United States District Court, S.D. California
September 30, 2005.
UNITED STATES OF AMERICA, Plaintiff,
OSCAR CASTILLO-ROMERO, Defendant.
The opinion of the court was delivered by: DANA SABRAW, District Judge
STATEMENT OF FACTS, MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTIONS
STATEMENT OF FACTS
Mr. Oscar Castillo-Romero is charged with attempted entry after
THIS COURT SHOULD DISMISS THE INDICTMENT FOR ITS FAILURE TO
ALLEGE ESSENTIAL ELEMENTS OF THE OFFENSE.
The indictment should be dismissed because the government
failed to allege an overt act.
A. An Overt Act that was a Substantial Step Towards
Re-Entering the United States is an Element of Attempted
"The common law meaning of attempt is the specific intent to
engage in criminal conduct and . . . an overt act which is a
substantial step towards committing the crime."
Gracidas-Ulibarry, 231 F.3d at 1192 (internal quotations
omitted) (citing United States v. Arbelaez, 812 F.2d 530, 534
(9th Cir. 1987); accord United States v. Bailey, 444 U.S. 394,
405, 100 S. Ct. 624 (1980); Wooldridge v. United States,
237 F. 775, 778-79 (9th Cir. 1916) (collecting common law sources "holding
that, to constitute an attempt, there must be the intent to
commit a crime and some act done toward its consummation, and
that the term `attempt' signifies both an act and the intent with
which it is done"); Model Penal Code & Commentaries § 5.01 cmt.
at 305 (1985) (noting that Code's definition of attempt "retains
the common law requirement of purposive conduct [the Code's term
for specific intent] as a prerequisite for attempt liability");
BLACK'S LAW DICTIONARY 123-24 (7th ed. 1999) ("`Every attempt is
an act done with intent to commit the offence so attempted.'")
(quoting John Salmond, Jurisprudence 387 (Glanville L. Williams
ed., 10th ed. 1947)); 2 Wayne R. LaFave & Austin W. Scott, Jr.,
Substantive Criminal Law § 6.2, at 18 (1986) ("The crime of
attempt . . . [at] common law . . . consists of: (1) an intent to
do an act or to bring about certain consequences which would in
law amount to a crime; and (2) an act in furtherance of that
intent which . . . goes beyond mere preparation."); Rollin M.
Perkins & Ronald N. Boyce, Criminal Law § 3.A.7, at 637 (3d ed.
1982) ("[A]n attempt to commit any crime requires a specific
intent to commit that particular offense."); 4 Charles E. Torcia,
Wharton's Criminal Law § 693, at 580 (15th ed. 1996) ("At
common law, a person commits an attempt when, with intent to
commit a particular crime, he performs an act which tends toward
but falls short of consummation of such crime.").
The Ninth Circuit has adopted the common-law definition of
attempt and held that "the elements of the crime of attempted
illegal reentry into the United States under 8 U.S.C. § 1326 are:
(1) the defendant had the purpose, i.e., conscious desire, to
reenter the United States without the express consent of the
Attorney General; (2) the defendant committed an overt act that
was a substantial step towards reentering without that consent;
(3) the defendant was not a citizen of the United States; (4) the
defendant had previously been lawfully denied admission,
excluded, deported or removed from the United States; and (5) the
Attorney General had not consented to the defendant's attempted
reentry." Gracidas-Ulibarry, 231 F.3d at 1196 (emphasis added);
see also United States v. Leos-Maldonado, 302 F.3d 1061 (9th
Cir. 2003) (holding that "[a]ttempted entry essentially requires
two elements: (1) the specific intent to reenter without consent;
and (2) an overt act that was a substantial step towards this
illegal reentry."); see also 9TH CIR. CRIM. JURY INSTR. 9.5A
(2003). Thus, in a prosecution under 8 U.S.C. § 1326, one of the
essential elements of an attempted reentry is an overt act that
was a substantial step toward reentering the Untied States. B. All Elements of a Charged Offense Need to be Recited in an
The Fifth Amendment provides that "[n]o person shall be held to
answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury." U.S. Const. Amend. V.
The Sixth Amendment provides that "[i]n all criminal prosecutions
the accused shall enjoy the right . . . to be informed of the
nature and cause of the accusation. . . ." U.S. Const. Amend. VI.
