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
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.
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
(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
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
(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
(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,
(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 ...