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U.S. v. SANCHEZ-JIMINEZ

September 9, 2005.

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSE SANCHEZ-JIMINEZ, Defendant.



The opinion of the court was delivered by: DANA M. SABRAW, District Judge

STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTIONS
I.
STATEMENT OF FACTS*fn1
On May 23, 2005 at approximately 4:10 pm San Diego Police Officers Franchina and Kelbaugh responded to radio call that several males were drinking beer in the rear of La Cocina De Jose Restaurant. Upon their arrival, the officers asked Mr. Sanchez-Jiminez for identification. They further inquired as to whether or not he was a United States citizen. Mr. Sanchez-Jiminez allegedly made an incriminating response to the officer's questions. Mr. Sanchez-Jiminez did not feel free to leave during this questioning, and felt pressured to answer the officer's questions. See Declaration of Jose Sanchez-Jiminez, attached as Exhibit A. Following a records check, Mr. Sanchez-Jiminez was then placed under arrest by Officers Franchina and Kelbaugh for violating 8 U.S.C. § 1326. Mr. Sanchez-Jiminez was transported to the police station and border patrol was notified. Senior Border Patrol Agent Marlon Ybarra transported Mr. Sanchez-Jiminez to the Border Patrol Station. At the station, Mr. Sanchez-Jiminez's biographical information and fingerprints were submitted into the ENFORCE, IAFIS and IDENT systems. After the system revealed a positive immigration and criminal history, agents allegedly read Mr. Sanchez-Jiminez his Miranda rights. Mr. Sanchez-Jiminez allegedly made an incriminating response to the agents questions. He did not understand the legal ramifications of these statements. Ex. A.

  On August 5, 2005 Mr. Sanchez-Jiminez was charged in an indictment with one count of violating 8 U.S.C. § 1326, deported alien in the United States.

  These motions follow.

  II.

  MOTION TO COMPEL DISCOVERY AND PRESERVE EVIDENCE

  Mr. Sanchez-Jiminez moves for the production by the government of the following discovery and for the preservation of 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 government agency. See generally Kyles v. Whitley, 514 U.S. 419 (1995); United States v. Bryan, 868 F.2d 1032 (9th Cir. 1989).

  (1) The Defendant's Statements. The government must disclose to Mr. Sanchez-Jiminez 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 that 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. Mr. Sanchez-Jiminez also specifically requests that all arrest reports, notes and dispatch or any other tapes that relate to the circumstances surrounding his arrest or any questioning, if such reports have not already been produced in their entirety, be turned over to him. 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. This is all discoverable under Fed.R.Crim.P. 16(a)(1)(A) and Brady v. Maryland, 373 U.S. 83 (1963). See also Loux v. United States, 389 F.2d 911 (9th Cir. 1968). Arrest reports, investigator's notes, memos from arresting officers, dispatch tapes, sworn statements, and prosecution reports pertaining to the defendant are available under Fed.R.Crim.P. 16(a)(1)(B) and (c), Fed.R.Crim.P. 26.2 and 12(i). Preservation of rough notes is requested, whether or not the government deems them discoverable.

  Mr. Sanchez-Jiminez specifically requests a copy of the audiotape of any deportation hearing, as well as a transcript of any such proceeding. Mr. Sanchez-Jiminez also requests a copy of his alien file ("A-file").

  (3) Brady Material. Mr. Sanchez-Jiminez 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. Impeachment as well as exculpatory evidence falls within Brady's 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. As discussed above, this information is discoverable under Brady v. Maryland, 373 U.S. 83 (1963). This request includes any cooperation or attempted cooperation by the defendant, as well as any information that could affect any base offense level or specific offense characteristic under Chapter Two of the Guidelines. Also included in this request is any information relevant to a Chapter Three adjustment, a determination of the defendant's criminal history, or any other application of the Guidelines.

  (5) The Defendant's Prior Record. Evidence of prior record is available under Fed.R.Crim.P. 16(a)(1)(B). Counsel specifically requests a complete copy of any criminal record. Mr. Sanchez-Jiminez requests all evidence, documents, records of judgments and convictions, photographs and tangible evidence, and information pertaining to any prior arrests and convictions. Specifically, Mr. Sanchez-Jiminez requests: all documents and tapes relating to any deportation, including the warrant of deportation, the order to show cause, and the order of deportation.

  Additionally, Mr. Sanchez-Jiminez requests the right to review his A-file at the government's earliest convenience. (6) Any Proposed 404(b) Evidence. Evidence of prior similar acts is discoverable 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 . . . 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. The defendant requests that such notice be given three weeks before trial in order to give the defense time to adequately investigate and prepare for trial.

  (7) Evidence Seized. Evidence seized as a result of any search, either warrantless or with a warrant, is discoverable under Fed.R.Crim.P. 16(a)(1)(c), and Mr. Sanchez-Jiminez requests it.