Thus, a defendant has a constitutional right to have the charges
against him presented to a Grand Jury and to be informed of the
grand jury's findings via indictment. See Russell,
369 U.S. at 763 (An indictment must "contain? the elements of the offense
intended to be charged, and sufficiently apprise? the defendant
of what he must be prepared to meet.").
To be sufficient, an indictment must allege every element of
the charged offense. See United States v. Morrison,
536 F.2d 286, 287 (9th Cir. 1976) (citing United States v. Debrow,
346 U.S. 374 (1953)). Indeed, in order to be sufficient an indictment
must include implied elements not present in the statutory
language. See Du Bo, 186 F.3d at 1179. "If an element is
necessary to convict, it is also necessary to indict, because
elements of a crime do not change as criminal proceedings
progress." United States v. Hill, 279 F.3d 731, 741 (9th Cir.
2002). An indictment's failure to "recite an essential element of
the charged offense is not a minor or technical flaw . . . but a
fatal flaw requiring dismissal of the indictment." Du Bo,
186 F.3d at 1179.
The Ninth Circuit unequivocally held in Gracidas Ulibarry
that an overt act that was a substantial step toward reentering
just like the specific intent to reenter is an element of the
charge of attempted reentry under 8 U.S.C. § 1326.
231 F.3d at 1196. As an element, the overt act/substantial step must be
recited in the indictment. See Pernillo-Fuentes,
252 F.3d at 1032; see also Russell, 369 U.S. at 763; see also Du Bo,
186 F.3d at 1179; and Morrison, 536 F.2d at 287. In
Pernillo-Fuentes, The Ninth Circuit noted that "the crime of
attempted illegal reentry includes the common law element of
specific intent." 252 F.3d at 1032 (quoting Gracidas-Ulibarry).
The Ninth Circuit went on to hold that because the "indictment
charging attempted entry did not allege specific intent as
required under Gracidas-Ulibarry, we reverse [the] conviction."
Here, the Government failed, just as it did in
Pernillo-Fuentes, to allege an element of common law attempt
an overt act that was a substantial step toward commission of the
crime. Because an essential element of the charged crime was left out of the indictment it
should have been dismissed and The Ninth Circuit should therefore
reverse Mr. Castillo-Romero's conviction. See Pernillo-Fuentes,
252 F.3d at 1032.
C. The Indictment must Inform a Defendant of the Specific
Offense with Which He Is Charged.
In addition to failing to recite the overt act/substantial step
element, the indictment was insufficient and required dismissal
because it did not specify, factually, what the overt
act/substantial step was. "A crime is made up of acts and intent;
and these must be set forth in the indictment with reasonable
particularity of time, place, and circumstances." United States
v. Hess, 124 U.S. 483 (1888) (citing United States v.
Cruikshank, 92 U.S. 542, (1875). "It is an elementary principle
of criminal pleading, that where the definition of an offence,
whether it be at common law or by statute, includes generic
terms, it is not sufficient that the indictment shall charge the
offence in the same generic terms as in the definition; but it
must state the species, it must descend to particulars."
Russell, 369 U.S. at 765. (citing Cruikshank, 92 U.S. at 558)
(internal quotations omitted). As such, "[a]n indictment not
framed to apprise the defendant with reasonable certainty, of the
nature of the accusation against him is defective, although it
may follow the language of the statute." Id. at 765 (citing
United States v. Simmons, 96 U.S. 360, 362 (1877). Thus, the
elements, fully recited in an indictment "must be accompanied
with such a statement of the facts and circumstances as will
inform the accused of the specific offense, coming under the
general description, with which he is charged." Id. at 765
(citing Hess, 124 U.S. at 487; Pettibone v. United States,
148 U.S. 197, 202-04 (1893); Blitz v. United States,
153 U.S. 308, 315 (1894); Keck v. United States, 172 U.S. 434, 437
(1899); and Morissette v. United States, 342 U.S. 246, 270, n.
The Ninth Circuit has followed the rule of law established by
the Supreme Court:
[Defendants have] the constitutional right to be
informed of the nature and cause of the accusation
against them. To furnish them with that information
it [is] necessary to set forth in the indictment the
particular facts and circumstances which render?
them guilty and to make specific that which the
statute states in general.
