United States District Court, S.D. California
September 2, 2005.
UNITED STATES OF AMERICA, Plaintiff,
EUGENIA FOX, Defendant.
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 Cir. 1991); but see United States v.
Herring, 83 F.3d 1120 (9th Cir. 1996).
(9) 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, alleged narcotics, fingerprint analyses,
vehicles, or 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.
Fed.R.Crim.P. 16(a)(1)(C). Specifically, the defendant requests copies of
all photographs in the government's possession of the alleged
(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)(E).
(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.
(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'
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) Witness Addresses. The defendant requests the name and
last known address of each prospective government witness. The
defendant also requests the name and last known address of every witness to the crime or crimes charged (or any of the overt acts
committed in furtherance thereof) who will not be called as a
(16) Name of Witnesses Favorable to the Defendant. The
defendant requests the name of any witness who made an arguably
favorable statement concerning the defendant or who could not
identify him or who was unsure of his identity, or participation
in the crime charged.
(17) Statements Relevant to the Defense. The defendant
requests disclosure of any statement relevant to any possible
defense or contention that he might assert.
(18) Jencks Act Material. The defendant requests production
in advance of trial of all material, including dispatch tapes,
which the government must produce pursuant to the Jencks Act,
18 U.S.C. § 3500. Advance production will avoid the possibility of
delay at the request of defendant to investigate the Jencks
material. A verbal acknowledgment that "rough" notes constitutes
an accurate account of the witness' interview is sufficient for
the report or notes to qualify as a statement under section
3500(e)(1). Campbell v. United States, 373 U.S. 487, 490-92
(1963). In United States v. Boshell, 952 F.2d 1101 (9th Cir.
1991) the Ninth Circuit held that when an agent goes over
interview notes with the subject of the interview the notes are
then subject to the Jencks Act.
(19) 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.
(20) Agreements Between the Government and Witnesses. The
defendant requests discovery regarding any express or implicit
promise, understanding, offer of immunity, of 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.
(21) Informants and Cooperating Witnesses. 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 Ms.
Fox. The government must disclose the informant's identity and
location, as well as disclose 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.
(22) Bias by Informants or Cooperating Witnesses. The
defendant requests disclosure of any information indicating bias
on the part of any informant or cooperating witness. Giglio v.
United States, 405 U.S. 150 (1972). Such information would
include what, if any, inducements, favors, payments or threats
were made to the witness to secure cooperation with the
(23) Scientific and Other Information. The defendant requests
the results of any scientific or other tests or examinations.
See Rule 16(a)(1)(D). Specifically, Ms. Fox requests the DEA 7
from the arrest as to both drug types.
(A) In addition, he requests any information
regarding the reliability of the purported narcotics
detector dog, "Skipaway" that alerted on the two
vehicles. This information is relevant as to whether
officers had probable cause to arrest Ms. Fox. See
United States v. Cedano-Arellano, 332 F.3d 568
(9th Cir. 2003) (dog sniff may serve as probable
cause to search but only if the reliability of the
dog is established).
(24) Residual Request. Ms. Fox intends by this discovery
motion to invoke her rights to discovery to the fullest extent
possible under the Federal Rules of Criminal Procedure and the
Constitution and laws of the United States. Ms. Fox requests that
the government provide her and her attorney with the above
requested material sufficiently in advance of trial to avoid
unnecessary delay prior to cross-examination.
THIS COURT MUST HOLD A VOLUNTARINESS HEARING TO DETERMINE THE
ADMISSIBILITY OF ANY STATEMENTS MADE BY MS. FOX
Ms. Fox requests that this Court hold a voluntariness hearing
to determine the admissibility of any alleged statements. He also
moves to suppress any statements given in violation of Miranda.
In Dickerson v. United States, 530 U.S. 428 (2000), the Supreme
Court held that Miranda warnings are not merely prophylactic;
rather, they are of constitutional magnitude. Id. at 444. ("we
conclude that Miranda announced a constitutional rule"). If a waiver of Miranda is alleged, the
government bears the burden of demonstrating the waiver by clear
and convincing evidence. See Schell v. Witek, 218 F.3d 1017
1023 (9th Cir. 2000) (en banc) ("[c]onstitutional rights may
ordinarily be waived only if it can be established by clear and
convincing evidence that the waiver is voluntary, knowing, and
intelligent") (internal quotation marks and citations omitted).
Moreover, this Court must "indulge every reasonable presumption
against waiver of fundamental constitutional rights." Id. at
1024 (internal quotation marks and citations omitted). No Miranda
waiver has been produced from the January 25, 2002 arrest.
Accordingly, Ms. Fox requests a voluntariness hearing pursuant to
18 U.S.C. § 3501 to determine the admissibility of any alleged
THE DISTRICT COURT SHOULD SEVER COUNTS ONE AND TWO OF THE
INDICTMENT FROM COUNTS THREE AND FOUR TO AVOID UNFAIR PREJUDICE TO
Ms. Fox DURING TRIAL
In the Indictment, the government charges Ms. Fox with
importation and possession of marijuana with intent to distribute
and with importation and possession of methamphetamine with
intent to distribute. Counts one and two relate to the marijuana;
counts three and four, to methamphetamine.
