United States District Court, S.D. California
September 29, 2005.
UNITED STATES OF AMERICA, Plaintiff,
MARIO MUNOZ-AGUILAR, Defendant.
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). Specifically, the defendant requests copies of
all photographs in the government's possession of the alleged
(10) 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)(E).
(11) Evidence of Bias or Motive to Lie. The defendant
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.
(12) Impeachment Evidence. The defendant 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; Brady v.
(13) Evidence of Criminal Investigation of Any Government
Witness. The defendant requests any evidence that any
prospective witness is under investigation by federal, state or
local authorities for any criminal conduct.
(14) Evidence Affecting Perception, Recollection, Ability to
Communicate, or Truth Telling. The defense requests any
evidence, including any medical or psychiatric report or
evaluation, that tends 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. (15) Witness Addresses. The defendant requests the name and
last known address of each prospective government witness. 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
(16) Name of Witnesses Favorable to the Defendant. The
defendant requests the name of any witness who made an 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.
(17) Statements Relevant to the Defense. The defendant
requests disclosure of any statement relevant to any possible
defense or contention that he might assert.
(18) Jencks Act Material. The defendant requests production
in advance of trial of all material, including dispatch tapes,
which the government must produce pursuant to the Jencks Act,
18 U.S.C. § 3500. Advance production will avoid the possibility of
delay at the request of defendant to investigate the Jencks
material. A verbal acknowledgment that "rough" notes constitutes
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). In United States v. Boshell, 952 F.2d 1101 (9th Cir.
1991) the Ninth Circuit held that when an agent goes over
interview notes with the subject of the interview the notes are
then subject to the Jencks Act.
(19) Giglio Information. Pursuant to Giglio v. United
States, 405 U.S. 150 (1972), the defendant requests all
statements and/or promises, express 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.
(20) Agreements Between the Government and Witnesses. The
defendant requests discovery regarding any express or implicit
promise, understanding, offer of immunity, of past, present, or
future compensation, or any other kind of agreement or
understanding, including any implicit understanding relating to
criminal or civil income tax, forfeiture or fine liability,
between any prospective government witness and the government
(federal, state and/or local). This request also includes any
discussion with a potential witness about or advice concerning
any contemplated prosecution, or any possible plea bargain, even
if no bargain was made, or the advice not followed. (21) Informants and Cooperating Witnesses. The defendant
requests disclosure of the names and addresses of all informants
or cooperating witnesses used or to be used in this case, and in
particular, disclosure of any informant who was a percipient
witness in this case or otherwise participated in the crime
charged against Mr. Munoz. 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). The government must disclose any information derived from
informants which exculpates or tends to exculpate the defendant.
(22) Bias by Informants or Cooperating Witnesses. The
defendant 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 what, if any, inducements, favors, payments or threats
were made to the witness to secure cooperation with the
(23) Scientific and Other Information. The defendant requests
the results of any scientific or other tests or examinations.
See Rule 16(a)(1)(D). Specifically, Mr. Munoz requests the DEA
(A) In addition, he requests any information
regarding the reliability of the purported narcotics
detector dog, "Senna" that alerted on the vehicle.
This information is relevant as to whether officers
had probable cause to arrest Mr. Munoz. See United
States v. Cedano-Arellano, 332 F.3d 568 (9th
Cir. 2003) (dog sniff may serve as probable cause to
search but only if the reliability of the dog is
(24) Residual Request. Mr. Munoz intends by this discovery
motion to invoke her rights to discovery to the fullest extent
possible under the Federal Rules of Criminal Procedure and the
Constitution and laws of the United States. Mr. Munoz requests
that the government provide her and her attorney with the above
requested material sufficiently in advance of trial to avoid
unnecessary delay prior to cross-examination.
THIS COURT MUST HOLD A VOLUNTARINESS HEARING TO DETERMINE THE
ADMISSIBILITY OF ANY STATEMENTS MADE BY MR. MUNOZ
Mr. Munoz requests that this Court hold a voluntariness hearing
to determine the admissibility of any alleged statements. He also
moves to suppress any statements given in violation of Miranda.
