Opinion
Case No. 05cr1286-BEN.
September 2, 2005
MICHELLE A. VILLASENOR-GRANT, FEDERAL DEFENDERS OF SAN DIEGO, INC., San Diego, California, Attorneys for Ms. Fox.
STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTIONS
I. STATEMENT OF FACTS
The following statement of facts is based, in part, on materials received from the government. Ms. Fox does not accept this statement of facts as her own, and reserves the right to take a contrary position at motions hearing and trial. The facts alleged in these motions are subject to amplification and/or modification at the time these motions are heard.
On July 14, 2005, Ms. Fox was apprehended driving a 1996 Ford Windstar which was not registered in her name. At approximately 11:40 a.m., she was driving through the San Ysidro Port of Entry, and was the only person in the car.
After being referred to secondary inspection, 60.7 kilograms of marijuana was found in compartments within the vehicle. A patdown was performed of Ms. Fox, and allegedly methamphetamine was found in her shoe.
Ms. Fox was read her rights and made statements. She denied knowledge of the marijuana but admitted knowledge of the methamphetamine.
On July 27, 2005, the "June 2005 Grand Jury" sitting in the Southern District of California returned an Indictment charging Ms. Fox with importation of marijuana, in violation of 21 U.S.C. §§ 952 and 960; and possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); and with importation of methamphetamine, in violation of 21 U.S.C. §§ 952 and 960; and possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1).
II. MOTION TO COMPEL DISCOVERY/PRESERVE EVIDENCE
Ms. Fox moves for the production of the following discovery and for the preservation of all relevant evidence. This request is not limited to those items that the prosecutor knows of, but rather includes all discovery listed below that is in the custody, control, care, or knowledge of any "closely related investigative [or other] agencies." See United States v. Bryan, 868 F.2d 1032 (9th Cir. 1989).
(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; as well as 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 defendant also specifically requests the government to turn over all arrest reports, notes, dispatch or any other tapes, and TECS records that relate to the circumstances surrounding his arrest or any questioning. 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. Such material is discoverable under Fed.R.Crim.P. 16(a)(1)(A) and Brady v. Maryland, 373 U.S. 83 (1963). The government must produce arrest reports, investigator's notes, memos from arresting officers, dispatch tapes, sworn statements, and prosecution reports pertaining to the defendant.See Fed.R.Crim.P. 16(a)(1)(B) and (C), Fed.R.Crim.P. 26.2 and 12(1).
(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. Under Brady, impeachment as well as exculpatory evidence falls within the 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 Under The Guidelines. The government must produce this information under Brady v. Maryland, 373 U.S. 83 (1963).
(5) The Defendant's Prior Record. The defendant requests disclosure of his prior record. Fed.R.Crim.P. 16(a)(1)(B).
(6) Any Proposed 404(b) Evidence. The government must produce evidence of prior similar acts 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 . . . all provide reasonable notice in advance of trial . . . the general nature" of any evidence the government proposes to introduce under Fed.R.Evid. 404(b) at trial. The defendant requests such notice two weeks before trial in order to give the defense time adequately to investigate and prepare for trial.
(7) Evidence Seized. The defendant requests production of evidence seized as a result of any search, either warrantless or with a warrant. Fed.R.Crim.P. 16(a)(1)(C).
(8) Request for Preservation of Evidence. The defendant specifically requests the preservation of 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. This request includes, but is not limited to, any samples of narcotics used to run any scientific tests, any narcotics, the results of any fingerprint analysis, the vehicle which the defendant drove, the defendant's personal effects, and any evidence seized from the defendant or any third party.
In addition, Ms. Fox requests that the Assistant United States Attorney assigned to this case oversee a review of all personnel files of each agent involved in the present case for impeachment material. Kyles v. Whitley, 514 U.S. 419 (1995); United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991); but see United States v. Herring, 83 F.3d 1120 (9th Cir. 1996).
(9) Tangible Objects. The defendant requests the opportunity to inspect and copy as well as test, if 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.
(10) 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).
(11) Evidence of Bias or Motive to Lie. The defendant 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.
(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; Brady v. Maryland.
(13) Evidence of Criminal Investigation of Any Government Witness. The defendant requests any evidence that any prospective witness is under investigation by federal, state or local authorities for any criminal conduct.
(14) Evidence Affecting Perception, Recollection, Ability to Communicate, or Truth Telling. The defense requests any evidence, including any medical or psychiatric report or evaluation, that tends to show that any prospective witness' 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.
