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August 24, 2005.


The opinion of the court was delivered by: LARRY BURNS, Magistrate Judge

On July 20, 2005, a grand jury in the Southern District of California returned a two-count indictment charging Mr. Tirado with one count of accepting something of value, i.e., a cash payment in exchange for performance of some official act, either processing and reporting urinalysis testing results or improper processing and reporting of drug urinalysis, in violation of 18 U.S.C. § 201(b)(2), and one count of being a "public official accepting or agreeing to accept "something of value personally" in exchange for "an official act," "the processing and reporting of drug urinalysis testing results," in violation of 18 U.S.C. § 201(c)(1)(B). According to Count One, on October 8, 2004, while employed at mental health systems, Inc., Mr. Tirado accepted cash payments in return for some sort of impropriety in the urinalysis testing or processing. In Count Two, the government alleges that Mr. Tirado "otherwise than as provided by law for the proper discharge of official duties, did directly and indirectly demand, seek, receive, accept, and agree to receive and accept something of value personally for and because of an official act performed or to be performed by such official, that is, the processing and reporting of drug urinalysis testing results. . . ." Indictment at 2 (attached as Exhibit A).

  Limited discovery has been provided to date and the undersigned has made some additional requests. These motions follow.



  As of the date of this filing, the government has only recently provided defense counsel with twenty-six (26) pages of discovery. Mr. Tirado moves for the production of the following discovery. This request is not limited to those items that the prosecutor knows of, but rather includes all discovery listed below that is in the custody, control, care, or knowledge of any "closely related investigative [or other] agencies." See United States v. Bryan, 868 F.2d 1032 (9th Cir. 1989).

  (1) The Defendant's Statements. The government must disclose to the defendant all copies of any written or recorded statements made by the defendant; the substance of any statements made by the defendant which the government intends to offer in evidence at trial — either in its case-in-chief or in rebuttal; see id., any response by the defendant to interrogation; the substance of any oral statements which the government intends to introduce at trial and any written summaries of the defendant's oral statements contained in the handwritten notes of the government agent; any response to any Miranda warnings which may have been given to the defendant; as well as any other statements by the defendant. FED. R. CRIM. P. 16(a)(1)(A).*fn2 This includes any Target letter provided to Mr. Tirado by the United States Attorney's Office. The Advisory Committee Notes and the 1991 amendments to Rule 16 make clear that the Government must reveal all the defendant's statements, whether oral or written, regardless of whether the government intends to make any use of those statements. Federal Rule of Criminal Procedure 16 is designed "to protect the defendant's rights to a fair trial." United States v. Rodriguez, 799 F.2d 649 (11th Cir. 1986); see also United States v. Noe, 821 F.2d 604, 607 (11th Cir. 1987) (reversing conviction for failure to provide statements offered in rebuttal — government's failure to disclose statements made by the defendant is a serious detriment to preparing trial and defending against criminal charges).

  (2) Arrest Reports and Notes. The defendant also specifically requests that the government turn over all arrest reports, notes and TECS records not already produced 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 in which statements of the defendant or any other discoverable material is contained. Such material is discoverable under FED. R. CRIM. P. 16(a)(1)(A) and Brady v. Maryland. The government must produce arrest reports, investigators' notes, memos from arresting officers, sworn statements, and prosecution reports pertaining to the defendant. See FED. R. CRIM. P. 16(a)(1)(B) and (E), 26.2 and 12(I); United States v. Harris, 543 F.2d 1247, 1253 (9th Cir. 1976) (original notes with suspect or witness must be preserved); see also United States v. Anderson, 813 F.2d 1450, 1458 (9th Cir. 1987) (reaffirming Harris' holding).

  (3) Brady Material. The defendant requests all documents, statements, agents' reports, and tangible evidence favorable to the defendant on the issue of guilt and/or which affects the credibility of the government's case. Kyles v. Whitley, 514 U.S. 419 (1995). Under Brady, Kyles and their progeny, impeachment as well as exculpatory evidence falls within the definition of evidence favorable to the accused. See also United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 427 U.S. 97 (1976). This includes information obtained from other investigations which exculpates Mr. Tirado. Specifically, Mr. Tirado requests any and all information relating to urinalysis testing at Mental Health Systems, Inc. This request includes, but is not limited to, the maintenance logs, error rates and calibrations of all devices used to detect the presence of illegal substances used by Mental Health Systems, Inc. during the course of Mr. Tirado's employment.

  (4) Any Information That May Result in a Lower Sentence Under the Guidelines. The government must also produce this information under Brady v. Maryland. (5) The Defendant's Prior Record. The defendant requests disclosure of his prior record. FED. R. CRIM. P. 16(a)(1)(D).

