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U.S. v. ESTRADA-ELIVERIO

United States District Court, S.D. California


September 15, 2005.

UNITED STATES OF AMERICA, Plaintiff,
v.
LUIS ESTRADA-ELIVERIO Defendant.

The opinion of the court was delivered by: BARRY MOSKOWITZ, District Judge

STATEMENT OF FACTS, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS
I.
STATEMENT OF FACTS*fn1
According to the Statement of Probable Cause attached to the Complaint initially filed in this case, a border patrol agent allegedly apprehended Mr. Estrada-Eliverio near the Tecate, California Port of Entry on June 18, 2005. Mr. Estrada-Eliverio allegedly admitted to being a citizen and national of Mexico illegally present in the United States. An agent then placed Mr. Estrada-Eliverio under arrest and transported him to the Tecate Processing Center. At the station, agents conducted a query through the Biometric Identification System, and concluded that Mr. Estrada-Eliverio was not a United States citizen, and that he had been previously removed from the United States. Officers allegedly advised Mr. Estrada-Eliverio of his Miranda*fn2 rights, and Mr. Estrada-Eliverio then proceeded to make statements.

  On July 12, 2005, Mr. Estrada-Eliverio waived indictment. The government charged him by way of information — filed with the Court on the same day — with: (1) one count of being an alien who unlawfully entered or attempted to enter the United States, in violation of Title 8, USC § 1325, a misdemeanor; and (2) and (3) two counts of being an alien who unlawfully entered or attempted to enter the United States and previously committed the offense of unlawfully entering or attempting to enter the United States, as alleged in Count 1, both in violation of Title 8 USC § 1325, a felony.

  II.

 

THE COURT SHOULD COMPEL THE GOVERNMENT TO PRODUCE FURTHER DISCOVERY AND PRESERVE EVIDENCE
  As of the date of filing, the government has provided defense counsel with approximately fifty-one pages of discovery in this case. Mr. Estrada-Eliverio makes the instant discovery motion pursuant to Rules 12(b)(4), 12(d)(2), 26.2, Rule 16 and all other applicable rules, statutes and case law. His request is not limited to those items that the prosecutor knows of, but rather, includes all discovery listed below that is in the care, control, custody, possession, or knowledge of any "closely related investigative [or other] agencies." See United States v. Bryan, 868 F.2d 1032 (9th Cir. 1989).

  (1) Mr. Estrada-Eliverio's Statements. Pursuant to the Fifth and Sixth Amendments, Fed.R.Crim.P. 16(a)(1)(A), and Brady v. Maryland, 373 U.S. 83 (1963), Mr. Estrada-Eliverio requests disclosure of all copies of any oral, written or recorded statements made by him, which the government has in its possession, custody, or control, or which by the exercise of due diligence, regardless of to whom made, may become known to the government. This request includes any record containing the substance of any statements made by Mr. Estrada-Eliverio in response to interrogation by a known government agent; and the substance of any statements made by Mr. Estrada-Eliverio, which the government intends to use, for any purpose at trial. See Fed.R.Crim.P. 16(a)(1)(A). Mr. Estrada-Eliverio specifically requests the disclosure and production of the arrest reports, all reports relating to the circumstances of his arrest, and any statements made by Estrada-Eliverio whether before or after his arrest in response to interrogation. Mr. Estrada-Eliverio's request further includes, but is not limited to, any summaries of his oral statements contained in the handwritten notes, the "rough notes," the records, the recordings (audio or visual) reports, the transcripts or other documents of any government agent; any response to any Miranda warnings, which may have been given to Mr. Estrada-Eliverio (See United States v. McElroy, 697 F.2d 459 (2nd Cir. 1982)), as well as any other discoverable statements made by Mr. Estrada-Eliverio. Fed.R.Crim.P. 16(a)(1)(A).