(15) Witness Addresses. The defendant requests the name and last known address of each prospective government witness. 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.
(16) Name of Witnesses Favorable to the Defendant. The defendant requests the name of any witness who made an 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.
(17) Statements Relevant to the Defense. The defendant requests disclosure of any statement relevant to any possible defense or contention that he might assert.
(18) Jencks Act Material. The defendant requests production in advance of trial of all material, including dispatch tapes, which the government must produce pursuant to the Jencks Act, 18 U.S.C. § 3500. Advance production will avoid the possibility of delay at the request of defendant to investigate the Jencks material. A verbal acknowledgment that "rough" notes constitutes 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). In United States v. Boshell, 952 F.2d 1101 (9th Cir. 1991) the Ninth Circuit held that when an agent goes over interview notes with the subject of the interview the notes are then subject to the Jencks Act.
(19) Giglio Information. Pursuant to Giglio v. United States, 405 U.S. 150 (1972), the defendant requests all statements and/or promises, express 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.
(20) 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 contemplated prosecution, or any possible plea bargain, even if no bargain was made, or the advice not followed.
(21) 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 Ms. Fox. 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. 53, 61-62 (1957). The government must disclose any information derived from informants which exculpates or tends to exculpate the defendant.
(22) 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.
(23) Scientific and Other Information. The defendant requests the results of any scientific or other tests or examinations.See Rule 16(a)(1)(D). Specifically, Ms. Fox requests the DEA 7 from the arrest as to both drug types.
(A) In addition, he requests any information regarding the reliability of the purported narcotics detector dog, "Skipaway" that alerted on the two vehicles. This information is relevant as to whether officers had probable cause to arrest Ms. Fox. See United States v. Cedano-Arellano, 332 F.3d 568 (9th Cir. 2003) (dog sniff may serve as probable cause to search but only if the reliability of the dog is established).
(24) Residual Request. Ms. Fox intends by this discovery motion to invoke her rights to discovery to the fullest extent possible under the Federal Rules of Criminal Procedure and the Constitution and laws of the United States. Ms. Fox requests that the government provide her and her attorney with the above requested material sufficiently in advance of trial to avoid unnecessary delay prior to cross-examination.
III. THIS COURT MUST HOLD A VOLUNTARINESS HEARING TO DETERMINE THE ADMISSIBILITY OF ANY STATEMENTS MADE BY MS. FOX
Ms. Fox requests that this Court hold a voluntariness hearing to determine the admissibility of any alleged statements. He also moves to suppress any statements given in violation of Miranda. In Dickerson v. United States, 530 U.S. 428 (2000), the Supreme Court held that Miranda warnings are not merely prophylactic; rather, they are of constitutional magnitude. Id. at 444. ("we conclude that Miranda announced a constitutional rule"). If a waiver of Miranda is alleged, the government bears the burden of demonstrating the waiver by clear and convincing evidence. See Schell v. Witek, 218 F.3d 1017, 1023 (9th Cir. 2000) (en banc) ("[c]onstitutional rights may ordinarily be waived only if it can be established by clear and convincing evidence that the waiver is voluntary, knowing, and intelligent") (internal quotation marks and citations omitted). Moreover, this Court must "indulge every reasonable presumption against waiver of fundamental constitutional rights." Id. at 1024 (internal quotation marks and citations omitted). No Miranda waiver has been produced from the January 25, 2002 arrest. Accordingly, Ms. Fox requests a voluntariness hearing pursuant to 18 U.S.C. § 3501 to determine the admissibility of any alleged statement.
IV. THE DISTRICT COURT SHOULD SEVER COUNTS ONE AND TWO OF THE INDICTMENT FROM COUNTS THREE AND FOUR TO AVOID UNFAIR PREJUDICE TO Ms. Fox DURING TRIAL
In the Indictment, the government charges Ms. Fox with importation and possession of marijuana with intent to distribute and with importation and possession of methamphetamine with intent to distribute. Counts one and two relate to the marijuana; counts three and four, to methamphetamine.
The facts of the two cases against Ms. Fox do involve many of the same witnesses, but the problem is simple: the methamphetamine was in her shoe, the shoe she was wearing. The marijuana was secreted throughout the vehicle in special compartments.
