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U.S. v. ESTRADA-ELIVERIO

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 ...


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