  (6) Any Proposed 404(b) Evidence. The government must produce evidence of prior similar acts under FED. R. CRIM. P. 16(a)(1)(c) and FED. R. EVID. 404(b) and 609. In addition, "upon request of the accused, the prosecution . . . shall provide reasonable notice in advance of trial . . . of the general nature" of any evidence the government proposes to introduce under Fed.R.Evid. 404(b) at trial and the purpose for which introduction is sought. This applies not only to evidence which the government may seek to introduce in its case-in-chief but also to evidence which the government may use as rebuttal. See United States v. Vega, 188 F.3d 1150 (9th Cir. 1999). The defendant is entitled to "reasonable notice" so as to "reduce surprise," preclude "trial by ambush" and prevent the "possibility of prejudice." Id.; United States v. Perez-Tosta, 36 F.3d 1552, 1560-61 (11th Cir. 1994). Mr. Tirado requests the names and contact information for any witnesses participants and informants for any alleged prior bad acts the government seeks to introduce at trial. Mr. Tirado requests such reasonable notice at least two weeks before trial so as to adequately investigate and prepare for trial.

  (7) Evidence Seized. The defendant requests production of evidence seized as a result of any search, either warrantless or with a warrant. FED. R. CRIM. P. 16(a)(1)(E).

  (8) Request for Preservation of Evidence. The defendant specifically requests the preservation of any and all physical evidence that may be destroyed, lost, or otherwise put out of the possession, custody, or care of the government and which relates to the arrest or the events leading to the arrest in this case. This request includes, but is not limited to, any devices or equipment allegedly used to carry out or commit any alleged crimes and/or the specimen at issue and machinery used to test them in this case.

  In addition, Mr. Tirado requests that the Assistant United States Attorney assigned to this case oversee a review of all personnel files of each agent involved in the present case for impeachment material. Kyles, 514 U.S. at 419; United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991); United States v. Lacy, 896 F. Supp. 982 (N.D. Ca. 1995). At a minimum, the prosecutor has the obligation to inquire of the agents in order to ascertain whether or not evidence relevant to veracity or other impeachment exists.

  (9) Tangible Objects. The defendant requests copies of all examinations performed and requests preservation of the original urinalysis specimens as well as the ability to retest these specimens. He also requests either the ability to inspect and/or copy as well as test, if necessary, all other documents and tangible objects, including photographs, books, papers, documents, fingerprint analyses, copies of portions thereof, which are material to the defense or intended for use in the government's case-in-chief or were obtained from or belong to the defendant. This includes any records kept by Mental Health Systems, Inc. relating to Mr. Tirado's employment and purported wrongdoing. FED. R. CRIM. P. 16(a)(1)(E).

  (10) 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 in chief. FED. R. CRIM. P. 16(a)(1)(G). The defense requests that notice of expert testimony be provided at a minimum of two weeks prior to trial so that the defense can properly prepare to address and respond to this testimony, including obtaining its own expert and/or investigating the opinions and credentials of the government's expert. The defense also requests a hearing in advance of trial to determine the admissibility of qualifications of any expert. See Kumho v. Carmichael Tire Co., 119 S. Ct. 1167, 1176 (1999) (trial judge is "gatekeeper" and must determine reliability and relevancy of expert testimony and such determinations may require "special briefing or other proceedings. . . .").

  (11) Evidence of Bias or Motive to Lie. The defendant requests any evidence that any prospective government witness is biased or prejudiced against the defendant, or has a motive to falsify or distort his or her testimony.

  (12) Impeachment Evidence. The defendant requests any evidence that any prospective government witness has engaged in any criminal act whether or not resulting in a conviction and whether any witness has made a statement favorable to the defendant. See FED. R. EVID. 608; 609 and 613; Brady v. Maryland.

  (13) Evidence of Criminal Investigation of Any Government Witness. The defendant requests any evidence that any prospective witness is under investigation by federal, state or local authorities for any criminal conduct. In order to facilitate the defense's own investigation of proposed government witnesses, Mr. Tirado requests the names of any and all government agents, including undercover informants, working on this case.

  (14) Evidence Affecting Perception, Recollection, Ability to Communicate, or Truth Telling. The defense requests any evidence, including any medical or psychiatric report or evaluation, that tends to show that any prospective witness's ability to perceive, remember, communicate, or tell the truth is impaired, and any evidence that a witness has ever used narcotics or other controlled substance, or has ever been an alcoholic.

  (15) Jencks Act Material. The defendant requests production in advance of trial of all material, including any tapes, which the government must produce pursuant to the Jencks Act, 18 U.S.C. § 3500; FED. R. CRIM. P. 26.2. Advance production will avoid the possibility of delay at the request of the defendant to investigate the Jencks material.

  (16) Giglio Information. Pursuant to Giglio v. United States, 405 U.S. 150 (1972), 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.

  (17) Agreements Between the Government and Witnesses. In this case, the defendant requests identification of any cooperating witnesses who have committed crimes but were not charged so that they may testify for the government in this case. The defendant also requests discovery regarding any express or implicit promise; understanding; offer of immunity; past, present, or future compensation; or any other kind of agreement or understanding, including any implicit understanding relating to criminal or civil income tax, forfeiture or fine liability between any prospective government witness and the government (federal, state and/or local). This request also includes any discussion with a potential witness about or advice concerning any contemplated prosecution, or any possible plea bargain, even if no bargain was made, or the advice not followed.

