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 ...