Foster v. United States, 253 F. 481, 482 (9th Cir. 1918). In
Foster, the defendants were charged, on specific dates, at Camp Lewis, Washington, with "willfully, knowingly,
unlawfully, and feloniously," making false reports, causing
insubordination and obstructing recruitment in interference with
the war effort.*fn2
253 F.3d at 481. The Ninth Circuit held
that all six counts in the indictment were insufficient. The
Foster Court noted that the indictment was "as bare of
information as to the nature of their offense as would have been
an indictment charging that at a designated time and place [the
defendants] committed larceny." Id. at 482. In order for an
indictment to be sufficient "facts are to be stated, not
conclusions of law alone." Id. at 483.
Mr. Romero-Castillo's indictment charges that he attempted to
enter the United States. It gives an approximate date and
location, but it does not state that he took a substantial step
in furtherance of the crime, nor does it state what particular
actions Mr. Romero-Castillo took that make up that substantial
step. Thus, in addition to failing to recite the "generic"
element of overt act/substantial step, the indictment failed to
set forth the "particular facts and circumstances" that make Mr.
Romero-Castillo guilty of taking an overt act/substantial step.
See Foster, 253 F. at 482. Because the indictment was
insufficient, Mr. Romero-Castillo's conviction for attempted
reentry should be reversed. III.
THIS COURT SHOULD SUPPRESS ANY STATEMENTS MADE BY MR.
A. The Government Must Demonstrate Compliance With Miranda.
1. Miranda Warnings Must Precede Custodial Interrogation.
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).*fn3
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).
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). If a defendant indicates that he 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. 484 (1981).
Here, the agent's reports indicated that they arrested Mr.
Castillo-Romero and first read him his administrative rights.
They then asked him questions about his immigration status and
asked him to sign forms such as a Notice of Intent to Reinstate
his Prior Deportation Order.*fn4 In an immigration case,
this type of information can be reasonably likely to elicit an
incriminating response, and thus, these questions should have
been preceded by Miranda warnings. The failure of the agents to
advise Mr. Castillo-Romero of his Miranda rights requires
exclusion of these statements.
In addition, after the agents advised Mr. Castillo-Romero of
his administrative rights, they later advised him of his Miranda
rights which he invoked. Any statements made after this
invocation must be excluded. Thus, all statements made by Mr. Castillo-Romero should be
suppressed at trial.
2. The Government Must Demonstrate That Any Alleged Waiver
of Mr. Castillo-Romero's Rights Was Voluntary, Knowing, and
When interrogation occurs without the presence of an attorney
and a statement is taken, a heavy burden rests on the government
to demonstrate that the defendant intelligently and voluntarily
waived his privilege against self-incrimination and his right to
retained or appointed counsel. Miranda, 384 U.S. at 475. It is
undisputed that, to be effective, a waiver of the right to remain
silent and the right to counsel must be made knowingly,
intelligently, and voluntarily. Schneckloth v. Bustamonte,
412 U.S. 218 (1973). The standard of proof for a waiver of these
constitutional rights 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
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
(1983). See also United States v. Heldt, 745 F.2d at 1277;
United States v. McCrary, 643 F.2d 323, 328-29 (9th Cir. 1981).
In Derrick v. Peterson, 924 F.2d 813 (9th Cir. 1990), 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. See infra pages 10-11.
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)).
Under prevailing Ninth Circuit law, the Government bears the
burden of demonstrating a Miranda waiver by clear and
convincing evidence. See Schell v. Witek, 218 F.3d 1017 (9th
Cir. 2000) (en banc) (constitutional rights may ordinarily be waived only if it can be
established by clear and convincing evidence that the waiver is
voluntary, knowing, and intelligent) (citations omitted).
Moreover, The Ninth Circuit must "indulge every reasonable
presumption against waiver of fundamental constitutional rights."
Id. (citations omitted). Unless and until the prosecution meets
its burden of demonstrating through evidence that adequate
Miranda warnings were given and that the defendant knowingly
and intelligently waived his rights, no evidence obtained as
result of the interrogation can be used against the defendant.
Miranda, 384 U.S. at 479.
Until the government meets its evidentiary burden of showing
that the Miranda warnings were sufficient or that the Miranda
rights were knowingly or intelligently waived, the statements
must be suppressed.
B. Any Statements by Mr. Castillo-Romero Were Involuntary.
Even when the procedural safeguards of Miranda have been
satisfied, 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 by a preponderance of the evidence
that a confession is voluntary. Lego v. Twomey, 404 U.S. 477,
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 whether coerced by physical
intimidation or psychological pressure. Townsend v. Sain,
372 U.S. 293, 307 (1962). "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). Until the government meets its burden of showing all statements
of the defendant that it intends to use at trial were voluntary,
all statements even those taken before he was in "custody"
must be suppressed as involuntary.
