United States District Court, S.D. California
August 30, 2005.
UNITED STATES OF AMERICA, Plaintiff,
SERGIO RODRIGUEZ-DELGADILLO, Defendant.
The opinion of the court was delivered by: DANA M. SABRAW, District Judge
STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF DEFENDANT'S OPPOSITION TO GOVERNMENT'S MOTION FOR
STATEMENT OF FACTS
Mr. Rodriguez-Delgadillo incorporates the Statement of Facts
from his motions filed on May 21, 2005, and July 19, 2005, and
adds the following.
On March 30, 2005, the government provided Mr.
Rodriguez-Delgadillo with discovery in this case. Among the
documents produced was the March 31, 2005 Report of Investigation
of case agent, U.S. Immigrations and Customs Enforcement ("ICE")
Special Agent David Snyder ("3/3 1/5 ROI"), attached as Exhibit A.
The 3/3 1/5 ROI was irregular in several respects. In context, the
recorded statements made little sense. Among the peculiarities
was an admission of knowledge that did not fit with the other
alleged statements. See 3/3 1/5 ROI at 4 ("RODRIGUEZ stated that
he did know. . . .").
On April 19, 2005, Assistant United States Attorney Mary Fan
called defense counsel and informed her that the aforementioned
statement of knowledge was incorrect. The statement read as
follows: "RODRIGUEZ stated that he did know that the van contained
marijuana on this crossing." 3/3 1/5 ROI at 4. However, AUSA Fan
reported that the sentence should read: "RODRIGUEZ stated that
he did not know that the van contained marijuana on this
crossing." AUSA Fan subsequently sent defense counsel a
"corrected" 3/3 1/5 ROI ("Corrected 3/3 1/5 ROI") with the word
"not" inserted. Corrected 3/3 1/5 ROI at 4, attached as Exhibit B.
The correction was initialed by the case agent.
As detailed in Mr. Rodriguez-Delgadillo's Motions to Reconsider
Denial of Evidentiary Hearing on Defendant's Motion to Suppress
Statements; and Reconsider Denial of Motion to Suppress
Statements Based on Violations of Miranda, filed on July 19,
2005 ("Motion to Reconsider Suppression of Statements"), and the
related Declaration of Sergio Rodriguez-Delgadillo, filed on July
19, 2005, and attached as Exhibit A to the Motion to Reconsider
Suppression of Statements, further investigation suggested that
Agent Snyder's interrogation of Mr. Rodriguez-Delgadillo and the
resulting ROI were otherwise suspect. Among other things, Mr.
Rodriguez-Delgadillo's declaration suggests that his interview
with Agent Snyder was pressured, and Agent Snyder's glaring
reporting error suggests that he prepared his report
On May 21, 2005, Mr. Rodriguez-Delgadillo filed a Motion to
Compel Discovery and Preserve Evidence ("Motion to Compel") in
which he requested, among other things:
. . . . copies of all written, videotaped or
otherwise recorded policies or training instructions
or manuals issued by all law enforcement agencies
involved in the case (United States Customs Service,
Border Patrol, INS, Department of Homeland Security,
etc.) to their employees regarding. . . . the
questioning of suspects and witnesses.
Motion to Compel at 10:15-26. In the United States' Response and
Opposition to Defendant's Motions ("Opposition to Motion to
Compel"), filed on May 19, 2005, the government objected to this
request as "overbroad, unduly burdensome and not included under
Rule 16." Opposition to Motion to Compel, 11:16-17. However, the
government indicated that it would "turn over evidence within its
possession which could be used to properly impeach a witness who
has been called to testify." Opposition to Motion to Compel,
On August 4, 2005, Mr. Rodriguez-Delgadillo filed an Ex Parte
Application for Issuance of Rule 17(c) Subpoena ("Rule 17(c)
Application"), in which he requested that the Court order the
case agent to produce to the Court the following documents: 1. Copies of any and all training materials regarding
interrogating or interviewing suspects or witnesses
that this agent has ever received, consulted,
reviewed or otherwise used in his capacity as an
employee of the Department of Homeland Security or
any of its predecessor agencies, including but not
limited to, manuals, workbooks, bulletins, and memos.
2. Copies of any and all training materials regarding
writing reports of investigation that this agent has
ever received, consulted, reviewed, or otherwise used
in his capacity as an employee of the Department of
Homeland Security or any of its predecessor agencies,
including but not limited to, manuals, workbooks,
bulletins, and memos.
