The defendant specifically requests the preservation of all dispatch tapes or any other physical evidence that may be destroyed, lost, or otherwise put out of the possession, custody, or care of the government and which relate to the arrest or the events leading to the arrest in this case. This request includes, but is not limited to, the results of any fingerprint analysis, the defendant's personal effects, and any other evidence seized from the defendant or any third party. Attached is an order for preservation of the dispatch tapes. (7) Reports Of Examinations And Tests. The defendant requests the opportunity to inspect and copy any reports of physical and mental examinations and any scientific tests which are material to the preparation of the defense or intended for use in the government's case. Fed.R.Crim.P. 16(a)(1)(D).

  (8) Expert Witnesses. The defendant requests the name, qualifications, and a written summary of the testimony of any person that the government intends to call as an expert witness during its case. Fed.R.Crim.P. 16(a)(1)(E). Mr. Barrera-Lopez requests that the Court order disclosure of this discovery at least three weeks prior to trial in order to investigate it, to prepare in limine motions in a timely manner, and to prepare adequately for trial.

  (9) Brady Material. The defendant requests all documents, statements, agents' reports, and tangible evidence favorable to the defendant on the issue of guilt, which affects the credibility of the government's case, or which may result in a lower sentence under the United States Sentencing Guidelines. Under Brady, impeachment as well as exculpatory evidence falls within the definition of evidence favorable to the accused. United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 427 U.S. 97 (1976).

  (10) Giglio Information. The defendant requests all statements and/or promises, express or implied, made to any government witnesses in exchange for their testimony in this case, and all other information which could arguably be used for the impeachment of any government witnesses. Giglio v. United States, 405 U.S. 150 (1972).

  (11) Henthorn Material. The defendant requests that the government examine the personnel files of all government agents who may testify in this action for Brady material. United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991); United States v. Herring, 83 F.3d 1120 (9th Cir. 1996).

  (12) Informants and Cooperating Witnesses. The defendant requests disclosure of the name(s), address(es), and location(s) of all informants or cooperating witnesses used or to be used in this case, and in particular, disclosure of any informant who was a witness in this case or otherwise participated in the crime charged against Mr. Barrera-Lopez. Roviaro v. United States, 353 U.S. 53, 61-62 (1957). The government must disclose any information derived from informants which exculpates or tends to exculpate the defendant. Brady v. Maryland, 373 U.S. 83 (1963). The government must disclose any information indicating bias on the part of any informant or cooperating witness. Id.

  (13) Jencks Act Material. The defendant requests production at least three weeks in advance of trial of all material, including dispatch tapes, which the government must produce pursuant to 18 U.S.C. § 3500. Advance production will avoid the possibility of delay at the request of defendant to investigate the Jencks material. Disclosure of this discovery at least three weeks prior to trial will also enable Mr. Barrera-Lopez to prepare in limine motions in a timely manner, and to prepare adequately for trial.

  (14) Any Proposed 404(b) Evidence. The defendant requests prior notice of any other acts that the government intends to introduce in its case-in-chief, through impeachment, or in its rebuttal case. Fed.R.Crim.P. 16(a)(1)(C); Fed.R.Evid. 404(b) and 609(b); United States v. Vega, 188 F.3d 1150 (9th Cir. 1999). Mr. Barrera-Lopez requests that the Court order disclosure of this discovery at least three weeks prior to trial in order to investigate it, to prepare in limine motions in a timely manner, and to prepare adequately for trial.

  III.

  REQUEST FOR LEAVE TO FILE FURTHER MOTIONS

  Mr. Barrera-Lopez and defense counsel have engaged in negotiations in this case. Currently, Mr. Barrera-Lopez is considering an offer from the government. As new information surfaces due to the government providing discovery in response to these motions or an order of this Court, the defense may need to file further motions. Therefore, defense counsel requests the opportunity to file further motions.

  IV.

  CONCLUSION

  For the reasons stated above, Mr. Barrera-Lopez respectfully requests that the Court grant the foregoing motions. APPLICATION FOR AN ORDER AUTHORIZING THE INSPECTION OF VEHICLE AND PRESERVATION OF ALL EVIDENCE SEIZED

  Mr. Barrera-Lopez requests that the Court order the United States Department of Homeland Security to preserve the vehicle and all evidence seized in this case. Mr. Barrera-Lopez further requests that the United States Department of Homeland Security be further ordered to permit the parties in this case to inspect all evidence seized in this case. ORDER AUTHORIZING THE PRESERVATION OF ALL EVIDENCE SEIZED AND INSPECTION OF VEHICLE

  Upon application of the defendant, Mr. DANIEL BARRERA-LOPEZ, and good cause appearing therefore,

  IT IS HEREBY ORDERED that the United States Department of Homeland Security preserve the dispatch tapes, vehicle and all evidence seized in this case. The United States Department of Homeland Security is further ordered to permit the parties in this case to inspect all evidence seized in this case, including inspection of the vehicle and any evidence therein must also be permitted. This order will expire on December 31, 2005 whether or not the inspection has taken place.

20050810

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