Opinion
U.S.D.C. No. 05cr1452 DMS.
September 30, 2005
JODI DENISE THORP, FEDERAL DEFENDERS OF SAN DIEGO, INC., San Diego, California, Attorneys for Mr. Castillo-Romero.
STATEMENT OF FACTS, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS
I. STATEMENT OF FACTS
Mr. Oscar Castillo-Romero is charged with attempted entry after deportation.
II. 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 Re-Entry.
"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 United States.
B. All Elements of a Charged Offense Need to be Recited in an Indictment
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. InPernillo-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."Id.
Here, the Government failed, just as it did inPernillo-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 (citingUnited 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. 30 (1952).
The Federal Rules of Criminal Procedure also demand that "[t]he indictment or information must be a plain, concise, and definite written statement of the essential facts constituting the offense charged. . . ." See FED. R. CRIM. P. 7(c)(1).
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). InFoster, 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. 253 F.3d at 481. The Ninth Circuit held that all six counts in the indictment were insufficient. TheFoster 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.
The Court recited in detail the contents of the Foster indictments and that description bears repeating here.
The plaintiffs in error were civilian employees for a contractor who was doing work at the Camp Lewis cantonment. They were indictment [sic] in six counts, three of which charged offenses committed on November 10, 1917, and the others charged offenses committed on November 13, 1917. The first count charges that on November 10, 1917, at Camp Lewis, Wash., when the United States was at war with Germany, the accused `did willfully, knowingly, unlawfully, and feloniously make and convey false reports and false statements with intent to interfere with the operation and success of the military and naval forces of the United States, and to promote the success of its enemies, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America.' The second count charged, in the language of the statute, that the accused `did willfully, knowingly, unlawfully, and feloniously cause and attempt to cause insubordination, disloyalty, mutiny, and refusal of duty in the military forces of the United States, to the injury of the service of the United States'; and the third count charged that they `did unlawfully, willfully, knowingly, and feloniously obstruct the recruiting and enlistment service of the United States, to the injury of the service of the United States.' The fourth, fifth, and sixth counts were framed as were the first, second, and third.Foster, 253 F. at 481.
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. CASTILLO-ROMERO.
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). 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).
In Dickerson v. United States, 530 U.S. 428, 120 S. Ct. 2326 (2000), the Supreme Court held that Miranda rights are no longer merely prophylactic, but are of constitutional dimension.Id. at 2336 ("we conclude that Miranda announced a constitutional rule").
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. 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.
This form includes statements that suggest that Mr. Castillo-Romero had been previously deported from the United States, that he was an undocumented person, and that he attempted to reenter the United States.
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 Intelligent.
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 constitutional rights).
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 aMiranda 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 adequateMiranda 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, 483 (1972).
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.
An evidentiary hearing is the only way to assure that there is a complete and impartial determination of whether Mr. Castillo-Romero knowingly and voluntarily waived his rights. Surely, The Ninth Circuit would not rely on the unsworn assertions of the opposing party in determining whether the waiver of the Sixth Amendment right to counsel was knowing and voluntary. The waiver of important rights guaranteed by the Fifth Amendment should be no different.
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.
IV. 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.
V. 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 tape.
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 anyMiranda 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 statements.
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 Guidelines.
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 convictions).
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 and transients).
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 such evidence.
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 narcotics.
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 other witness.
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' credibility).
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. 1988).
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 not followed.
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 authorities.
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 source.
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.
VI. 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 determine punishment.
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 (quotingUnited 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 Branch").
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 dismissed.
The Navarro-Vargas case does not address the issues raised by Mr. Romero-Castillo. Mr. Romero Castillo is preserving this issue for appeal.
VII. 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.VIII CONCLUSION
For the foregoing reasons, Mr. Castillo-Romero respectfully requests that the Court grant the above motion.