  Finally, the Advisory Committee Notes and the 1991 amendments to Rule 16 mandate that upon the defendant's request the Government must disclose all the defendant's statements, whether oral or written, and regardless of whether the government intends to introduce these statements at trial. Mr. Estrada-Eliverio moves for the immediate production of the requested statements, and requests that this Court prohibit the use at trial of any such statements that are not produced pursuant to this request. See Fed R. Crim. P. 16(d)(2) (the court may "prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances.").

  (2) Request for Preservation of Evidence. Mr. Estrada-Eliverio requests the preservation of all 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. This request includes, but is not limited to, the results of any fingerprint analysis, the defendant's personal effects, and any evidence seized from Mr. Estrada-Eliverio or any third party.

  (3) Tangible Objects. Mr. Estrada-Eliverio seeks to inspect and copy as well as test, if necessary, all other documents and tangible objects, including photographs, books, papers, documents, alleged narcotics, fingerprint analyses, vehicles, or copies of portions 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. Fed.R.Crim.P. 16(a)(1)(E). This request specifically incorporates a request for a copy of Mr. Estrada-Eliverio's "A-File" and any tapes of any deportation hearing involving Mr. Estrada-Eliverio.

  (4) Arrest Reports, Notes and Dispatch Tapes. Mr. Estrada-Eliverio also specifically requests the disclosure and production of copies of all arrest reports, notes, or any other tapes, and TECS records that relate to the circumstances of his arrest. 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. Fed.R.Crim.P. 16(a)(1)(A) and Brady v. Maryland, 373 U.S. 83 (1963). The government must produce arrest reports, investigator's notes, memos from arresting officers, dispatch tapes, sworn statements, and prosecution reports pertaining to Mr. Estrada-Eliverio. See Fed.R.Crim.P. 16(a)(1)(B) and (C); Fed.R.Crim.P. 26.2 and 12(i). Defense counsel requests the preservation of rough notes, whether or not the government deems them discoverable at this time.

  (5) Expert Witnesses. The defendant requests the name, qualifications, and a written summary of the testimony of any person that the government intends to call as an expert witness during its case in chief. Fed.R.Crim.P. 16(a)(1)(G).

  (6) Witness Addresses. Mr. Estrada-Eliverio requests the name and last known address of each prospective government witness. See United States v. Cook, 608 F.2d 1175, 1181 (9th Cir. 1979) (defense has equal right to talk to witnesses). He 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).

  (7) Prior Record. Mr. Estrada-Eliverio requests any and all criminal records in the possession of, known to or through the exercise of due diligence may become known to the U.S. Attorney's office or the case agent, known. Evidence of Mr. Estrada-Eliverio's prior record, if any, is available under Fed.R.Crim.P. 16(a)(1)(B). Accordingly, Mr. Estrada-Eliverio asks that the Court prohibit assessing any points for offenses not included in the government's response to this request when calculating his criminal history category, should this case proceed to sentencing.

  (8) Statements Relevant to the Defense. Mr. Estrada-Eliverio requests disclosure of any statement "relevant to any possible defense or contention" that he might assert. United States v. Bailleaux, 685 F.2d 1105 (9th Cir. 1982).

  (9) Brady Material. Mr. Estrada-Eliverio requests all documents, statements, agents' reports, and tangible evidence favorable to the defendant on the issue of guilt, punishment, and/or which affect the credibility of the government's case. See Brady v. Maryland, 373 U.S. 83 (1963). Mr. Estrada-Eliverio also notes that many of the items previously requested pursuant to Rule 16(a)(1)(C) also may constitute Brady material.

