The opinion of the court was delivered by: Hayes, Judge
The matters before the Court are the following motions filed by the Defendant Guadalupe Ramos: 1) motion (#74-1) to dismiss Counts 8 and 9 as duplicitous; 2) motion (#74-2) to dismiss Counts 8 and 9 for failing to allege elements properly; 3) motion (#74-3) to dismiss Counts 8 and 9 for violation of the Sixth Amendment; 4) motion (#74-4) for bill of particulars; 5) motion (#74-5) to compel Government to elect between multiplicitous counts; 6) motion (#74-6) to suppress evidence for violations of the Fourth Amendment; 7) motion (#74-7) for evidentiary hearing on Fourth Amendment violations; 8) motion (#74-8) to dismiss Counts 8 and 9 for deportation of exculpatory witness; 9) motion (#74-9) to dismiss for Brady violations; 10) motion (#74-10) to dismiss for outrageous conduct; 11) renewed motion (#95-1, #95-2) to compel discovery; and 12) motions (#59 and #111-4) for leave to file further motions.
The indictment charges Defendant Guadalupe Ramos in Counts one through seven with transportation of illegal aliens in violation of 8 U.S.C. § 1324 and in Counts eight and nine with assault upon a border patrol agent using a "dangerous and deadly weapon, in that Defendant drove a vehicle towards" the border patrol agent. (Doc. # 20 at 4). The Court held an evidentiary hearing on February 3, 2010, March 30, 2010, and April 15, 2010 in order to receive all testimony and evidence offered to resolve the pending motions.
On July 20, 2009, at approximately 9 p.m., border patrol agents observed a white Honda Accord and a Chevrolet truck being driven in tandem, in an area twenty-five miles east of the Tecate Port of Entry and three miles north of the international border. The agents suspected that the Honda and the truck were smuggling aliens. The Honda and the truck proceeded westbound on Interstate 8. The agents followed. The Honda and the truck exited Interstate 8 at the Buckman Springs exit. The border patrol agents attempted to pull over the truck and were successful after a short chase.
As a border patrol agent pulled in behind the Honda, the driver of the Honda pulled back onto Interstate 8 heading eastbound. Border patrol agents followed the Honda heading eastbound on Interstate 8 in the direction of the 708 checkpoint at a high rate of speed and radioed to other agents for assistance.
At approximately seventeen miles east of the 708 checkpoint, Border Patrol Agent Alexander Djokich was waiting in the median to assist in the pursuit. Agent Djokich saw the Honda traveling eastbound on Interstate 8 at a high speed, "well over a hundred, maybe 120." (March 30, 2010 Transcript at 163). Agent Djokich entered the freeway in a marked border patrol vehicle in an attempt to stop the Honda. The driver of the Honda did not stop. Agent Djokich continued to follow the Honda. The driver of the Honda was weaving in and out of traffic and traveling at speeds nearly twice as fast as most of the vehicles on the interstate. Pursuing agents radioed ahead to supervisors and to the checkpoint.
Approximately one mile before the 708 checkpoint, the interstate narrowed to one lane by orange cones. The driver of the Honda continued to drive at excessive speeds and drove over the cones used to direct traffic, eventually reaching the traffic waiting in line for inspection at the checkpoint. The driver of the Honda drove on the shoulder of the road and cut in front of a truck. Agent Djokich was stuck behind the truck and lost sight of the Honda for a few moments. As the Honda approached the checkpoint, Agent Djokich saw the Honda drive onto the shoulder, start passing vehicles on the left side of traffic, and cut back into traffic. A short distance from the checkpoint, the driver of the Honda was forced to stop hemmed in by traffic. Agent Djokich testified as follows:
Q [Government counsel]: Did you see where the Honda went after it reached the checkpoint area?
A [Djokich]: Yeah. After its initial, I would describe it as a pause, it -- then it lurched forward, got back into the traffic and started traveling towards the checkpoint again, but just a short distance before the checkpoint. It again stopped and then, like, turned in the northbound -- the nose of the vehicle was pointing towards the northbound lanes.
Q: So in relation to your position and the Honda's position, when you said it turned northbound, would that mean that the Honda turned towards its left?
Q: When it turned towards its left, what did it do?
Q: How long -- did it start moving again?
A: Yes. Shortly after it stopped.
Q: Do you know how many seconds passed?
A: Just a few seconds. I'm not sure exactly how long.
Q: So when it started moving again, where did it go?
A: It drove straight toward the checkpoint and the agents that were in front of it.
