United States District Court, S.D. California
September 16, 2005.
UNITED STATES OF AMERICA, Plaintiff,
ROBERT JUBILEE, Defendant.
The opinion of the court was delivered by: DANA SABRAW, District Judge
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S
STATEMENT OF FACTS*fn1
Mr. Jubilee was arrested on August 12, 2005, when he made
application to enter the United States through the San Ysidro,
California Port of Entry. The primary inspector was not able to
complete a search of the vehicle and referred Mr. Jubilee to
secondary inspection. At secondary inspection, the inspectors
noticed two non-factory compartments. Ultimately, the inspectors
found two women in the compartments.
Mr. Jubilee was arrested. Agent Sergio Guzman from Customs and
Border Protection interviewed Mr. Jubilee. Agent Guzman's report
indicated that he read Mr. Jubilee his Miranda rights and that Mr. Jubilee made unsolicited incriminating
statements. Agent Guzman's report does not indicate whether Mr.
Guzman invoked his right to remain silent or whether he waived
those rights. The videotape of the interrogation, however,
reveals that Mr. Jubilee did, indeed, invoke his right to remain
Mr. Jubilee was charged in a six-count indictment, charging him
with Bringing in Illegal Aliens for Financial Gain, in violation
of 8 U.S.C. § 1324(a)(2)(B)(ii) and Bringing in Illegal Aliens
without Presentation, in violation of § 1324(a)(2)(B)(iii). The
indictment charged incidents arising out of three separate
dates.*fn2 The indictment charges counts arising out of the
following dates: August 5, 2005, August 7, 2005 and August 12,
On August 5, 2005, Mr. Jubilee made incriminating statements.
The discovery, however, does not reveal that he was ever
Mirandized. The same is true of the August 7, 2005 incident. The
August 12, 2005 incident is summarized above.
A. THIS COURT SHOULD SUPPRESS MR. JUBILEE'S STATEMENTS.
1. The Government Must Demonstrate Compliance With Miranda.
a) Miranda warnings must precede custodial interrogation.
The Supreme Court has held that the prosecution may not use
statements, whether exculpatory or inculpatory, stemming from a
custodial interrogation of the defendant unless it demonstrates
the use of procedural safeguards effective to secure the
privilege against self-incrimination. Miranda v. Arizona,
384 U.S. 436, 444 (1966). Custodial interrogation is questioning
initiated by law enforcement officers after a person has been
taken into custody or otherwise deprived of his freedom of action
in any significant way. Id. See Orozco v. Texas, 394 U.S. 324, 327 (1969). A suspect will be held to be in custody
if the actions of the interrogating officers and the surrounding
circumstances, fairly construed, would reasonably have led him or
her to believe that he or she could not freely leave. See
United States v. Lee, 699 F.2d 466, 468 (9th Cir. 1982);
United States v. Bekowies, 432 F.2d 8, 12 (9th Cir. 1970).
Once a person is in custody, Miranda warnings must be given
prior to any interrogation. See United States v.
Estrada-Lucas, 651 F.2d 1261, 1265 (9th Cir. 1980). Those
warnings must advise the defendant of each of his or her
"critical" rights. United States v. Bland, 908 F.2d 471, 474
(9th Cir. 1990), cert. denied, 506 U.S. 858 (1992). If a
defendant indicates that she wishes to remain silent or requests
counsel, the interrogation must cease. Miranda,
384 U.S. at 474. See also Edwards v. Arizona, 451 U.S. 477, 484-85
Here, Mr. Jubilee was clearly in custody when statements were
taken from him on all the counts in the indictment. The discover
indicates that Mr. Jubilee was questioned after the material
witnesses had been found. Therefore, clearly he was in custody.
Moreover, Mr. Jubilee's statements are incriminating and relate
to the incidents for which he was detained. Miranda rights,
therefore, were required for each of three incidents alleged in
the indictment and the failure of the government to provide such,
requires the suppression of Mr. Jubilee's statements.
b) The Government Must Demonstrate That Mr. Jubilee Alleged
Waiver Was Voluntary, Knowing, and Intelligent.