  Impeachment as well as exculpatory evidence falls within Brady's definition of discoverable evidence favorable to the accused. Mr. Estrada-Eliverio, therefore, requests disclosure of any evidence that the 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 Mr. Estrada-Eliverio. See Fed.R.Evid. 608, 609 and 613; United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 427 U.S. 97 (1976); Brady v. Maryland, 373 U.S. 83 (1963); United States v. Strifler, 851 F.2d 1197 (9th Cir. 1988) (witness' prior record); and Thomas v. United States, 343 F.2d 49 (9th Cir. 1965) (evidence that detracts from a witness' credibility). In addition, Mr. Estrada-Eliverio requests any evidence tending to show that a prospective government witness is biased or prejudiced against Mr. Estrada-Eliverio or has a motive to falsify or distort his or him testimony, Pennsylvania v. Ritchie, 480 U.S. 39 (1987); United States v. Strifler, 851 F.2d 1197 (9th Cir. 1988). This request also includes, but is not limited to, the request for the disclosure of any report or evaluation, be it medical or psychiatric, tending to show that any prospective witness' 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. Id.; Chavis v. North Carolina, 637 F.2d 213, 224 (4th Cir. 1980).

  (10) Henthorn material. In addition, Mr. Estrada-Eliverio requests that the Assistant United States Attorney assigned to this case review the personnel files for each agent involved in the present case for impeachment material. Kyles v. Whitley, 115 S. Ct. 1555 (1995); United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991); United States v. Lacy, 896 F. Supp. 982 (N.D. Ca. 1995). Mr. Estrada-Eliverio requests that the government examine the personnel files and any other files within its care, control or custody, or which could be obtained by the government, for all testifying witnesses, including testifying officers. Mr. Estrada-Eliverio requests that the government attorney review and disclose these files for evidence of dishonesty, misconduct, or any other impeachment or exculpatory material, pursuant to its duty under Henthorn. Mr. Estrada-Eliverio's demand for these The government's obligation to examine all files arises by virtue of: the Ninth Circuit in Henthorn remanded the case for in camera review of the agents' files because the government failed to examine the files of agents testifying at trial. This court should, therefore, order the government to review all such files for all testifying witnesses and disclose any impeachment or exculpatory material.

  (11) Any Information That May Result in a Lower Sentence Under The Guidelines. As discussed above, this information is discoverable under Brady. This request includes any cooperation or attempted cooperation by Mr. Estrada-Eliverio, as well as any information that could affect any base offense level or specific offense characteristic identified in Chapter Two of the United States Sentencing Guidelines. Mr. Estrada-Eliverio also requests any information relevant to a Chapter Three adjustment, a determination of Mr. Estrada-Eliverio's criminal history, and any information relevant to any other application of the Guidelines.

  (12) Evidence Seized. Mr. Estrada-Eliverio requests production of evidence seized as a result of any search, either warrantless or with a warrant. Fed.R.Crim.P. 16(a)(1)(C). Mr. Estrada-Eliverio requests pursuant to Fed.R.Crim.P. 16(a)(1)(C), the opportunity to inspect, copy, and photograph, as well as test, if necessary, all documents and tangible objects, including photographs, books, papers, documents, alleged narcotics, fingerprint analyses, vehicles, or copies of portions 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 Mr. Estrada-Eliverio.

  (13) Reports of Scientific Tests or Examinations. Mr. Estrada-Eliverio requests that the government disclose the reports of all physical examinations and scientific experiments or tests, which are material to the preparation of his defense or are intended for use by the government at trial. See Fed.R.Crim.P. 16(a)(1)(D). Mr. Estrada-Eliverio specifically requests any fingerprint reports and any scientifically conducted laboratory tests in this case.

  (14) Request for Preservation of Evidence. Mr. Estrada-Eliverio 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 his arrest or the events leading to his arrest be preserved. Mr. Estrada-Eliverio requests that the Court order the government to question all of the agencies and individuals involved in the prosecution and investigation of his case, to determine if such evidence exists, and if it does exist, to inform those parties to preserve any such evidence.

  (15) Jencks Act Material. Mr. Estrada-Eliverio requests the disclosure, in advance of trial, of all material which the government must produce pursuant to the Jencks Act, 18 U.S.C. § 3500. 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 section 3500(e)(1). Campbell v. United States, 373 U.S. 487, 490-92 (1963). The defense specifically requests pre-trial production of Jencks material to expedite cross-examination and to avoid lengthy and unnecessary recesses during trial.

