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United States v. Ayon-Ontiveros

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


February 9, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
LEONEL AYON-ONTIVEROS, DEFENDANT.

The opinion of the court was delivered by: Judge Hon. Anthony W. Ishii

MEMORANDUM IN SUPPORT OF GOVERNMENT'S MOTION FOR DEFENDANT'S FINGERPRINTS Trial Date: Time: Place: Courtroom 2

I. STATEMENT OF FACTS

Defendant LEONEL AYON-ONTIVEROS is charged with illegal re-entry of a deported alien. 8 U.S.C. § 1326(a) and (b)(2). AYON-ONTIVEROS is a native and citizen of Mexico. On or about December 30, 1998, defendant was sentenced to one (1) year imprisonment for inflicting corporal injury to a spouse, in violation of California Penal Code § 243.5(a). On or about April 29, 2005, defendant was removed from the United States pursuant to an Immigration Judge's Order. Defendant was thereafter found by immigration authorities, specifically Immigration Enforcement Agent ("IEA") Nancy Gonzalez, in Bakersfield, CA, in the Eastern District of California, on or about August 13, 2008.

Defendant provided Gonzalez a sworn statement admitting his prior removal and lack of permission to re-enter the United States.

To establish that the defendant was a previously deported alien found in the Eastern District of California, the government seeks to obtain fingerprint samples from the defendant to compare with documents in his immigration file.

II. ARGUMENT

The Supreme Court has held that the taking of non-testimonial exemplars from a defendant does not violate the Fourth or Fifth Amendments. Schmerber v. California, 384 U.S. 757, 760-64 (1966).

Once probable cause is established and an arrest is made, he retains no constitutional privacy interest against his correct identification. Friedman v. Boucher, 580 F.3d 847, 863 (9th Cir. 2009). Fingerprint samples are physical evidence, which are non-testimonial in nature.

U.S. v. Wade, 388 U.S. 218, 223 (1967)(compulsion to submit to fingerprinting, does not become testimonial within the scope of the privilege against self-incrimination).

III. CONCLUSION

Based on the foregoing, the Government respectfully requests that the defendant be ordered to submit to the taking of fingerprint samples in a manner directed by the Government.

DATED: February 8, 2010

ORDER

IT IS HEREBY ORDERED that defendant LEONEL AYON-ONTIVEROS allow Government agents to obtain fingerprint samples from him in a manner directed by the Government.

ANTHONY W. ISHII United States District Court Judge

20100209

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