The opinion of the court was delivered by: LARRY BURNS, Magistrate Judge
STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF DEFENDANT'S MOTIONS
STATEMENT OF FACTS*fn1
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.
MOTION TO COMPEL DISCOVERY/PRESERVE EVIDENCE
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
(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.
(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.
(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
(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.
(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.
A. THE GRAND JURY INSTRUCTIONS STILL VIOLATE THE FIFTH
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 ...