C. Mr. Castillo-Romero Requests That The Ninth Circuit
Conduct An Evidentiary Hearing.
The Ninth Circuit 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.*fn5
Under section 3501(b), The Ninth Circuit 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, The Ninth Circuit cannot adequately
consider these statutorily mandated factors. Mr. Castillo-Romero
accordingly requests that The Ninth Circuit conduct an
evidentiary hearing pursuant to 18 U.S.C. § 3501(a), to
determine, outside the presence of the jury, whether any
statements made by the defendant were voluntary.
THE COURT SHOULD SUPPRESS ALL EVIDENCE (INCLUDING STATEMENTS)
BECAUSE THE AGENTS VIOLATED THE FOURTH AMENDMENT.
Temporary detention of individuals by the police, even if only
for a brief period and for a limited purpose, constitutes a
"seizure" within the meaning of the Fourth Amendment, and must be
supported by at least reasonable suspicion. See Delaware v.
Prouse, 440 U.S. 648
, 653 (1979); United States v.
Martinez-Fuerte, 428 U.S. 543
, 556 (1976). An officer may stop a
person if the officer believes that the person was, is, or will be engaged in criminal activity. United States v.
Hensley, 469 U.S. 221
, 229 (1985). The facts as indicated in the
discovery provided thus far do not indicate that there was
reasonable suspicion to believe that Mr. Castillo-Romero
committed an offense. Therefore, The Ninth Circuit should
suppress all evidence (including statements and fingerprint
evidence) arising from the illegal detention.
MOTION TO COMPEL DISCOVERY AND PRESERVE EVIDENCE
Mr. Castillo-Romero 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 about which the
prosecutor knows, but 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). To date,
the defendant has received 82 pages of discovery and one audio
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;
and 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 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. This request includes
statements obtained through prior immigration contacts, which the
Government intends to introduce at trial, including but not
limited to the deportation tapes.
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. Impeachment and exculpatory
evidence both fall 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. As
discussed above, any information which may result in a more
favorable sentence must also be disclosed pursuant to Brady v.
Maryland, 373 U.S. 83 (1963). The Government must disclose 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
5. The Defendant's Prior Record. Evidence of a 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. Sufficient notice
requires the government to "articulate precisely the evidential
hypothesis by which a fact of consequence may be inferred from
the other acts evidence." United States v. Mehrmanesh,
689 F.2d 822, 830 (9th Cir. 1982) (emphasis added; internal citations
omitted); see also United States v. Brooke, 4 F.3d 1480, 1483
(9th Cir. 1993) (reaffirming Mehrmanesh and reversing
This request includes any "TECS" records as well as any other
record(s) of prior border crossings that the Government intends
to introduce at trial, whether in its case-in-chief, as
impeachment, or in its rebuttal case. Although there is nothing
intrinsically improper about prior border crossings (except, as
here, where there are allegations of undocumented status), they are
nonetheless subject to 404(b), as they are "other acts" evidence
that the government must produce before trial. United States v.
Vega, 188 F.3d 1150, 1154-1155 (9th Cir. 1999).
The defendant requests that such notice be given three weeks
before trial 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, any samples of narcotics used to run any scientific tests,
all narcotics, the results of any fingerprint analysis, the
defendant's personal effects, and any evidence seized from the
defendant or any third party. This request also includes any
material or percipient witnesses who might be deported or
otherwise likely to become unavailable (e.g., undocumented aliens
It is requested that the prosecutor 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
9. Henthorn Material. The defendant requests that the
Assistant United States Attorney ("AUSA") assigned to this case
oversee (not personally conduct) a review of all personnel files
of each agent involved in the present case for impeachment
material. See Kyles v. Whitley, 514 U.S. 437, 438 (1995)
(holding that "the individual prosecutor has a duty to learn of
any favorable evidence known to the others acting on the
government's behalf in the case, including the police"); United
States v. Henthorn, 931 F.2d 29 (9th Cir. 1991). This request
includes, but is not limited to, any complaints filed (by a
member of the public, by another agent, or any other person)
against the agent(s), whether or not the investigating authority
has taken any action, as well as any matter for which a
disciplinary review was undertaken, whether or not any
disciplinary action was ultimately recommended. The defendant
further requests production of any such information at least one
week prior to the motion hearing and two weeks prior to trial. If
the prosecutor is uncertain whether certain information should be
disclosed pursuant to this request, this information should be produced to the Court in advance of the motion hearing and the
trial for an in camera inspection.
