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United States of America v. Francisco Rosales-Ceja

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


October 7, 2011

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
FRANCISCO ROSALES-CEJA, DEFENDANT.

The opinion of the court was delivered by: Judge: Hon. Lawrence J. O'Neill

EX PARTE APPLICATION FOR SUBPOENA DUCES TECUM PURSUANT TO FED. R. CRIM. P. 17(c) ON BEHALF OF DEFENDANT FRANCISCO-ROSALES- CEJA; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION; PROPOSED ORDER

Defendant Francisco Rosales-Ceja, by his court-appointed attorney, Victor M. Chavez, hereby moves as authorized by Federal Rules of Criminal Procedure, Rule 17(c), for authorization to issue a subpoena duces tecum to the Custodian of Records for the Los Angeles County Sheriff's Department, Los Angeles County Jail Division, 12440 East Imperial Highway, #120, Norwalk, California, 90650, Tel: 562/465-7815, for production of any and all records relating to or in any manner involving Francisco Rosales-Ceja, DOB: 10/5/1964, Booking Number 9871574, Case Number NA075025, specifically including but not limited to a copy of any federal immigration detainer placed against him while he was incarcerated at the Los Angeles County Jail from July 18, 2007 until about February 22, 2008, or any other record showing that immigration authorities were advised of his presence.

The information contained in said records is necessary to determine and establish the true facts relating to the violations alleged against Mr. Rosales-Ceja in the above-captioned criminal proceeding.

This information is necessary to enable counsel to adequately prepare a defense to the charges in this case on behalf of Defendant, and is available only from the Custodian of Records for the Los Angeles County Sheriff's Department, Los Angeles County Jail Division, 12440 East Imperial Highway, #120, Norwalk, California, 90650.

This application is based on Rule 17 of the Federal Rules of Criminal Procedure, the attached memorandum of points and authorities, and such other authority as may be produced in connection with consideration of this application.

Respectfully submitted,

DANIEL J. BRODERICK FEDERAL PUBLIC DEFENDER DATED: October 6, 2011 By /s/ Victor M. Chavez VICTOR M. CHAVEZ Assistant Federal Defender Counsel for Defendant Francisco Rosales-Ceja

MEMORANDUM OF POINTS AND AUTHORITIES

Federal Rules of Criminal Procedure, Rule 17(b) authorizes the issuance of subpoenas for indigent defendants at the expense of the government. Rule 17(c) authorizes the issuance of subpoenas duces tecum.

A party requesting a subpoena duces tecum under Rule 17(c) must demonstrate that the materials sought are 1) relevant, 2) admissible, and must identify the materials with specificity, United States v. Nixon, 418 U.S. 683, 699-700 (1974); United States v. Eden, 659 F.2d 1376 (9th Cir. 1981). Eden adds the requirement that the proponent "...demonstrate that the subpoenaed materials are not available from any other source and their examination and processing should not await trial." Id. at 1381.

This request by Defendant Rosales-Ceja specifically seeks copies of records from the Custodian of Records for the Los Angeles County Sheriff's Department, Los Angeles County Jail Division, Norwalk, California, relating to a federal immigration detainer placed against him while he was in their custody Ex Parte Application for Subpoena Duces Tecum to Fed.R.Crim.P. 17(c) on Behalf of Defendant; from July 18, 2007 until February 22, 2008. The information contained in said records is relevant and necessary to prepare a defense to the charges in this case on behalf of Defendant. Mr. Rosales-Ceja recalls that he was contacted by an ICE Agent after his arrest. Such records would support a motion to dismiss for improper venue. Obtaining these records prior to trial will allow defense counsel to challenge jurisdiction and could lead to dismissal of the indictment or a more favorable plea bargain.

The information is available only from the Custodian of Records for the Los Angeles County Sheriff's Department, Los Angeles County Jail Division, 12440 East Imperial Highway, #120, Norwalk, California, 90650. The Los Angeles County Sheriffs Department requires a subpoena in order to release these records. For this reason authority to issue a subpoena is requested.

