United States District Court, S.D. California
September 15, 2005.
UNITED STATES OF AMERICA, Plaintiff,
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
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 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
(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
(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.
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
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.
For the forgoing reasons, Mr. Estrada-Eliverio respectfully
requests that the Court grant the above motions.
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