The facts of the two cases against Ms. Fox do involve many of
the same witnesses, but the problem is simple: the
methamphetamine was in her shoe, the shoe she was wearing. The
marijuana was secreted throughout the vehicle in special
Clearly, the government has indicted Ms. Fox on both cases for
two reasons: (1) since the government does not have sufficient
evidence to convict Ms. Fox on counts one and two, it hopes that
the prejudicial effect of trying both cases together will be
sufficient to convince the jury to convict Ms. Fox on all counts;
and (2) the government hopes to force Ms. Fox to accept a deal
and plead guilty.
However, since the trying counts one and two together with
counts three and four will incredibly prejudicial to Ms. Fox,
this Court should order the initial two counts severed from the
The Federal Rules of Criminal Procedure allow two or more
offenses to be joined together in the same indictment when doing
so does not prejudice the defendant. Fed.R.Crim.P. 8(a) and
14. However, "[i]f it appears that a defendant . . . is
prejudiced by a joinder of offenses . . . the court may order an
election or separate trials of counts . . . or provide whatever
other relief justice requires." Fed.R.Crim.P. 14. (emphasis
added.) The Ninth Circuit case of United States v. Terry,
911 F.2d 272, 276 (9th Cir. 1990), is illustrative. There, the government
obtained a three-count Indictment: counts one and two alleged
narcotics offenses, and count three alleged possession of a
firearm. Id. at 276. The Ninth Circuit held that the
government improperly joined counts one and two with count three
because the indictment failed to allege any commonality between
the former counts and the latter. Id. The Terry court
pointed out that counts one and two described an event that
occurred on a different day from that described in count three,
and that the government made no effort in the indictment to
suggest that all three offenses were part of the same
transaction, or parts of a common scheme. Id. Furthermore, the
evidence that the government would need to prove counts one and
two did not overlap with the evidence needed to prove count
The logic of Terry controls here. The Ninth Circuit has
stated that "[i]n making an assessment of whether joinder is
proper, [the] court should examine only the allegations in the
indictment." United States v. Fiorillo, 186 F.3d 1136, 1145
(9th Cir. 1999) (emphasis added.). Here, the Indictment does
not make any allegations that the two separate offenses were
part of a common plan or scheme.
Moreover, the Ninth Circuit also has held that "[w]hen . . .
joined offenses are not connected and are not provable by the
same evidence, joinder is improper." Id. Here, the government
will have to call different witnesses to prove the allegations of
counts one and two than it will to prove the allegations of
counts three and four. Thus, the government's main argument in
favor of joinder, i.e. that it will result in judicial economy,
does not hold water.
Here, the events alleged in counts one and two, while the
occurred at the same time as counts three and four, involve
totally different conduct. Moreover, as in Terry, the face of
the indictment alleges no connection between the two events, nor
does it allege that the events are part of the same transaction,
or parts of a common scheme.
Finally, the Ninth Circuit has recognized that there exists "a
high risk of undue prejudice whenever . . . joinder of counts
allows evidence of other crimes to be introduced in a trial of
charges with respect to which the evidence would otherwise be
inadmissible." United States v. Lewis, 787 F.2d 1318, 1321,
amended, 798 F.2d 1250 (9th Cir. 1986). In other words, the
government may not use joinder to circumvent suppression of a
prior bad act under Fed.R.Evid. 404(b) in the trial of another
offense. United States v. Nguyen, 88 F.3d 812, 815 (9th Cir.
1996). In this case, proof of counts one and two is not relevant to
proof of counts three and four. Fed.R.Evid. 401; 402. Moreover,
evidence of counts one and two likely would not be admissible
in a trial of counts three and four (or vice versa) because the
facts of the two events are not sufficiently similar and the
limited probative value of the evidence is substantially
outweighed by the tremendous prejudice. Fed.R.Evid. 404(b);
The government's sole basis for its argument that the counts
should be joined is one of judicial economy. However, since
proving the allegations of counts one and two will require a
completely separate group of witnesses than for counts three and
four, the government's argument fails. Moreover, the more
important consideration is the degree to which the joinder will
prejudice Ms. Fox. Here, there is no question that Ms. Fox will
be prejudiced if the government is allowed to try him all four
counts together. Whatever limited benefit will be derived from
the judicial economy of joinder will be substantially outweighed
by the prejudice Ms. Fox will suffer if the counts are tried
The goal of the law is justice, not expediency. The
government knows it does not have sufficient evidence to
convict Ms. Fox on counts one and two if those counts are tried
separately. Therefore, because of the tremendous prejudice Ms.
Fox will suffer if these counts are tried jointly, this Court
should sever counts one and two from the indictment.
MOTION FOR LEAVE TO FILE ADDITIONAL MOTIONS
Defense counsel has received limited discovery, and requests
leave to file further motions based upon information gained in
the discovery process. Thus it is requested that the defense be
granted leave to file further motions in relation to any new
discovery that is received in the future. VI.
For the foregoing reasons, Ms. Fox respectfully requests that
this Court grant the foregoing motions.
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