  (8) Request for Preservation of Evidence. Mr. Sanchez-Jiminez specifically requests that 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 be preserved. This request includes, but is not limited to, the results of any fingerprint analysis, the defendant's personal effects, the vehicle, and any other evidence seized from the defendant or any third party. It is requested that the government be ordered to question all the agencies and individuals involved in the prosecution and investigation of this case to determine if such evidence exists, and if it does exist to inform those parties to preserve any such evidence.

  (9) Tangible Objects. Mr. Sanchez-Jiminez requests, under Fed.R.Crim.P. 16(a)(1)(c), the opportunity to inspect and copy as well as test, if necessary, all other documents and tangible portions objects, including photographs, books, papers, documents, photographs of buildings or places or copies of 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.

  (10) Evidence of Bias or Motive to Lie. Mr. Sanchez-Jiminez 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. Pennsylvania v. Ritchie, 480 U.S. 39 (1987); United States v. Strifler, 851 F.2d 1197 (9th Cir. 1988).

  (11) Impeachment Evidence. Mr. Sanchez-Jiminez 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. Such evidence is discoverable under Brady v. Maryland, supra. See United States v. Strifler, 851 F.2d 1197 (9th Cir. 1988) (witness' prior record); Thomas v. United States, 343 F.2d 49 (9th Cir. 1965) (evidence that detracts from a witness' credibility).

  (12) Evidence of Criminal Investigation of Any Government Witness. Mr. Sanchez-Jiminez requests any evidence that any prospective witness is under investigation by federal, state or local authorities for any criminal conduct. United States v. Chitty, 760 F.2d 425 (2d Cir. 1985).

  (13) Evidence Affecting Perception, Recollection, Ability to Communicate. Mr. Sanchez-Jiminez requests any evidence, including any medical or psychiatric report or evaluation, tending 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. United States v. Strifler, 851 F.2d 1197 (9th Cir. 1988); Chavis v. North Carolina, 637 F.2d 213, 224 (4th Cir. 1980).

  (14) Witness Addresses. Mr. Sanchez-Jiminez requests the name and last known address of each prospective government witness. See United States v. Napue, 834 F.2d 1311 (7th Cir. 1987); United States v. Tucker, 716 F.2d 576 (9th Cir. 1983) (failure to interview government witnesses by counsel is ineffective); United States v. Cook, 608 F.2d 1175, 1181 (9th Cir. 1979) (defense has equal right to talk to witnesses). The defendant also requests the name and last known address of every witness to the crime or crimes charged (or any of the overt acts committed in furtherance thereof) who will not be called as a government witness. United States v. Cadet, 727 F.2d 1453 (9th Cir. 1984).

  (15) Name of Witnesses Favorable to the Defendant. Mr. Sanchez-Jiminez requests the name of any witness who made any arguably favorable statement concerning the defendant or who could not identify him or who was unsure of his identity, or participation in the crime charged. Jackson v. Wainwright, 390 F.2d 288 (5th Cir. 1968); Chavis v. North Carolina, 637 F.2d 213, 223 (4th Cir. 1980); Jones v. Jago, 575 F.2d 1164, 1168 (6th Cir.), cert. denied, 439 U.S. 883 (1978); Hudson v. Blackburn, 601 F.2d 785 (5th Cir. 1979), cert. denied, 444 U.S. 1086 (1980).

  (16) Statements Relevant to the Defense. Mr. Sanchez-Jiminez requests disclosure of any statement that may be "relevant to any possible defense or contention" that he might assert. United States v. Bailleaux, 685 F.2d 1105 (9th Cir. 1982). This would include Grand Jury transcripts which are relevant to Mr. Sanchez-Jiminez's motions to dismiss the indictment.

  (17) Jencks Act Material. Mr. Sanchez-Jiminez requests all material to which Mr. Sanchez-Jiminez is entitled pursuant to the Jencks Act, 18 U.S.C. § 3500, reasonably in advance of trial, including dispatch tapes. 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 § 3500(e)(1). Campbell v. United States, 373 U.S. 487, 490-92 (1963).

  (18) Giglio Information. Pursuant to Giglio v. United States, 405 U.S. 150 (1972), Mr. Sanchez-Jiminez requests all statements and/or promises, expressed 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.

  (19) Reports of Scientific Tests or Examinations. Pursuant to Fed.R.Crim.P. 16(a)(1)(D), Mr. Sanchez-Jiminez requests the reports of all tests and examinations conducted upon the evidence in this case. Including, but not limited to, any fingerprint testing done upon any evidence seized in this case, that is within the possession, custody, or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government, and which are material to the preparation of the defense or are intended for use by the government as evidence in chief at the trial.

  (20) Henthorn Material. Mr. Sanchez-Jiminez requests that the prosecutor review the personnel files of the officers involved in his arrests, and those who will testify, and produce to him any exculpatory information at least two weeks prior to trial and one week prior to the motion hearing. See United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991). In addition, he requests that if the government is uncertain whether certain information is to be turned over pursuant to this ...


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