When "interrogation continues without the presence of an
attorney, and a statement is taken, a heavy burden rests on the
government to demonstrate that the defendant knowingly and
intelligently waived his privilege against self-incrimination and
his right to retained or appointed counsel." Miranda,
384 U.S. at 475 (emphasis added) (citation omitted). It is undisputed that
a waiver of the right to remain silent and the right to counsel
must be made knowingly, intelligently, and voluntarily in order
to be effective. Schneckloth v. Bustamonte, 412 U.S. 218
(1973). The standard of proof for a waiver of this constitutional
right is high. Miranda, 384 U.S. at 475. See United States
v. Heldt, 745 F.2d 1275, 1277 (9th Cir. 1984) (the burden on the government is great; the court must indulge every reasonable
presumption against waiver of fundamental constitutional rights)
The validity of the waiver depends upon the particular facts
and circumstances surrounding the case, including the background,
experience, and conduct of the accused. Edwards v. Arizona,
451 U.S. 477, 472 (1981); Johnson v. Zerbst, 304 U.S. 458, 464
(1938). See also United States v. Heldt, 745 F.2d at 1277;
United States v. McCrary, 643 F.2d 323, 328-29 (5th Cir. 1981).
In Derrick v. Peterson, 924 F.2d 813 (9th Cir. 1990), cert.
denied, 502 U.S. 853 (1991), the Ninth Circuit confirmed that
the issue of the validity of a Miranda waiver requires a two
prong analysis; the waiver must be both: (1) voluntary, and (2)
knowing and intelligent. Id. at 820. The voluntariness prong of
this analysis "is equivalent to the voluntariness inquiry under
the [Fifth] Amendment. . . ." Id. The second prong, however,
requiring that the waiver be "knowing and intelligent," mandates
an inquiry into whether "the waiver [was] made with a full
awareness both of the nature of the right being abandoned and the
consequences of the decision to abandon it." Id. at 820-21
(quoting Colorado v. Spring, 479 U.S. 564, 573 (1987)). This
inquiry requires that the court determine whether "the requisite
level of comprehension" existed before the purported waiver may
be upheld. Id. Thus, "[o]nly if the `totality of the
circumstances surrounding the interrogation' reveal both an
uncoerced choice and the requisite level of comprehension may a
court properly conclude that the Miranda rights have been
waived." Id. (quoting Colorado v. Spring, 479 U.S. at 573)
(emphasis in original) (citations omitted).
Unless and until Miranda warnings and a knowing and
intelligent waiver are demonstrated by the prosecution, no
evidence obtained as a result of the interrogation can be used
against the defendant. Miranda, 384 U.S. at 479. The government
in the present case has the burden of proving that the defendant
was read his Miranda rights and that he intelligently and
voluntarily waived those rights in all situations in which the
defendant reasonably believed that he was not free to leave.
See United States v. Estrada-Lucas, 651 F.2d 1261, 1265 (9th
Cir. 1980). The discovery reveals Miranda warning for only the August 12,
2005 date. The videotape of the interrogation, however, reveals
that Mr. Jubilee invoked his right to remain silent.
Nevertheless, the government alleges that Mr. Jubilee made
incriminating statements on that date, after his invocation. That
agents have referred to statements as "unsolicited." After the
invocation of his rights, any statements made by Mr. Jubilee
presumptively violates his Miranda rights. It is up to the
government to demonstrate that his statements are admissible.
2. The Government Must Prove Mr. Jubilee' Statements Were
Even when the procedural safeguards of Miranda have been
satisfied, assuming the government can meet its burden, a
defendant in a criminal case is deprived of due process of law if
the conviction is founded upon an involuntary confession.
Arizona v. Fulminante, 499 U.S. 279 (1991); Jackson v. Denno,
378 U.S. 368, 387 (1964). The government bears the burden of
proving not only that a confession was made, but also that the
confession was voluntary by a preponderance of the evidence.
Lego v. Twomey, 404 U.S. 477, 483 (1972).
In order to be voluntary, a statement must be the product of a
rational intellect and free will. Blackburn v. Alabama,
361 U.S. 199, 208 (1960). In determining whether a defendant's will
was overborne in a particular case, the totality of the
circumstances must be considered. Schneckloth v. Bustamonte,
412 U.S. 218, 226 (1973). Some factors taken into account have
included the youth of the accused, his lack of education, his low
intelligence, the lack of any advice to the accused of his
constitutional rights, the length of the detention, the repeated
and prolonged nature of the questioning, and the use of physical
punishment such as the deprivation of food or sleep. Id.
A confession is deemed involuntary not only if coerced by
physical intimidation, but also if achieved through psychological
pressure. "The test is whether the confession was `extracted by
any sort of threats or violence, (or) obtained by any direct or
implied promises, however slight, (or) by the exertion of any
improper influence.'" Hutto v. Ross, 429 U.S. 28, 30 (1976)
(quoting Bram v. United States, 168 U.S. 532, 542-43 (1897)).
Accord United States v. Tingle, 658 F.2d 1332, 1335 (9th Cir.
1981). 3. This Court Must Suppress Mr. Jubilee's Statements.