Q: Did you see where the agents were at that time?
Q: And where did the car go?
A: The car lunged toward Agent -- Border Patrol Agent Wilson.
Border Patrol Agent Joshua Wilson was on duty at the primary inspection area at the eastbound 708 checkpoint. Agent Wilson had been informed by way of his service radio to be on the look-out for the white Honda. Agent Wilson, the senior agent on duty at the checkpoint, started assigning other positions to other agents to deploy spike strips. Agent Wilson testified that it was happening very fast and that they were preparing for the arrival of the Honda.
Agent Wilson was near the blocking vehicle at the primary inspection point when he first saw the Honda traveling eastbound pulling around traffic and knocking down cones. Agent Wilson initially observed the Honda as "[i]t pulled out from the pack of traffic that was in front if it, drove over quite a few cones, drove out past the pack of traffic, and then turned abruptly to the driver's left, facing northbound in the eastbound lanes." Id. at 213. Agent Wilson testified that he "anticipated a bailout" when the Honda came to a stop facing northbound and he "took off running towards the vehicle." Id. at 215. Agent Wilson explained that "it's oftentimes common practice for alien smuggling vehicles to stop when they're being chased and have every -- everybody exit the vehicle and just scatter." Id.
As Agent Wilson was running toward the Honda which was stopped and facing northbound, the driver redirected the Honda eastbound and began moving again in the direction of Agent Wilson. Agent Wilson testified:
Q [Government counsel]: And between the time that you ran from the primary checkpoint area and the time that you saw the car move toward you, had you taken out your firearm yet?
A [Agent Wilson]: I don't believe so, sir.
Q: And when the car started driving eastbound again, about how many yards away from you was that car?
Q: When the car started driving eastbound, what did you hear?
A: I heard the engine and --all I remember is the engine, actually.
Q: And what part of the car did you see when it started traveling eastbound?
A: Once it started traveling eastbound, all I could see was its headlights.
Q: And it was a full frontal profile to your position?
A: At some point, I drew my weapon and began to fire on the vehicle.
Q: And where did you aim your weapon?
Id. at 216-217. At this point in time, Agent Wilson was in the middle of the interstate, off-lining to his right toward the median, and without any viable cover. Agent Wilson continued to fire his weapon at the Honda as it passed close to his location to his left side striking the Honda a number of times in the driver's side. The driver drove the Honda down a twenty foot embankment in the median of the interstate. The driver of the Honda and several passengers immediately exited the vehicle and ran northbound up the embankment.
Agent Wilson ran in the direction of the driver later identified as the Defendant. As the driver ran up the other side of the median, Agent Wilson decided to head back to get his canine. On the way to get his canine, Agent Wilson came across a group of agents attempting to take an individual who had run from the Honda into custody. The individual was not cooperative refusing to provide agents with his arms so that he could be handcuffed. Agent Wilson drew his taser and issued a warning. The individual later identified as Juan Carlos Echeverria continued to be uncooperative and Agent Wilson deployed the taser dots into Echeverria's torso. The agents attempted to take Echeverria into custody and he remained non-compliant. Agent Wilson detached the taser from the taser unit and initiated a stun drive. Echeverria was taken into custody and subsequently transported to the hospital.
At the initial report of the Honda heading toward the checkpoint, Border Patrol Agent Larry Roberts was stationed in the brake check area near primary inspection to deploy a spike strip. Agent Roberts heard screeching tires near the primary inspection area, dropped the spike strips, and came running toward the blocking vehicle at the primary inspection point. Agent Roberts ran past the blocking vehicle and saw the white Honda stopped in the eastbound lanes. Agent Roberts testified: "When I first saw it, it stopped and appeared as if it tried to reverse and go back westbound in the eastbound lanes." Id. at 294. Agent Roberts suspected that the occupants of the vehicle were going to bail out of the vehicle and take off on foot. Agent Roberts saw Agent Wilson in his peripheral vision on his right side approximately 15 or 20 yards from his position when he was running toward the Honda. Agent Robert stated:
A [Agent Roberts]: Like I said before, it appeared as if [the Honda] tried to go back the westbound and the eastbound lanes. When its avenue of exit was cut off, the vehicle engine revved and started going eastbound toward my position and also Agent Wilson's position.
Q [Government counsel]: Where were you? Were you behind Agent Wilson at the time that you were observing the white Honda?
A: Yes, sir. I would say I was behind, off to his left.
Q: At the time you heard the engine rev, what did ...