In Dickerson v. United States, 530 U.S. 428 (2000), the Supreme
Court held that Miranda warnings are not merely prophylactic; rather, they are of constitutional
magnitude. Id. at 444. ("we conclude that Miranda announced a
constitutional rule"). If a waiver of Miranda is alleged, the
government bears the burden of demonstrating the waiver by clear
and convincing evidence. See Schell v. Witek, 218 F.3d 1017
1023 (9th Cir. 2000) (en banc) ("[c]onstitutional rights may
ordinarily be waived only if it can be established by clear and
convincing evidence that the waiver is voluntary, knowing, and
intelligent") (internal quotation marks and citations omitted).
Moreover, this Court must "indulge every reasonable presumption
against waiver of fundamental constitutional rights." Id. at
1024 (internal quotation marks and citations omitted). Mr. Munoz
specifically requests a Miranda hearing be held as to the
statements made in the secondary inspection area. Accordingly,
Mr. Munoz requests a voluntariness hearing pursuant to
18 U.S.C. § 3501 to determine the admissibility of any alleged statement.
THE DEFENDANTS ARE IMPROPERLY JOINED AND THEIR CASES MUST BE
SEVERED BECAUSE OF ANTAGONISTIC DEFENSES THAT WILL BE PRESENTED AT
TRIAL, FIFTH AMENDMENT DUE PROCESS AND SIXTH AMENDMENT COMPULSORY
Federal Rule of Criminal Procedure 14 provides that if it
appears that a defendant is prejudiced by a joinder of defendants
in an indictment or by joinder for trial together, the court may
grant a severance or provide whatever other relief justice
requires. See, e.g., United States v. Escalante,
637 F.2d 1197
, 1201 (9th Cir. 1980), cert. denied, 449 U.S. 856
Although a motion for severance is addressed to the trial court's
discretion, (see, e.g., United States v. Seifert,
648 F.2d 557
, 563 (9th Cir. 1990)), the granting of such a severance is
warranted when there is a serious risk that a joint trial would
compromise a specific trial right of one of the defendants, or
prevent the jury from making a reliable judgment about guilt or
innocence. United States v. Zafiro, 560 U.S. 534, 542 (1993);
United States v. Tootick, 952 F.2d 1078
, 1082 (9th Cir. 1991).
A. The Trial Must be Severed Because A Joint Trial Will
Reveal Antagonistic Defenses
The Supreme Court in Zafiro v. United States, 506 U.S. 534
(1993), held that severance should be granted if there is a
serious risk that a joint trial would compromise a specific trial
right of a properly joined defendant or prevent the jury from
making a reliable judgment about guilt or innocence. Zafiro
leaves the determination of the risk and the tailoring of the
remedy to the sound discretion of the trial court. At a minimum, the defendant must show that acceptance of his
co-defendant's defense would preclude his acquittal. United
States v. Arias-Villanueva, 998 F.2d 1491 (9th Cir. 1993);
United States v. Sherlock, 962 F.2d 1349 (9th Cir. 1989); see
also United States v. Throckmorton, 87 F.3d 1069 (9th Cir.
Mr. Quintero has entered a not guilty plea to all charges.
Acceptance of this defense not only precludes Mr. Munoz's theory
of defense, but introduces into the courtroom a second prosecutor
against him. In addition, if Mr. Quintero proceeds with a
defense, Mr. Munoz would be forced to testify, to prevent the
suggestion that the jury should infer guilt from Mr. Munoz's
failure to testify. A defendant may be able to obtain a severance
if co-defendants have mutually inconsistent defenses which cause
one attorney to suggest to the jury that they may infer guilt
from a co-defendant's silence. De Luna v. United States,
308 F.2d 140 (5th Cir. 1962). In De Luna, the court pointed out
that it is an attorney's duty to his client to comment on the
failure of the co-defendant to testify when the defendant's
interest requires such comment. This course of action would
violate the Fifth Amendment right of the non-testifying
co-defendant not to have adverse inferences drawn from his
silence at trial. See also United States v. Benz,
740 F.2d 903 (11th Cir. 1984).
Here, it is anticipated that Mr. Quintero's defense will be
that he was not a participant in any drug-smuggling operation,
and that he was tricked by Mr. Munoz. Indeed, it is anticipated
that Mr. Munoz will argue that Mr. Quintero orchestrated the
entirety of the offense, setting the stage for Mr. Munoz to take
any potential blame, thus introducing the possibility of a second
prosecutor in the courtroom against Mr. Munoz as well as against
Mr. Quintero. There also exists the potential that Mr. Quintero's
defense will be that Mr. Munoz orchestrated the alleged offense.