  United States v. Sudikoff, 36 F. Supp.2d 1196 (C.D. Cal. 1999)

  (18) Informants and Cooperating Witnesses. To the extent that there was any informant, or any other tip leading to an investigation of Mr. Tirado in this case the defendant requests disclosure of the names and addresses of all informants or cooperating witnesses used or to be used in this case, and in particular, disclosure of any informant who was a percipient witness in this case or otherwise participated in the crime charged against Mr. Tirado. The government must disclose the informant's identity and location, as well as the existence of any other percipient witness unknown or unknowable to the defense. 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. (19) Residual Request. Mr. Tirado intends by this discovery motion to invoke his rights to discovery to the fullest extent possible under the Federal Rules of Criminal Procedure and the Constitution and laws of the United States. Mr. Tirado requests that the government provide him and his attorney with the above requested material sufficiently in advance of trial to avoid unnecessary delay prior to cross-examination.




  The general charge given to Grand Juries in the Southern District of California (which has been the subject of a number of published opinions in this Circuit, see, e.g., United States v. Navarro-Vargas, 408 F.3d 1184 (9th Cir. 2005) (en banc); United States v. Marcucci, 299 F.3d 1156 (9th Cir. 2002), misinstructs the Grand Jurors because it instructs them that: (1) they cannot consider the wisdom of any law passed by congress; (2) that probable cause has already been determined by a judge after a preliminary hearing, and that (3) they cannot consider penalty information, all in violation of the Fifth amendment right to the traditional functioning of the grand jury. Mr. Tirado assumes that the Grand Jury instructions which were the subject of the several published Ninth Circuit opinions are the same as the general charge given to his Grand Jury. In any event, in order to preserve this issue for further review, he seeks production of the actual instructions given to his grand jury. See United States v. Alter, 482 F.2d 1016, 1028 n. 21 (9th Cir. 1973) ("Alter was entitled to know the content of the court's charges to the grand jury. The proceedings before the grand jury are secret, but the ground rules by which the grand jury conducts those proceedings are not.")

  The en banc decision in Navarro-Vargas decided that instructions (1) and (2) passed constitutional muster but it did not decide issue (3), the Fifth amendment violation which flows from misinstructing Grand Jurors that they cannot consider the question of punishment. See generally, Navarro-Vargas 408 F.3d 1184. Mr. Tirado asks this Court to consider this issue and while recognizing that Navarro-Vargas was decided against him, he wishes to preserve for review the arguments that instructing the Grand Jury that they cannot consider the wisdom of any law passed by congress and that probable cause has already been determined by a judge after a preliminary hearing violates the Fifth amendment. His arguments are set forth below.

  Instructing the Grand Jurors in the manner set forth above, in spite of the contrary decisions in Navarro-Vargas and Marcucci, finds no support in any authority and actually contravenes Supreme Court precedent in United States v. Williams, 504 U.S. 36 (1992). Williams makes clear that district courts have little authority to craft rules of grand jury procedure. "In the hands of the grand jury lies the power to charge a greater offense or a lesser offense; numerous counts or a single count; and perhaps most significant of all, a capital offense or a non-capital offense." Vasquez v. Hillary, 474 U.S. 254, 263 (1986). Limiting the Grand Jurors areas of inquiry and consideration violates the precepts of these cases, which rely upon the principles of the independent Grand Jury for support. See Stirone v. United States, 361 U.S. 212, 218 (1960) (emphasizing that independence of the grand jury is essential to the "very purpose" of the grand jury right). Indeed, "an infringement [of the grand jury's independence] may result in grave doubt as to a violation's effect on the grand jury's decision to indict." Bank of Nova Scotia v. United States, 487 U.S. 250, 259 (1988).

  These errors in the Grand Jury's instructions are structural. Because the independence of the Grand Jury implicates a fundamental Fifth Amendment interest, see Stirone, 361 U.S. at 218 ("the very purpose of the requirement that a man be indicted by a grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge"), a structural error analysis must be applied. Even if Mr. Tirado has to demonstrate prejudice, he need only show that the erroneous instructions "substantially influenced the grand jury's decision to indict' or [whether] there is `grave doubt' that the decision to indict was free from the substantial influence" of the improper instructions. Bank of Nova Scotia, 487 U.S. at 256 (brackets in original); accord United States v. Larrazolo, 869 F.2d 1354, 1358 (9th Cir. 1989). This disjunctive test, id. at 868-69 n. 47, effectively requires only that Mr. Tirado meet the "grave doubt" test.

  Currently, Navarro-Vargas and Marcucci are binding on this Court, and control the equally erroneous instructions given to the instant grand jury. Mr. Tirado asks this Court to find the grand jury instruction unconstitutional for the reasons cited in the Navarro-Vargas and Marcucci dissents and dismiss the indictment against him. In light of the current state of the law, Mr. Tirado seeks to preserve these issue for review. See Bousley v. United States, 523 U.S. 614, 622-23 (1998) (the current futility of a particular argument cannot constitute cause for failing to raise that claim if it means simply that the argument was unacceptable to a particular court at a particular time). Should the Court deem ...

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