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U.S. v. FOX

September 2, 2005.

UNITED STATES OF AMERICA, Plaintiff,
v.
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
I.
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).

  II.

  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 statements.

  (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 and 12(1).

  (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 party.

  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 ...


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