The anticipated defenses are mutually antagonistic, and
therefore, the defendants' trials must be severed.
B. Without Severance, Mr. Munoz's Sixth Amendment
Confrontation Clause Protections Are Nullified
If a co-defendant in a joint trial makes admissions that either
directly or circumstantially implicate a co-defendant and the
prosecution seeks to use such admissions, the remaining defendant
has the right to exclude the admissions, move for severance, or
redact the statement to avoid mention or implication of him.
Richardson v. Marsh, 481 U.S. 200 (1987). Here, the government may seek to introduce statements by the
co-defendant that mention Mr. Munoz. Any such statements made by
Mr. Quintero are inadmissible prejudicial hearsay and cannot be
admitted at a joint trial where Mr. Munoz has no opportunity to
cross-examine that statement. Admission of such a statement in a
joint trial violates Mr. Munoz's Sixth Amendment right to
confront and cross-examine witnesses against him.
The Supreme Court has specifically held that the admission in a
joint trial of statements of a non-testifying co-defendant, which
prejudiced the defendant, violated the Confrontation Clause of
the Sixth Amendment. Bruton v. United States, 391 U.S. 123
The prejudice Mr. Munoz's case will suffer from the admission
of co-defendant's statements cannot be cured with an instruction
to the jury. Cruz v. New York, 481 U.S. at 192-93 (citations
omitted). The Supreme Court has stated several times that "`the
naive assumption that prejudicial effects can be overcome by
instructions to the jury . . . all practicing lawyers know to be
unmitigated fiction.'" Bruton, 391 U.S. at 129, quoting
Krulewitch v. U.S., 336 U.S. 440 (Jackson, J., concurring). The
Court in Bruton held that instructing the jury to disregard the
evidence was inadequate to remedy the significant prejudice
inherent in such evidence. Id. at 135-36. The Court reaffirmed
this principle in Cruz v. New York, 481 U.S. 186, 192-93
(1987), holding that an instruction to disregard such evidence is
deficient when a co-defendant's confession, which directly
incriminates the defendant, is admitted into evidence without the
co-defendant being compelled to testify. For this reason, counsel
requests severance in this case.
C. Without Severance, the Jury May Find Mr. Munoz Guilty by
Association, Impinging on Mr. Munoz's Due Process Rights
It is important to note, particularly under the facts of this
case, that "neither mere association and activity with a
co-conspirator nor even knowledge of the conspiracy's existence
meets the standards [required] to link a defendant to the
conspiracy charge." United States v. Peterson, 549 F.2d 654,
658 (9th Cir. 1977). "Mere association and activity with a
co-conspirator does not meet the test." United States v.
Basurto, 497 F.2d 781, 793 (9th Cir. 1974).
Mr. Munoz has not implicated himself in this case. The jury
cannot reasonably be expected to compartmentalize the evidence as
it relates to Mr. Munoz alone. United States v. DeRosa,
670 F.2d 889, 898 (9th Cir. 1982). Because Mr. Munoz is likely to be prejudiced
by evidence admissible only against his co-defendant, Mr. Munoz's
rights can only be protected by severance from the co-defendants'
As noted earlier, it is extraordinarily difficult for a jury to
follow admonishing instructions and to separate evidence that is
relevant only to one co-defendant.
A co-defendant in a conspiracy trial occupies an
uneasy seat. There generally will be evidence of
wrongdoing by somebody. It is difficult for the
individual to make his own case stand on its own
merits in the minds of jurors who are ready to
believe that birds of a feather are flocked together.
Krulewitch v. United States, 336 U.S. 440, 454
Mr. Munoz will be further prejudiced at a joint trial by the
co-defendant calling character witnesses. Mr. Munoz, on the other
hand, may elect not to call character witnesses because
presenting this evidence may open the door to adverse evidence
against him. The jury, therefore, may only hear character
evidence on behalf of the co-defendant. The jury will naturally
question why such evidence is presented for one defendant but not
the other. With severed trials, the jury hearing Mr. Munoz's case
would not be made aware of the absence of such evidence.
MOTION FOR LEAVE TO FILE ADDITIONAL MOTIONS
Defense counsel has received limited discovery, and requests
leave to file further motions based upon information gained in
the discovery process. Thus it is requested that the defense be
granted leave to file further motions in relation to any new
discovery that is received in the future.
For the foregoing reasons, Mr. Munoz respectfully requests that
this Court grant the foregoing motions.
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