This Court must make a factual determination as to whether a
confession was voluntarily given prior to its admission into
evidence. 18 U.S.C. § 3501(a). Where a factual determination is
required, courts are obligated by Fed.R.Crim.P. 12 to make
factual findings. See United States v. Prieto-Villa,
910 F.2d 601, 606-10 (9th Cir. 1990). Because "`suppression hearings are
often as important as the trial itself,'" id. at 609-10
(quoting Waller v. Georgia, 467 U.S. 39, 46 (1984)), these
findings should be supported by evidence, not merely an
unsubstantiated recitation of purported evidence in a
prosecutor's responsive pleading.
Under section 3501(b), this Court must consider various
enumerated factors in making the voluntariness determination,
including whether the defendant understood the nature of the
charges against him and whether he understood his rights. Without
the presentation of evidence, this Court cannot adequately
consider these statutorily mandated factors. Mr. Jubilee,
accordingly requests that this Court conduct an evidentiary
hearing pursuant to 18 U.S.C. § 3501(a), to determine, outside
the presence of the jury, whether any statements he made were
In any event, to the extent that this Court determines that an
evidentiary hearing is not necessary, it must, nevertheless,
suppress Mr. Jubilee's statements. None of the government's
discovery reveals that Mr. Jubilee was Mirandized during the
first two alleged incidents, (August 5, 2005 or August 7, 2005).
Because the government has not demonstrated either compliance
with Miranda or that those statements were voluntary, this Court
must suppress Mr. Jubilee's statements.*fn3 With respect to
the August 12, 2005, date, Mr. Jubilee's statements made after
the invocation certainly create a presumption that they cannot be
used against him, unless the government can unequivocally prove
that they were not occasioned by their actions. B. THIS COURT SHOULD ORDER PRODUCTION AND PRESERVATION OF
Mr. Jubilee 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 the defendant 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 which 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, whetheroral or written, regardless of
whether the government intends to make any use of those
(2) Arrest Reports, Notes and Dispatch Tapes. The defense
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.
(3) Brady Material. Mr. Jubilee 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.
(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).
(8) Request for Preservation of Evidence. The defense
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, all persons who were
apprehended as passengers in the van at issue in the instant
case, 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. The defense 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 objects,
including photographs, books, papers, documents, photographs of
buildings or places 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.
Specifically, Mr. Jubilee requests a copy of the videotape
interview of the material witness, if one exists.
(10) Evidence of Bias or Motive to Lie. The defense 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.
(11) Impeachment evidence. Mr. Jubilee 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. The defense 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. Jubilee 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. The defense 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.
Jubilee 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. Jubilee 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 the defense motion
to dismiss the indictment.
(17) Jencks Act Material. The defense requests all material
to which Mr. Jubilee is entitled pursuant to the Jencks Act,
18 U.S.C. § 3500, reasonably in advance of trial and/or any
pre-trial hearings, 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, 490-92 (1963). (18) Giglio Information. Pursuant to Giglio v. United
States, 405 U.S. 150 (1972), the defendant 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), the defendant 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. The defense 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 request, that it produce
such information to the Court in advance of the trial and the
motion hearing for an in camera inspection.
(21) Informants and Cooperating Witnesses. Mr. Jubilee
requests disclosure of the names and addresses of all informants
or cooperating witnesses used or to be used in this case. The
government must disclose the informant's identity and location,
as well as disclose the existence of any other percipient witness
unknown or unknowable to the defense. Roviaro v. United States,
353 U.S. 53, 61-62 (1957). Mr. Jubilee also requests disclosure
of any information indicating bias on the part of any informant
or cooperating witness. Giglio v. United States, 405 U.S. 150
(1972). Such information would include inducements, favors,
payments, or threats made to the witness to secure cooperation
with the authorities.
(22) Expert Witnesses. The defendant requests disclosure of
any expert witnesses the government intends to call at trial and
"a written summary of testimony that the government intends to use," including the "witnesses' opinions, the bases
and the reasons for those opinions" and his or her
qualifications. Fed.R.Crim.P. 16(a)(1)(E).
(23) Residual Request. The defense intends by this discovery
motion to invoke his rights to discovery to the fullest extent
possible under the Federal Rules of Criminal Procedure and the
Constitution and laws of the United States. This request
specifically includes all subsections of Rule 16. Mr. Jubilee
requests that the government provide him and his attorney with
the above requested material sufficiently in advance of trial.
C. THIS COURT SHOULD PERMIT LEAVE TO FILE FURTHER MOTIONS
Mr. Jubilee has not received all of the discovery in this case.
As discovery is received, he may need to file additional motions.
He, therefore, requests an opportunity to do so.
For the foregoing reasons, Mr. Jubilee respectfully requests
that the Court grant the above motions.
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