The opinion of the court was delivered by: BARRY MOSKOWITZ, District Judge
STATEMENT OF FACTS, MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTIONS
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
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.
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 ...