10. Tangible Objects. The defendant requests the opportunity
to inspect, copy, and test, as 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
11. 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). This
summary should include a description of the witness' opinion(s),
as well as the bases and the reasons for the opinion(s). See
United States v. Duvall, 272 F.3d 825 (7th Cir. 2001) (finding
that government's written expert notice did not adequately
summarize or describe police detective's testimony in drug
prosecution where notice provided only a list of the general
subject matters to be covered and failed to identify what opinion
the expert would offer on those subjects). This request includes,
but is not limited to, disclosure of the qualifications of any
government witness who will testify that he understands and/or
speaks Spanish or any other foreign language that may have been
used during the course of an interview with the defendant or any
The defense requests the notice of expert testimony be provided
at a minimum of two weeks prior to trial so that the defense can
properly prepare to address and respond to this testimony,
including obtaining its own expert and/or investigating the
opinions, credentials of the government's expert and obtain a
hearing in advance of trial to determine the admissibility of
qualifications of any expert. See Kumho v. Carmichael Tire
Co., 526 U.S. 137, 119 S.Ct. 1167, 1176 (1999) (trial judge is
"gatekeeper" and must determine, reliability and relevancy of
expert testimony and such determinations may require "special
briefing or other proceedings")
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. 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'
13. 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).
14. 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.
15. Evidence Affecting Perception, Recollection, Ability to
Communicate, or Veracity. The defendant 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).
16. 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).
17. Name of Witnesses Favorable to the Defendant. The
defendant 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. 1978);
Hudson v. Blackburn, 601 F.2d 785 (5th Cir. 1979), cert.
denied, 444 U.S. 1086 (1980).
18. Statements Relevant to the Defense. The defendant
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 includes Grand Jury transcripts which are relevant to
the defense motion for a bill of particulars.
19. Jencks Act Material. The defendant requests production in
advance of the motion hearing or trial of all material, including
dispatch tapes, which the government must produce pursuant to the
Jencks Act, 18 U.S.C. § 3500 and Fed.R.Crim.P. 26.2. 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); see also United
States v. Boshell, 952 F.2d 1101 (9th Cir. 1991) (holding that
interview notes constitutes Jencks material when an agent reviews
notes with the subject of the interview); see also United
States v. Riley, 189 F.3d 802, 806-808 (9th Cir. 1999). Advance
production will avoid the possibility of delay of the motion
hearing or trial to allow the defendant to investigate the Jencks
material. Defendant requests pre-trial disclosure of such
statements to avoid unnecessary recesses and delays and to allow
defense counsel to prepare for, and use properly any Jencks
statements during cross-examination.
20. 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.
21. 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 immigration benefits, any contemplated prosecution, or any
possible plea bargain, even if no bargain was made or the advice
22. 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 the defendant. 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. 52, 61-62
(1957). The government must disclose any information derived from
informants which exculpates or tends to exculpate the defendant.
23. 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
24. Personnel Records of Government Officers Involved in the
Arrest. Defendant 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 the investigation, arrest and interrogation of
Defendant. See Pitchess v. Superior Court, 11 Cal. 3d 531, 539
(1974). Because of the sensitive nature of these documents,
defense counsel will be unable to procure them from any other
25. Training of Relevant Law Enforcement Officers. Defendant
requests copies of all written, videotaped or otherwise recorded
policies or training instructions or manuals issued by all law
enforcement agencies involved in the case (United States Customs
Service, Border Patrol, INS, Homeland Security, etc.) to their
employees regarding: (a) the handling of vehicles suspected to be
transporting contraband across the port of entry; (b) the
referral to secondary inspection of persons within those
vehicles; (c) the detention of individuals within those vehicles;
(d) the search of those vehicles and the occupants of those
vehicles, including the proper means of obtaining consent to
search and what constitutes consent to search; (e) the informing
of suspects of their Constitutional rights; (f) the questioning
of suspects and witnesses. Defendant also requests all written or
otherwise attainable information regarding the training of
Customs agents at ports of entry in California to detect or
discover narcotics in vehicles entering the United States,
including any training offered to Border Patrol, INS, or officers
of Homeland Security Department, by the DEA or other law
enforcement agencies or individuals.
