The opinion of the court was delivered by: JOHN HOUSTON, Magistrate Judge
STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF DEFENDANT'S MOTIONS
STATEMENT OF FACTS*fn1
On August 11, 2005, at approximately 9:00 a.m., Mr. Munoz was
apprehended driving a 1985 Ford Ranger. Also in the car was a
passenger the co-defendant and registered owner of the vehicle,
Angel Javier Quintero-Camacho.
In primary inspection, a narcotics detector dog alerted to the
vehicle and it was referred to secondary inspection. After being
referred to secondary inspection, Officer Smura interrogated Mr.
Munoz while Officer Maeda interrogated Mr. Quintero. The officers
escorted each of them to the secondary office. An inspection of
the vehicle revealed 105.94 kilograms of marijuana. Mr. Munoz was read his rights and made statements. He denied
knowledge of the marijuana. Mr. Quintero also made statements,
however he admitted knowledge of the marijuana and implicated Mr.
Munoz as to knowledge as well.
On August 25, 2005, the "June 2005 Grand Jury" sitting in the
Southern District of California returned an Indictment charging
Mr. Munoz with importation of marijuana, in violation of
21 U.S.C. §§ 952 and 960; and possession of marijuana with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1); and with
importation of methamphetamine, in violation of 21 U.S.C. §§ 952
MOTION TO COMPEL DISCOVERY/PRESERVE EVIDENCE
Mr. Munoz moves for the production of the following discovery
and for the preservation of all relevant 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 "closely related
investigative [or other] agencies." See 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, whether oral or written, regardless of
whether the government intends to make any use of those
(2) Arrest Reports, Notes and Dispatch Tapes. The defendant
also specifically requests the government to turn over all arrest
reports, notes, dispatch or any other tapes, and TECS records
that relate to the circumstances surrounding his arrest or any
questioning. 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. Such material is discoverable under
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 the defendant. See
Fed.R.Crim.P. 16(a)(1)(B) and (C), Fed.R.Crim.P. 26.2 and 12(1).
(3) Brady Material. The defendant 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. Under Brady, impeachment
as well as exculpatory evidence falls within the 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. The government must produce this information
under Brady v. Maryland, 373 U.S. 83 (1963).
(5) The Defendant's Prior Record. The defendant requests
disclosure of his prior record. Fed.R.Crim.P. 16(a)(1)(B).
(6) Any Proposed 404(b) Evidence. The government must produce
evidence of prior similar 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 . . .
all provide reasonable notice in advance of trial . . . the
general nature" of any evidence the government proposes to
introduce under Fed.R.Evid. 404(b) at trial. The defendant
requests such notice two weeks before trial in order to give the
defense time adequately to investigate and prepare for trial.
(7) Evidence Seized. The defendant 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).
(8) Request for Preservation of Evidence. The defendant
specifically requests the preservation of 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. This request includes, but is not
limited to, any samples of narcotics used to run any scientific
tests, any narcotics, the results of any fingerprint analysis,
the vehicle which the defendant drove, the defendant's personal
effects, and any evidence seized from the defendant or any third
party. In addition, Mr. Munoz requests that the Assistant United
States Attorney assigned to this case oversee a review of all
personnel files of each agent involved in the present case for
impeachment material. Kyles v. Whitley, 514 U.S. 419 (1995);
United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991); but
see United States v. Herring, 83 F.3d 1120 (9th Cir. 1996).
(9) Tangible Objects. The defendant requests the opportunity
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)(C). ...