The opinion of the court was delivered by: ROGER BENITEZ, District Judge
STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF DEFENDANT'S MOTIONS
STATEMENT OF FACTS*fn1
On July 14, 2005, Ms. Fox was apprehended driving a 1996 Ford
Windstar which was not registered in her name. At approximately
11:40 a.m., she was driving through the San Ysidro Port of Entry,
and was the only person in the car.
After being referred to secondary inspection, 60.7 kilograms of
marijuana was found in compartments within the vehicle. A patdown
was performed of Ms. Fox, and allegedly methamphetamine was found
in her shoe.
Ms. Fox was read her rights and made statements. She denied
knowledge of the marijuana but admitted knowledge of the
methamphetamine. On July 27, 2005, the "June 2005 Grand Jury" sitting in the
Southern District of California returned an Indictment charging
Ms. Fox with importation of marijuana, in violation of
21 U.S.C. §§ 952 and 960; and possession of marijuana with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1); and with
importation of methamphetamine, in violation of 21 U.S.C. §§ 952
and 960; and possession of methamphetamine with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1).
MOTION TO COMPEL DISCOVERY/PRESERVE EVIDENCE
Ms. Fox moves for the production of the following discovery and
for the preservation of all relevant evidence. 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; 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). 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
(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, and TECS records
that relate to the circumstances surrounding his 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, 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.
See Fed.R.Crim.P. 16(a)(1)(B) and (C), Fed.R.Crim.P. 26.2
(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. 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).
(4) Any Information That May Result in a Lower Sentence Under
The Guidelines. The government must produce this information
under Brady v. Maryland, 373 U.S. 83 (1963).
(5) The Defendant's Prior Record. The defendant requests
disclosure of his prior record. Fed.R.Crim.P. 16(a)(1)(B).
(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, under
Fed.R.Evid. 404(b), "upon request of the accused, the prosecution . . .
all provide reasonable notice in advance of trial . . . the
general nature" of any evidence the government proposes to
introduce under Fed.R.Evid. 404(b) at trial. The defendant
requests such notice two weeks before trial in order to give the
defense time adequately to 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)(C).
(8) 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, any samples of narcotics used to run any scientific
tests, any narcotics, the results of any fingerprint analysis,
the vehicle which the defendant drove, the defendant's personal
effects, and any evidence seized from the defendant or any third
In addition, Ms. Fox 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 v. Whitley, 514 U.S. 419 (1995); United States v. Henthorn,
931 F.2d 29 (9th ...