26. Performance Goals and Policy Awards. Defendant requests
disclosure of information regarding standards used for measuring,
compensating or reprimanding the conduct of all law enforcement
officers involved in the case (Customs, Border Patrol, INS, etc.)
to the extent such information relates to the detection of contraband. This request specifically includes
information concerning performance goals, policy awards, and the
standards used by Customs for commending, demoting, or promoting
agents for their performance at the port of entry and their
success or failure to detect illegal narcotics in general.
27. 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.
28. 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. The defendant
requests that the government provide him and his attorney with
the above requested material sufficiently in advance of trial.
THIS COURT SHOULD DISMISS THE INDICTMENT BECAUSE THE GRAND JURY
WAS NOT CHARGED PROPERLY
Mr. Castillo-Romero was denied his Fifth Amendment right to the
unfettered judgment of the grand jurors because the district
court instruction created its own rules circumscribing the powers
of the grand jurors, including the rule that the grand jury may
not consider the wisdom of criminal laws and the rule that the
grand jury may not consider punishment. Longstanding precedent
exists that grand jurors may consider both the wisdom of criminal
law and punishment when deciding not to indict. In United States
v. Williams, 504 U.S. 36 (1992), the Supreme Court held that
courts have very limited authority to fashion rules of grand jury
procedure. The grand jury instructions in this case violated the
holding of Williams.
Specifically, Mr. Castillo-Romero states, upon information and
belief, that the supervising district court judge instructed the
grand jurors that they
cannot judge the wisdom of the criminal laws enacted
by Congress, that is, whether or not there should or
should not be a federal law designating certain
activity as criminal. That is determined by Congress
and not by you. Furthermore, when deciding whether or
not to indict, you should not be concerned about
punishment in the event of conviction. Judges alone
No authority supports the district court's decision to
circumscribe the subject matter of the grand jurors' inquiries
and deliberations. In fact, placing such limitations on the grand
jurors "run[s] counter to the whole history of the grand jury
institution, in which lay[persons] conduct their inquiries
unfettered by technical rules." United States v. Costello,
350 U.S. 359
, 364 (1956).
In evaluating whether a court could order prosecutors to
disclose exculpatory evidence to grand jurors as an exercise of
supervisory power, the Supreme Court held that "as a general
matter at least, no such `supervisory' judicial authority
exists." United States v. Williams, 504 U.S. 36, 47 (1992).
Indeed, although the supervisory power may provide the authority
"to dismiss an indictment because of misconduct before the grand
jury, at least where that misconduct amounts to a violation of
one of those `few, clear rules which were carefully drafted and
approved by The Ninth Circuit and by Congress to ensure the
integrity of the grand jury's functions,'" Id. at 46 (quoting
United States v. Mechanik, 475 U.S. 66, 74 (1986) (O'Connor,
J., concurring), it does not serve as "a means of prescribing
such standards of prosecutorial conduct in the first instance."
Williams, 504 U.S. at 47 (emphasis added). It follows, then,
that if courts cannot prescribe standards for the conduct of
prosecutors, courts have even less authority to prescribe rules
purporting to cabin the subject matter of the inquiries and
deliberations of grand jurors. See id. at 48 ("[t]he grand
jury [is] functional[ly] independen[t] from the Judicial
In short, the federal courts possess only "very limited" power
"to fashion, on their own initiative, rules of grand jury
procedure." Id. at 50. In exercising that very limited power,
courts cannot undertake the "judicial reshaping of the grand jury
institution, substantially altering the traditional relationships
between the prosecutor, the constituting court, and the grand
jury itself." Id. But that is precisely what the district
court's instructions here did. Accordingly, the instructions were
unconstitutional under the Fifth Amendment.
As the Ninth Circuit's decision in United States v. Marcucci,
299 F.3d 1156 (9th Cir. 2002), does not discuss Williams, it
does not bind The Ninth Circuit. Because the grand jury
instructions were unconstitutional, the indictment should be
MOTION FOR LEAVE TO FILE FURTHER MOTIONS
Mr. Castillo-Romero requests leave to file further motions as
may be necessary. He has not yet received a deportation tape or
had the opportunity to view the A-file. He requests an
opportunity to view the A-file and respectfully requests this
Court grant leave to file further motions, including a motion to
dismiss the indictment based on the deportation should one be
warranted in his case.
For the foregoing reasons, Mr. Castillo-Romero respectfully
requests that the Court grant the above motion.
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