This application is based on Federal Rules of Criminal Procedures, Rule 17, the foregoing application, this memorandum of points and authorities, the attached declaration of counsel, and such information and authority as may be produced in connection with consideration of this application.

Respectfully submitted,

DANIEL J. BRODERICK FEDERAL PUBLIC DEFENDER DATED: October 6, 2011 By /s/ Victor M. Chavez VICTOR M. CHAVEZ Assistant Federal Defender Counsel for Defendant Francisco Rosales-Ceja Ex Parte Application for Subpoena Duces Tecum to Fed.R.Crim.P. 17(c) on Behalf of Defendant;

DECLARATION OF VICTOR M. CHAVEZ

I, Victor M. Chavez, declare as follows:

1. I am an attorney admitted to practice before this court and am employed as an Assistant Federal Defender.

2. The Federal Defender has been appointed to represent Defendant Francisco Rosales-Ceja in the above-entitled case, and I have been assigned to represent him; the office has represented Mr. RosalesCeja since August 26, 2011. He is charged with illegal re-entry in violation of 8 U.S.C. § 1326.

3. I am informed and believe and thereon state that there are jail booking records relating to a federal detainer which was placed against Mr. Rosales-Ceja while he was incarcerated at the Los Angeles County Jail from about July 18, 2007, until about February 22, 2008. My client reports that he was contacted by a representative of ICE after his arrest.

4. A copy of the information contained in the said Los Angeles County Sheriff's Department records is necessary to determine and establish the true facts relating to when Mr. Rosales-Ceja was found in the U.S. by immigration authorities. The information and records are available only from the Custodian of Records for the Los Angeles County Sheriff's Department, Los Angeles County Jail Division, 12440 East Imperial Highway, #120, Norwalk, California, 90650. It is imperative that the information be provided to defendant's counsel as soon as possible to assist in adequately preparing a defense to the charges in this case. It is anticipated that the information will not be provided without a subpoena, as this has been our experience with the Los Angeles County Sheriff's Department.

5. I have advised Assistant U.S. Attorney Ian Garriques of this ex parte request for a subpoena duces tecum.

I declare under penalty of perjury that the foregoing is true and correct. Executed this 6th day of October, 2011 at Fresno, California.

/s/ Victor M. Chavez

VICTOR M. CHAVEZ, Declarant Assistant Federal Defender Attorney for Defendant Francisco Rosales-Ceja Ex Parte Application for Subpoena Duces Tecum to Fed.R.Crim.P. 17(c) on Behalf of Defendant; DANIEL J. BRODERICK, Bar #89424 Federal Defender VICTOR M. CHAVEZ, Bar #113752 Assistant Federal Defender Designated Counsel for Service 2300 Tulare Street, Suite 330 Fresno, California 93721-2226 Telephone: (559) 487-5561 Attorney for Defendant Francisco Rosales-Ceja

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA, ) Plaintiff, v. Francisco Rosales-Ceja, Defendant.

CASE NO. 1:10-cr-0393 LJO

ORDER DENYING EX PARTE APPLICATION FOR SUBPOENA DUCES TECUM PURSUANT TO FED.R.CRIM.P. 17(c)

The Application For Subpoena Duces Tecum, filed by defendant Francisco Rosales-Ceja is hereby DENIED.

The seminal case discussing the issue is Bowman Dairy Co. v United States 341 U.S. 214 (1951). "Rule 17c was not intended to provide an additional means of discovery. Its chief innovation was to expedite the trial by providing a time and place before trial for the inspection of the subpoenaed materials." (Id. At 220-221)

IT IS SO ORDERED.

Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE

Ex Parte Application for Subpoena Duces Tecum to Fed.R.Crim.P. 17(c) on Behalf of Defendant;

20111007

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