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U.S. v. CELAYA-BONILLA

September 6, 2005.

UNITED STATES OF AMERICA, Plaintiff,
v.
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 DEFENDANT'S MOTIONS
I.
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.

  II.

  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 Harris' holding).

  (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 ...


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