Clearly, the government has indicted Ms. Fox on both cases for two reasons: (1) since the government does not have sufficient evidence to convict Ms. Fox on counts one and two, it hopes that the prejudicial effect of trying both cases together will be sufficient to convince the jury to convict Ms. Fox on all counts; and (2) the government hopes to force Ms. Fox to accept a deal and plead guilty.
However, since the trying counts one and two together with counts three and four will incredibly prejudicial to Ms. Fox, this Court should order the initial two counts severed from the Indictment.
The Federal Rules of Criminal Procedure allow two or more offenses to be joined together in the same indictment when doing so does not prejudice the defendant. Fed.R.Crim.P. 8(a) and 14. However, "[i]f it appears that a defendant . . . is prejudiced by a joinder of offenses . . . the court may order an election or separate trials of counts . . . or provide whatever other relief justice requires." Fed.R.Crim.P. 14. (emphasis added.)
The Ninth Circuit case of United States v. Terry, 911 F.2d 272, 276 (9th Cir. 1990), is illustrative. There, the government obtained a three-count Indictment: counts one and two alleged narcotics offenses, and count three alleged possession of a firearm. Id. at 276. The Ninth Circuit held that the government improperly joined counts one and two with count three because the indictment failed to allege any commonality between the former counts and the latter. Id. The Terry court pointed out that counts one and two described an event that occurred on a different day from that described in count three, and that the government made no effort in the indictment to suggest that all three offenses were part of the same transaction, or parts of a common scheme. Id. Furthermore, the evidence that the government would need to prove counts one and two did not overlap with the evidence needed to prove count three. Id.
The logic of Terry controls here. The Ninth Circuit has stated that "[i]n making an assessment of whether joinder is proper, [the] court should examine only the allegations in the indictment." United States v. Fiorillo, 186 F.3d 1136, 1145 (9th Cir. 1999) (emphasis added.). Here, the Indictment doesnot make any allegations that the two separate offenses were part of a common plan or scheme.
Moreover, the Ninth Circuit also has held that "[w]hen . . . joined offenses are not connected and are not provable by the same evidence, joinder is improper." Id. Here, the government will have to call different witnesses to prove the allegations of counts one and two than it will to prove the allegations of counts three and four. Thus, the government's main argument in favor of joinder, i.e. that it will result in judicial economy, does not hold water.
Here, the events alleged in counts one and two, while the occurred at the same time as counts three and four, involve totally different conduct. Moreover, as in Terry, the face of the indictment alleges no connection between the two events, nor does it allege that the events are part of the same transaction, or parts of a common scheme.
Finally, the Ninth Circuit has recognized that there exists "a high risk of undue prejudice whenever . . . joinder of counts allows evidence of other crimes to be introduced in a trial of charges with respect to which the evidence would otherwise be inadmissible." United States v. Lewis, 787 F.2d 1318, 1321,amended, 798 F.2d 1250 (9th Cir. 1986). In other words, the government may not use joinder to circumvent suppression of a prior bad act under Fed.R.Evid. 404(b) in the trial of another offense. United States v. Nguyen, 88 F.3d 812, 815 (9th Cir. 1996).
In this case, proof of counts one and two is not relevant to proof of counts three and four. Fed.R.Evid. 401; 402. Moreover, evidence of counts one and two likely would not be admissible in a trial of counts three and four (or vice versa) because the facts of the two events are not sufficiently similar and the limited probative value of the evidence is substantially outweighed by the tremendous prejudice. Fed.R.Evid. 404(b); 403.
The government's sole basis for its argument that the counts should be joined is one of judicial economy. However, since proving the allegations of counts one and two will require a completely separate group of witnesses than for counts three and four, the government's argument fails. Moreover, the more important consideration is the degree to which the joinder will prejudice Ms. Fox. Here, there is no question that Ms. Fox will be prejudiced if the government is allowed to try him all four counts together. Whatever limited benefit will be derived from the judicial economy of joinder will be substantially outweighed by the prejudice Ms. Fox will suffer if the counts are tried together.
The goal of the law is justice, not expediency. The government knows it does not have sufficient evidence to convict Ms. Fox on counts one and two if those counts are tried separately. Therefore, because of the tremendous prejudice Ms. Fox will suffer if these counts are tried jointly, this Court should sever counts one and two from the indictment.
V. MOTION FOR LEAVE TO FILE ADDITIONAL MOTIONS
Defense counsel has received limited discovery, and requests leave to file further motions based upon information gained in the discovery process. Thus it is requested that the defense be granted leave to file further motions in relation to any new discovery that is received in the future.