United States District Court, S.D. California
September 6, 2005.
UNITED STATES OF AMERICA, Plaintiff,
MARIA DE JESUS CELAYA-BONILLA, Defendant.
The opinion of the court was delivered by: JOHN RHOADES, Senior District Judge
STATEMENT OF FACTS AND OF POINTS AND AUTHORITIES IN SUPPORT OF
STATEMENT OF FACTS
The following statement of facts is based, in part, on
materials received from the government. Ms. Celaya-Bonilla does
not accept this statement of facts as her own, and reserves the
right to take a contrary position at motions hearing and trial.
The facts alleged in these motions are subject to amplification
and/or modification at the time these motions are heard.
On March 31, 2005, at approximately 3:15 p.m., a 1996 green
Ford Escort entered a primary inspection lane at the San Yisdro
Port of Entry. A pre-primary searched the glove box of the car
and discovered tan-colored packages in the dash board. A further
search revealed similar packages in the vehicle's bumpers, and
the rear passenger door Ms. Celaya-Bonilla was turned over to the
state of California, who declined prosecution due to lack of sufficient
evidence. The federal government has destroyed all of the alleged
contraband ceased in this case.
On July 11, 2005, a 1995 silver Ford Windstar entered a primary
inspection lane at the San Ysidro Port of Entry. A search of the
vehicle in secondary-inspection revealed green and blue packages
located in driver's side rear passenger side-panel.
On July 26, 2005, the Government for the Southern District of
California filed a four-count indictment against Ms.
Celaya-Bonilla. Count 1, which relates to July 11, 2005, charges
importing a controlled substance (approximately 25.10 kilograms
of marijuana) in violation of 21 U.S.C. §§ 952, 960. Count 2,
which relates to July 11, 2005, charges possessing a controlled
substance (approximately 25.10 kilograms of marijuana) in
violation of 21 U.S.C. § 841. Count 3, which relates to March 21,
2005, charges importing a controlled substance (approximately
43.75 kilograms of marijuana) in violation of 21 U.S.C. §§ 952,
960. Count 4, which relates to March 21, 2005, charges possessing
a controlled substance (approximately 43.75 kilograms of
marijuana) in violation of 21 U.S.C. § 841.
MOTION TO COMPEL DISCOVERY/PRESERVE EVIDENCE
As of the date of this filing, the government has provided
defense counsel with forty-one (41) pages of discovery. Ms.
Celaya-Bonilla 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).*fn1 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 his arrest or any questioning. This
request includes, but is not limited to, any rough notes,
records, reports, transcripts, referral slips, 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 (C), 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
(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 Ms. Celaya-Bonilla.
(4) Any Information That May Result in a Lower Sentence Under
The Guidelines. The government must also produce this
information under Brady v. Maryland. This request includes any
cooperation or attempted cooperation by the defendant as well as
any information, including that obtained from other investigations or debriefings, that could affect any base offense
level or specific offense characteristic under Chapter Two of the
Guidelines. The defendant also requests any information relevant
to a Chapter Three adjustment, a determination of the defendant's
criminal history, and information relevant to any other
application of the Guidelines.
(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, "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). Ms. Celaya-Bonilla 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)(C).
(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, the narcotics
evidence, the results of any fingerprint analysis, the vehicle
which the defendant drove, the defendant's personal effects, any
effects found within the vehicle, and any evidence seized from
the defendant or any third party in relation to this case.
In addition, Ms. Celaya-Bonilla 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 his or his agents in
order to ascertain whether or not evidence relevant to veracity
or other impeachment exists.
(9) Tangible Objects. The defendant requests the opportunity
to weigh the narcotics, to inspect and copy as well as test, if
necessary, all other documents and tangible objects, including
photographs, books, papers, documents, 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, to the extent they were not already
produced, the defendant requests copies of all photographs in the
government's possession of the vehicle, the defendants, and any
other photos taken in connection with this case.
(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). 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. (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. A verbal acknowledgment that
"rough" notes constitute 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); see also United States v.
Boshell, 952 F.2d 1101 (9th Cir. 1991) (holding that where an
agent goes over interview notes with subject interview notes are
subject to Jencks Act).
(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.
Pursuant to United States v. Sudikoff, 36 F. Supp.2d 1196
(C.D. Cal. 1999), the defense requests all statements made,
either personally or through counsel, at any time which relate
to the witnesses' statements regarding this case, any promises implied or express
regarding punishment/prosecution or detention of these
witnesses, any agreement sought, bargained for or requested, on
the part of the witness at any time.
(18) Informants and Cooperating Witnesses. To the extent that
there was any informant, or any other tip leading to a TECS hit
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 Ms. Celaya-Bonilla. 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) 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. Such information would include what, if any,
inducements, favors, payments or threats were made to the witness
to secure cooperation with the authorities.
(20) Residual Request. Ms. Celaya-Bonilla 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.
Celaya-Bonilla requests that the government provide her attorney
with the above requested material sufficiently in advance of
trial to avoid unnecessary delay prior to cross-examination.
REQUEST FOR LEAVE TO FILE FURTHER MOTIONS
Ms. Celaya-Bonilla and defense counsel have received limited
discovery in this case. As new information surfaces due to the
government providing discovery in response to these motions or an
order of this court, defense may find it necessary to file
further motions, or to supplement existing motions with
additional facts. Therefore, defense counsel requests the
opportunity to file further motions based upon information gained
from discovery. IV.
For the reasons stated above, Ms. Celaya-Bonilla moves this
Court to grant her motions.
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