  This request also includes production of transcripts of the testimony of any witness before the grand jury, should the government choose to indict Mr. Estrada-Eliverio. See 18 U.S.C. § 3500(e)(3). Moreover, Jencks statements must be produced at the suppression hearing. See Fed.R.Crim.P. 12(i) and 26.2(g). Mr. Estrada-Eliverio requests, therefore, production of such material before the suppression hearing in order to avoid any delays at the hearing pursuant to Rule 26.2(d).

  (13) Expert Witnesses. Mr. Estrada-Eliverio requests the name and qualifications of any person that the government intends to call as an expert witness during its case in chief. See Fed.R.Crim.P. 16(a)(1)(E). In addition, Mr. Estrada-Eliverio requests written summaries describing the bases and reasons for the expert's opinion. See id.

  (14) Evidence of Criminal Investigation of Any Government Witness. Mr. Estrada-Eliverio requests any evidence that any prospective government witness is under investigation by federal, state or local authorities for any criminal conduct.

  (15) Giglio Information. Pursuant to Giglio v. United States, 405 U.S. 150 (1972), Mr. Estrada-Eliverio requests the disclosure of all statements and/or promises, express or implied, made to any government witnesses, in exchange for his/her testimony in this case, and all other information, which could arguably be used for the impeachment of any government witnesses.

  (16) Name of Witnesses Favorable to the Defendant. Mr. Estrada-Eliverio requests the name of any witness who made an arguably favorable statement concerning Mr. Estrada-Eliverio 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).

  (17) Any Proposed 404(b) or 609 Evidence. The government must produce evidence of prior acts 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. Such other acts evidence is requested, and must be turned over, regardless of whether the government plans to use it in its case-in-chief, rebuttal or impeachment. See United States v. Vega, 188 F.3d 1150, 1154 (9th Cir. 1999). Mr. Estrada-Eliverio requests such notice three weeks before trial in order to give the defense time to adequately investigate and prepare for trial.

  (18) Personnel Record of Government Officers Involved in the Arrest. Mr. Estrada-Eliverio requests all citizen complaints and other related internal affairs documents involving any of the immigration officers or other law enforcement officers who were involved in his investigation, arrest and interrogation, pursuant to Pitchess v. Superior Court, 11 Cal. 3d 531, 539 (1974). Because of the sensitive nature of these documents, defense counsel will not be able to procure them from any other source.

  (19) Residual Request. Mr. Estrada-Eliverio intends by this discovery motion to invoke his rights to discovery to the fullest extent possible under the United States Constitution, the Federal Rules of Criminal Procedure and the laws of the United States. Mr. Estrada-Eliverio requests that the government provide him and his attorney with the above requested material sufficiently in advance of trial to avoid unnecessary delay prior to cross-examination.

  (20) Alien File. Mr. Estrada-Eliverio requests that the Government turn over the deportation tapes of the deportation that they intend to rely on in this case. Mr. Estrada-Eliverio has a right to challenge the validity of the prior deportation pre-trial. Mr. Estrada-Eliverio also requests the opportunity to view the A-File.

  III.

  MOTION FOR LEAVE TO FILE FURTHER MOTIONS

  Defense counsel has received approximately 51 pages of discovery in this case, but has received incomplete discovery regarding Mr. Estrada-Eliverio's immigration history and records. Defense counsel has not had an opportunity to view Mr. Estrada-Eliverio's A-file, nor has the government provided Mr. Estrada-Eliverio with access to or copies of the audiotape(s) of Mr. Estrada-Eliverio's alleged deportation. Moreover, counsel has not received the conviction documents which formed the basis for his deportation.

  Once the government provides additional discovery in response to these motions or an order of this Court, Mr. Estrada-Eliverio may find it necessary to file further motions. Defense counsel therefore requests the opportunity to file further motions as may be necessary when discovery is complete.

  CONCLUSION

  For the forgoing reasons, Mr. Estrada-Eliverio respectfully requests that the Court grant the above motions.

20050915

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