United States District Court, S.D. California
September 8, 2005.
UNITED STATES OF AMERICA, Plaintiff,
RODNEY JUBILEE (1), JACQUELINE GODINEZ-MAGANA (2) Defendants.
The opinion of the court was delivered by: NITA STORMES, Magistrate Judge
POINTS AND AUTHORITIES IN SUPPORT OF MATERIAL WITNESS MOTION FOR
VIDEOTAPE DEPOSITION AND REQUEST FOR STATEMENT OF REASONS IN
SUPPORT OF CUSTODY
TO UNITED STATES ATTORNEY CAROL C. LAM, ASSISTANT UNITED
STATES ATTORNEY CARL E.G. ARNOLD; TO ATTORNEY FOR DEFENDANT,
RODNEY JUBILEE, NORMA AGUILAR, FOR DEFENDANT, JACQUELINE,
GODINEZ-MAGANA, JODI THORP:
Material Witness, Marcial ROSALES-Gonzalez (hereafter "Material
Witness") by and through his counsel, Robert E. Schroth Jr.,
submit the following Memorandum of Points and Authorities in
support of his motion to take the videotaped deposition. I
On or about August 22, 2005, the Material Witness was detained
by U.S. Border Patrol Agents in connection with the arrest of the
above captioned Defendant. The defendant has been charged with
illegally transporting undocumented aliens in violation of
8 U.S.C. § 1324(a)(2)(B)(ii) and the Material Witness, who was with
the defendant at the time of his arrest, has been detained as a
Material Witness under 8 U.S.C. § 1227 (d).
The Material Witness is currently being held at the CCA
detention facility in San Diego, California. On August 3, 2005,
the attorney for the material witness was informed by the
material witness that he knew of no one in this country that
could post a bond for him to allow for his release from custody
during the pendency of this case.
It is unnecessary to keep the Material Witness in the United
States because his testimony can be preserved through the use of
a videotaped deposition.*fn1 The Material Witness therefore
request a court order that his testimony be preserved through the
use of videotape depositions and, thereafter, that he be allowed
to return to his family in Mexico.
THE TESTIMONY OF THE MATERIAL WITNESS CAN BE SECURED BY VIDEOTAPE
DEPOSITION AND THERE IS NO COMPELLING REASON TO KEEP THEM IN
Title 18, section 3144 of the United States Code Provides: No Material Witness may be detained . . . if the
testimony of such witness can adequately be secured
by deposition, and if further detention is not
necessary to prevent a failure of justice.
The deposition of the Material Witness may be used at trial in
criminal cases, so it is only in exceptional circumstances,
where the interests of justice will be denied, that a videotape
deposition is not appropriate. See, Torres-Ruiz v. United
States 120 F.3d 933 (9th Cir. 1997) [citing Aguilar Ayala
v. Ruiz 973 F.2d 411
, 413 (5th Cir. 1992) see also
8 U.S.C. § 1324 (d), Federal Rules of Evidence 804, and Federal
Rules of Criminal Procedure 15. Defendants may be present at the
videotape deposition and therefore have a full and fair
opportunity to cross-examine the witnesses. The videotape
provides sufficient indicia of reliability to afford the trier of
fact a satisfactory basis for evaluating the truth of a
statement. Dutton v. Evans, 400 U.S. 74
, 89 (1970).
The government or defendant can effectuate the detention of the
material witness upon a showing that (1) the material witness
will, in all likelihood, be unavailable to testify for trial, and
(2) that the use of deposition testimony will deny the defendant
a fair trial and that live testimony would somehow be
significantly different. See, Aguilar-Ayala v. Ruiz
973 F.2d at 413 (5th Cir. 1992), United States v. Humberto Rivera
859 F.2d 1204, 1208 (4th Cir. 1988). That would be a difficult
burden in this case, however, because the Material Witness has
indicated that he is willing to return for trial if the
government makes arrangements for his legal re-entry into the
country and provides travel expenses.*fn2 (Schroth Decl. At
The Material Witness should not be detained because his
testimony can be adequately secured by depositions. This is a
very routine alien smuggling case. Based on interviews with the Material Witness and the report submitted by the arresting
agency, the facts to which the Material Witness is competent to
testify are straightforward. (Schroth Decl. At para. 5).
Moreover, neither the Material Witness nor his counsel, have
been informed that the witnesses' detention is necessary to
prevent a failure of justice. (Schroth Decl. At para. 4). Quite
to the contrary, the witness has already spent a considerable
time in jail, more than three weeks to the date this motion is
filed, and it is very important that he be released as soon as
possible so that he may be reunited with his family in Mexico who
depends on him for their support. (Schroth Decl. At para. 2 and
4.), he Material witness's parents are in poor health. He came to
the United States to make money to send back to them in Mexico.
They are dependent upon him as their sole source of financial
support. (Schroth Decl. At para. 4.).
For these reasons, the Material Witness requests that the court
immediately order the taking of his videotaped deposition and
that he thereafter be immediately returned to Mexico.
IF THE COURT DENIES THE MATERIAL WITNESS' REQUEST TO TAKE THEIR
VIDEOTAPE DEPOSITION, THEY REQUEST THAT THE GOVERNMENT PROVIDE
THEM WITH A STATEMENT OF REASONS WHY THEY SHOULD HAVE TO REMAIN IN
Where a witness has been held in custody for more than 10 days,
the government has an obligation to prepare a biweekly report
stating the reasons why such a witness should not be released
with or without the taking of a deposition. Fed. Rules Crim.
Proc., Rule 46 (g).
The Material Witness is not aware of any reasons why he should
remain in custody, but to the extent the government knows of any
such reason, they hereby request that the government provide him
with a copy of a biweekly written report indicating these
For the forgoing reasons, the Material Witness respectfully
requests that this motion for the taking of videotaped
depositions be granted. In the alternative, the Witness requests
that he immediately be provided with a statement of the reasons
why he needs to remain in custody.
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