Rule 17(c) Application, 1:24-27, 2:1-4. At a status hearing held
on August 12, 2005, the Court declined to issue the Rule 17(c)
subpoena, instead requesting that counsel attempt to resolve this
issue through the discovery process.
On August 15, 2005, defense counsel wrote a letter to
government counsel requesting as Rule 16 discovery the materials
previously requested in the Rule 17(c) Application. The
government denied this request.
On August 19, 2005 the Court held a status hearing, at which it
ordered government counsel to brief its opposition to Mr.
Rodriguez-Delgadillo's request for training materials. On August
24, 2005, the government filed a Motion for Protective Order in
which it again opposed Mr. Rodriguez-Delgadillo's discovery
requests. This opposition to the government's motion follows.
THE REQUESTED TRAINING MATERIALS ARE MATERIAL TO MR.
The government has both a statutory and constitutional
obligation to provide Mr. Rodriguez with items material to
preparing his defense. See U.S. Const., amends. V, VI;
Fed.R.Crim.Pro. 16; Brady v. Maryland, 373 U.S. 83
, 87 (1963). Mr.
Rodriguez-Delgadillo has specifically requested the training
materials related to interrogation and report writing used by
Agent Snyder, the case agent who the government alleges
interrogated Mr. Rodriguez-Delgadillo and wrote the primary
Report of Investigation ("ROI") for this case. These documents
are material to preparing Mr. Rodriguez-Delgadillo's defense.
Accordingly, they must be produced.
Law enforcement training materials that are "material to
preparing the defense" are discoverable under Rule 16. Rule 16
provides that, "[u]pon a defendant's request, the government must
permit the defendant to inspect, copy or photograph books,
papers, documents . . . or copies or portions of any of these
items, if the item is within the government's possession, custody, or control
and . . . the item is material to preparing the defense. . . ."
Fed.R.Crim.Pro. 16. Additionally, where these materials may be
favorable to the accused, the government must produce them in
order to safeguard a defendant's due process rights. The Supreme
Court has long held that "suppression by the prosecution of
evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the
prosecution." Brady v. Maryland, 373 U.S. 83, 87 (1963).
Mr. Rodriguez-Delgadillo contends that the statements that
Agent Snyder obtained from him were obtained in violation of his
constitutional rights using improper interrogation methods. Mr.
Rodriguez-Delgadillo also contends that his statements were
inaccurately reported. Given that the government's key evidence
against Mr. Rodriguez-Delgadillo are his alleged statements,
casting doubt on these alleged statements will be the touchstone
of Mr. Rodriguez-Delgadillo's defense. Under these circumstances,
information regarding Agent Snyder's training in interrogation
and report writing could not be more material.
The reliability, veracity, and probative value of Agent
Snyder's report and expected testimony regarding Mr.
Rodriguez-Delgadillo's alleged statements is central to Mr.
Rodriguez-Delgadillo's defense. In turn, information related to
the agent's training regarding interviewing suspects such as Mr.
Rodriguez-Delgadillo and reporting the contents of those
interviews is necessary to investigate and prepare for the
evidentiary hearing and trial, to effectively cross-examine this
witness, and to effectively investigate and test the reliability,
veracity, and probative value of this agent's testimony and
report. As the Supreme Court noted in Kyles v. Whitley,
514 U.S. 419, 446 n. 15 (1995), "[w]hen . . . the probative force of
evidence depends on the circumstances in which it was obtained
and those circumstances raise a possibility of fraud, indications
of conscientious police work will enhance probative force and
slovenly work will diminish it." Whether or not Agent Snyder
followed the procedures of his own agency in interrogating Mr.
Rodriguez-Delgadillo and writing a report bears heavily on
whether his work was "conscientious" or "slovenly." Id.
Not only is the requested information discoverable under Rule
16, the government must produce it pursuant to the
Fifth Amendment and Brady, 373 U.S. at 87. Given that Agent Snyder's
interrogation of Mr. Rodriguez-Delgadillo was not recorded and
resulted in what is, at best, a contradictory and confusing
report that required at least one correction, it is highly likely
that information regarding Agent Snyder's training will be
favorable to Mr. Rodriguez-Delgadillo's defense. As the Supreme
Court reiterated in Kyles, 514 U.S. at 433, under United States v. Bagley, 473 U.S. 667
(1985), there is no difference between exculpatory and
impeachment evidence for Brady purposes. See also United
States v. Hanna, 55 F.3d 1456, 1459-61 (9th Cir. 1995)
(reaffirming the government's duty to provide a criminal
defendant with potential impeachment evidence; recognizing that
"a police report recording the events surrounding the arrest of a
citizen is an important official document required to be
accurate, and not misleading"; and vacating and remanding where
the panel could not "discern from the record whether the
government fulfilled its obligation under Brady to produce all
material impeachment evidence"). Mr. Rodriguez-Delgadillo expects
that Agent Snyder acted contrary to his training when he
interviewed Mr. Rodriguez-Delgadillo and prepared a written
report of Mr. Rodriguez-Delgadillo's alleged statements. There is
no question that an agent's acting in violation of agency policy
is valuable impeachment evidence, particularly when the agent's
violations involve the cornerstone of the agency's investigation
into a defendant's alleged guilt. Furthermore, "the
constitutional duty is triggered by the potential impact of
favorable but undisclosed evidence," Kyles, 414 U.S. at 434.
