United States District Court, S.D. California
August 10, 2005.
UNITED STATES OF AMERICA, Plaintiff,
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
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
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.
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.
(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.
(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.
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.
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.
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