Thus, Mr. Rodriguez-Delgadillo has no burden to prove that the
requested information will be favorable to him. To the contrary,
this Court and the prosecutor must err on the side of
safeguarding Mr. Rodriguez-Delgadillo's constitutional rights,
not curbing them. Id. Under this liberal standard, the fact
that the requested materials have the potential to favor Mr.
Rodriguez-Delgadillo unequivocally triggers the government's duty
to produce them. Id.*fn1
Mr. Rodriguez-Delgadillo's request is especially urgent since
the government alone conducted the investigation and
interrogation leading up to Mr. Rodriguez-Delgadillo's alleged
statements in this case. Mr. Rodriguez-Delgadillo was not represented by counsel when he
was interrogated on March 29, 2005, and it appears that there
were no non-government employed witnesses to the events that
transpired after the agents contacted him. Furthermore, because
the government has not produced verbatim transcripts, audiotapes,
or videotapes of the agents' interrogation of Mr.
Rodriguez-Delgadillo, it appears that Agent Snyder's report is
the only memorialization of these events. Thus, the
investigation, reporting, and interview performed by Agent
Snyder, and whether or not it complied with established
standards, is of utmost importance.
The Ninth Circuit's opinion in United States v. Sager,
227 F.3d 1138, 1145-46 (9th Cir. 2000), demonstrates the relevance of
the requested materials. In that case, the Ninth Circuit held
that it was plain error for a trial court to curtail defense
counsel's inquiry into a police officer's investigation, where
"[d]etails of the investigatory process potentially affected [the
witnesses'] credibility and, perhaps more importantly, the weight
to be given to evidence produced by his investigation." Id. In
this case, as in that one, "the weight to be given to evidence
produced by [a key witnesses' investigation]" is central to a
criminal defense. Id. Furthermore, in this case, the proper
weight of Agent Snyder's report and his expected testimony can
only be discerned through the effective cross-examination
guaranteed by the Sixth Amendment, including effective
impeachment. See Carriger v. Stewart, 132 F.3d 463, 482 (9th
Cir. 1997) (granting a writ of habeas based on government's
failure to disclose impeachment evidence defense could have
employed against a key government witness and reiterating the
long-held principle that, "`if disclosed and used effectively,
[impeachment evidence] may make the difference between conviction
and acquittal'" (quoting Bagley, 473 U.S. at 676)); see
also U.S. Const., amend. VI; Crawford v. Washington,
541 U.S. 36 (2004) (emphasizing the scope and importance of a defendant's
right to effectively cross-examine the witnesses against him).
Not only are these materials highly relevant to Mr.
Rodriguez-Delgadillo's defense and constitutionally guaranteed,
no exception to the government's obligation to disclose these
materials exists. Contrary to the government's assertions, Mr.
Rodriguez-Delgadillo does not seek "highly sensitive" documents,
and to the extent that the Court finds the documents "highly
sensitive" upon in camera review, it can redact or, if necessary,
exclude them. See, e.g., Sladek v. Bensinger, 605 F.2d 899,
900 (5th Cir. 1979). Nor is Mr. Rodriguez-Delgadillo engaging in
a wholesale fishing expedition. To the contrary, Mr.
Rodriguez-Delgadillo seeks specific training materials (those
related to the case agent's instruction regarding interrogation
of witnesses and report-writing) used by the case agent (the
agent who allegedly interrogated Mr. Rodriguez-Delgadillo and wrote the only report the government
has turned over in this case).*fn2 Under the circumstances,
the government is affirmatively obligated to produce the
requested materials under Rule 16, Brady and its progeny, and
the Fifth and Sixth Amendments.
For the foregoing reasons, Mr. Rodriguez-Delgadillo
respectfully requests that the Court grant the above motions. EXHIBIT A
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